Mr. Brian Crowley
The Quebec election over, the eyes of the Canadian political class will now turn to the social-union negotiations between Ottawa and the provinces. Wait, don't change the channel just yet. True, "social union" sounds like the yawner of the century, but these negotiations will shape how governments in this country relate to one another and to Canadians. Here's how to tell if the negotiations will be molding those relations for the better or for the worse.
The social-union talks are about many things, but the two that really matter are the rules under which Ottawa may spend money in areas of provincial jurisdiction -- the so-called spending power -- and how to resolve disputes about whether or not provinces are living up to their obligations in jointly-financed programs like medicare or social welfare.
These two issues go to the heart of Canadian federalism. Take the spending power. While governments are granted exclusive legislative jurisdictions by the Constitution, there is no bar to Ottawa spending its money in areas of exclusive provincial jurisdiction. For example, Parliament cannot pass laws ordering Canadian universities to do certain types of research -- but Ottawa can and does offer money to researchers if they will carry out research it deems important.
This is no minor power. Medicare and social welfare, to take just two, are areas of exclusive provincial jurisdiction. A generation ago, Ottawa enticed the provinces into new programs in these areas by offering money if they respected federal requirements. Canadians have benefited, but relations between governments have soured.
Many provinces complained at the capricious way that Ottawa moved in and out of financing programs. Downloading has made this complaint particularly acute in recent years as the federal government cut social transfers, leaving the provinces to make unpopular cuts to hospitals and social services.
Frictions have been exacerbated because Ottawa has set itself up as judge and jury of when provinces honour their commitments under shared-cost programs. Monies have been withheld from provinces that experiment, for example, with private medical clinics, even though there is a reasonable case to be made that this is not ruled out by the Canada Health Act.
Successful social-union talks would remove the most objectionable features of arbitrary and unilateral federal intervention in provincial policy-making without emasculating Ottawa's vital ability to deal directly with citizens and institutions in every area of Canadian life.
To achieve this outcome, all governments in Canada would need to subscribe formally to a set of rules governing the federal spending power, rules that are already largely respected in practice. Ottawa should only launch a new shared-cost program in an area of exclusive provincial jurisdiction if it can get the consent of seven provinces representing 50 per cent of the population.
Dissenting provinces, if they have a program that achieves substantially similar objectives, would be entitled to reasonable compensation from Ottawa for the money they would have received had they participated in the federal program. Existing programs would be grandfathered.
To this must be added a dispute-settlement mechanism. Decisions about whether a participating province is respecting the program's requirements, or about whether a non-participating province's program justifies compensation should be referred to such a federal-provincial body, ensuring reasoned and independent decisions.
What must not happen is to give the provinces control over federal spending in areas of provincial jurisdiction where Ottawa is willing to pay the whole shot. If the government wishes to give direct grants to students or municipalities or hospitals or symphonies -- or individual Canadians -- it has, and must continue to have, this right. By all means, require reasonable notice and consultation, so that federal officials can correct program flaws that ignore existing provincial programs and conditions. But Ottawa's continued presence in the lives of Canadians and their institutions in all areas of life is politically and constitutionally legitimate. No other gains in the social-union talks could compensate for its loss.
(previously published as an editorial the The Globe and Mail, December 2nd, 1998)
Dr. Bill Gairdner
Your Globe editorial is very clear but I would wager the emphasis is wrong.
Although Canada's founders wanted a strong central government, it seems to me they divided powers for a reason, and that was to preserve the local vs. central distinction. They were wary of the centralizing impulse in all government, and realized that a strict division was essential if such a large nation was to be federal rather than unitary.
Even at that, one founder described the BNA Act as ""a legislative union in disguise."" But they also certainly knew, and you and I know, that a message always travels with the money. In the effort to construct Canada's modern welfare state, our central government did not ""entice"" the provinces, as you have suggested. It bloody well bribed them, and I think that would have been a truer word.
Ontario, for example, resisted for a long time, was very angry about it, and as I recall, even considered court action to preserve its powers, then gave up. This clear fiscal bribery was a direct circumvention of the spending powers section of the BNA Act, which was put there specifically to prevent central government from exercising overweening influence in the provinces in enumerated areas of provincial responsibility such as education and health care. It was also to prevent provinces from spending beyond their means. That is clear from the founding debates.
On the other hand the Founders gave the central government the residual powers, and in addition to the enumerated federal powers that was considered sufficient to preserve strong central government for the future and keep the provinces at bay. But I believe their intent was that the provinces should maintain their strict control over the few basic enumerated areas delegated to them and that they should not have to suffer perpetual encroachment or financial bribery from above in these areas. The founders were all aware of the problem of imperium in imperio - that without adherence to the specified division, power would naturally follow money and the central government would encroach ceaselessly. In the last paragraph of your editorial you seem to be approving of that financial power of encroachment, which many of us true federalists lament because it enabled the conversion of Canada from a federal system with a strict acknowledged division of powers to a welfare state with division preserved on paper, but powers abandoned to control by central government in fact.
This only proves politicians are exceedingly wily, that paper constitutions have a predictable half-life, and cannot really preserve local freedom against prevailing central power in the long term."
