Supreme Court of Canada

Federalism in Canada: Basic Framework and Operation

Jay Makarenko — Fri, 11 Jan 2008 14:08:30 -0700

Central to the organization of government in Canada is the principle of federalism. Under this principle, Canada is divided into two constitutionally autonomous levels of government: the federal or central government, and the provincial governments. The nation’s basic division of government plays an important role in public finances and public policy. The basic framework and operation of Canadian federalism are discussed in this article with specific emphasis on the concept of federalism, the different levels of government, the formal division of powers, the operation of fiscal federalism, and the key means of interaction between different governments.

Introduction to the Concept of Federalism

What is federalism? How does it compare to other forms of government?

Levels of Government in Canadian Federalism

Federal, provincial, territorial, and local governments

Canadian Federalism and the Divisions of Powers

Federal and provincial powers under the Canadian Constitution

Spending Powers and Canadian Fiscal Federalism

Federal and provincial/territorial financial relations

Canadian Federalism and Inter-Governmental Interaction

Departmental and ministerial relations between governments

Sources and Links to More Information

List of article sources and links for more on this topic

Introduction to the Concept of Federalism

What is federalism? How does it compare to other forms of government?

Division of Powers between Levels of Government

In basic terms, federalism refers to “a division of jurisdiction and authority between at least two levels of government” (Jackson & Jackson: p. 189). This division usually occurs between two or more constitutionally recognized levels of government; that is, levels of government separated under the nation’s constitution and with their own autonomous (or semi-autonomous) constitutional powers.

In most instances of federalism there is a single national government, often referred to as the “federal government,” which exercises its particular powers across the whole country. In addition, there are multiple regional governments, often referred to as “provincial” or “state” governments, which exercise their powers within their particular regional territory.

Moreover, each level of government usually has its own particular jurisdiction; that is, areas of public policy in which it, and only it, may exercise authority (or have the final authority). For example, typically the national government will have final authority over “national” issues, such as national defence, foreign policy, and treaty-making, just to name a few. By contrast, the regional governments will have power over more “regional” issues, though this can vary widely from one federation to another.

How jurisdiction and power is divided among each level of government can lead to assessments of a centralized or decentralized federation. In its highly centralized form, jurisdiction and authority lies mainly in the hands of the national level of government, while the multiple regional governments have very little power. Power is thus “centralized” in the hands of a single national government. In its highly decentralized form, jurisdiction and authority lies mainly with the various regional governments, while the national government has very little power. Here, power is “decentralized” in the sense that it is spread out amongst multiple regional governments. Federations in the world differ significantly in terms of where they fall on this spectrum between the centralization and decentralization of power.

There are numerous examples of federalist governments in the world today, including (but not limited to) Canada, the United States, Australia, Argentina, Brazil, Mexico, Nigeria, the Federated States of Micronesia, and the United Arab Emirates.

Federal versus Unitary Governments

Federalism, as a form of government, can be contrasted to unitary government. Unitary governments are those which have only one level of government, or only one level of government which has its own autonomous constitutional powers. In some cases of unitary government, there is only one national government that makes all political decisions. In other cases, state, provincial, or local governments may exist, although these regional levels have no constitutional autonomy and are dominated by the national government.

Most countries in the world are organized as some form of unitary government. Examples include (but are not limited to) the United Kingdom, France, Italy, Japan, the People’s Republic of China, Singapore, and South Korea.

Potential Benefits and Detriments of Federalism

Why, precisely, do federal states exist? Why aren’t all nations organized as unitary governments? There are many different reasons why federalism is preferable, and usually varies from one federal country to another.

One of the most often cited benefits of federalism is that it acts as an additional check on government power. In unitary states, governmental power is usually highly centralized within a single level of government. In federal states, by contrast, power can be dispersed amongst multiple levels of government. Accordingly, it is much more difficult for one set of political elites to control the power and direction of government. The different levels, instead, can act as a check on one another in the exercise of political authority.

Another oft cited benefit of federalism is that it can protect local or regional interests to some extent. Many modern nation-states are very large and have highly diverse populations. In some cases, regional groups in one part of the nation can have very different political needs and views than those in other regions. It may be that a region is dominated by a particular religious, ethnic, or linguistic group, which is a minority within the larger nation (such as the French Quebecois in Quebec). Federalism can prevent geographically-based minorities from being at the total mercy of the larger national majority by giving them their own level of government, with their own autonomous political jurisdictions and powers.

Another possible benefit of federal, as opposed to unitary, states is their ability to manage and administer large geographical areas. This was particularly true in the past, when the central government faced huge communication and transportation issues in administering large nations. The presence of regional governments administering local issues made such nations much easier to manage. Today, however, this is much less of an issue, as technology allows a central government to effectively administer very large and diverse geographical areas.

Federalism, as a form of government, can also have several potential weaknesses. While federalism can act as a check on government power, it can also lead to paralysis and an inability for government to deal with difficult national issues. During the Great Depression in Canada, for example, the federal government was unable to institute national policies to address mass unemployment and poverty, as it did not have the constitutional authority to do so (these powers, instead, were dispersed amongst the provinces).

Moreover, as federalism often protects regional interests, it can reinforce and entrench divisions within a country, and contribute to ongoing political instability between groups. One might wondered whether Quebec nationalism would be so strong today if Canada had been a unitary, as opposed to federalist, state. On the other hand, one could also argue that Canadian federalism has been a major factor in keeping the country together, as it is has permitted the protection of Quebec’s interests within Canada.

It is important to note, however, that whether a particular federal state exhibits these possible benefits and detriments depends in large part on how it divides power between levels of government. A highly centralized federal state, for example, may not act as a check government power or protect regional interests, due to the fact that most powers (or at least, the most important ones) are given to the central government.

Levels of Government in Canadian Federalism

Federal, provincial, territorial, and local governments

Canadian federalism has two constitutionally recognized levels of government: federal and provincial. The country also has two further forms of government, territorial and local, which are not constitutionally recognized. The following section introduces each level of government and its status within Canada’s federal framework.

Federal Level of Government

The first constitutionally recognized level of government is the federal or national government. This level is responsible for enacting and implementing laws for the whole country. In doing so, the federal government is provided with its own constitutional powers and jurisdictions, which it may exercise independently from the provincial level of government.

See the Canadian Federalism and Division of Powers section of this article for more information on federal constitutional powers and jurisdictions.

Canada’s national Parliament located in Ottawa, the nation’s capital, is the premier institution of the federal government. It consists of the Monarchy (and his/her federal representative, the Governor General) and two legislative chambers, the House of Commons and the Senate.

For more information on Canada’s system of parliamentary government:

Mapleleafweb: Parliamentary Government in Canada: Basic Organization and Practices

The head of state for the federal government is the Monarchy; however, his/her role is primarily ceremonial under Canada’s contemporary system of government. The bulk of federal power lies with the federal head of government and his/her executive council, which are officially referred to as the Prime Minister and Cabinet, as well as the elected legislative chamber, the House of Commons. The second federal legislature, the Senate, is an appointed body and exercises considerably less power relative to the elected House of Commons.

