Provincial Government Powers?

[JamesHackerMP]

I was told by a Canadian, that you actually have stronger provincial governments (vis a vis the federal government in Ottawa) than the USA has state governments (vis a vis our federal government in Washington).

Is this true? It's what my compatriots from South of Northern Virginia call "State's Rights" only, naturally, you call em provinces. Is it true the federal government in Ottawa allows far more powers to the provinces than the federal government in Washington allows to the states? Over time, the US federal government has become more and more powerful.

[Argus]

Short answer: no.

I think the reverse is actually true and that US states have more powers than Canadian provinces. They control their own criminal codes, for example, deciding on how crimes are defined, and what punishments should be meted out, including the death penalty. Canadian provinces have no control over the criminal code or sentencing whatsoever. American states have their own national guards controlled by the governor. Canadian provinces have nothing comparable. Individual US states have decided to implement various versions of public health care on their own. Canadian provinces don't have that freedom but most follow the Canada Health Act and it's regulations and policies. If a senator or congressman dies or quits their successor will be appointed by the state governor. In Canada, provincial premiers have no such authority. State and local authorities control airports in the US. In Canada it's the federal government, which also controls ports, btw.

Edited July 25, 2016 by Charles Anthony
excessive quoting; deleted [Opening Post]

[eyeball]

US marine fisheries are managed state by state resulting in far less corporate control and more locally based management systems. Most Canadian's especially right wing conservatives would regard US fisheries management as being communistic.

Ironically in BC our privatized quotas are being snapped up by American seafood companies.

As well, American fishermen are allowed to fish in Canadian waters but Canadians are not allowed to fish in US waters.

Our provinces are seemingly powerless to do anything about it and don't seem too inclined to change.

I'd separate BC from Canada and join Alaska in a heartbeat given the opportunity.

[Vega]

I'd separate BC from Canada and join Alaska in a heartbeat given the opportunity.

I would rather we in BC just become part of the U.S. under such a scenario.

Anyway, yeah, provinces are quasi-powerful but not as powerful as American states. I would rather we just become a unitary country rather than continue with the weird federal system we have.

[Pateris]

But provinces can impose trade restrictions on other provinces, which US states cannot. In the US, interstate trade is clearly controlled by the feds, and other than some product regulations (i.e. California does this), states can't prevent the import of services or materials from another state. In Canada, we have dramatic restrictions on the movement of goods, services and labour internally. It is often easier for a business in one province to trade with the US than it is to trade internally.

[JamesHackerMP]

Who runs the health service in Canada? Isn't it actually provincial, not really "national" per se?

[Michael Hardner]

Reference:

Federal role in health

The federal government, the ten provinces, and the three territories have key roles to play in the health care system in Canada.

The federal government is responsible for:

• setting and administering national principles for the health care system through the Canada Health Act;
• assisting in the financing of provincial/territorial health care services through fiscal transfers;
• delivering health care services to specific groups (e.g. First Nations and Inuit and veterans), and
• providing other health-related functions such as public health and health protection programs and health research.

Federal direct expenditures on health

The federal government provides direct health care services to certain population groups for which it is constitutionally responsible (First Nations and Inuit people).

The federal government also provides health services to eligible veterans, refugee protection claimants and inmates of federal penitentiaries. In addition, the federal government has responsibilities for health care for serving members of the Canadian Forces and the Royal Canadian Mounted Police.

Federal transfers to provinces/territories

The federal government provides funding through cash and tax transfers to the provinces and territories to help pay for health care services, but the actual delivery of services is a provincial/territorial responsibility.

Since 1977, federal contributions toward health care expenditures have been made through block funding. From 1996 to 2004, this block funding has been provided through cash and tax transfers under the Canada Health and Social Transfer (CHST). These transfers to the provincial and territorial governments are provided in support of health, post-secondary education and social services. The provincial and territorial governments are entitled to use CHST funding to meet their respective priorities, which differ throughout the country. Effective April 1, 2004, the Canada Health Transfer (CHT) and Canada Social Transfer (CST) improves transparency of federal funding to the provinces and territories.

Some provinces receive additional federal funding through Equalization payments. Equalization payments enable provincial governments to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.

In addition to the CHT and the CST, Canada's three territories receive additional federal support through Territorial Formula Financing to assist them in providing public services. The transfers are based on a formula that fills the gap between the expenditure requirements and the revenue-raising capacity of the territories.

http://healthycanadians.gc.ca/health-system-systeme-sante/cards-cartes/federal-role-eng.php

[cybercoma]

Sections 91 and 92 of the Constitution lists the division of powers. You can read that here: http://laws-lois.justice.gc.ca/eng/Const/page-4.html#h-17

[JamesHackerMP]

OK thanks guys, as always

[JamesHackerMP]

Doesn't look like much. Then again, the American constitution has a bit of a problem: the X Amendment, which delegates powers to the states not reserved to Congress, is a bit ambiguous, causing a constant debate over where the "demarcation" line is between state and federal government.