Dr. Janet Ajzenstat
Well, well. "Social union!" During the debate on the Charlottetown Accord Bob Rae used "social union" to refer to his cherished project - writing justiciable social and economic rights into the constitution. The social union was going to unify the country by redefining welfare benefits and programs as inalienable rights, thus preventing the Tories - or any government - from cutting back the welfare state. So now we're told that all the premiers believe "social union" is necessary - as the price of keeping Canada together. But just what do they mean by "social union"? Tell me they're not saying that to save Canada we must adopt socialism as the official Canadian ideology.
Dr. John Robson
Might I urge you to concentrate in this debate not upon goals but upon methods?
I wish to know whether the term "social union" designates a legal arrangement that the federal government could not violate, or simply a political agreement it could discard at will. By "a legal arrangement that the federal government could not violate," I do not refer simply to a law passed by Parliament. Parliament has passed various laws concerning social policy, and when it has been pleased to, it has altered them. If it passes a new law regarding social policy, however agreeable to the provinces, it can change it when it wishes, which leads me to place any such arrangement in the category of a political agreement. Indeed, why would or should such an arrangement survive the change from one federal government to another of a different partisan stripe and with different policies and beliefs? (And if it would, given the salience of social spending, what's left to argue about in federal politics?)
If, by contrast, "social union" designates something that, once in place, could not unilaterally be altered by the federal government, I wish someone could explain to me what it is and how it would operate. Is it a Constitutional amendment? If not, what is it? Would it be legally enforceable? Before you say yes, let me repeat that a federal law will be upheld by the courts unless supplanted by another, but certainly not once it has been. How can one Parliament bind another or, indeed, itself on this or any other matter, except to follow the law until it changes it?
But if the "social union" arrangements do not somehow bind the federal government well beyond the capacity of ordinary legislation to do so, then all that seems to me to be at issue is what the federal government should decide to do in social policy until it decides to do something else. That's just federal policy, however good or bad, not a "social union."
Or am I missing something?
Bill Gairdner decries Ottawa's spending in areas of provincial legislative jurisdiction as "a direct circumvention of the spending powers section of the BNA Act, which was put there specifically to prevent central government from exercising overweening influence in the provinces in enumerated areas of provincial responsibility."
I can't resist suggesting that "direct circumvention" is an oxymoron. But to get to the point, as Brian Crowley says, the BNA Act contained no such limitations on the federal spending power. Why not? Probably because no one dreamed that Ottawa would try to intervene by that means in the provincial jurisdiction. I suspect that, if that possibility had occurred to them, they would have taken steps to prevent it. But I'm not so sure that, under modern conditions, they would all have objected to such intervention.
For one thing, not all of them were averse to the "centralizing impulse. "Several of them are one record as preferring legislative to federal union. These, presumably, were in favour of all the centralization they could get. Secondly, Ottawa's social spending in provincial jurisdictions is arguably very much in the spirit of the National Policy.
Both Bill Gairdner and Brian Crowley assert some questionable, though widely held, beliefs about what "the founders" had in mind and did.
A. Bill Gairdner says that they "gave the central government the residual powers." It was very much on the agenda, and some of them said afterwards that it had been done (John Hamilton Gray, and possibly Charles Fisher, both of New Brunswick). But I'm not sure.
The locus of the legislative residue was seen as a problem because the U.S. constitution defined the jurisdiction of Congress only, leaving the residue of legislative power to the states. British Americans, contemplating federal union, disliked this for two reasons: (1) because of the limits on the central legislative power, and (2) because it seemed to make the federal government inferior to the states in constitutional status, thereby fostering extreme states-rights doctrines and, eventually, the secession of 1861.
But when John A. Macdonald addressed this problem in 1865, while explaining the Quebec agreement to the legislative assembly of United Canada, he didn't say: "We've solved it by giving the residue to the general legislature." He said: "We've solved it by giving the general legislature general powers." And when Charles Tupper explained the scheme to the Nova Scotia legislature, he said: "We've solved it by enumerating the powers of BOTH legislatures. "Neither man claimed that the scheme gave the residue to the general legislature.
Looking at the Quebec resolutions (specifically, nos. 29 and 43), we see whythey said what they said. The Quebec agreement subordinated the problem ofthe residue to the overall conception of a strict division into "general" and "local" powers. Unspecified matters of a general character were given to the general legislature, and unspecified matters of a local or private nature to the local legislatures.
B. Brian Crowley says: "I do not see how we can read into the BNA Act a clear intention to set up watertight compartments ..." He cites Ottawa's paraphernalia of quasi-imperial powers, and its power under section 93 to intervene in educational matters. Two things wrong here.
First, the watertight compartments concept refers to secs. 91 and 92, which list powers that are specified as exclusive. The powers in secs. 93-95 are placed there just because they are exceptional.
Second, it's a mistake to make too much of those quasi-imperial powers. The Quebec conference certainly meant to give the general government more power than they thought Washington possessed, and it was for that reason that they based Confederation on the imperial constitution. But the model they had in mind was that of the contemporary empire, in which their provinces enjoyed internal self-government. Imperial power was subject by the 1860s to strong, though somewhat indefinite, constitutional constraints, and the founders meant those constraints to apply to the federal power too. Brian Crowley's own paper, then called simply The Globe, published an editorial in the fall of 1864 (sorry I can't give the exact date - available on request) in which it cited the imperial constitution as an example of federalism in which the widening of local powers had produced greater cohesion and stability. It was comparing the Old Colonial System with the modern system of domestic self-government.