Another key federal institution is the federal judiciary. This includes the Supreme Court of Canada, which is appointed by the federal government and is the highest court in the country. Other important federal-level courts include the Federal Court of Appeal, the Federal Court, the Tax Court of Canada, the Court Martial Appeal Court, and the Courts Martial (the latter two are military courts). Another important federal institution is the national public service. This includes all of the federal government departments and agencies, which are responsible for helping the federal government form and implement policy within its jurisdictions.

Provincial Level of Government

Provincial governments form the second constitutionally recognized level of government in Canada. There are 10 provinces in Canada, each with their own provincial government: British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Newfoundland and Labrador, Nova Scotia, New Brunswick, and Prince Edward Island. These provincial governments enact and implement laws within their particular provincial territory, and are provided with their own constitutionally recognized powers, which they may exercise independently from the federal government, and from each other.

See the Canadian Federalism and Division of Powers section of this article for more information on provincial constitutional powers and jurisdictions.

Each provincial government has its own legislative assembly, which is located in its respective provincial capital. The Monarchy (or the Lieutenant-Governor, his/her provincial representative) is the provincial head of state. However, as is the case at the federal level, this office is primarily ceremonial. Real provincial power lies, instead, in the hands of the provincial heads of government and their executive councils (Premiers and their Cabinets), and the provincial elected legislature.

There is also a provincial-level court system, which includes provincial courts of appeal and provincial trial courts. These courts are inferior to the federal Supreme Court of Canada (meaning the Supreme Court may overrule them), and typically hear criminal, constitutional, civil, family, traffic, and bylaw cases. In addition, each province has its own provincial public service, which includes government departments and agencies that are responsible for assisting their respective governments in forming and implementing policy within provincial jurisdictions.

Territorial Governments

Canada also has three territories, each with their own governments: the Yukon, the Northwest Territories, and Nunavut. Like their provincial counterparts, these are regional governments, which are responsible for enacting and implementing laws within their particular territorial area. Unlike the provinces, however, territories are not constitutionally recognized entities, with their own autonomous powers and jurisdictions. Instead, the territories fall under the legislative jurisdiction of the federal government, whom is responsible for creating territories and setting out their basic framework.

In practice, territories are usually accorded many of the privileges associated with being a province. Each has its own legislative assembly, which has the power to enact laws within its own territory. The head of state is a territorial Commissioner, which performs many of the same roles as a provincial Lieutenant-Governor. As is the case with provincial and federal governments, however, real power lies in the hands of the territorial head of government and his/her executive council (the Premier and Cabinet), as well as the elected legislative assembly. Each territory has a public service and court system (although, in some cases, a territory will share a court with a neighbouring province).

As territories are not constitutionally recognized as autonomous governments, their status within Canadian federalism is technically inferior. As such, territories do not have a legal say in constitutional amendments regarding the separation of powers between the federal and provincial levels of government. Nevertheless, it is common practice to include territorial governments in inter-governmental meetings and decision-making processes.

Local Governments

The final type of government in Canada is local government, which includes municipal, county/parish, and semi-regional councils, boards, and agencies. Like the territories, local governments are not constitutionally recognized entities with their own autonomous powers and jurisdictions. Instead, local governments fall under the jurisdiction of the provinces and territories, which are responsible for creating local governments and setting out their basic frameworks.

In practice, local governments are usually highly dominated by their respective provincial or territorial government. Provincial/territorial governments often restrict the sorts of laws a local government may pass, how much money the may spend, and how they may implement long-term development strategies. Consequently, local governments are usually non-factors in inter-governmental relations and decision-making. However, the issue of cities, particularly Canada’s large metropolitan centres, can often be a contentious one between the federal and provincial/territorial levels of government.

For more information on local government in Canada:

Local Government in Canada: Organization and Basic Institutions

Canadian Federalism and the Divisions of Powers

Federal and provincial powers under the Canadian Constitution

Confederation and the Division of Powers

The fundamentals of Canadian federalism were first provided at the time of Confederation via the 1867 British North America Act (which, in 1982, was renamed the Constitution Act, 1867). This Act set out the jurisdictional powers of both the federal and provincial levels of government.

For the full text of the Constitution Act, 1867:

Government of Canada: Constitution Acts 1867 to 1982

In regard to the provinces, Section 92 of the Act granted each province 16 enumerated powers. This includes legislative control over such things as hospitals, asylums, charities, municipal institutions, prisons, and property and civil rights, just to name a few. Section 92 granted the provinces sole jurisdiction in these areas, meaning that only they, and not the federal government, could constitutionally legislate in them.

Section 93 of the Act grants the provinces exclusive jurisdiction over education, allowing provincial governments to structure and manage their own education systems.

In addition to these areas of sole jurisdiction, Section 95 of the Act provided for two concurrent powers in agriculture and immigration. The term “concurrent powers” here means that both levels of governments are constitutionally permitted to legislate in these areas. In other words, it is a shared area of jurisdiction in which the federal government and provinces may both enact laws.

In the context of financial powers, the provinces were given only limited powers of taxation. Section 92 of the Act confined the provinces to only “direct taxation” in order to raise revenue for provincial purposes. The question of what counts as “direct taxation” for the purposes of the Act has been a major issue in Canadian federalism, and has been reviewed numerous times by the Canadian judiciary. Currently, most provinces charge an income and corporate tax, a sales tax on the exchange of goods and services, as well as raise revenues through licensing and other fees.

Section 91 of the Act deals with federal powers, and has two parts. First, the Peace Order, and Good Government clause (commonly referred to as the “POGG clause”) says that all powers not given to the province in Section 92 are left with the federal government. Only the federal government, and not the provinces, could constitutionally legislate in these areas.

Section 91 of the Act goes on further to list 29 examples of federal powers. These include the regulation of trade and commerce, postal service, census and statistics, the military, navigation and shipping, sea coast and inland fisheries, Indians and reserve land, and the criminal law, just to name a few. Finally, Section 132 of the Act provided the federal government with the power to implement international treaties.

Unlike the provinces, the federal government was granted very wide taxing powers. Section 91 of the Act states the federal government may raise revenues by any mode or system of taxation. This may include forms of direct taxation, such as income or corporate taxes, as well as indirect taxation, such as duties and fees.

In addition to its jurisdictional and financial powers, the Act also provided the federal government with special powers for controlling the provinces. The first of these was the power of reservation, which allowed the Lieutenant Governor of a province (a federal appointee) to reserve provincial legislation for the consideration of the federal Cabinet. The federal Cabinet could then approve or reject the legislation. Even if the Lieutenant Governor granted assent to a piece of provincial legislation, the federal Cabinet could subsequently disallow it with through their power of disallowance. Furthermore, the federal government could use its declaratory power to place any local work or undertaking, which it deemed to be for the general advantage of Canada, under its control. While the federal government has used these powers in the past, it is now an unwritten convention of the Constitution, superseding the written words of the Constitution Act, 1867, that these federal controls not be used.

