Feds must respect provincial jurisdiction

Opinion

Hey there, time traveller!
This article was published 20/01/2024 (608 days ago), so information in it may no longer be current.

The jurisdictions of federal and provincial governments in Canada are enshrined in the constitutional division of powers. The federal government has jurisdiction over, for example, the military and currency. The provinces, meanwhile, have jurisdiction over health-care and education.

Canadians sometimes think provincial governments are the feds’ junior partners. Not so. In a federation, power is conferred by the Constitution, and the provinces are explicitly empowered in areas like health care by the Division of Powers.

Despite these provincial powers, the feds have a few tools for interfering in provincial affairs. The most important is the federal spending power. The spending power allows the federal government to spend money in whatever area it wants, even areas of provincial jurisdiction. Since the federal government has greater access to revenue than the provinces, the federal spending power can be (and has been) a major threat to the constitutional Division of Powers.

The spending power has been used at various points across Canadian history. But the current government led by Prime Minister Justin Trudeau has used the power extensively, especially to impose its own social policy priorities in areas of provincial jurisdiction. And the feds have done so in ways that often leave the provinces out in the cold.

A recent study by academics Peter Graefe and Nicole Fiorillo shows how use of the spending power under Trudeau has effectively tilted power from the provinces to the federal government.

For example: in an ideal world, the spending power could be used to deliver federal investments in areas where there is shared concern from both the feds and provincial governments. But Graefe and Fiorillo instead report that federal-provincial collaboration in figuring out what challenges should and shouldn’t be tackled has declined. Instead, the pattern is one where the federal government decides what is important and then imposes its own policy agenda on the provinces.

The area of early learning and child care provides a good example. It was the federal government that identified affordable and accessible child care as a policy priority. While some provincial governments welcomed the initiative, others had different priorities.

Nevertheless, when confronted by the possibility of a tsunami of federal money flowing into their provinces, no premier hoping to get re-elected was going to turn down the moolah. So federal insistence and inflexibility ultimately won the day in what is clearly an area of provincial jurisdiction.

Graefe and Fiorillo also note that under the current government, social policy initiatives using federal spending power money usually require provinces to carefully report and be accountable for how the money is spent. This suggests a hierarchical relationship with the federal government in charge and the provincial governments doing the bidding of their lords in Ottawa. Needless to say, this is not a view of Confederation that is at all consistent with federalism or the Constitution.

An age-old problem in Canada is that the federal government has too much money and not enough responsibility, whereas the opposite is true for the provinces. The solution to this problem following the report of the Rowell-Sirois Commission in 1948 has been federal-provincial transfers: money flows from the federal to the provincial governments so hospitals and schools can be properly funded. Transfers recognize that provinces have the right to make decisions in areas of provincial jurisdiction, and they should have the money to do so.

But instead of using federal money to empower the provinces to exercise their constitutional powers for the benefit of Canadians, the current federal government has instead imposed its own priorities on the provinces by picking and choosing areas of provincial jurisdiction to spend in, and then requiring that the provinces stay in line with federal decrees lest the cash be yanked away.

The tens of billions of dollars spent by this government on federal initiatives in provincial jurisdiction could instead have focused on provincial priorities. With that money, some provinces would surely have improved access to child care. But others might have invested more into health care, whereas others might have focused on improving education.

In reality, provincial governments would have found the right mix of spending to address local needs; after all, no one thinks the social policy needs of Prince Edward Island and Alberta are identical.

That’s the beauty of federalism: the government that is closer to the people can adapt its priorities and spending to the unique needs of each province, rather than the federal government imposing a one-size-fits-all approach on a vast, diverse country like Canada.

The result of an increased use of the spending power, Graefe and Fiorillo argue, is that provinces will eventually start to fight back. Have they ever.

We have already entered a period of intense federal-provincial disharmony in Canada. If the federal government continues to use the spending power as a constitutional work-around to meddle in areas of provincial jurisdiction, that will only get worse.

» Royce Koop is a professor of political studies at the University of Manitoba and academic director of the Centre for Social Science Research and Policy. This column previously appeared in the Winnipeg Free Press.