I hope people won't read these remarks as a red herring. If we are to import the founders into a discussion of current issues, we had better get their intentions and actions right.
Paul Romney persuasively argues that the Fathers of Confederation favoured a highly centralized form of federalism for Canada. The plain text of the British North America Act, 1867, bears him out, inasmuch as it grants Parliament general authority, "to make laws for the Peace, Order and Good Government of Canada", while limiting the provinces to little more than, "all Matters of a merely local or private Nature." John A. Macdonald and Charles Tupper preferred a legislative union and only reluctantly accepted federalism as a political compromise. In Canada's First Century, Donald Creighton concluded that the Fathers of Confederation generally agreed that British American union, "would have to be federal in character; but at the same time it must also be the most strongly centralized union that was possible under federal forms."
Does it follow, then, that the Fathers of Confederation would have approved the determination of the Pearson and Trudeau Liberals to force the provinces to create health and welfare programs in conformity with rigid, uniform, national guidelines defined by Parliament? That's doubtful. The British North America Act made no mention of health or welfare apart from providing that the exclusive powers of the provincial legislatures include, "The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions by and for the Province, other than Marine Hospitals." The Fathers of Confederation did not imagine that Parliament might wish to impose a national health or welfare program on the provinces and would have dismissed the very idea as folly.
In referring to how Ottawa used conditional grants a generation ago to induce the provinces to establish new medicare and social welfare programs in conformity with federal requirements, Brian Crowley writes: "Canadians have benefited, but relations between governments have soured." While the latter half of that statement is surely correct, the former, coming from Crowley, is surprising. Few Canadians have done more than he to expose the manifest failures of the welfare state throughout Canada.
By imposing federal guidelines on provincial welfare programs, the Canada Assistance Plan was supposed to eliminate poverty in Canada, but succeeded mainly in trapping thousands of employable Canadians in chronic, morale-destroying dependency on welfare handouts. By imposing public-sector health-care monopolies on the provinces, medicare was supposed to assure the universal availability of quality medical care for all Canadians. Instead, this national program has stifled innovation and efficiency in the provision of health-care services in Canada to the point that Cancer Care Ontario, the hugely overburdened agency responsible for co-ordinating cancer treatment in Ontario, has been reduced to adopting the humiliating expedient of referring desperate cancer patients in Toronto to private clinics in Buffalo.
There is no need for a new social union in Canada. There is no necessity for a new intergovernmental agreement empowering Parliament to go on setting priorities for the provinces in areas of provincial jurisdiction. There is no pressing requirement for any kind of new amendment to the Constitution of Canada. A sensible and reform-minded federal government would simply repeal medicare and other failed, conditional-grant programs so the provinces can get on with the urgent task of experimenting with new health-care and social-service initiatives of their own. Only in this way are Canadians ever likely to end up once again with a decidedly smaller, less costly, less intrusive and more efficient form of government -- the kind of limited government wisely preferred by our Fathers of Confederation.
Rory Leishman doubts that the Fathers of Confederation imagined that "Parliament might wish to impose a national health or welfare program on the provinces." He thinks that they would have dismissed the idea as folly. I'm sure his first proposition is correct, and so, probably, is his second -- as it applies to the 1860s. But that's not the point. The question is: What might the Fathers have thought of the idea a hundred years later, or in 1999?
Of course, it's a basic mistake to assume that the Fathers would all have thought alike on the issue. I can't see Macdonald or Tupper objecting to any imposition on the provinces that they thought Ottawa could get away with. They might have condemned current federal welfare policy on other grounds, but not as an intrusion on provincial autonomy.
But what about those founders who took provincial autonomy seriously? French Canadians, generally speaking, have tended to distrust federal initiatives in the social sphere, especially coercive ones, but would the men who committed Quebec to Confederation have objected to taking federal money, even under conditions, if the programme was to be administered by provincial authorities? Perhaps, but we can't be sure. And what about English Canadians? Oliver Mowat was a stern opponent of what he saw as federal efforts to expand Parliament's legislative jurisdiction at the provinces' expense, but would he have rejected an offer of federal money, even with strings attached, to be spent for the benefit of the people of Ontario? If it came from John A. Macdonald, then probably he would. But an offer from Sir John Thompson? I'm not so sure.
My point is that we bring the founders into the discussion because we believe that they had a vision of Canada which should continue to guide us today. But if we do so, we must try to imagine how they would have responded to current exigencies. Certainly they esteemed limited government, but they were also bent on creating a single "political nationality" (Cartier's famous phrase). Even Mowat approved of making the criminal law a federal responsibility on the ground that it would promote a feeling of nationality among Canadians. Would he have seen conditional grants as an intrusion on provincial autonomy, or as a reinforcement of Canadian nationality?
However much the Canadian welfare state, or aspects of it, may have been resented from time to time by political and social elites, it has always been popular. In that way it has served the founders' purposes by strengthening the Canadian political nationality. It has also been celebrated as a fulfilment of another of the founders' guiding ideals: that of building or maintaining a society that was in some sense better than that of the United States. That is an ideal that goes back beyond the founders to the Loyalists, and it was always a conservative ideal until the 1960s, when it was deftly appropriated by the Canadian left.