Constitutional Amendments and Division of Powers

Since Confederation there have been several constitutional amendments related to the division of powers between the federal and provincial governments.

The bulk of these amendments dealt with federal-provincial control over social benefits, and resulted in an expansion of federal power. In 1940, power over unemployment insurance was added to the list of exclusive federal powers under Section 91 of the Act. Previously, the courts had ruled that unemployment insurance fell under provincial jurisdiction. In 1951, old-age pensions were made a concurrent power, meaning that both levels of government were permitted to legislate in this area. Previously, control over pensions had been a solely provincial power under Section 92 of the Act. Federal powers over pensions were further extended in 1964, when it was permitted to legislate in the areas of widows’ and survivors’ benefits and disability pensions.

Another important area of constitutional change centres on the process of constitutional amendments themselves. In 1949, the federal Parliament was allowed to amend the Constitution unilaterally in areas of purely federal concern. This power had been previously held by the British Parliament. The amendment, however, was appealed in 1982 when the federal government and the provinces adopted new constitutional amending formulas. These new formulas are significant in the context of federalism, as they stipulate the rights of each level of government when it comes to changing the Constitution. Any change to the Constitution that impacts one or more provinces, for example, now explicitly requires some level of consent from those provinces affected.

For more information on Canada’s constitutional amending formulas:

Mapleleafweb: The Canadian Constitution: Introduction to Canada’s Constitutional Framework

In addition to the new amending formulas, the 1982 constitutional reforms also impacted Canadian federalism in the areas of natural resources and regional disparities. Under those reforms, provincial powers over their natural resources were expanded, although, the federal government still maintained some power in this field. Furthermore, Section 36 of the Constitution Act, 1982 included a commitment by both levels of government to reducing economic disparities and unequal access to public services between regions in Canada. Moreover, the Act also included a commitment on the part of the federal government to the principle of making equalization payments to ensure provincial governments have sufficient revenues to provide comparable levels of public services.

Judicial Interpretation and Division of Powers

Constitutional amendments are not the only source of changes to the division of powers between the federal and provincial levels of governments. Another key source of federal evolution has been judicial interpretations of the basic federal framework in the Constitution. It is important to note here the constitutional role of the courts. While the Constitution sets out the basic rules of Canada’s system of government, the courts interpret those rules whenever conflicts arise. In the context of federalism, the courts are asked to rule on disagreements between the different levels of government over such things as the division of powers. These judicial decisions can, in turn, have important impacts on the nature and operation of Canada’s federal system.

In this context, two courts are of particular significance. Prior to 1949, the Judicial Committee of the Privy Council (JCPC), in London, England, was Canada’s final court of appeal, and it rendered most constitutional decisions. After 1949, this responsibility was transferred from the JCPC to the Supreme Court of Canada. Over their histories, these courts have had a great impact on how Canada’s federal system operates.

Between 1867 and 1949, the JCPC effected a major change in the basic divisions of powers between the federal and provincial governments, due in large part to its particular interpretation of Section 91 of the Constitution Act, 1867. As discussed above, this section outlined federal powers in two parts. The first part, the POGG clause, states that all powers not given to the provinces in Section 92 were to be left to the federal government. The second part, the enumerated powers, provided specific examples of what those federal powers would include. In a series of cases, however, the JCPC interpreted Section 92 very differently. It viewed the enumerated powers not as examples of federal jurisdiction, but as a list of the real federal powers. Furthermore, it transformed the POGG clause from a declaration of normal federal power, to an emergency powers provision. As a result, federal powers were limited to simply those enumerated in Section 92, while the POGG clause only allowed the federal government to exceed those powers in times of national emergency.

In addition to limiting the scope of federal powers under Section 91 of the Act, the JCPC expanded provincial powers, particularly in regard to the provincial power over civil and property rights under Section 92. For example, Section 91 stipulated that responsibility for regulated trade and commerce fell solely under federal jurisdiction. The JCPC, however, limited this federal power to just international and inter-provincial trade, meaning that the federal government could only control trade between Canada and other countries and between provinces/territories. The JCPC placed intra-provincial trade, or trade that occurs within a province, under provincial jurisdiction via the provinces’ power over civil and property rights. Another example was federal jurisdiction over international treaties. The JCPC limited this federal power to just treaties that dealt with subject matters under federal jurisdiction. The JCPC granted the provinces the power to make international treaties that dealt with provincial jurisdictions. Again, this power was extended through the provinces’ control over civil and property rights.

After 1949, the Supreme Court of Canada replaced the JCPC as Canada’s highest court. In some cases, the Supreme Court backtracked from the JCPC’s tendency to expand provincial jurisdiction at the expense of federal power. Under the POGG clause, for example, the Supreme Court has recognized federal control over many key areas, such as aviation and airports, offshore minerals, telephones and telecommunications, and pollution (in cases of extra-provincial implications). Moreover, the Supreme Court has recognized these federal POGG powers on a permanent, rather than simply emergency, basis.

Spending Powers and Canadian Fiscal Federalism

Federal and provincial-territorial financial relations

Spending Powers under the Constitution

As discussed in the previous section, the Canadian Constitution sets out the powers and jurisdictions of each level of government; that is, the areas in which the federal government and provinces may legally pass laws. There is, however, another power – governmental spending powers – which is not explicitly discussed in the Constitution, but nevertheless plays an important role in the operation of Canadian federalism. Spending powers simply refers to the right of a government to spend its own money in areas outside of its normal constitutional jurisdictions. While the Constitution forbids one level of government from passing laws that regulate areas outside of its jurisdiction, it does not explicitly forbid them from spending money in those areas.

Federal Government and the Spending Power

While the spending power is available to both levels of government, it is a much more powerful tool in the hands of the federal government. This is due to the fact that the federal government usually has a larger financial capacity than it needs for its own areas of jurisdiction. As a result, the federal government has excess funds which it may direct towards provincial jurisdictions. Provincial governments, by contrast, usually do not have this sort of financial capacity; although, certain provinces, such as Alberta, British Columbia, and Ontario, do to some extent. As a result, provincial governments do not generally spend their financial resources in areas of federal jurisdiction.

This federal spending power and capacity has come to play a crucial role in federal-provincial relations, especially since the 1940s and 50s and the creation of the Canadian welfare state. Under the Constitution, key aspects of the welfare state, such as public health care, education and welfare, fall under provincial jurisdiction. This means that only provincial governments may legislate and regulate in these areas. Nevertheless, the federal government has been able to use its spending power to create national policies and programs within these provincial jurisdictions.

There are two key ways in which the federal government may do so. First, it may provide funds directly to Canadians in support of certain social policies. The Millennium Scholarship Fund, introduced by the Liberal federal government in 1998, is a perfect example in this context. The Fund is a federal program which provides funding to students in order to reduce the cost of post-secondary education. The federal government uses its spending power to do so, even though post-secondary education falls under exclusive provincial control. Another example is the Universal Child Care Benefit, introduced by the Conservative federal government in 2006. This Benefit provides funds directly to parents in support of child care costs, even though child care falls under the sole jurisdiction of the provinces.

