Canadian Federalism and Its Future: Actors and Institutions 9780228002512

Table of contents :
Cover
CANADIAN FEDERALISM AND ITS FUTURE
Title
Copyright
Contents
Tables and Figures
Introduction: Canadian Federalism: The Impact of Institutions on Key Political and Societal Actors
PART ONE BICAMERALISM
1 The Possibilities and Pitfalls of Bicameralism in Federal Democracies
2 Bicameralism and the Consequences of Political Structuring in Canada: Lost Alternatives, Future Options
3 Federalism and Fraternity: Formalizing Arrangements to Foster Federal Dialogue in the Institutions of Canada’s Central Government
4 Minority Group and Women’s Representation in the Senate since 1867
PART TWO COURTS
5 The Role of the Judiciary in Federal States: Comparing the Belgian and Canadian Experiences
6 Consensual Constitution? Contractual Thinking in the Interpretation of the Canadian Constitution
PART THREE ELECTORAL SYSTEM AND PARTIES
7 Reconciling Federalism and Parliamentary Democracy: Political Competition and Negotiated Policy-Making in Canadian Federalism
8 Parties, Elections, and Canadian Federalism in the Twenty-First Century: Cairns Revisited – Again
PART FOUR INTERGOVERNMENTAL RELATIONS
9 Heading Together: Intergovernmental Relations and Horizontal Law-Making by Swiss Cantons
10 Cooperative Federalism vs Parliamentary Sovereignty: Revisiting the Role of Courts, Parliaments, and Governments
11 Intergovernmental Relations in Canada: Still an Exclusive Club?
Conclusion: Two Canadas as a Story without an End: Institutional Choices and the State of the Federation
Contributors
Index

Citation preview

Acknowledgments

CANADIAN FEDERALISM AND ITS FUTURE

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mcgill-queen’s refugee and forced migration studies Series editors: Megan Bradley and James Milner Forced migration is a local, national, regional, and global challenge with profound political and social implications. Understanding the causes and consequences of, and possible responses to, forced migration requires careful analysis from a range of disciplinary perspectives, as well as interdisciplinary dialogue. The purpose of the McGill-Queen’s Refugee and Forced Migration Studies series is to advance in-depth examination of diverse forms, dimensions, and experiences of displacement, including in the context of conflict and violence, repression and persecution, and disasters and environmental change. The series will explore responses to refugees, internal displacement, and other forms of forced migration to illuminate the dynamics surrounding forced migration in global, national, and local contexts, including Canada, the perspectives of displaced individuals and communities, and the connections to broader patterns of human mobility. Featuring research from fields including politics, international relations, law, anthropology, sociology, geography, and history, the series highlights new and critical areas of enquiry within the field, especially conversations across disciplines and from the perspective of researchers in the global South, where the majority of forced migration unfolds. The series benefits from an international advisory board made up of leading scholars in refugee and forced migration studies. 1 The Criminalization of Migration Context and Consequences Edited by Idil Atak and James C. Simeon 2 A National Project Syrian Refugee Resettlement in Canada Edited by Leah K. Hamilton, Luisa Veronis, and Margaret Walton-Roberts

preface

Canadian Federalism and Its Future Actors and Institutions

Edited by Alain-G. Gagnon and Johanne Poirier

McGill-Queen’s University Press Montreal & Kingston • London • Chicago

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© McGill-Queen’s University Press 2020 isbn 978-0-2280-0112-6 (cloth) isbn 978-0-2280-0197-3 (paper) isbn 978-0-2280-0251-2 (epdf) isbn 978-0-2280-0252-9 (epub) Legal deposit third quarter 2020 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free

We acknowledge the support of the Canada Council for the Arts. Nous remercions le Conseil des arts du Canada de son soutien.

Library and Archives Canada Cataloguing in Publication Title: Canadian federalism and its future : actors and institutions / edited by Alain-G. Gagnon and Johanne Poirier. Names: Gagnon, Alain, editor. | Poirier, Johanne, editor. Description: Includes bibliographical references and index. Identifiers: Canadiana (print) 20200232231 | Canadiana (ebook) 20200232274 | isbn 9780228001973 (softcover) | isbn 9780228001126 (hardcover) | isbn 9780228002512 (pdf) | isbn 9780228002529 (epub) Subjects: lcsh: Federal government—Canada. | lcsh: Canada—Politics and government—21st century. | csh: Federal-provincial relations—Canada. Classification: lcc jl27 .c36 2020 | ddc 320.471/049—dc23

This book was typeset by True to Type in 10.5/13 Sabon

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Contents

Tables and Figures vii Introduction: Canadian Federalism: The Impact of Institutions on Key Political and Societal Actors 3 Johanne Poirier and Alain-G. Gagnon, with Abbie Buckman and Didier Zuniga

part one

bicameralism

1 The Possibilities and Pitfalls of Bicameralism in Federal Democracies 27 Cheryl Saunders 2 Bicameralism and the Consequences of Political Structuring in Canada: Lost Alternatives, Future Options 53 Jörg Broschek 3 Federalism and Fraternity: Formalizing Arrangements to Foster Federal Dialogue in the Institutions of Canada’s Central Government 84 Ian Peach 4 Minority Group and Women’s Representation in the Senate since 1867 105 Linda Cardinal

part two

courts

5 The Role of the Judiciary in Federal States: Comparing the Belgian and Canadian Experiences 135 Marc Verdussen 6 Consensual Constitution? Contractual Thinking in the Interpretation of the Canadian Constitution 168 Sébastien Grammond

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PART THREE

Contents

ELECTORAL SYSTEM AND PARTIES

7 Reconciling Federalism and Parliamentary Democracy: Political Competition and Negotiated Policy-Making in Canadian Federalism 199 Arthur Benz 8 Parties, Elections, and Canadian Federalism in the Twenty-First Century: Cairns Revisited – Again 223 A. Brian Tanguay PART FOUR

INTERGOVERNMENTAL RELATIONS

9 Heading Together: Intergovernmental Relations and Horizontal Law-Making by Swiss Cantons 251 Eva Maria Belser 10 Cooperative Federalism vs Parliamentary Sovereignty: Revisiting the Role of Courts, Parliaments, and Governments 291 Noura Karazivan 11 Intergovernmental Relations in Canada: Still an Exclusive Club? 336 Jean-Philippe Gauvin and Martin Papillon Conclusion: Two Canadas as a Story without an End: Institutional Choices and the State of the Federation 365 Yasmeen Abu-Laban Contributors 387 Index 389