So if you are to bring the founders into the current debate, it won't do simply to cite the division of powers in the BNA Act or the founders' undoubted preference for limited government. You must also explain how your preferred policy serves to reinforce the Canadian political nationality and build a society that is different from, and better than, the United States. Or you have to propose some different ideal of Canadianism.
None of this is an argument for or against the idea of the welfare state, let alone its current Canadian incarnation. I myself tend to like the idea, because I and my family have benefitted from the welfare state, both in Britain and in Canada, and I can see no justification for denying to others the advantages that I enjoyed.
It strikes me that the debate thus far has been along two related threads, and probably should incorporate a third. The existing threads are the federal spending power and the means by which disputes between the federal government and provinces will be arbitrated. The missing element, to my mind, is to question why Canadians are debating a social union that we cannot afford. We should not be worrying about how to build a society "different from, and better than, the US," but instead how to build a society that will keep middle class Canadians in Canada. The way to do it is not through a 67 cent dollar, and a tax structure that would make most European countries blush.
Whatever the intent of the framers, it is hard to justify the federal spending power in a truly federal country. The framers did indeed envision a subordinate role for the provinces vis-a-vis the federal government. Of course, the federal government was also supposed to be subordinate to the imperial parliament. We have moved on, along both dimensions. The federal spending power is anathema to a truly federal society. This point has been well made in numerous places, not least by Bill Gairdner in this forum.
The second thread, raised by John Robson and Janet Ajzenstat is related and worrisome. The social union may not be officially entrenched in the constitution. It may even be "non-justiciable" to use the specious language of Charlottetown. But the objective is to make the compact immune from change. And since disputes will arise over the agreement, someone is going to have to arbitrate.
A social union will create what will amount to a social bill of rights. This is just another step down a dangerous path. Historically, constitutionally entrenched rights were protections against the evils of government - a kind of codification of natural rights. In Canada today, we have blurred the distinction between rights and interests. Interests are a claim on society, rights are a defence against the potential evils of the state. When we confuse interests with rights, we engage in what is in effect the constitutionalization of policies.
We are in danger, if I can take up Janetís point, of having an Established (secular) Ideology - socialism - in the same way that some countries have an Established Church. There is no general will in Canada. Reasonable people disagree on the ways in which public resources are to be redistributed. By cementing the status quo (or worse) in a social union, the effect is to limit the democratic freedom of Canadians to have some say in how their money is spent.
Finally, we must consider whether or not Canada can even afford a social union. Canadian leaders can pat themselves on the back and point to the budget surplus they have managed to achieve (in the midst of an all but unbroken run of global prosperity that dates to the early years of the Reagan Administration). However, the fact remains that Canada is an unattractive country for the middle class. Taxes are outrageous. It is difficult for the younger generation to justify staying at home.
Younger Canadians, college graduates with loans to pay back, find that earning 150 cent dollars in the US makes the task easier. Low taxes, and especially the mortgage interest deduction, means that young professionals can realistically expect the same sorts of living standards that their parents had. Almost half of the MA students that I supervised during my three years teaching in Ontario now live and work outside of Canada. Others are seriously contemplating the move south.
We can kid ourselves and pretend that the laws of economics do not apply to Canada. But the market speaks loud and clear. The dollar is in low demand. Investment decisions dictate that the US is a far safer choice than Canada. And people, faced with the trilogy of choices - exit, voice and loyalty - are choosing the first in increasing numbers. Canadaís priorities should be to get its economic house in order by limiting public spending, not institutionalizing it.
Paul Romney maintains that he and his family have benefitted from the welfare state and can see no justification for denying others the same advantages. On these points, I fully concur. I have had access to medical care and a university education courtesy of the welfare state, and would in no way want to see even the poorest and neediest of our fellow citizens deprived of such benefits. What, though, about the opportunity costs of the welfare state? Could not all Canadians be assured of these same, or even better, benefits by more efficient means?
Consider medicare. In the 1960s, I, like most other Canadians, enthusiastically welcomed the state-run medicare monopoly established by the Pearson Liberals. Here, we thought, is the best means of assuring that Canadians can have access to comprehensive medical services at an affordable cost. How wrong we were. After three decades of socialized medicine, only Canadians who are rich enough to afford hospital treatment in the United States can obtain an urgently need a hip replacement operation without enduring months of pain on a hospital waiting list.
Under a banner headline proclaiming, "Kids face cancer 'nightmare,'" The London Free Press reports on the front page of today's editon that, "An urgent call has gone out across Ontario to have cancer doctors willing to treat child-cancer patients in London until desperately needed specialists are found." According to Dr. Tim Frewen, pediatrician in chief at the Children's Hospital of Western Ontario, London will soon have only one pediatric oncologist, although at least four are needed to serve the hospital's patient population. Frewen pins the blame on an "unacceptable" delay in the release of provincial report on the future of children's health-care services. "I am furious," he says. "I think the delay is unacceptable and I think it's harming children's care in this province."
This, of course, is no isolated incident. What a pity that nine of the provincial premiers knuckled under to financial blackmail from Prime Minister Jean Chretien last week and agreed to maintain their hopelessly inefficient, state-run medicare monopolies. A sensible and pragmatic federal government would allow the provinces to experiment with alternative medicare models such as the system in Switzerland that combines private insurance with a public commitment to maintaining universal access to comprehensive and affordable medical care for all citizens.