The second way in which the federal government may use its spending power is to fund programs through the provinces. Under this approach, the federal government transfers funds not directly to Canadians, but to provincial governments. The use of federal spending powers in this context forms a critical aspect of what is commonly referred to as fiscal federalism, the complex interrelationship between the federal government and the provinces in the area of finance. Federal tax and funding transfers to the provinces in support of provincially-provided health care, education, child care, and welfare programs are all examples of this sort of federal action.

It is important to recognize, however, that the federal government does not simply give its money away to the provinces. Instead, it often (but not always) uses its spending power to gain provincial compliance with federal initiatives. It will use the promise or denial of federal funds as a means of getting the provinces to adopt federal policies and programs in areas of provincial jurisdiction. Hence, while the federal government does not have the constitutional authority to legislate in provincial jurisdictions, it can nevertheless use its spending power to influence provincial action in these areas.

Key Elements of Fiscal Federalism

As stated above, fiscal federalism refers to the complex interrelationship between the federal government and the provinces in the area of finance. Three elements are central to this financial interrelationship: federal-provincial taxation agreements, federal conditional and block grants, and equalization payments.

Both the federal government and the provinces/territories have the constitutional power to impose direct forms of taxation, such as income and corporate tax. In doing so, the different levels of government usually coordinate their efforts through federal-provincial/territorial taxation agreements. This is due to many reasons. First, some level of coordination is required in order to ensure that governments, as a whole, do not over tax individuals and businesses. Second, the federal government often uses the tax system as a means of transferring funds to the other level of government. The federal government will provide “tax points” or “tax transfers” to the provinces and territories, which reduce federal tax room in order to make more room for provincial or territorial governments. Tax transfers are provided for in formal agreements between governments, and are often used as a means of federal support for provincial and territorial services (such as health care or education).

In addition to taxation agreements, the federal government also provides conditional and block grants to the provinces and territories. These are sums of money which the federal government provides each year in support of provincially and territorially provided programs, such as health care, child care, education, and welfare. In some cases, these grants are conditional, meaning that the federal government places significant conditions in order to receive the money, thereby promoting federal policies in areas of provincial jurisdiction. Federal grants for health care fall under this category, with federal conditions for funding being outlined in the Canada Health Act. In other cases, federal grants are unconditional (or “block” grants), which means the provinces and territories have a high level of discretion in how they use the funds.

The final key element of fiscal federalism in Canada is the system equalization payments. First introduced in 1957, equalization payments are a system of unconditional grants provided by the federal government to “have-not” provinces based on provincial need. The purpose of these payments is to ensure that all provinces can offer a relatively equal standard of public services, regardless of their population or revenue base. Typically, all of the provinces, except Ontario, British Columbia, and Alberta, receive some level of equalization payments each year.

Fiscal Federalism and Federal-Provincial/Territorial Conflict

While the provinces accept (and even encourage) federal spending in areas of provincial jurisdiction, this relationship often has conflicts. Some provinces, especially those that are more financially self-sufficient, often take issue with the conditions that the federal government places on them in order to receive federal funding. They would, instead, prefer to have complete discretion in how they use the federal funds.

Another key issue is the perception (true or not) that an imbalance exists in federal and provincial financial situations, commonly referred to as a “fiscal imbalance”. Proponents of the fiscal imbalance thesis argue that the federal financial capacity is too large relative to its jurisdiction responsibilities, while provincial financial capacities are too small. As such, provincial governments should be allowed to collect greater revenues, at the expense of the federal government, in order to properly balance the finances of the two levels of government. Such a change would, of course, render the federal spending power less effective, as the provinces (or at least some of them) would be more financially self-sufficient and the federal government would have a reduced capacity to spend outside of its own jurisdictions.

For more information on the fiscal imbalance argument:

Mapleleafweb: Fiscal Imbalance Debate: Origins and Perspectives

Some of these ongoing conflicts led to the 1999 Social Union Framework Agreement (SUFA), signed by the federal and provincial governments (except Quebec). Under SUFA, governments agreed to give one another advance notice before implementing a major change in a social policy or program that would substantially affect another government. While this provision did not prohibit governments from developing and implementing social policy independently from one another, it did require them to provide some advance notice to other governments.

The most significant aspect of SUFA centred on the use of federal spending powers. The federal government agreed not to introduce new social programs that are funded through intergovernmental transfers without the agreement of a majority of provincial governments. This represented a major limiting of the federal spending power. The federal government did, however, retain the right to use its spending power to make transfers directly to Canadians. In that context, it promised to give notice and offer to consult with the provinces and territories before implementing such programs.

It is important to note, however, that SUFA is not constitutionally binding, nor does it have any robust enforcement mechanism. Participating governments can opt-out of the agreement at any time, and there is very little in the way of punishment if a government fails to live up to its commitments.

Canadian Federalism and Inter-Governmental Interaction

Departmental and ministerial relations between governments

Governments in Canada do not simply go about their business independently and without contact with each other. Instead, all governments regularly meet and communicate with one another through formal and informal means. The following provides a brief summary of some these key means of interaction.

Departmental Relations between Governments

Intergovernmental relations in Canada are characterized by a high level of day-to-day communication between personnel from different governments. Ministers, political staff, and regular public service personnel talk to their counterparts in other governments regularly in order to share information and to coordinate their activities. This is especially the case in areas where there is a high level of governmental interdependence, such as health care or taxation.

In order to manage these regular intergovernmental contacts, many governments (both provincial/territorially and federally) have created their own departments of intergovernmental affairs. These departments are often well staffed and funded and have their own Minister, who sits in Cabinet. The primary responsibility of such departments is to manage contacts and communications with other governments in Canada, as well as report to Cabinet on intergovernmental business and priorities.

For more information on intergovernmental relations and conferences:

Canadian Intergovernmental Conference Secretariat

First Minister’s Conferences

One of the most high-profile, although not necessarily productive, means of interaction between governments are the First Minister’s Conferences. These are meetings between the federal Prime Minister and the provincial and territorial Premiers (hence, the term “first ministers”), which are called by the Prime Minister and have typically been held annually. Meetings of first ministers can trace their origins back to the mid-1860s, when the various Canadian governments (then British colonies) met to discuss Confederation.

Today, these conferences represent an opportunity for the Prime Minister and Premiers to discuss important intergovernmental issues and business. In some cases, these meetings are called to discuss specific policy issues. First Minister’s Conferences in the 1990s, for example, led to the Meech Lake and Charlottetown Accords on constitutional reform. In 2004, the federal government called a First Minister’s Conference on the Future of Health Care. It resulted in significant intergovernmental agreements on public health care services and funding.

