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Canadian federalism

Canadian federalism (French: fédéralisme canadien) involves the current nature and historical development of the federal system in Canada.

For the political ideology that favours Quebec remaining within the Canadian federation rather than pursuing independence, see Federalism in Quebec.

Canada is a federation with eleven components: the national Government of Canada and ten provincial governments. All eleven governments derive their authority from the Constitution of Canada. There are also three territorial governments in the far north, which exercise powers delegated by the federal parliament, and municipal governments which exercise powers delegated by the province or territory. Each jurisdiction is generally independent from the others in its realm of legislative authority.[1] The division of powers between the federal government and the provincial governments is based on the principle of exhaustive distribution: all legal issues are assigned to either the federal Parliament or the provincial Legislatures.


The division of powers is set out in the Constitution Act, 1867 (originally called the British North America Act, 1867), a key document in the Constitution of Canada. Some amendments to the division of powers have been made in the past century and a half, but the 1867 act still sets out the basic framework of the federal and provincial legislative jurisdictions. The division of power is reliant upon the "division" of the unitary Canadian Crown and, with it, of Canadian sovereignty, among the country's 11 jurisdictions.


The federal nature of the Canadian constitution was a response to the colonial-era diversity of the Maritimes and the Province of Canada, particularly the sharp distinction between the French-speaking inhabitants of Lower Canada and the English-speaking inhabitants of Upper Canada and the Maritimes. John A. Macdonald,[2] Canada's first prime minister, originally favoured a unitary system.[3]

As a federal monarchy, the Canadian Crown is present in all jurisdictions in the country,[nb 18] with the headship of state a part of all equally.[19] Sovereignty is conveyed not by the governor general or federal parliament, but through the Crown itself as a part of the executive, legislative and judicial branches of Canada's 11 (one federal and 10 provincial) legal jurisdictions; linking the governments into a federal state,[20] the Crown is "divided" into 11 "crowns".[21] The fathers of the Canadian Confederation viewed the constitutional monarchy as a bulwark against potential fracturing of the Canadian federation,[22] and the Crown remains central to Canadian federalism.[23]

Although the provinces have the power to create , only the federal government has the power to determine criminal procedure. Criminal procedure includes prosecution, and federal law can determine the extent of federal and provincial involvement.[nb 48] The provinces' power under s. 92(14) over the administration of justice includes the organization of courts and police forces, which determines the level of law enforcement. The Royal Canadian Mounted Police, as the federal police, contracts for the provision of many provincial and municipal police forces.

criminal courts

Although the federal power to regulate fisheries does not override provincial authority to require a permit for catching fish in waters under provincial control, the regulation of recreational fisheries has been partially delegated under the Fisheries Act[na 12] to the provinces for specified species in specific provinces.[na 13]

[nb 49]

Works affecting are subject to federal approval under the Navigable Waters Protection Act[35] and provincial approval, since the beds of navigable waters are generally reserved to the Crown in right of the province.[36][37][38]

navigation

Although federal jurisdiction over and most telecommunications is exclusive, the provinces may regulate advertising[nb 50] and cable installation (above or underground).[nb 51][39]

broadcasting

Although the concept of is under federal jurisdiction, the solemnization of marriages is controlled by the provinces.

marriage

The provincial power to regulate under the property and civil-rights power will be displaced by security interests created under a federal head of power – most notably under the banking power – but only to the extent that federal law has covered the field.[nb 52]

security interests

Laws arising from the property and civil-rights power will be used to complement the interpretation of federal legislation where the federal Act has not provided otherwise, but federal power cannot be used to create rules of private law in areas outside its jurisdiction.[na 14]

[nb 53]

In , provincial statutes operate by federal incorporation into the Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act. However, where a stay under federal law has been lifted in order to allow proceedings to take place, a province can impose a moratorium on proceedings falling under provincial law.[nb 54]

insolvency law

S. 96 has been construed to hold that neither the provincial legislatures nor Parliament can enact legislation removing part of the inherent jurisdiction of the superior courts.

[nb 60]

states, "All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces". This amounts to a prohibition of inter-provincial tariffs.

S. 121

states, "No Lands or Property belonging to Canada or any Province shall be liable to Taxation".

S. 125

Under s. 129, limits have been placed on the ability of the legislatures of Ontario and Quebec to amend or repeal Acts of the former . Where such an act created a body corporate operating in the former Province, the Judicial Committee of the Privy Council held that such bodies cannot have "provincial objects" and only the Parliament of Canada had power to deal with such acts.[nb 61] It has been held that this restriction exists for any Act applying equally to Upper and Lower Canada,[i] which became problematic when the Civil Code of Lower Canada was replaced by the Civil Code of Quebec.[50]

Province of Canada

Outside the questions of ultra vires and compliance with the Canadian Charter of Rights and Freedoms, there are absolute limits on what the Parliament of Canada and the provincial legislatures can legislate. According to the Constitution Act, 1867:


While the Parliament of Canada has the ability to bind the Crown in right of Canada or of any province, the converse is not true for the provincial legislatures, as "[p]rovincial legislation cannot proprio vigore [ie, of its own force] take away or abridge any privilege of the Crown in right of the Dominion."[nb 63]

Federalism - The canadian encyclopedia

Federalism in Canada: Basic Framework and Operation

Federalism-e – published by Queen's University Institute of Intergovernmental Relations

Canadian Federalism

Studies on the Canadian Constitution and Canadian Federalism

Constitutional Law professor Hester Lessard on the Downtown Eastside and Jurisdictional Justice

Canadian Governments Compared – ENAP