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Tables and Figures

tables 2.1 Inter- and intra-institutional mechanisms in federations 58 4.1 Female representation in the Senate under successive prime ministers and political affiliation since 1867 119 8.1 Percentage of votes and seats for governing party, 1968–2019 225 8.2 Bias of Canada’s smp electoral system in translating votes into seats, 1968–2019 230 8.3 Regional representation in government caucus and federal Cabinet, 1968–2019 232–3

figures 4.1 Group representation in the Senate since 1867 111 4.2 Senatorial nominations of francophone and Acadian minorities under successive prime ministers since 1867 113 4.3 Senatorial nominations of First Nations, Inuit, and Métis under successive prime ministers since 1867 116 4.4 Female representation in the Senate under successive prime ministers since 1867 117 9.1 The Diet in Bern of 1847. Artist unknown, Letzte Sitzung der schweizerischen Tagsatzung am 20. Oktober 1847. Präsidiert von Ulrich Ochsenbein 256 9.2 The Conference in Quebec of 1864. Robert Harris, The Fathers of Confederation, 1884. Photograph by James Ashfield 257 9.3 Chamber of the Canadian Senate. Photograph by Saffron Blaze, via http://www.mackenzie.co 268

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9.4 Chamber of the Swiss Council of States. Photograph courtesy of the Swiss Federal Assembly 269 11.1 Average annual frequencies of meetings by sector, 2005–15 346 11.2 Average institutionalization by policy domain 348 11.3 Frequency of meetings by type, 1975–2016 349 11.4 Frequency of interprovincial meetings, 1975–2016 352 11.5 Functions of interprovincial relations 353 11.6 Mentions of stakeholders and Indigenous Peoples by sector 355 11.7 Number of agreements between provinces and Indigenous authorities, 1995–2014 356

The Backstory

CANADIAN FEDERALISM AND ITS FUTURE

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On the House

INTRODUCTION

Canadian Federalism: The Impact of Institutions on Key Political and Societal Actors Johanne Poirier and Alain-G. Gagnon with Abbie Buckman and Didier Zúñiga

The 1867 Canadian federal project brought together four entities still under British colonial rule.1 Adopting a territorial federal architecture offered a limited form of self-government to the French-speaking community that was demographically concentrated in Quebec, and preserved a degree of autonomy in the Maritime provinces (which were concerned with the potential domination of larger ones). Over less than a century, the Canadian federation went from a relatively limited grouping of territories in what is now southeastern Canada, to a country that spans a vast continent. While the federation has expanded, its basic architecture, elaborated in 1867, has not significantly changed. At its most fundamental, federalism combines institutions of shared rule and self-rule, which are designed to promote the autonomy of different orders of government and collective action.2 In 1867, only certain actors – provinces – were endowed with the formal institutional tools of autonomy through federal arrangements. This architecture neglected French-speaking minorities in provinces other than Quebec.3 It treated Indigenous nations as objects of legislation rather than actors in the federation.4 The “binary” between what was then English and French Canada translated into territorial powers for the population of Quebec, as for the population of other provinces. Other minorities, nations, and social groups were left out of the federal equation.

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The federation may have survived for a century and a half, but its evolution – from a territorial, political, and constitutional perspective – has had a mixed impact on key actors, including both formal constitutive units and other groups whose claim for recognition and measures of self-government are not officially acknowledged through the formal Canadian federal system. The future of the Canadian federal experiment will also likely be assessed on the basis of its capacity to promote the autonomy of diverse groups as well as on the ability of common institutions to articulate their diverse – and sometimes divergent – interests. This collection of essays canvasses the evolution of Canadian federalism over the last century and a half. It is the third volume in a series launched by the Research Group on Plurinational Societies (Groupe de recherche sur les sociétés plurinationales). The first two volumes were published in English and French by McGill-Queen’s University Press and Les Presses de l’Université Laval. The first, The Constitutions That Shaped Us (Ces constitutions qui nous ont façonnés, 2015), appraised a series of historical events and interpretations of every Canadian constitution leading to the British North America Act of 1867.5 The second, The Quebec Conference of 1864: Understanding the Emergence of the Canadian Federation, published in 2018, explored the events leading to the seventy-two Quebec Resolutions of 1864, and assessed, with the advantage of hindsight, the emergence of the Canadian federation.6 These collective reflections were launched in the context of a joint international colloquium co-organized in 2017 by the Université du Québec à Montréal (uqam), McGill University, and Université Laval, at a time when Canada’s 150th anniversary was attracting widespread scholarly attention. The bilingual conference took place in both Montreal and Quebec City. It also included an original conversation focused on Indigenous perspectives on the Canadian federation. The latter “moving seminar” was held in a specially chartered train car between the two cities. Entitled “The Ways of Reconciliation,” it brought together Ry Moran (National Centre for Truth and Reconciliation), Janique Dubois (University of Ottawa), and Ghislain Picard (chief of the Assembly of First Nations of Quebec and Labrador). The conversation was guided by Daniel Salée (Concordia University). Simply acknowledging the various Indigenous nations whose unceded lands we were crossing during this 250 km journey was a true learning experience, and profoundly emotional for all participants.7

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The volume brings together historians, legal experts, and political scientists with a strong interest in federal studies to reflect on Canada’s federal past and future. Each contributor explores federalism as a mechanism for preserving and managing coexistence in complex state settings with strong cultural, linguistic, and national diversity. Each was invited to examine one of four main political institutions using both a retrospective and a prospective lens: namely, bicameralism, the judiciary, the electoral system and political parties, and intergovernmental relations. In addition, as a unifying theme, they were asked to assess each of those institutions from the perspective of its impact on “key actors” of the federation, including provinces, territories, Indigenous peoples, internal nations, and linguistic minorities. Predictably, authors’ views on the potentials and shortfalls of the Canadian federal model vary significantly. But we believe that this double analytical grid (institutions + actors) offers a focused approach to the multifaceted 150-year-old Canadian federalism experiment. The demographic, social, and cultural contexts of the Canadian multinational federation is changing rapidly. Similar societal shifts are also occurring around the world, including in other federations. This project seeks to pay real attention to Indigenous peoples and constitutive nations in an evolving polity, while simultaneously recognizing Canada’s exponential diversity and not erasing or diluting the role exercised by groups that founded the federation in the first place. This poses a real challenge that our authors have addressed in constructive ways.

general overview This collection of essays is structured around four major institutions that shape Canadian federalism: (1) bicameralism, (2) the judiciary, (3) the electoral system and political parties, and lastly, (4) intergovernmental relations. Each institution is analyzed through the lenses of “key actors” affected by this dual and potentially antipodal pull between unity and diversity. This provides a “transversal” analytical framework for exploring the past, present, and future of Canadian federalism. In order to offer a broader perspective on the evolution of Canadian federalism, each of the four parts of the book opens with a comparative analysis of federal experiences by established experts from other federations (Australia, Germany, Belgium, and Switzerland). Each theme is thus examined by both Canadian analysts and foreign specialists. We