In other cases, these meetings are used for the heads of each government to meet face-to-face, share information, and lobby one another on regular intergovernmental business. The provinces and territories often use the meeting to push the federal government for increases in federal fiscal transfers or to discuss issues of contention regarding federal action. The federal government, by contrast, will use the opportunity to lobby for its own national initiatives.

Council of the Federation

Another important intergovernmental forum is the Council of the Federation. First created in 2003, the Council is a provincial/territorial forum constituted by the Premiers of each province and territory in Canada. The federal government is not a member of the Council, although it is permissible for the members of the Council to invite the Prime Minister (or a Cabinet Minister) to attend a Council meeting when deemed necessary. The Council’s purpose is to promote inter-provincial/territorial cooperation, both between members, as well as in their relations with the federal government.

The Council in no way takes away from the powers of individual provinces and territories. It is, instead, simply a forum for discussion and information sharing between members. Nevertheless, the Council has played a role in some key events in Canadian federalism. In 2003-2004, for example, the provinces and territories used the Council to form a common position against the federal government in negotiations on health care funding and reforms.

For more information on the Council of the Federation:

Mapleleafweb: Council of the Federation

Sources and Links to More Information

List of article sources and links for more on this topic

Sources Used for this Article

“Constitution Acts 1867 to 1982.” Government of Canada. 17 November 2007. <http://laws.justice.gc.ca/en/const/index.html>
“A Framework to Improve the Social Union for Canadians.” Government of Canada. 17 November 2007. <http://www.socialunion.ca/news/020499_e.html>
Dunsmuir, M. “The Spending Power: Scope and Limitations.” Parliament of Canada. October 1991. 17 November 2007. <http://www.parl.gc.ca/information/library/PRBpubs/bp272-e.htm>
Makarenko, J. “Council of the Federation.” Mapleleafweb.com. 01 July 2006. 17 November 2007. <http://www.mapleleafweb.com/features/council-federation>
Dyck, R. Canadian Politics: Critical Approaches, 3rd Edition. Scarborough, Ontario: Nelson Thomson Learning., 2000.
Jackson, R. & Jackson, D. Politics in Canada: Culture, Institutions, Behaviour and Public Policy, 6th Edition. Toronto: Pearson Education Canada Inc., 2006.

Links to More Information

Supreme Court of Canada Appointment Process

Jay Makarenko — Thu, 01 Feb 2007 00:00:00 -0700

The Supreme Court of Canada is this country’s highest court, and is the final authority for all legal disputes, settling matters between individuals, organizations, and governments alike. Moreover, the Court is emerging as a forum for policy debate, due in large part to its powers to interpret important constitutional documents, such as the Canadian Charter of Rights and Freedoms. This, in turn, raises important questions regarding the manner in which judges are appointed to this politically powerful and influential court. This article introduces the Supreme Court's appointment process. In particular, it discusses which political actors have the power to appoint the Court's justices, the process by which selections are made, as well as current debates on whether the process should be reformed.

Power to Appoint the Supreme Court of Canada

Governor General, Prime Minister & Supreme Court appointments

Process of Supreme Court of Canada Appointments

Rules & procedures for appointing Supreme Court justices

Supreme Court of Canada Appointments in Comparison

How does Canada's process compare to other countries?

Debates on Supreme Court of Canada Appointments

Issues & recommendation for changing the process

Links to Further Information

List of links for more on this topic

Power to Appoint the Supreme Court of Canada

Governor General, Prime Minister & Supreme Court Appointments

The power to appoint Supreme Court justices is held exclusively by the executive branch of the federal government, in particular, the Governor General and the Prime Minister.

Governor General's Power to Appoint

Under Canada's Constitution, the power to appoint justices to the Supreme Court is held by the Governor General of Canada, the Monarch's federal representative. The Governor General makes such appointments based on the advice of the Queen's Privy Council for Canada. In practice, however, only the current federal Cabinet, which is a subcommittee of the Privy Council, actually advises the Governor General on Supreme Court appointments. This is usually accomplished through consultation between the Governor General and the sitting Prime Minister.

Prime Minister's Power to Recommend

While the Governor General holds the legal power to appoint Supreme Court justices, the choice of who will be appointed is actually done by the federal Prime Minister and his/her Cabinet. This is due to a constitutional convention (unwritten constitutional practice developed over time) in which the Governor General does not use any discretion in exercising his/her power of appointment. Instead, it is regular practice for the Governor General to simply act on whatever recommendation is put forth by the elected federal Cabinet.

Moreover, the Prime Minister has the final say on which candidate will be recommended to the Governor General. This is due to the power held by the Prime Minister within Cabinet, and his/her ability to dominate Cabinet decision-making. If it were the case that the Prime Minister supported one candidate, while other Cabinet Ministers supported another, the Prime Minister is able to carry the day by exercising his/her powers over Cabinet membership (it is open to the Prime Minister to ask an opposing Minister to resign and then find a replacement who will support his/her decision).

Parliament & the Provinces

The rest of Parliament, as well as the provinces, have no formal authority in appointing Supreme Court justices. The Prime Minister is not required to hold a vote in the House of Commons or the Senate on an appointment. Moreover, the Prime Minister is not obligated to consult with provincial/territorial leaders or legislatures when determining who should be recommended.

This, however, is not to suggest that the rest of Parliament and the provinces cannot and will not have a role to play. There is nothing in the Constitution prohibiting the Prime Minister from consulting Parliament or the provinces and territories when making his/her choice. In recent years, Prime Ministers have initiated some limited parliamentary participation in the appointment process (see below). However, at the end of the day, the Prime Minister may choose whomever he/she prefers, regardless of whether other parliamentarians and/or the provinces/territories agree.

Process of Supreme Court of Canada Appointments

Rules & procedures for appointing Supreme Court justices

Eligibility & Representation

In choosing an appointment to the Supreme Court, the Prime Minister must observe several rules, which are set out in the Supreme Court Act. Firstly, the Prime Minister may only appoint a person with specific professional experience. To be eligible to serve on the Supreme Court, an appointee must either 1) be or have been a judge of a superior court of a province or 2) have been a barrister or advocate with at least 10 years standing at the bar of a province.

Secondly, the Act stipulates that at least three of the judges on the Court must be appointed from Quebec, be it from the province's Court of Appeal, Superior Court, or the group of advocates from that province. Therefore, if a retirement from the Court left only two Quebec judges, then the Prime Minister would be required to appoint someone from Quebec to bring the number back up to three. This rule is commonly justified on the basis that Quebec uses a civil law instead of common law system (as the rest of the country does), and that the Supreme Court needs to have judges familiar with the civil law system in order to properly hear appeals from Quebec.

Finally, it is convention, but not mandatory, that the remaining six positions on the Supreme Court are divided in the following manner: three from Ontario, two from Western Canada, and one from Atlantic Canada.