In the 1960s, the federal Liberals assured Canadians that introduction of the Canada Assistance Plan and a generous unemployment insurance system would strengthen Canadian families and eliminate poverty. How sadly have these promises been belied. Who needs to be reminded about the moral and intellectual decay that has demeaned our publicly funded schools and universities over the past 30 years?
The verdict is undeniable. The hugely expensive welfare state has failed. It has not delivered on benefits as promised. It has crushed economic productivity. It has undermined living standards. It has plunged the entire country into a sad state of decline that will not be reversed until Canadians realize that the founders of Confederation were right to prize limited government, freedom under law, family solidarity, individual self-reliance and a profound sense of personal responsibility to help the needy through voluntary acts of philanthropy.
Rory Leishman asks: "Could not all Canadians be assured of [the] same, or even better, benefits by more efficient means?" Well, could they? I'm all in favour of Canadians being assured of the benefits in question by the most efficient means. Mr. Leishman mentions the Swiss system. If it will afford such an outcome, by all means let us have it. Just as long as Canada doesn't end up with the American system, which leaves so many millions of people without any secure access to comprehensive and affordable medical care.
That is something to bear in mind when considering Michael Lusztig's intervention. If keeping middle-class Canadians in Canada means cutting welfare spending, how is that to be done without producing the same sort of inequities as prevail in the United States? I can well appreciate the appeal of 150-cent dollars -- or even the 130-cent dollars of 18 months ago -- to young Canadians with student loans to repay and skills that are marketable in the US. But low taxes have a downside. Older Canadians might appreciate the personal security and civilized social environment that goes with ample public investment in social infrastructure.
Talking of which, I wonder how far the current plight of medicare in Ontario, which Rory Leishman dwells on, is due to Ottawa's fiscal policy and how far to three-and-a-half years of tender loving care from the Harris government.
How did a forum about the social union become a debate about the intent of the Fathers of Confederation to keep (or not) Ottawa and the provinces from stepping on each other's legislative toes?
The social union, largely negotiated away from the harsh light of public scrutiny, is nothing more than a political agreement, as John Robson feared. Witness the way it was sprung on Canadians full-grown. Having seen the last two efforts to alter profoundly the Canadian federation -- Meech and Charlottetown -- spin into the ground once the public had examined the details (and take several political careers with them), the leaders of Canada's 13 most senior governments chose to disguise their current effort as a simple federal-provincial cost-sharing agreement (Nothing of interest here citizens, please move along), and to reveal it only after the ink was dry (Too late folks; fait accompli).
I cannot help believe this says something about the Liberals' lack of reverence for our written constitution. In an odd way, Mulroney may have come a cropper because he respected it. Meech and Charlottetown were his initiatives. And while they were fundamentally flawed (Charlottetown, with its social charter, would have been fatal), they were at least honest efforts. Mulroney sought to change the constitutional arrangements by which Canada is governed, so he naturally decided the only route to do that was by amending the constitution. Silly boy. The Liberals, who invented and perfected the use of the federal spending power, have long had a "that's nice" attitude about the constitution. You want to alter the constitutional balance of power in Canada? Fine, sign the premiers up to a political document and presto-change-o, a new balance with none of the divisive national debate or risk of losing a referendum.
The practical effect of the social union is to increase Ottawa's ability to intrude on provincial jurisdiction via this backdoor, for which, in return, the premiers got bags of beans.
However, since this forum has so far focused on the original intent of the British North America Act (now the Constitution Act, 1867), there's no point in me missing the fight. More on the social union later.
I see little in the Canadian constitution that resembles an enduring vision of government, at least not directly, that is evident in the United States Constitution. Take, for example, the two documents' principal ideals. We got "peace, order and good government," the Americans "life, liberty and the pursuit of happiness." As a rallying cry POGG just doesn't have the same zing. "Over the top lads for competent resolution of inter-jurisdictional disputes!"
The Canadian constitution was an attempt to perpetuate the past; the American an attempt to repudiate it, and to ensure it never recurred. Perpetuating the past is not an intrinsically bad thing. Indeed, it is the root of conservatism. However, the constitution adopted by the Fathers turned out to be too flexible to preserve the past they revered.
Our original constitution seems to have been that most Canadian of arrangements, a compromise. It was designed as much to get all the parties to sign, as to lay out a vision of government for centuries to come. In that respect, the BNA act is not unlike the social union, or for that matter the Charlottetown accord, the Meech Lake accord, the 1981 constitutional compromise, the Victoria Charter, and so on. Short-term political arrangements all.
Also, in that respect, it ultimately matters little what the Fathers of Confederation intended, since they were not aiming for an enduring model, unless one's definition of enduring is perpetual compromise through ever-shifting constitutional arrangements.
I realize this is a bit of an oversimplification, and as such unfair to the estimable thinkers among the Fathers who did have sound ideas of the kind of nation they were attempting to create. An esteemed participant in this debate, Prof. Janet Ajzenstat, wrote an excellent monograph for After Liberalism, Bill Gairdner's latest book (which surely must be on sale somewhere on this web site). Prof. Ajzenstat's contention in "The Conservatism of the Canadian Founders," is that Sir John A. and other prominent Fathers, far from being the Tories George Grant and other have mistakenly taken them for, were committed liberal democrats. They believed that over time the give and take of a strong cabinet-led government, balanced by a vigorous yet respectful opposition would produce laws and programs acceptable to the widest cross-section of the citizenry. Moreover, it would avoid the excesses and instability of radical ideas right and left.