At least you guys have a "demarcation" line that's written in stone.

Edited August 6, 2016 by JamesHackerMP

[cybercoma]

Doesn't look like much. Then again, the American constitution has a bit of a problem: the X Amendment, which delegates powers to the states not reserved to Congress, is a bit ambiguous, causing a constant debate over where the "demarcation" line is between state and federal government.

At least you guys have a "demarcation" line that's written in stone.

It's also written in stone that any power not listed is in the federal government's hands. It's not always simple though. There's plenty of Supreme Court cases about ultra vires legislation.

[TimG]

Who runs the health service in Canada? Isn't it actually provincial, not really "national" per se?

One who has the money makes the rules! The feds have no constitutional jurisdiction over healthcare it does collect the taxes needed to pay for it. As a result, it imposes conditions on provinces that want this funding. This gives it control over healthcare policy even though delivery of services is purely provincial.

The use of federal "spending power" is an issue for Quebec separatists because it undermines the "sovereignty" of Quebec.

[Newfoundlander]

Who runs the health service in Canada? Isn't it actually provincial, not really "national" per se?

The federal government basically mandates the provinces to offer certain standards and provides funding but each province is responsible for providing it and now fund like 75% of health costs (depending on the province). At one time the federal government covered about 50% of health care costs.

[JamesHackerMP]

So in other words, it's the definition of what they call "Marble-Cake Federalism" as far as Canada's health care system is (or systems are) concerned, right?

[JamesHackerMP]

It's also written in stone that any power not listed is in the federal government's hands. It's not always simple though. There's plenty of Supreme Court cases about ultra vires legislation.

"Ultra vires"?

[cybercoma]

Federal government or provincial governments making legislation that's outside their powers.

[JamesHackerMP]

I see. So what's that mean in practical terms, exactly?

[cybercoma]

I see. So what's that mean in practical terms, exactly?

I'm not sure I understand your question. I will explain. If a province makes a law that is under a federal power, the provincial law has no legal validity and will be overturned by the Supreme Court in accordance with the Constitution. Vice versa for the federal government.

[cybercoma]

People mistakenly think governments can make whatever laws they want; they can't. Laws are only valid if they meet the standards set by the constitution and charter.

[JamesHackerMP]

OK thanks that answers my question.

Has power devolved to the provinces over time, or to the federal government over time? (since Confederation, iow)

[Bryan]

Governments absolutely can disregard the constitution and the charter if they choose to. They can even choose to set aside any court decision regarding such a law (renewable at five year intervals). That's not a level of controversy that most governments are willing to take on, so it's rarely done.

[cybercoma]

OK thanks that answers my question.

Has power devolved to the provinces over time, or to the federal government over time? (since Confederation, iow)

It's a constant fight but I think most would argue that power seems to be concentrating around the federal government.

Legally they're not allowed to cross lines but others have already noted how that's been made possible by financing. Health Care is the primary example to Ottawa taking more power. The federal government has more power to raise money than the provinces. With Health Care, they basically made the provinces "an offer they can't refuse." In exchange for what amounts to nearly half of any given province's health care expenditures, the provinces agree to follow federal guidelines on standard of care.

The idea is that someone in PEI should have the same standard of care as someone in downtown Toronto. We don't want a veterinarian doing surgeries on people in a barn in PEI while qualified surgeons are operating on people in Toronto. No matter where you travel in the country, our government has decided that it's a social good that you receive the same standard of medical care.

Consequently, the only way a standard can be created is if the federal government institutes some sort of code or oversight over healthcare. All the provinces strive to achieve the same benchmark. However, the federal government is not allowed to handle healthcare, according to sections 91 and 92 of the constitution. This is provincial jurisdiction. How do they get control of it? Money.

Technically the provincial governments could turn down federal money. Imagine that situation for a moment though? Your province has to come out publicly and say that it refuses to provide the level of care that the federal government requires and in doing so rejects millions of millions of dollars in federal tax money. No government in their right mind is going to turn down money while simultaneously admitting that they refuse to provide the standard of care set by Ottawa.

Here's another example of provincial/federal jurisdiction clashing. In this case, the provincial jurisdiction is actually a municipal bylaw (municipalities' bylaws are legally provincial laws).

In Quebec v. Lacombe (2010), the plaintiff cottage owners constructed aerodrome facilities on a lakeside property in Quebec, and then used the lake as a water aerodrome for a commercial air taxi service that used a fleet of float planes. The plaintiffs had selected the lake for the aerodrome without any input or permission from the Federal Department of Transport. However, they had registered the lake as an aerodrome with the Department, which was all that was needed to dedicate the lake as an "aerodrome" (as opposed to an "airport", which is subject to serious regulatory standards). The commercial air taxi service required a licence from the Department and the plaintiffs had duly obtained that licence.