Review by Advisory Committee

In recent years, the appointment process has been modified somewhat to allow greater parliamentary, provincial/territorial, and public consultation. In 2004, Liberal Prime Minister Paul Martin announced that nominees to the Supreme Court would be reviewed by a special parliamentary committee, that would report their findings to Parliament. This led to the establishment of an ad hoc parliamentary committee, which reviewed the 2004 nominations of justices Rosalie Abella and Louise Charron.

Subsequently, a formal Advisory Committee on Supreme Court appointments was announced, which is formed each time a vacancy on the Court occurs. The Committee's basic structure and its review process are as follows:

The Committee is to include a Member of Parliament from each recognized political party in the House of Commons, a retired judge from the region where the vacancy arises, a representative of the Attorney General from the home province of the nominee, a representative of the law society from the nominee's home province, and two prominent Canadians who are neither lawyers nor judges.
The Committee is to be presented with a list of seven candidates, given to them by the federal Minister of Justice. During its review, the Committee will shortlist three candidates from which the Prime Minister then chooses the appointment.
Originally, the Committee was prohibited from directly questioning the candidates during its review. Instead, the Minister of Justice would appear before the Committee and answer questions on the candidates' behalfs. In 2006, however, Conservative Prime Minister Stephen Harper signaled that future Committees may have greater access to the candidates when he allowed an ad hoc parliamentary committee to directly question the candidacy of Justice Marshall Rothstein prior to his appointment. Rothstein was one of three candidates shortlisted by a previous advisory committee convened by the outgoing Liberal government.

It is important to note, however, that while the use of advisory committees does allow for greater consultation, it does not fundamentally alter the appointment process. The Committee must work from a list of seven candidates submitted to them by the Minister of Justice (usually in consultation with the Prime Minister). Moreover, it is the Prime Minister who chooses the final nominee from the Committee's short list. Neither the Committee nor Parliament has the power to block the Prime Minister's final decision.

Supreme Court of Canada Appointments in Comparison

How does Canada's process compare to other countries?

United States of America

The power to appoint judges to the US Supreme Court, as in Canada, is exercised by the executive branch of government; specifically, by the President of the United States. Unlike Canada, however, presidential appointments to the US Supreme Court must first be confirmed by the US Senate, which is part of the legislative branch of government. In other words, the Senate has the power to reject or block the appointment. Moreover, the confirmation proceedings usually involve a lengthy review process in which the Senate Judiciary Committee is permitted to directly question the President's nominee.

Also, there are no special rules for the President to follow in choosing a nominee. The President may appoint any lawyer for whom Senatorial confirmation can be obtained. This differs from the Canadian process, in which the Prime Minister must meet certain eligibility and representation requirements when selecting a nominee to the Canadian Supreme Court.

For more information on the US Supreme Court appointment process:

The Library of Congress: Supreme Court Appointment Process (PDF)

Republic of France

As with Canada and the United States, the power to make appointments to the nation's highest court, the Court de Cassation, resides within the executive branch of government; specifically, the French President. However, unlike Canada and the United States, an independent body oversees the appointment process. This body is referred to as the Conseil Superieur de la Magistrature, which is tasked with reviewing and interviewing potential Court de Cassation appointees, and then making a recommendation to the French President. The purpose of the Conseil Superieur de la Magistrature is to ensure judicial independence and quality control in the appointment of judges to the nation's courts.

Australia

The appointment process for Australia's top court, the High Court of Australia, is very similar to Canada's. The power to make such appointments resides with Governor-General in Council (an equivalent to Canada's Governor General). In practice, however, appointments are made by the Australian Prime Minister in consultation with the Cabinet; in particular, Australia's Attorney General. Since 1979, the federal Attorney General has been required to consult with state and territorial Attorneys General before making a selection. State and territorial participation, however, is only consultative; they have no power to block federal appointments. There are very few requirements for becoming a judge on the High Court, other than the fact that a candidate must be under the mandatory retirement age of 70, have been a judge on a federal, state, or territorial court, or been a practitioner for at least five years, either with the High Court itself or with a state or territorial Supreme Court.

Debates Concerning the Appointment Process

Should the appointment process be reformed?

Supreme Court in the Democratic Context

An important argument in favour of reforming the appointment process centres on the power of the Supreme Court and the minimal level of democratic participation in the selection of its judges. As the final interpreter of the Canadian Constitution, the Supreme Court has extensive powers in defining the relationships between different levels of government and between citizens and the state. Moreover, Supreme Court judges are appointed solely by the Prime Minister, without any requirement for consultation with Parliament and/or citizens. While the Prime Minister him/herself is an indirectly elected official, some have argued that greater democratic participation is required to ensure that appointments reflect public sentiment as opposed to simply the desires of the Prime Minister or the governing political party. This would involve a stronger role for Parliament in the appointment process, with the power not only to review nominees, but also to block appointments that fail to reflect general public sentiments.

Supreme Court in the Federal Context

Another argument in favour of reform centres on Canadian federalism and the need for greater provincial and territorial participation in the selection of judges. As stated above, the Supreme Court is the final interpreter of the nation's constitutional principles of federalism, and, as such, has a significant impact on the relationship between different levels of government. Some have thus argued that the provinces and territories should have a greater say in the appointment process, as opposed to the federal government making appointments alone. This would involve, at the minimum, consultations with the provinces and territories when filling court vacancies. Stronger reforms would include the creation of a formal process in which provinces and territories could review and even block federal appointments to the Supreme Court.

Supreme Court and Judicial Independence

There are, however, important arguments against "politicizing" Supreme Court appointments, be it either through greater participation by Parliament or by the provinces and territories. A common concern is the protection of judicial independence, or the doctrine that the Supreme Court should be impartial, and that its decisions should not be influenced by the other branches of government or by general public sentiment. This has important implications for the appointment process. On the one hand, the government may attempt to control the Supreme Court by appointing judges that agree with its politics, philosophy, or ideology. This is one of the concerns with the Prime Minister having the ability to appoint judges unilaterally without any checks and balances.

However, making the selection process overly political may not protect judicial independence to any greater extent. The selection of Supreme Court justices in the United States, for example, involves a comprehensive review by the US Senate. This review acts as a check on the President in his/her power to appoint US Supreme Court justices. Nevertheless, the selection process continues to be based, at least in part, on partisan politics, with judges being confirmed or blocked due to perceptions about their personal values and political allegiances, as opposed to their judicial experience and credentials.

Links to More Information

List of links for more information on this topic

Canadian Government

International Judicial Systems

Supreme Court of the United States
United Kingdom – House of Lords
France – Conseil Superieur de la Magistrature (Judicial Appointment Body)
Australia – High Court of Australia

Mapleleafweb.com

Media

Supreme Court Reform

The Notwithstanding Clause: Section 33 of the Charter

Jay Makarenko — Thu, 01 Jun 2006 00:00:00 -0600

Section 33 of the Charter, commonly referred to as the Notwithstanding or Override clause, has an important place in Canada's constitutional development, as well as the relationship between the legislative and judicial branches of government. This article provides an introduction to the nature, operation, and history of the Notwithstanding clause.

