Big week for the federation

Earlier this week news came out that Ottawa was, at least to some extent, relinquishing its use of the spending power to shape national health policy.  The likely eventual consequence of such a decision is that provinces will have more flexibility in terms of the structure their public healthcare systems.  Of course whether such changes in the way provincial programs are funded actually will lead to many changes (or more divergence than we already see) is not yet known.

And now today one of the federal government's big centralizing moves, the creation of a national securities regulator, seems to have been quashed by the Supreme Court of Canada.  Or as they put it:

The  Securities Act as presently drafted  is not valid under the general branch of the federal power to regulate trade and commerce under s. 91(2) of the Constitution Act, 1867. 

 Or if you want a slightly more detail rich version of their position:

In sum, the proposed Act overreaches genuine national concerns.  While the economic importance and pervasive character of the securities market may, in principle, support federal intervention that is qualitatively different from what the provinces can do, they do not justify a wholesale takeover  of the regulation of the securities industry which is the ultimate consequence of the proposed federal legislation.  A cooperative approach that permits a scheme recognizing the essentially provincial nature of securities regulation  while allowing Parliament to deal with genuinely national concerns remains available and is supported by Canadian constitutional principles and by the practice adopted by the federal and provincial  governments in other fields of activities.

Anyway, though it may be too early to tell how the healthcare funding changes play out, it looks as though this has been a pretty good week for a decentralized federation.  Of course, if you aren't a particularly big fan of Canada being a decentralized federation and are all about national standards this may have been one of the worst weeks for you in many years.

No matter where you stand on the centralization/decentralization debate, at least you will all now have good grist for the conversation mill this holiday season.

One day - two classic assessments of Canadian federalism

Today has been a day for reading classic works relating to Canadian federalism.

This morning I started things off by finishing off the JCPC's 1937 ruling on the Labour Conventions case. As many will recall, one of the key findings of this ruling was that

“the Dominion cannot, merely by making promises to foreign countries, clothe itself with legislative authority inconsistent with the constitution which gave it birth.”

Of course, one of the classic lines from this ruling is the following:

“While the ship of state now sails on larger ventures and into foreign waters she sill retains the water-tight compartments which are an essential part of her original structure.”

It seems that over time our court rulings have lost the figurative language employed by the members of the JCPC in the early 20th Century. I can't imagine finding a similar passage in a current Supreme Court ruling ( though I guess it is possible that I haven't really read enough of them to know how everybody writes).

A little later in the day I moved on another, though earlier, classic text: The Durham Report. As I have read part of this report before I wasn't too surprised to come face to face with a strong assessment of the contemporary situation near the beginning of the report. Anyway, without further ado, here is one of Durham's famous, and still resonant, lines:

“I expected to find a contest between a government and a people: I found two nations warring in the bosom of a single state : I found a struggle, not of principles, but of races; and I perceived that it would be idle to attempt any amelioration of laws or institutions until we could first succeed in terminating the deadly animosity that now separates the inhabitants of Lower Canada into the hostile divisions of French and English.”