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are of the view that this exercise will foster continued dialogue concerning the capacity of federal structures to respond to deep and thick diversity,8 both within Canada and within the wider “federal studies” epistemic community. Part 1 explores bicameralism, which is often portrayed as the quintessential federal institution. Most federal states are indeed bicameral: the federal legislative branch consists of two distinct chambers. The first gives a voice to “the people”; the other, in theory at least, gives a voice to the constitutive units (or their people) composing the federation. In the opening chapter, “The Possibilities and Pitfalls of Bicameralism in Federal Democracies,” Cheryl Saunders canvasses some of the main options for structuring representation in a federal second chamber and for determining the nature and extent of its powers (including legislative veto). The chapter uses the Australian Senate as a case study. In this second chamber, which exercises powers that are almost coequal with those of the House of Representatives, the peoples of the constituent units are represented equally. As with many senates around the world, partisan politics have resulted in a second chamber that – paradoxically – plays a rather limited role in relation to federalism, but which operates quite effectively as a chamber of review (“sober second thought”) and in which a greater diversity of representation is possible. Used with due regard to contextual differences, the Australian experience offers insights for federations on a large scale, such as Canada. In the second chapter, “Bicameralism and the Consequences of Political Structuring in Canada: Lost Alternatives, Future Options,” Jörg Broschek explores institutional mechanisms designed to accommodate centre-periphery conflicts. Considering historical events following Confederation, the author argues that the weak joint-rule institutions in Canada have led to greater decentralization and a lack of shared institutional power over the long term. The Canadian Senate – the presumably archetypal shared-rule mechanism – is notoriously weak. This failure of bicameralism to act as a federal institution shows how the shared rule and self-rule equation within the architecture of Canadian federalism have been imbalanced over time. A number of key actors (most prominently, provinces) have disengaged from collective action through common institutions to focus instead on strengthening regional autonomy, and on less institutionalized intergovernmental relations. This historical reconstruction illustrates how the “heavy hand of history” shapes pathways of reform

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and the prospects for rebalancing shared rule and self-rule in Canadian federalism. Taking stock of the Senate’s failure to fulfil its federal role, Ian Peach calls openly for its abolition. In chapter 3, “Federalism and Fraternity: Formalizing Arrangements to Foster Federal Dialogue in the Institutions of Canada’s Central Government,” he also echoes the finding that the Senate seems unable to serve as an institution of federal dialogue among the official key actors in Canada’s federal structure: the provinces. Despite a notorious lack of success in reforming the Senate to make it a truly federal chamber, the author holds that reforms designed to create an institutional dynamic of federal dialogue are possible. He pleads for the replacement of the second chamber by a constitutionalized federal/provincial/territorial Council of the Federation, which would act as a consultation and coordination body. This new entity could in fact propose the creation of a new second legislative chamber that would meet the promises of bicameralism. If this project were to fail, the fallback option would at least be the consultative – but constitutionalized – Council of the Federation. In the fourth chapter, “Minority Group and Women’s Representation in the Senate since 1867,” Linda Cardinal takes a very different stand, underlining the role the Senate has played since its creation in defending minority interests, including, to varying extents, those of francophones, women, and Indigenous peoples. The literature on the Senate often fails to consider the extent to which it has succeeded in including underrepresented groups in Canadian federal structures. Cardinal’s contribution thus fills a significant gap in the literature by considering the representation of these three groups. She notably shows that the representation of women has been better ensured since the 1980s, while it is much more fragile, but still notable, for francophone and Acadian communities, as well as for Indigenous peoples. The chapter suggests that it is time to enshrine minority group representation for francophone and Acadian communities, women, and Indigenous peoples, so that the Senate may more fully play its role as an inclusive forum of “sober second thought” in the federal structure. In sum, each contribution in Part 1 acknowledges the failure of the current Canadian Senate to serve as a truly federal institution. For Broschek, this weakness has led to significant decentralization and other forms of intergovernmental relations. Peach agrees, calling for brand new institutions to give voice to the traditional “key” actors of the federation, its territorial units. Noting a significant trend in com-

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parative federalism to revisit the ways in which bicameralism meets the “federal challenge,” Saunders underlines its potential for being a voice of reflection and greater inclusion (a role which bicameralism can play in any state, not only federal ones, obviously). Cardinal’s conclusion is that this is exactly one of the fundamental roles that the Canadian Senate has historically played, and ought to continue playing in the future. Part 2 shifts the analytical lens towards the judiciary, also generally identified as an inescapable institution in any federal system. The powers, status, and role of judges within the overall institutional structure obviously vary from one federal state to another. Yet common concerns emerge regarding the role of the judicial/constitutional arbitrator in multicultural and multinational federations. Fundamental political and historical features of a particular federation will affect judicial interpretation of the federal balance. Conversely, judicial interpretation will likely reinforce and alter the federal character of a particular federation and the relations between its various components. In chapter 5, “The Role of the Judiciary in Federal States: Comparing the Belgian and Canadian Experiences,” Marc Verdussen surveys centrifugal forces in Canada and Belgium, two federations prone to bipolarization, and studies the impact of the judicial branch on these dynamics. He underlines the central role of linguistic communities (only one of which self-identifies as a nation within the federation) in shaping the composition of the Belgian constitutional court, as well as its case law. While acknowledging that some analysts deplore the centralizing impact of the Supreme Court’s constitutional jurisprudence, Verdussen concludes that there might be more balance between the centralist and decentralist tendencies in Canada than there is in Belgium, where basically every trend, including constitutional interpretation, seems to reinforce centrifugal tendencies. The judiciary has been decisive in the interpretation of Canada’s constitutional texts to accommodate – or not – the diversity of multicultural and multinational federations, including, arguably, by opening (limited) avenues for participation and agency for Indigenous peoples within the federal system. That said, case law on federalism fluctuates between centralization and decentralization, in a way that may reflect fluid, and possibly ambivalent, conceptions of the federation altogether. In chapter 6, “Consensual Constitution? Contractual Thinking in the Interpretation of the Canadian Constitution,”