What is the Charter's Notwithstanding Clause?

Origins & basic nature of the clause

Operation of the Charter's Notwithstanding Clause

What rules govern the clause's usage?

Usage of the Charter's Notwithstanding Clause

When has the clause been used in Canada's history?

Links to More Information

List of links for more on this topic

What is the Notwithstanding Clause?

Origins & basic nature of the clause

Notwithstanding Clause & Constitutional Compromise

In the late-1970s and early-1980s, the federal and provincial governments undertook negotiations to modernize the Canadian Constitution, which eventually led to the passage of a new Constitution in 1982. Central to these negotiations was a federal proposal to introduce a constitutionally-entrenched set of rights and freedoms to replace the Canadian Bill of Rights (this new set of rights eventually became the Charter).

The federal proposal was, however, a controversial one. Several provinces disagreed with its inclusion on the grounds that it would significantly shift political power from elected legislatures to appointed courts. The Notwithstanding clause was subsequently added to the Charter as a means of alleviating these provincial concerns.

Constitutional Supremacy & Judicial Review

How exactly does the Notwithstanding clause impact the relationship between elected legislatures and the judiciary? In examining this issue it is useful to first discuss two key constitutional concepts: constitutional supremacy and judicial review.

Canada has a constitutional system of government, meaning that its political system is framed by a set of basic rules and norms, which are collectively referred to as the "Constitution." The Canadian Constitution includes several formal pieces of legislation, such as the Constitution Act, 1867 and the Constitution Act, 1982, as well as a number of unwritten constitutional conventions and norms. The Constitution governs the basic nature of key political institutions, such as parliamentary government (the operation of the executive and legislative branches of government) and federalism (the division of power between different federal and provincial/territorial levels of government).

Moreover, the Constitution is recognized as the supreme law in Canada's political and legal system. This is referred to as constitutional supremacy. This means that all other laws and government actions must be in accordance with the basic rules and norms set out in the Constitution. A federal, provincial, or territorial government, for example, can only exercise jurisdiction over policy fields given to it under the Constitution.

Finally, the judicial branch of government (the court system) plays an important role in the operation of this constitutional system of government. It is tasked with interpreting the Constitution and settling constitutional conflicts between different political actors. This is referred to as the power of judicial review. When, for example, the provinces believe that the federal government is overstepping its constitutional powers, they can apply to the courts to settle the conflict. The judiciary has the power to review the government's actions and decide whether or not it is acting within the rules and norms laid out in the Constitution. If the judiciary finds that a constitutional rule has been broken, it can force the offending government to change its actions.

For more information on Canada's constitutional framework:

Mapleleafweb: The Canadian Constitution: Introduction to Canada's Constitutional Framework

The Charter & the Notwithstanding Clause

What does all of this have to do with the Notwithstanding clause? The provinces were concerned that a constitutionally entrenched Charter would give the courts too much power to review the actions of elected legislatures. As part of the Constitution, the Charter would become the supreme law in Canada's political and legal system. All other laws and government actions would have to be accordance with these new constitutional rights and freedoms. Moreover, the judiciary would have the power to interpret the meaning of those rights and freedoms, as well as to review the actions of elected legislatures to ensure the Charter is being respected. Instead of simply interpreting and enforcing the Constitution on regular issues, such as the operation of parliamentary government and federalism, the judiciary would now have the power to interpret and enforce a broad set of citizen rights, such as fundamental freedoms, democratic rights, and equality rights.

For more information on the Charter:

Mapleleafweb: Canadian Charter of Rights and Freedoms: An Introduction to Charter Rights

The Notwithstanding clause was eventually included within the Charter to alleviate these provincial fears of judicial power. Found under Section 33 of the Charter, the clause states:

Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

View the Full Text of the Canadian Charter of Rights and Freedoms

The Notwithstanding clause thus permits elected legislatures (federal, provincial, or territorial) to declare that a particular action or law operates "notwithstanding" or "in spite of" a right or freedom found in the Charter. The judiciary is still responsible for interpreting the Charter and reviewing government actions in general. However, the Notwithstanding clause allows legislatures to make some of their laws or actions temporarily immune from judicial review under the Charter. If, for example, a legislature wishes to pass a law that will unconstitutionally violate the Charter right to freedom of expression, it can make a declaration under the clause stating that the law will continue to stand, regardless of the violation. The judiciary, therefore, no longer has the power to force the legislature to change the law in that case. The Notwithstanding clause thus alleviated provincial concerns of judicial power by permitting legislatures to protect themselves from judicial review under the Charter.

Operation of the Charter's Notwithstanding Clause

What rules govern the clause's usage?

While the general purpose of the Notwithstanding clause is to protect legislatures from judicial review, there are some important qualifications regarding its actual operation.

Notwithstanding Clause & Charter Rights and Freedoms

Firstly, the Notwithstanding clause may only be used in regard to the Charter and not other parts of the Canadian Constitution. Moreover, the Notwithstanding clause can only be used against a limited number of Charter rights and freedoms. These include:

Fundamental freedoms (Section 2 of the Charter) such as freedom of conscience and religion; freedom of thought, belief, opinion and expression (including media); freedom of peaceful assembly; and freedom of association.
Legal rights (Sections 7-14 of the Charter) such as the right to life, liberty and security of the persons and the right not to be deprived thereof except in accordance with the principles of fundamental justice; the right to be secure against unreasonable search or seizure; the right not to be arbitrarily detained or imprisoned; the right to not to be subject to any cruel or unusual punishment, rights against self-crimination; and so forth.
Equality rights (Section 15 of the Charter) such as the right to be equal before and under the law and the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

View the Full Text of the Canadian Charter of Rights and Freedoms

The Notwithstanding clause cannot be used for the remaining Charter provisions, including:

Democratic rights (Sections 3-5 of the Charter) such as the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein; the requirement that no House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs of a general election of its members; and the requirement that there shall be a sitting of Parliament and of each legislature at least once every 12 months.
Mobility rights (Section 6 of the Charter) such as the right of every citizen to enter, remain in and leave Canada, and the right of every permanent resident to move and take up residence in any province and pursue the gaining of a livelihood in any province.
Language rights (Sections16-22 of the Charter) such as the requirement that English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada, and the right of a member of the public to communicate with and receive services from federal government institutions or agencies in either English or French.
Minority language education rights (Section 23 of the Charter), the right of a citizen to have their children receive primary or secondary education in either English or French.

View the Full Text of the Canadian Charter of Rights and Freedoms

In other words, the Notwithstanding clause only permits legislatures to protect themselves from judicial review in the context of certain Charter rights and freedoms. A legislature may make a law immune from judicial review in regard to the Charter's fundamental freedoms, legal rights, and equality rights. The clause, however, cannot be used in the context of the other rights and freedoms provided for by the Charter. If, for example, a legislature wishes to enact a law that would violate democratic rights under the Charter, it could not use the Notwithstanding clause to protect itself from judicial review.