In Lacombe, the problem was that the lake was within a municipality that had enacted a bylaw prohibiting the use of that lake (and others in the same area), as an aerodrome. The plaintiffs brought proceedings attacking the validity of the bylaw. The Supreme Court of Canada (SCC) held that the pith and substance of the bylaw, which explicitly prohibited the construction of aerodromes, was aeronautics, which is a federal head of power.¹ Therefore the bylaw was ultra vires the province and the municipality and was accordingly invalid. The plaintiffs were entitled to continue to use the lake as an aerodrome despite the contrary bylaw, as it was subject to federal jurisdiction. The takeaway from Lacombe is that provincial, or in this case municipal, law cannot control the location of airfields.

Source: http://www.blakes.com/English/Resources/Bulletins/Pages/Details.aspx?BulletinID=1722

As you can see, even things as straightforward as construction projects can have grey areas. Construction is generally under provincial jurisdiction according to s. 92(13) of the Constitution. However, in the case above, the construction of an aerodrome is under federal jurisdiction because it was determined in Johannesson v. West St Paul (1952) that aeronautics was a matter of "peace, order, and good government." The argument goes that aeronautics is of a concern greater than that of municipalities and provinces. Therefore, it must be under the jurisdiction of the federal government. Imagine having separate laws in every town regarding air traffic and airports. It could be disastrous. Consequently, municipalities and provinces cannot make laws pertaining to aeronautics.

So as a rule, I would suggest that power tends to devolve to the federal government. The main reason being the legal doctrine of paramountcy. If a provincial law makes compliance with the federal law impossible, then the federal law takes precedent. If you can comply with both laws but it frustrates the purpose of the federal law, then federal legislation typically takes precedent.

In essence, it's not a straightforward issue. The provinces and Ottawa have separate jurisdiction but sometimes their laws can overlap. In general, the federal government usually wins these battles but especially when the provincial law contradicts the federal law (federal law says "yes" while provincial law says "no"). As a result, the federal government will tend to take more and more of the legislative framework from the provinces. However, they can never completely usurp things that are clearly laid out in the constitution. In order to usurp control over these areas, there has to be agreement from the provinces, as is the case with the Canada Health Act.

Your question is a very good one and it was addressed during the confederation debates when this country was formed. I will leave you with this quote from L. A. Olivier, an elected member of the Legislative Council at the time, who strongly opposed confederation during the debates:

Source: Canada's Founding Debates by (Eds.) Janet Ajzenstat, Paul Romney, Ian Gentles, and William D. Gairdner (2003). pg. 291.

[JamesHackerMP]

That sounds just like the sort of debates we had: will the new government crush the powers of its members. I guess power consolidates.

Funny, though that Edward Luttwak, in his landmark book on coups d'etat, written in the 1960s, said that Canada was becoming increasingly decentralized, while the United States was becoming increasingly centralized. Maybe at that time it was true. Or perhaps Luttwak was just wrong?

[Benz]

In 1867, the canadian federalism was a classical one. Over time, the federal government gained more power. It got more taxation powers at the WW1 and got more power at WW2 as well. In 1982, 9 out of the 10 provices have give more powers to the federal making it more centralized. In 1999, (Social Union), the same 9 provinces have also give blessing to more powers to the federal government.

So to answer your question, the tendancy is that the federal is centralizing powers with the blessing of most provinces.

Most of the conflicts lie where few powers are shared on both level. Which is total non sense because the provinces and the federal are having different issues and reality to considere.

In 2000, the federal government was trying to exchange more powers on the health care system and give instructions to provinces, although they did not have the right to do so. This time 2 provinces objected to it and hold on long enough to make Ottawa step down. The population of those 2 provinces represented more than half of Canada so, the federal did not stand a chance.

Luttwak's book was written in 1960. The last major change happened in 1982. He was wrong because there was a clear tendancy to centralization but, it can be explained by his political positions. I do not know about him but, for some people, Canada will never be enough centralized.

The opinion about the degree of centralization the federal government should have often depend on economical context and interest. Some regions are more conservatives and others are more liberal, or progressives. A conservative Alberta will be annoyed by a liberal federal's instrusion per se. But there is also another data that you won't find in the USA. One province (Québec) is considering itself as a nation, unlike the others considering themselves as part of one nation. It is obvious that Québec would rather have a federal government as decentralized as possible, even among the people having no interest in independence.

[-TSS-]

I think the trend is towards centralisation anyway even though in theory constituent parts of the federation have their own laws. The EU is a prime example.