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Sébastien Grammond seeks to find a “common thread” in this case law, suggesting that the Supreme Court of Canada has often (implicitly) analyzed the federation through a contractual perspective. Analyzing key jurisprudence, the author notes how the court relies on a conception of the Constitution as a “pact” between founding people, whether or not this was actually intended by the drafters. Hence, in a number of recent cases, the Supreme Court conceives of the Constitution as a set of agreements involving certain key actors, notably Quebec, but also Indigenous peoples and linguistic minorities. Making this conception more explicit would be an act of recognition of those key actors. Moreover, it could potentially contribute to “repairing” certain historical deficiencies, such as the historical violation of agreements with Indigenous peoples by Canadian authorities. In brief, judges, as “final arbitrators” in the federal order, illustrate the power relations of key actors in the federation. But they also have the capacity to maintain an equilibrium between self-rule and shared rule, protect minorities, recognize true diversity, and even (partly) redress some historical wrongs through creative constitutional interpretation. This may have been the case to a greater degree in Canada than in the Belgian federation. While the overall verdict remains unclear, the role of the “federal arbitrator” in acknowledging key actors beyond the traditional territorial units is definitely thought provoking. Part 3 focuses on a more “political” set of institutions in a federal regime: the electoral system and party politics. In chapter 7, “Reconciling Federalism and Parliamentary Democracy: Political Competition and Negotiated Policy-Making in Canadian Federalism,” Arthur Benz underlines the need to reconcile federalism and parliamentary democracy in a rich analysis of the German and Canadian federations. He surveys Germany’s brand of “integrated federalism” and “integrated partisan system” to shed light on Canada’s still dualist and polarizing form of interstate federalism. Benz then suggests that the emergence of what we could call “negotiated” or “contractual” federalism between the federal order, provinces, and Indigenous peoples has created new varieties of governance structures and new modes of decision-making.9 This form of federalism, he argues, is characterized by less competitive relations between governments and a higher level of cooperative engagement. It also rests on a very loose coupling between parliamentary democracy and intergovernmental relations (in which the former largely gives way to the latter). Indeed, when these

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actors come to the negotiating table, they do so outside the formal confines of federal structures, in ways that largely avoid parties, elected officials, and parliamentary oversight. In chapter 8, “Parties, Elections, and Canadian Federalism in the Twenty-First Century: Cairns Revisited – Again,” Brian Tanguay partly confirms Cairns’s seminal findings that the “single member plurality” system (i.e., first-past-the-post) exacerbates pre-existing regional and linguistic cleavages in Canada. Along with the Senate’s federal deficit, noted earlier, this contributes to consolidating “self-rule” in the federation to the detriment of “shared rule.” Moreover, beyond this impact on the “traditional” actors of the federation, the electoral system has also failed to ensure participation in the democratic institutions of other “key actors” – notably minorities, women, and Indigenous peoples, as Linda Cardinal’s contribution underscored in the context of the Canadian Senate. Tanguay then forcefully argues in favour of a mixed proportional electoral system to promote the integrative role of Canadian federal parties. Hence, for Benz, party politics in Canada has led to a form of “negotiated” federalism, which finds some echo in Grammond’s account of the contractual narrative in constitutional judicial interpretation. This provides a strong voice for some provinces and, depending on the period, to other actors in the federation. If Quebec and linguistic minorities had a greater voice in the past, the increasing place of Indigenous peoples (or at least some of their representatives) in this “negotiated federalism” is now clearly notable. Tanguay’s pleading for a reformed electoral system is another way of calling for better incorporation of Canada’s diversity in the legislative branch, so that the main parliamentary institution can play a richer role in shared rule. As it stands, Canada’s electoral regime simply fails at this integrative game, although it may have reinforced some “traditional” key actors in the federation in a way that has strengthened their autonomy and, consequently, the self-rule dimension of the federal equation. While these are welcome developments, Benz reminds us that they come at the cost of parliamentary scrutiny: more inclusion, but arguably also more opacity and a democratic deficit. The first three parts all point to the need to reflect on the fourth major institution of federalism examined in this volume: the modalities of interaction between federal partners outside formal parliamentary and judicial institutions. Part 4 turns the spotlight on inter-

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governmental relations (igr), which are analyzed from a multiplicity of vantage points.10 In this comparative segment of the book, Eva Maria Belser contrasts the Swiss and Canadian experiences of power-sharing, which both aim, to a certain extent and through various means, to protect distinct forms of diversity. Chapter 9, “Heading Together: Intergovernmental Relations and Horizontal Law-Making by Swiss Cantons,” stresses the sharp increase in intercantonal cooperation. igr between cantons are, in all policy fields, necessary to overcome governance failures at a small scale. This is especially relevant in a highly fragmented federal system. Strong intercantonal cooperation is often portrayed as the only option for influencing federal decision-making effectively and preventing further centralization. It is, however, also criticized for contributing to the strengthening of cantonal executives at the expense of cantonal parliaments and direct democratic rights. In other words, by making the system more flexible, igr also make it less accountable. This point echoes a central finding made by Benz on the impact of negotiated federalism on parliamentary democracy in federal regimes. This tension between igr and parliamentary democracy is also a source of concern in Canada. In chapter 10, “Cooperative Federalism vs Parliamentary Sovereignty: Revisiting the Role of Courts, Parliaments, and Governments,” Noura Karazivan explores the tension between the increasingly cooperative nature of Canadian federalism and parliamentary sovereignty. The latter empowers Parliament and every provincial and territorial legislative assembly to exercise their jurisdiction as it sees fit, as long as it respects fundamental rights and the federal divisions of power. This could lead legislatures to reject or modify cooperative regimes set up by the various executive branches, even when this may have a detrimental effect on other federal partners. Put another way, whatever deal is negotiated, it can be revoked unilaterally by an elected assembly.11 While this may seem shocking from the perspective of stable intergovernmental relations, this possibility constitutes a partial response to the democratic deficit that flows from igr. In this context, courts are faced with a difficult interpretive challenge: do intergovernmental agreements bind their (executive) signatories? Should courts step in to limit parliamentary sovereignty to protect the legitimate expectations of federal partners or introduce obligations to act in good faith? Ruling this possibility out, Karazivan argues that those who “negotiate” the deals should also take