Explicit Legislative Declaration

Legislatures must also follow certain procedures when invoking the Notwithstanding clause. In order to invoke the clause, a legislature must make an explicit declaration through legislation. In order words, it must pass a piece of legislation that explicitly declares its intention to invoke the Notwithstanding clause. In addition, the legislation must explicitly state which laws are to operate notwithstanding the Charter, as well as which particular rights and freedoms the law will be immune from. These requirements are significant in that they help to ensure that legislatures cannot use the Notwithstanding clause in a stealthy or secretive manner. As the clause must be invoked through legislation, opposition members in the legislature have an opportunity to criticize and draw public attention to the declaration. Moreover, the requirement that the legislation explicitly state the nature of the Notwithstanding declaration helps to ensure that the public is fully informed of the intention and effect of the legislature's actions.

Duration of a Notwithstanding Declaration

Declarations under the Notwithstanding clause are not permanent; they only have a maximum life span of five years. As such, a legislature can only protect a law or action from judicial review under the Charter for a period of five years, after which the declaration no longer has any force and the law may be reviewed and struck down by the courts. A legislature, however, may extend the period past the initial five-year term by "re"-invoking the Notwithstanding clause through another explicit legislative declaration. Such a declaration again only lasts for a maximum of five years. There is no limit on how many times a legislature may re-invoke the Notwithstanding clause to protect a particular law or action.

This term limit has significance within the context of Canada's electoral system. Under Canada's Constitution, general elections (federally, provincially, and territorially) must be held at least every five years. This means that a legislature invoking the Notwithstanding clause will likely face re-election before it has a chance to extend the declaration beyond the initial five-year period. If voters are dissatisfied with the initial declaration, they can use the election as an opportunity to elect legislature members who will either repeal the declaration or who will not re-invoke it when the time came.

Government Jurisdictions & the Notwithstanding Clause

Finally, while any federal, provincial, or territorial legislature may invoke the Notwithstanding clause, they may only do so for legislation over which they have constitutional jurisdiction. It is important here to remember that Canada is a federation, with powers and jurisdictions divided between the different levels of government. The federal government, for example, has jurisdiction over national issues, such as national defence, foreign policy, and so on. The provinces, in turn, have their own fields of jurisdiction, such as natural resources and social policy (health care, employment insurance, local government, etc). One level of government cannot use the Notwithstanding clause to make immune laws or actions which are under the jurisdiction of another level of government.

This was a key element in the legal and political debate surrounding the Charter right to equality (under Section 15) and same-sex marriage. Several Canadian courts struck down the traditional definition of marriage (as between one man and one woman) on the grounds that it violated the right to equality by discriminating against same-sex couples. In the subsequent political debate, some of the provinces alluded to the possibility they might invoke the Notwithstanding clause as a means of protecting the traditional definition of marriage. The provinces, however, were precluded from doing so on the grounds the definition of marriage fell under federal, and not provincial, jurisdiction. As such, only the federal Parliament has the power to make a Notwithstanding declaration in this case.

Usage of the Notwithstanding Clause

When has the clause been used in Canada's history?

The Notwithstanding clause has been used very rarely and has only been invoked by provincial governments (as of May 2007, the federal government has never made a Notwithstanding declaration). The following briefly discusses key usages of the clause in Canada's history.

Quebec (1982-85): Aftermath of the Patriation

In the period immediately following the signing of the new Constitution in 1982, the Quebec government sought to protect itself from any Charter obligations. This was due in part to the fact that Quebec did not consent to the 1982 constitutional compromise that produced, amongst other things, the Charter. In June 1982, the Quebec provincial legislature (then controlled by the Parti Québécois) legislated the Act Respecting the Constitution Act, 1982, in which it invoked a blanket Notwithstanding declaration. The effect of this was to make all past and future provincial legislation (up to 1985) immune from judicial review under the Charter. The declaration, however, was allowed to elapse following the election of the more federalist Liberal Party of Quebec in 1985.

Read the Full Text of Quebec’s Act Respecting the Constitution Act, 1982

Quebec (1988): French Sign Laws

Since 1985, the Quebec legislature has applied the Notwithstanding clause much more rarely. The most notable usage came in 1988, when the province sought to protect its sign laws. At the time, the provincial government had passed laws requiring all commercial signs in the province (both inside and outside of establishments) to be in French only. The intent of the law was to protect the use of the French language in commercial activities.

Several individuals and groups challenged the sign laws based on the grounds the legislation violated their rights to freedom of expression under Section 2(b) of the Charter. The Supreme Court of Canada agreed, and in two 1988 decisions (Ford v. Quebec, Devine v. Quebec), ruled that an outright prohibition of the use of languages other than French was an unreasonable limitation on the freedom of expression.

Read the Full Text of the Supreme Court of Canada Decision in Ford v. Quebec
Read the Summary of the Supreme Court of Canada Decision in Devine v. Quebec

The Quebec government responded by amending the original sign-law to permit the usage of other languages on signs inside of commercial establishments, but continued to prohibit the use of any language other than French on exterior signs. Additionally, the Quebec provincial legislature invoked the Notwithstanding clause to protect the amended legislation from any further judicial review under the Charter. When the five-year time limit for the Notwithstanding declaration expired, it was not extended by the Quebec legislature. Instead it passed a new law, one that was more in keeping with the Charter and its principles, allowing signs in both languages, but only as long as French was the predominant language displayed.

Saskatchewan (1986): Back-to-Work Legislation

In 1986, the Saskatchewan legislature introduced back-to-work legislation to end a strike by public service employees. The government introduced the legislation based on the grounds it needed to protect the general public from the harm associated with the disruption of government service caused by the strike. The legislature went a step further by making a Notwithstanding declaration to protect the back-to-work law from any Charter scrutiny by the judiciary (in particular, to protect the legislation from being found unconstitutional on the grounds it violated a possible right to strike under the Charter). The courts later ruled, however, in the case Alberta Labour Reference, that the Charter did not include the right to strike. As a result of the court decision in that case, the Notwithstanding declaration by the Saskatchewan government turned out to be unnecessary.

Read the Full Text of the Supreme Court Decision in the Alberta Labour Reference

Alberta (2000): Definition of Marriage

In March 2000, the Albertan legislature passed Bill 202 – the Marriage Amendment Act. This legislation re-asserted the definition of marriage as a union between a man and a woman, excluding gay couples. The Act also included a Notwithstanding declaration, to protect this legislated definition of marriage from judicial review under the Charter. The Alberta legislature made the declaration in response to the possibility that the Supreme Court of Canada would rule that the exclusion of gay couples from the definition of marriage violated the right to equality under Section 15 of the Charter. This marked the first time the Notwithstanding clause had been used to protect "traditional" moral values. The declaration, however, turned out to be mainly symbolic, as the Supreme Court of Canada later ruled that the ability to define the term marriage rested solely with the federal government, and was outside provincial jurisdiction. A Notwithstanding declaration cannot be made for policy areas that are outside a government's jurisdiction.