Their focus seemed to be on process rather than ideology, or on process as ideology. Implicit in their focus is a firm belief in the goodness of government.
Throughout the American constitution runs a strong fibre of mistrust of big and central government. While many of the Fathers may have been strong believers in limited government, they did not share this inherent suspicion.
Who could blame them, or their American counterparts, for the respective philosophies they adopted? The Fathers saw themselves as the heirs of the most advanced system of government in human history, the British constitutional monarchy, and could not envision anyone who followed them altering this optimal arrangement. Pity. As a consequence, they left behind a document based as much on convention as construct, which has permitted anyone willing to alter the Fathers' genteel conventions to dramatically amend their constitution without resorting to legislation.
Meanwhile, the Founders, forged as they were in the fire of rebellion, wanted to be sure they would never again be the subjects of a tyrant, foreign or domestic. This did not make their document unalterable by non-democratic means, as the U.S. Supreme Court has frequently shown. But by enunciating their vision more clearly, they left their original intent more obvious for any one willing to look.
Sections 91 and 92 of the BNA Act, which assign to the federal and provincial governments their respective fields of jurisdiction, divvy up power, yet do not seek to limit it. They delineate which government may exercise what powers, but are largely silent about how much power may be assumed by the government to which jurisdiction is given.
Ajzenstat's pithy assessment of the philosophy of the Fathers would seem to indicate that they would never have foreseen the massive state of today, and would likely not have approved of its formation. But they lacked the scepticism of the American founders. The Fathers saw no need to write limits on government into Canada's supreme law. They feared no centralizing impulse. They envisioned no government much larger than their own. And, they trusted the good sense of the those who heeded the noble call to public life to remain within bounds.
It is with this in mind, that I think Paul Romney is correct, above, to assert that whatever the Fathers thought, that was then, this is now. The Fathers' original intent is significant. It's just that they willed to us no way to enforce.
It is lamentable that Romney is correct. A closer adherence to the outline for government in the BNA Act, as well as to the thinking of the Fathers, might have made Canada more governable today. The compromise they worked out, deliberately or not, provided for strong national and subnational governments, each within its own sphere of competence. This could have allowed for the development of a central government strong enough in core functions to preserve a Canadian identity which engendered equal pride across the country, while also permitting provinces and regions to flower differently, and thus placate the ways in which their residents were distinct from one another.
However, it is less important that the Fathers might been appalled by a federal health care scheme or the flagrant use of the federal spending power than that they designed a constitutional system in which checks and balances were thought unnecessary, and thereby erected insufficient "firewalls" to keep Ottawa from intruding on provincial turf, and to keep both Ottawa and the provinces from intruding on individuals' daily lives.
I myself have written on numerous occasions that the federal spending power is unconstitutional, and therefore, its children, such as the Canada Health Act, are bastards, too. I remain convinced that a strict interpretation of the BNA Act (and the Constitution Act, 1982) support this position. Yet there is not much taste for such positivism among the Canadian establishment these days. And since the establishment controls the prevalent mechanism of constitutional interpretation -- the courts, the senior bureaucracy, the cabinets in Ottawa and the provinces, the academy and the media (as much as the media is capable of constitutional interpretation) -- and since, in their short-sightedness, the Fathers entrenched few safeguards against their original intent being turned on its head, those who favour the federal spending power and its intrusions into provincial domains cannot be said to be acting illegitimately.
Those of us who would throw Ottawa off provincial property at every opportunity would also do well to remember that much of what we see as constitutional limits on federal authority came not from the Fathers, but from rulings by the Judicial Committee of the Privy Council handed down from the time of Confederation until the Second World War. The JCPC very much favoured the notion that so-called residual powers -- powers either not enumerated in the BNA Act or not enumerated clearly enough -- rested with the provinces. Since the war, and the advent of the Supreme Court of Canada as the court of last resort for Canadian constitutional cases, the scales have tipped toward Ottawa in jurisdictional disputes.
In a B.C. reference to the Supreme Court in 1991 (Re: Canada Assistance Plan), for instance, in response to an argument by one of the intervenors, the Attorney General of Manitoba, that the federal spending power was unconstitutional, the late Mr. Justice John Sopinka cautioned the provinces against going down that road. Unless you want an answer you won't like -- namely that the spending power is constitutional -- don't ask us that question, Sopinka hinted.
That the Supreme Court favours the federal government far more than the JCPC did is hardly surprising. Ottawa appoints the justices of the SCC. And most of the candidates deemed acceptable are (gasp!) strong centralists, just like the PMs and ministers of justice who appoint them.
Having said all that, however, I still find the social union and the federal spending power abhorrent. If they are not unconstitutional intrusions on provincial jurisdiction, they should be. Three of the speakers at last month's United Alternative conference, including the two most prominent francophone speakers, Jean Allaire and Rodrigue Biron, both paid homage to the vision of the Fathers. Return to that vision, they urged, with its respect for the exclusive jurisdiction of the provinces over local matters, and Canada may remain united.