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into account the risk of noncompliance and unilateral actions. We hear, again, the echoes of contractual – negotiated – federalism. Karazivan thus seeks to ease the tension between parliamentary sovereignty and cooperative federalism by giving due consideration to the respective roles of the legislative, executive, and judicial branches of each order of government. Finally, in chapter 11, “Intergovernmental Relations in Canada: Still an Exclusive Club?,” Martin Papillon and Jean-Philippe Gauvin also underscore how igr in Canada are often criticized for their limited institutionalization, their lack of transparency, and their tendency for zero-sum political conflict. This said, the authors propose a more nuanced assessment of igr. First, there is indeed a sharp contrast between political igr, which are often adversarial, and administrative igr, where public servants have an incentive to collaborate on a dayto-day basis. This is likely the level at which their assessment may be reconciled with Benz’s more favorable understanding of Canadian igr as tools that can lead to negotiated cooperation. Second, intergovernmental dynamics differ greatly in federations depending on the policy sector under study. Third, as noted by all the contributors in Part 4, igr are no longer limited to federal-provincial relations. Interprovincial (and territorial) relations as well as relations with Indigenous Peoples have become central (and often overlooked) dimensions of the Canadian igr system. In sum, igr are a means of giving voice to traditional actors, but also to actors that often have not received sufficient academic scrutiny. In this sense, the Swiss example invites Canadians to pay greater attention to horizontal cooperation. This raises questions about the impact of the inclusion of new actors in the intergovernmental game, as well as the impact of igr on the traditional mechanisms of democratic and judicial control of executive action. Concluding the volume, in “Two Canadas as a Story without an End: Institutional Choices and the State of the Federation,” Yasmeen Abu-Laban contrasts the “two Canadas” that have always been in tension with each other: one centred on openness toward others, and another based on rejection and fear. Abu-Laban identifies the institutional choices and the state of federation that underpin these two competing visions. The idea of the two Canadas rests on a divergent understanding of the makeup of Canada and distinct approaches taken to diverse others: whether there is openness, embrace, and trust of others, or whether there is closure, rejection, and fear of others. She

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pleads in favour of a pluralist conception of federalism in which a wide range of key actors, not merely the federal and provincial governments, participates more dynamically in federal decision-making. Such an approach would also create more space for “treaty federalism” with Indigenous Peoples. We could add that, in our view, this pluralist federalism should be a concrete way to nurture an inclusive and multinational conception of Canadian federalism.12

key lessons for canadian federalism The objective of this project was both to explore the various ways in which federal institutional design and federal practices interact with a plurality of groups, and to outline constructive proposals for the future of Canadian federal democracy. It is, of course, impossible to envisage this future in a singular narrative, or to seek ways to tame political conflicts altogether. Any forward-looking exploration of Canadian federalism brings to the fore the importance of treaty-making with Indigenous peoples, legislative and constitutional change, and a myriad of forms of dialogue and negotiation. These are indispensable to the peaceful coexistence of all participants in a federal union. Overall, these essays weave four underlying themes. The first is the differential impact of various institutions that are central to the federal system on key actors. Second, and in a related fashion, is the (in)adequacy of institutions set up in the nineteenth century to address Canada’s social, cultural, linguistic, and national diversities. Third is the pervasiveness of conflict, dispute resolution, negotiations, and cooperation in Canada’s federal story. We turn to those themes before concluding with the categorical imperative of continued institutional creativity and dialogue. The Differential Impact of Institutions of Federalism on Key Actors The institutional arrangement on which the Canadian federation is built has deep implications for the avenues of participation available to a wide array of political and social actors, and thus on the coexistence of diverse groups in a multicultural and multinational polity. Together, the twelve chapters in this volume provide an overview of the fabric of Canadian federalism and of the literature pertaining to intergovern-

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mental relations, electoral politics, the role of the judiciary as arbitrators of the federal game, and bicameralism in federations. The contributors vary in their level of optimism about the ability of the Canadian federation to reconcile Canada’s multiple diversities. Admittedly, providing a definitive assessment of the past, current, and future impact of federalism on “key actors” of the federation is way beyond the scope of the present project. Consensus on this matter is likely to be elusive. Nevertheless, some lessons emerge from our collective reflections. Overall, the four major institutions examined (bicameralism, electoral system, courts, intergovernmental relations) have, at best, historically marginalized, or, at worst, ignored Indigenous Peoples. Today, more members of Indigenous nations sit in the Senate than in the House of Commons, and intergovernmental relations have become a para-constitutional way of including Indigenous Peoples in multilevel governance, given their exclusion from the formal territorial structure of Canadian federalism.13 Courts have certainly played a crucial role in interpreting s. 35 of the Constitution Act, 1982, although with mixed results for Indigenous Peoples. Moreover, the increasing trend towards jurisdictional overlap and cooperative federalism in the Supreme Court of Canada’s case law has increased the constitutional reach of provinces into matters that affect Indigenous Peoples. This may have positive effects – the typical “laboratory” advantages of a federal formula which facilitate innovation and experimentation. But it also clearly complicates the game in terms of identifying which Indigenous Peoples/nations/communities are to negotiate their place in such a complex polity. The impact of federalism for Quebec – which would once have been the core material for any political scientist or constitutionalist in Canada – is mixed. The territorial form of Canada’s federal system has granted, from the start, tools of (relative) institutional autonomy and power to the francophone majority in the province. While economic disempowerment prevented that majority from maximizing these tools for a large portion of Canadian history, it is difficult to deny that since the Quiet Revolution of the 1960s federalism has strengthened the Quebec nation. Several volumes have been written on Canada’s capacity – or lack thereof – to acknowledge the multinational character of its brand of federalism, particularly in view of the presence of the Quebec nation (and now, Indigenous nations) in its midst. For some analysts, Canadian case law has led to negating Quebec’s national identity.14 Others have stressed the “internal exile” of Quebec feder-

Introduction

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alists in Canada.15 Hence, the impact of Canadian federalism on the Quebec “internal nation” is mixed and contested. However, Canadian federalism has not prevented Quebec from emerging and blossoming economically, culturally, and institutionally. But – by definition – it has limited its capacity to act with the large autonomy that full sovereignty would have provided. As Sébastien Grammond suggests, the “contractual lens” through which linguistic and cultural diversity is approached by the Supreme Court may provide a degree of federal recognition of linguistic minorities. Nevertheless, francophones in twelve of the thirteen constitutive units have a double minority status as a result of federalism: they are minorities both in Canada and in their respective province or territory. Even with some constitutionalized rights, this has generated asymmetrical solutions, ranging from an official recognition of the equality of French and English communities in New Brunswick to the near absence of any rights (beyond those derived from the Canadian Charter) in British Columbia. While there is an increasing acknowledgment that constitutional politics in Canada ought to make space for self-governance by Indigenous Peoples, this is hardly ever considered with regard to francophone minorities, except through the traditional use of territorial federalism in Quebec.16 It is important to note, however, that the Senate has made more room for francophone minorities than other institutions. Beyond the Senate, if federalism has had a positive impact on linguistic minorities, it is possibly due to its underlying philosophy of gradually embracing differences. The impact of formal institutions of Canadian federalism on other marginalized groups would undeniably warrant a study unto itself. Women are the principal marginalized group that was partly considered in the present project. Unsurprisingly, women have not fared well in the existing first-past-the-post electoral system. Given their near absence in top political leadership positions, they have not played a very visible role in intergovernmental relations. That said, further study on their potential impact in the less visible, more administrative intergovernmental relations, in a number of public policies, would be rather revealing.17 The intersection between federalism jurisprudence and feminism would also deserve scrutiny.18 A (prudent) assessment is that federalism may be both positive for women (because it allows for innovation) and negative (due to power games between traditional male elites, which do not necessarily take women’s interests into consideration). At a minimum, it is clear that if the Supreme Court of

