Prime Minister Justin Trudeau speaks about the upcoming wildfire season at the West Kelowna Fire Rescue hall in West Kelowna, B.C., on May 10.Aaron Hemens/The Canadian Press
Allan C. Hutchinson is a distinguished research professor at Osgoode Hall Law School at York University.
There is much politicking going on at present between the provinces and the federal government about who can and should be doing what. Predictably, much of this involves public funding – who should get what, in what amounts, and with what conditions?
Not surprisingly, there is much posturing and, therefore, much silly talk. So, it seems a good idea to provide some constitutional context.
It is not that constitutional law is not itself political, but there is a basic structure and set of rules that frame much of the political dimension and existing debate. Although constitutional law is always on the move, its indeterminacy is not the same as “anything goes.”
The crux of the matter is that the federal government possesses the major powers to accumulate funds by way of taxation. It uses those funds to distribute money to the provinces and to pursue projects that the federal government deems worthy. And therein lies the problem. The provinces, led by Alberta, insist that such federal largesse should not only be distributed fairly among the provinces, but also that it should not be used to end-run the Constitution’s allocation of federal and provincial powers.
So, for example, while the provinces have primary constitutional authority over health care and education, the federal government provides substantial funding. However, that funding usually comes with various conditions on how and for what programs and initiatives it can be used. Rankled by this, the provinces are beginning to push back and insist that they should decide how the funding should be locally deployed. They want the funds, but not the ties that come with it.
The federal government’s general spending power is not explicitly mentioned in the constitutional text or the existing jurisprudential body of constitutional sources. So, although there is no stated authority for the federal government to act in the way it does, there is also no express restriction on them doing so. In short, there is no “can,” but also no “cannot.”
Constitutional scholars have no shared view about what follows from this. Some maintain that it is the federal government’s money and it has the right to spend it as it sees fit; the provinces can reject such funds if they do not like the conditions. Others argue that such funding should not be used to control and trench upon matters that fall within provincial jurisdiction; doing so blurs further the already murky constitutional lines between federal and provincial authority.
Ironically, a leading precedent is from the Alberta Court of Appeal, and it holds that the federal government “can impose conditions on such [funding] disposition as long as the conditions do not amount in fact to a regulation or control of a matter outside of federal authority.” Indeed, the courts have been uncharacteristically shy about entering this particular fray.
In 1991, the Supreme Court reached the conclusion that the supervision of the federal spending power is not a justiciable matter: “If a statute is neither ultra vires [outside its authority] nor contrary to the Canadian Charter of Rights and Freedoms, the courts have no jurisdiction to supervise the exercise of legislative power.” In short, it is a matter for political debate, not legal resolution.
Of course, the political back-and-forth will continue; it is the stuff of Canadian politics. But it might go better if all the participants operated with a greater appreciation for the constitutional context, as imprecise as it is. If provinces want federal funding, they will have to make some concessions. It seems unpersuasive to think, as Alberta claims, that the federal government should be expected to distribute its accumulated funds with no conditions over its use.
However, it is also unrealistic for the federal government to exercise its fiscal dominance in a heavy-handed manner; it needs to respect the established division of autonomous powers between itself and the provinces. That said, it is unlikely that the federal government will respond favourably and co-operatively to the kind of grandstanding that Alberta and other provinces are engaged in.
The trade-off is that, if there is to be a general and equal level of public services across the country, the federal government needs to act responsibly in redistributing funds between the citizens of the have and have-not provinces. But, in the process of doing that, it should not impose inconsiderately its own policy preferences on all provinces. And that is a difficult balance to achieve.