That makes perfect sense. No one likes to be told what to do in his own backyard, even by a friend. Let the busybody be someone mistrusted in the first place, and real sparks fly, even if the Nosy Nate is correct in his suggestion.
Put another way, many of us will willingly do to ourselves that which we object to others compelling us to do. I adhere to the tenets of my faith willingly, because my faith permits me the free will to so. However, I would deeply resent being directed by legislation to do many of the same things; giving to charity versus being taxed to pay for welfare, for instance.
The same resentments arise over federal intrusions into provincial domain. Albertans, to use the example with which I am most familiar, deeply resent being forced to arrange their health and welfare systems, and to a esser extent their education system, according to Ottawa's design, even though they might happily choose to set up comparable systems of their own. (And, even if they didn't, what business is it of the residents of other provinces? So long as those residents are able in their own provinces to arrange their own affairs in their own way, why should they be permitted to decree how other provinces do so?)
How acutely this is felt may not be instantly appreciated by Ontarians, who see little distinction between the national government and themselves. More than one-third of MPs are from Ontario. When Ottawa does something to the province, it seems like Ontarians doing something to themselves. Ontarians have much more control over cabinet and legislation than Albertans. Thus, even when Ontarians disagree with federal initiatives, they do not suffer the additional resentment of seeing the unpopular measure as something imposed on them by outsiders.
That is why the spending power is an affront to westerners. It is bad enough that federal impositions in federal jurisdictions are passed without the consent of Alberta's representatives to Ottawa. But that's democracy, and rep-by-pop. What is extremely galling is that Ottawa then thinks it has the right to intrude on provincial jurisdictions through a clever device not in the constitution.
Peter Hogg, the pre-eminent constitutional scholar, likens the spending power to a contract. Ottawa gives the provinces money in return for the provinces establishing programs that meet with Ottawa's approval in areas in which the feds would otherwise have no say. But what use is a constitution if can be overridden by a mere contract? That was Mulroney's error. He took literally all the talk about the constitution being the supreme law, when all he had to do was negotiate a new contract to circumvent it.
If Albertans dislike what the feds do to them in federal jurisdictions, imagine how much we detest the feds working their arrogant, disdainful magic on us in jurisdictions we were supposed to be able to control ourselves. They give us little heed in the arrangement of their household's affairs, yet come down the block routinely and use coercion and force to make us arrange our home to suit them. Worse yet, they make use pay for the renovations.
The social union is egregious because it vastly expands Ottawa's ability to draw up plans for the homes of the provinces, and even permits them to hire independent contractors to do the work if the province's get uppity.
While everyone has recognized the existence of the spending power, if not its legitimacy, for decades, the social union is the first successful federal-provincial document to declare it so formally. Other pacts and accords have tried, but have failed to make it into law.
So what did the premiers receive in return for this giant concession to Ottawa? Money.
Sure, they will claim they also got a promise of consultation before the feds use the spending power in areas of provincial jurisdiction, plus a guarantee to achieve the prior agreement of the provinces. Good intentions. However, the premiers agree to make it unusually easy for Ottawa to get that agreement. Instead of using the 7/50 formula required to change the constitution, the premiers agreed to let Ottawa proceed once it has approval from the majority of the provinces. In the worst case, this is a 6/15 formula. Ottawa need now get approval from just six provinces with 15 per cent of the national population before proceeding with massive federal spending in 100 per cent of provincial jurisdictions.
Under the 7/50 formula it is difficult, though not impossible, for Ottawa to proceed over the objections of the "have" provinces, the paying provinces. Under the social union, all it needs is to do is promise scads of cash to the six smallest provinces, which also happen to be the six poorest, and it's in the door, power tools in tow.
Moreover, the premiers agreed to a loophole in this thin legal shield big enough to drive an 18-wheeler through. They codified in the social union the right of Ottawa to intrude on provincial jurisdiction by making payments directly to individuals, institutions and organizations. And, whereas, for intrusions via federal-provincial, cost-sharing programs (such as the Canada Health and Social Transfer), Ottawa must consult widely and receive majority provincial approval, for intrusions via direct payments, it promises only to give three-months notice.
Gee, if the tiny speed bumps the social union places in its way on shared-cost programs ever come to irritate Ottawa, what do you think the chances are it will quickly shift all its intrusions to the direct-payment expressway?
You say the premiers agreed to this, though, so why blame Ottawa alone? The truth is, I don't. Either because they were too dumb or too greedy (and probably because they were a little of both), the premiers gave away the farm to some smooth talking slickers from Ottawa.
But that doesn't lessen the sting of spending-power intrusions. Nor does it make them proper. Nor does it change the fact that the centralizing impulse exemplified in the social union is exactly the wrong strategy for national unity.
A comparison with U. S. experience might be useful as Canada debates whether Ottawa should spend money in areas of provincial jurisdiction. Under the Tenth Amendment to the U. S. Constitution, all powers not delegated to the United States are reserved to the states. Among these reserved powers are education, welfare, health care, transportation, and civil and criminal law. Beginning in the 1920s, the federal government offered "grants-in-aid" to the states in areas of their jurisdiction. The Maternity Act of 1921, for example, offered millions of dollars to the states if they would establish programs to provide health care and food to poor pregnant women and infants. The U. S. Supreme Court endorsed the federal act on the grounds that the states were free to refuse the funds. The federal government, however, has a monopoly over the printing of money. The federal income tax, moreover, generates billions of dollars in revenue annually. The borrowing and revenue-raising power of Washington far exceeds that of the states, either individually or collectively. In reality, these "voluntary" programs cannot be refused by the states.