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Canada has an underlying “contractual” understanding of Canadian federalism with regard to linguistic/minority groups and Indigenous Peoples, women (and other social minorities) are not formally recognized members of the contractual deal. Again, it appears that only the decried Senate, which everyone wants to reform, may have given a more significant voice to women in Canadian federal politics. Finally, what is the impact of the last 150 years on the “traditional actors” of Canadian federalism: the provinces? Here, in contrast with the assessment regarding other “key actors” of the federation, the Senate has basically been irrelevant in federal-provincial or inter-provincial interaction. This, as Broschek reminds us, has favoured, at least in comparative terms, interstate relations and provincial autonomy. Intergovernmental relations have been the name of the game and they have taken place largely outside of any formalized legal framework. igr give way to rather traditional power games, which are partly dependent on judicial interpretation of the division of powers. In this context, it is commonplace that judicial rulings have fluctuated between centralization and decentralization, with the current time period favouring overlap.19 As for the electoral system, it has regularly led to major regional polarization, with entire regions of the country feeling underrepresented if not simply unrepresented, not only in the Senate, but also in the House of Commons. Adopting a more proportional electoral system would thus not only make way for different voices (including those of various minorities), but might contribute to greater horizontal connections. In short, Canada’s federal history illustrates power relations between groups: some negotiate, and some are ignored and oppressed. Every author in this collection of essays has noted how institutions have failed to be inclusive of Indigenous Peoples. While Canada’s territorial federalism has given tools of (relative) self-government to the francophone majority in Quebec, it has had the effect of transforming francophone communities in other provinces into double minorities: federal and provincial ones. Tools of federalism and overall institutions have not been very effective at including them, apart from, as noted by Cardinal, the non-elected Senate. Similarly, that odd – and for a long-time, hardly effective – institution has made greater space for women, linguistic minorities, members of Indigenous nations, and members of Canada’s relatively new “multicultural” make-up, than other institutions. A cynic might say that it is due to its historical ineffectiveness that members of the majority felt unthreatened

Introduction

17

to share this institution with a broader representation of Canada’s enlarged diversity.20 Can the Institutions of Federalism Give a Voice to Canada’s Deep and Complex Diversity? Although it may seem astonishing for younger readers today, to tell the story of Canadian federalism not so long ago would have entailed putting the spotlight solely on provinces (including a recurring sense of alienation from the power at the centre). The narrative would also have focused on Quebec nationalism and the possible ways of “accommodating Quebec.” Today, federalism – with its (theoretical) promise of inclusion, autonomy, respect for diversity, solidarity, and unity through difference – has widened our enquiries to include a reflection on the mechanisms and processes that can foster political representation of distinct societal groups – including internal nations, linguistic minorities, immigrant communities, women, or other marginalized groups. While it was beyond the scope of this book to address such issues across the board in a systematic fashion, this collection does shed important analytical light on this matter. Most obvious is the question of the place that Indigenous Peoples have occupied in Canada’s constitutional history: from partners in treaties and military allies to “objects of federal legislation” under the 1867 British North America Act, which established the Canadian federation.21 It is now unthinkable to assess major institutions of federalism without reflecting on their potential and pitfalls for Indigenous peoples. As Yasmeen Abu-Laban insists, contemporary federal studies, with their emphasis on pluralism, cannot be oblivious to the settlercolonial foundations of the country, or to the context of ongoing settler-colonial injustices. This clearly calls for a true recognition that Indigenous Peoples are relevant constitutional actors, with whom all other actors must be willing to negotiate, in a true spirit of federalism. How to do so while not marginalizing other key actors in Canada’s federal history is a challenge, as the debates surrounding official bilingualism in Canada sometimes show. Is bilingualism a vector of diversity, a tool for ensuring that different voices/thoughts/ways of expression are taken into account? Or is bilingualism an obstacle to inclusion (the presumption being that English is a more inclusive, less colonial, more neutral language)? Do we get more diversity by reducing diversity?

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Democracy and diversity are intimately linked. In Canada this connection is made more complex and more crucial by the multiple coexisting vectors of identity. Some of them, such as the regional, linguistic, and national groupings, represented by the provincial and territorial governments, are central actors in all federal institutions. Other groups, such as Indigenous communities, have been historically excluded from federal participation but are seeing new avenues and new forms of collaboration modestly open up. Yet other diverse groups excluded from federal structures are left with the representation through elected bodies to include their voices in federal processes – something that is particularly the case for women and linguistic minorities. This raises important questions about the way in which democracy, federalism and diversity are connected, and about the ways in which they affect each other. Indeed, sometimes the demands of democracy seem to be incompatible with what the recognition of diversity entails. This is because the former are translated into processes of governance in which participants have equal standing. But the meaning and rationale of the recognition and accommodation of cultural diversity problematizes prevalent conceptions of equality. The idea behind the politics of difference is that in order to do justice to the multiplicity of groups that coexist within a given polity, we need to give due recognition to various cultural identities while acknowledging the power imbalances that exist between them. In Canada, for instance, cooperation between the anglophone majority, the francophone minority, the minorities within minorities, and the plurality of Indigenous Peoples is hindered by the inequalities and injustices that pervade the history of their interactions. Federalism is one way of reconceiving the institutions and processes of democracy so as to recognize diversity, but also promote cohesion. But it is only one way. And it may be in need of serious modernization. A Complex Story of Colonialism, Conflict, and Cooperation All the contributions in this volume share the assumption that conflict and dispute resolution are the driving forces of federalism, in general, and of Canadian federalism in particular. Indeed, the formation of Canada as a political community, from its foundations to the present day, is fraught with conflict. The very acts of colonization, con-

Introduction

19

quest, and settlement were grounded in conflicts, often violent ones. In other words, the dispute resolution dynamic was at the forefront of the creation and consolidation of the Canadian political community. Adopting a federal formula to assuage Maritime provinces’ fears of central Canadian domination, and to guarantee the acceptance of Quebec’s political elite to join the new country, was a means of managing tensions. Treaty-making may be understood as another way of managing conflict, but the terms and implementation of those treaties have also crystallized conflict. Today, conflict is still integral to Canada’s multilevel form of governance. There is interprovincial or federal-provincial conflict over pipelines or equalization payments, conflict over the reduction of services to francophones in Ontario or New Brunswick, conflict over Quebec’s specific brand of secularism, conflict over natural resources, conflict over how to reduce tensions in the “reconciliation” project between state authorities and Indigenous Peoples. The list is endless. In a federation as diverse as Canada, complete harmony is impossible. To the extent that conflict leads to dialogue, negotiation, and imagining news ways of relating to one another, conflict can also be a stepping stone to renewing relations, rebalancing unity and diversity, or creating the necessary bonds to cultivate unity across difference, in the words of Charles Taylor.22 At various times in history, key actors in the Canadian federation have showed creativity in negotiations and the elaboration of cooperative arrangements. From the beginning, the Senate, whose members are all appointed by the federal executive, proved ineffective at giving a voice to constitutive units in federal policy and law-making. This has led formal actors to find alternative means of testing and challenging relationships between formal actors. Hence, a plethora of “intergovernmental relations” have – in the shadow of formal law and in great opacity – structured cooperation, dialogue, and power games between formal federal actors. This contributed to creating an unending oscillation between competition and cooperation, between an official dualist structure and a far more integrated federal practice. The Categorical Imperative of Institutional Creativity and Continued Dialogue The comparative contributions to this volume remind us that Canada’s challenges are both unique and endemic to all federal systems:

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balancing centrifugal and centripetal tendencies, protecting constitutive units and peoples, and adapting institutions to make the system more inclusive without losing a sense of the original project. As James Tully affirmed nearly twenty-five years ago: “A constitution can be both the foundation of democracy and, at the same time, subject to democratic discussion and change in practice.”23 In other words, and in theory, every aspect of the relations between key actors in a federation should always be open to deliberation and dialogue, but not subject to unilateral change. A fortiori, a federal constitution, which sets out to find an original balance between unity and diversity, self-rule and shared rule, autonomy and joint action, must rely on unending negotiations and dialogue. To return to Tully: “A constitution is more like an endless series of contracts and agreements, reached by periodical intercultural dialogues, rather than an original contract in the distant past, an ideal speech-situation today, or a mythic unity of the community in liberal and nationalist constitutionalism.”24 How these take place, and who partakes in these conversations, are, of course, fundamental constitutional and political questions. As this volume directed its investigations towards possibilities of moving forward, all authors acknowledged that the future is firmly rooted in the historical, legal, and sociopolitical underpinnings of the Canadian federal structure. We may conclude that Canada’s Two Solitudes25 have now multiplied.26 But we may also recall Tully’s discussion of The Spirit of Haida Gwaii, by Haida artist Bill Reid, as a symbol of the rebuilding and reimagining of the Canadian polity on the basis of a constitutional dialogue of mutual attunement and conciliation.27 Like Reid’s canoe, Canadian federalism is composed of a multiplicity of participants who are contending for power and vying for recognition. No one should be left out of the canoe. And all need to work out ways of paddling in unison, if the Canadian federation implies that they are heading somewhere, ahead, together. Looking backwards, the authors in this volume observe that the dynamics of competition and collaboration between federal actors have made the Canadian federation sometimes vibrant and sometimes fraught. Institutions are intermittently successful and unsuccessful at making the federation work, and giving voice to certain groups. 150 years onwards, the impact of Canada’s federal institutions on key actors clearly shows that the future cannot be just more of the same. Reforming the Senate and the electoral system to render them

Introduction

21

more inclusive and responsive to minority voices, making intergovernmental relations more predictable and less opaque, inviting courts to preserve the federal balance, while allowing for an inclusive evolution of federal parameters – the challenges are undeniable. It is in this context that we convened students of Canadian and comparative federalism for a thorough discussion about Canada’s past, present, and future. Looking forward, then, all the authors underline the need for institutional creativity. Canadian federalism at 150+ is clearly in need of rejuvenation. The challenges ahead are numerous. The need for constitutional creativity and openness is undeniable. Dialogue is essential. Treating the Canadian Constitution, or its federal system, as a historical artifact, beyond revision, is antithetical to the very essence of federalism. We are confident that this book will provide helpful insights to citizens, decisionmakers, politicians, and analysts to imagine a federal future that is inclusive and better adapted to Canada’s deep diversity.

acknowledgments We wish to thank Université Laval and McGill University for hosting two major seminars in March 2017 during which contributors to this volume presented earlier versions of their chapters with a series of hypotheses and ideas to be appraised. Financial assistance for this project was provided by the Fonds de recherche du Québec – Culture et société through its support of the Research Group on Plurinational Societies (grsp) based at the Université du Québec à Montréal. We also benefited from a Connection Grant from the Social Sciences and Humanities Research Council of Canada and a grant from the Secrétariat du Québec aux relations canadiennes (formerly the Secrétariat aux affaires intergouvernementales canadiennes – saic). We also wish to express our gratitude to Abbie Buckman, Catherine Viens, Didier Zúñiga, Dave Guénette, and Olivier De Champlain for assisting us in various capacities with the preparation of the manuscript. We thank Sajeda Hedaraly, Scott Whiteman, Elena Drouin, Marie-Hélène Lyonnais, Félix Mathieu, Matt Malone, and Marina Polataïko for their assistance with the conference. In addition, Olivier provided invaluable logistical support throughout the process. Finally, we would like to acknowledge the support of the Canada Research Chair in Quebec and Canadian Studies at the Université du Québec à Montréal and the Peter MacKell Chair in Federalism at McGill’s Faculty of Law.