The number of grants-in-aid in areas of state jurisdiction multiplied during the presidency of Franklin Roosevelt (1933-1945). The real explosion, however, occurred during the administration of Lyndon Johnson (1963-69). As a result, state departments of transportation have, for all practical purposes, become branch offices of the U. S. Department of Transportation. 90% of the funds for highway construction are federal. The largest health and welfare programs (Medicaid, Medicare, Aid to Families with Dependent Children, Unemployment Compensation, Housing Assistance, Food Stamps) are funded primarily with federal dollars. Although the majority of funds spent on elementary and secondary education are state funds, federal spending is increasingly rapidly in this area. President Clinton, for example, has asked Congress to appropriate money to reduce class size throughout the country. These kinds of programs carry "strings", standards which states must meet in order to qualify for the funds. The states are quickly losing control over their system of public education, as they have already lost control over their programs for the poor, sick, unemployed, and elderly.
When Congress attempted to force the states to lower their maximum speed limit to 55 miles per hour and when Congress attempted to mandate a minimum drinking age of 21, several states balked and pointed out that these areas of legislation fall within their reserved powers. Congress simply threatened to withhold 10% of federal highway funds allocated to the states. In no time, each of the 50 states bowed to Washington's dictate.
The lesson to be drawn from the U. S. experience is that whoever pays the piper calls the tune. No viable federal system can survive if the central government uses its monopoly over the printing of money and its superior revenue-raising power to "bribe" the states or provinces into bending to its will.
The social union is a major victory for Canadians. Finally, the Liberal government has used its smarts to advance a liberal approach to politics.
After years of provincial attempts to grab more and more power, who would have thought that a fistful of money was all it would take to preserve the federal role in social programs? The social union framework, recently signed by all the provinces except Quebec, is a major victory for those of us who have been fighting against the decentralization of social programs since the Meech Lake Accord.
It is not surprising that Quebec refused to sign. The problem, simply put, is that Quebec wants the power and money to develop its own social programs if it is to stay in Confederation. Every Quebec government in recent history has rejected the federal spending power, which has been used in the past to generalize programs like medicare across the country. When Brian Mulroney was willing to trade off the federal spending power for a deal with Quebec, the other provinces helped themselves to a piece of the pie in both the Meech Lake Accord and the Charlottetown Accord. Even though the public was opposed to both deals - in part because it supported a strong central government - Mulroney and Jean Chretien have been slowly devolving power to the provinces through dramatic cuts in transfer payments and administrative changes.
That's why the social union is such a surprise. It permits the federal government to use its spending power in joint programs if six provinces agree. This is nothing short of amazing, given that there is no requirement for a majority of the population to agree, as there was in Meech and Charlottetown. That means that Ottawa, along with the have-not provinces, could launch a new social program without the agreement of Ontario, Quebec, Alberta or British Columbia.
Even more astonishing is the fact that the social union effectively includes a different arrangement for Quebec. It's called asymmetrical federalism. In 1992, before the premiers retreated behind closed doors to negotiate the Charlottetown Accord, I participated in a cross-Canada series of televised town-hall meetings on the Constitution. These were the closest we have ever come in this country to constituent assemblies. Citizens met in open forums with social advocates, business leaders, politicians and academics to discuss the key proposals from the Mul-roney government on constitutional change.
As president of the National Action Committee on the Status of Women, I put forward the idea that we in English Canada could continue to have a strong national government to defend standards for social programs and let Quebec have the power to opt out of those same social programs with compensation. At first, people were hostile to the idea, but as we discussed it, they were persuaded. The Halifax meeting on the accord voted in favour of asymmetrical federalism and it was again supported at the meeting in Vancouver. Both Joe Clark and Bob Rae, then premier of Ontario, told me at the time that they agreed with the idea but that it could never be sold.
Seven years later, the premiers appear to have agreed to asymmetry without saying so. The mobility rights guaranteed to Canadians in the agreement do not apply in Quebec because Quebec did not sign it. (Mobility rights give Canadians the right to move from one province to another, except Quebec, and still receive social services.) More important, instead of the opt-out clause that would have made a new social program impossible, the social union framework states: "A provincial-territorial government which, because of its existing programming, does not require the total transfer to fulfill the agreed objectives would be able to reinvest any funds not required for those objectives in the same or a related priority area." This seems to be directed at Quebec's $5-a-day daycare program. Premier Lucien Bouchard has rejected the social union deal, but it may not be so far from what Quebec wants.
With the social union, the Liberal government has managed to buy off the right-wing governments of Ralph Klein and Mike Harris with health care dollars; bring the NDP governments back to their values; and silence the decentralist Reform Party, which wants the co-operation of Klein and Harris to move forward on its United Alternative strategy. For once, the Liberal government has used its political smarts to advance a liberal approach to politics in this country. With luck, this is a sign of things to come.
[Judy Rebick's contribution originally published in Elm Street Magazine, April 1999 edition, page 112. Republished with permission.]