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notes 1 The province of United Canada split into what is now Ontario and Quebec, and was joined by New Brunswick and Nova Scotia. The original federal moment thus included both dissociative and associative processes. 2 On self-rule and shared rule, see Daniel Elazar, Exploring Federalism (Tuscaloosa: University of Alabama Press, 1987), 5. 3 S. 133 of the Constitution Act, 1867, did recognize a limited form of bilingualism in federal parliamentary and judicial institutions. While these “benefit” all francophones across the country, they are not “instruments of federalism” that provide a form of self-government. 4 See s. 91(24) of the Constitution Act, 1867, which grants legislative authority to the federal order over “Indians, and lands reserved for the Indians.” 5 Guy Laforest, Eugénie Brouillet, Alain-G. Gagnon, and Yves Tanguay, eds., The Constitutions That Shaped Us: A Historical Anthology of Pre-1867 Canadian Constitutions (Montreal and Kingston: McGill-Queen’s University Press, 2015). 6 Eugénie Brouillet, Alain-G. Gagnon, and Guy Laforest, eds., The Quebec Conference of 1864: Understanding the Emergence of the Canadian Federation (Montreal and Kingston: McGill-Queen’s University Press, 2018). 7 During this journey, the event was filmed and may be viewed at: https://www.youtube.com/watch?v=XkvpSt2S5rc. 8 Charles Taylor, “Shared and Divergent Values,” in Reconciling the Solitudes, edited by G. Laforest (Montreal and Kingston: McGill-Queen’s University Press, 1993), 181–3. 9 Benz actually calls these arrangements “treaty-federalism.” However, in the Canadian context, “treaty-federalism” is generally used to describe one conception of Indigenous/non-Indigenous peoples’ relations. 10 This aspect of federalism was examined in depth in Johanne Poirier, Cheryl Saunders, and John Kincaid, eds., Intergovernmental Relations in Federal Systems: Comparative Structures and Dynamics (Oxford: Oxford University Press, 2015). 11 Except, of course, those which gain constitutionalized status as treaties with Indigenous Peoples, pursuant to s. 35 of the Constitution Act, 1982. 12 For such a contribution exploring the cases of Belgium, Canada, Europe, Great Britain, India, and Spain, consult Michel Seymour and Alain-G. Gagnon, eds., Multinational Federalism: Problems and Prospects (Basingstoke: Palgrave Macmillan, 2012). 13 With the notable exception of Nunavut, which is a territory comprising a majority Indigenous population, the Inuit.

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23

14 Eugénie Brouillet, La négation de la nation: L’identité québécoise et le fédéralisme canadien (Sillery: Septentrion, 2005). 15 Guy Laforest, with the collaboration of Oscar Mejia Mesa, Interpreting Quebec’s Exile within the Federation: Selected Essays (Brussels: Peter Lang, 2014). 16 There is a substantial literature on the political autonomy of linguistic minorities (notably through community institutions and school management), but not since foregone debates about an Acadian province has federalism really been targeted as a means of promoting linguistic rights and selfrule. See Stéphanie Chouinard, “The Rise of Non-Territorial Autonomy in Canada: Towards a Doctrine of Institutional Completeness in the Domain of Minority Language Rights,” Ethnopolitics 13, no. 2 (2014): 141–58; Éric Forgues, “La gouvernance des communautés francophones en situation minoritaire et le partenariat avec l’État,” Politique et sociétés 29, no. 1 (71–90); Johanne Poirier, “Fédéralisme coopératif et droits linguistiques au Canada: Peut-on ‘contractualiser’ le droit des minorités?” in Constitutionnalisme, droits et diversité: Mélanges en l’honneur de José Woehrling, edited by Alain-G. Gagnon and Pierre Noreau (Montreal: Thémis, 2017), 317–47. 17 On this intersection, see: Melissa Haussman, Marian Sawer, and Jill Vickers, Federalism, Feminism and Multilevel Governance (Farnham and Burlington: Ashgate, 2010); the special issue on gendering federalism in Publius: The Journal of Federalism 43, no. 1 (2013); and the special issue, “Étudier les régimes fédéraux à travers le prisme du genre,” Fédéralisme et Régionalisme 14, https://popups.uliege.be/1374-3864/index.php?id=1271. 18 To give but a couple of examples, the Supreme Court of Canada’s broad interpretation of federal powers with regard to unemployment insurance supported pan-Canadian parental leaves in a way that was “policy positive” for families and women across the country, in a context where such support was very limited in most provinces apart from Quebec: Reference re Employment Insurance Act (Can.), ss. 22–23, [2005] 2 scr 669. Whether such an impact guided the judges is a matter of speculation, of course. In a different context, the (very divided) Supreme Court’s ruling that Quebec’s distinctive treatment of married and “common law” spouses (conjoints de fait) in terms of pensions is constitutional was largely based on a recognition that the rules had been codified by Quebec legislators. This was, in a way, a form of acceptance in favour of Quebec’s distinct civil law system (Quebec v A., [2013] 1 scr 61). For some, in this case, federalism arguably played against the interests of women. We only draw attention to these cases to invite further exploration of the intersection between federalism and feminism, although this was not the focus of the present project. 19 Jean-François Gaudreault-Desbiens and Johanne Poirier, “From Dualism to

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23 24 25

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Cooperative Federalism and Back: Evolving and Competing Conceptions of Canadian Federalism,” in The Oxford Handbook of the Canadian Constitution, edited by Peter Oliver, Patrick Macklem, and Nathalie Des Rosiers (Oxford: Oxford University Press, 2017), 391–413; and, in the same volume, Eugénie Brouillet and Bruce Ryder, “Key Doctrine in Canadian Legal Federalism,” 415–32. For a solid study of this dimension, consult Stéphan Gervais, Raffaele Iacovino, and Mary-Anne Poutanen, eds., Engaging with Diversity: Multidisciplinary Reflections of Plurality from Quebec (Brussels: Peter Lang, 2018). See s. 91(24) of the (now) Constitution Act, 1867 which grants exclusive legislative powers to the federal Parliament regarding “Indians and lands reserved for the Indians.” Over time, practice and court decisions have also admitted that provincial legislation could apply to Indigenous Peoples and lands. Many texts have been produced on that front: see Michael Asch, On Being Here to Stay: Treaties and Aboriginal Rights in Canada (Vancouver: University of British Columbia Press, 1998); John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010); John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002); Jeff Corntassel, Richard C. Witmer II, and Lindsay G. Robertson, Forced Federalism: Contemporary Challenges to Indigenous Nationhood (Norman: University of Oklahoma Press, 2008). See Charles Taylor’s classic text, “Shared and Divergent Values,” in Reconciling the Solitudes, edited by Guy Laforest (Montreal and Kingston: McGillQueen’s University Press, 1993), 155–86. James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995), 29. Ibid., 26. The metaphor is drawn from a famous novel exploring the challenges of communication between what were then termed “English” and French” Canadians: Hugh MacLennan, Two Solitudes (Toronto: Macmillan, 1945). On this: Audra Simpson, Mohawk Interruptus (Durham: Duke University Press, 2014); Glen Coulthard, Red Skin White Masks (Minneapolis: University of Minnesota Press, 2014); Leanne Simpson, As We Have Always Done (Minneapolis: University of Minnesota Press, 2017). The plaster mold of the sculpture may be found at the Canadian Museum of History in Ottawa: https://www.historymuseum.ca/cmc/exhibitions /aborig/grand/gh04eng.html.

The Backstory

part one Bicameralism

25

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On the House

1 The Possibilities and Pitfalls of Bicameralism in Federal Democracies Cheryl Saunders

introduction The purpose of this chapter is to give a comparative perspective on the institution of bicameralism, and to reflect upon its potential to engage key actors in a twenty-first-century federal democracy. The most obvious actors for this purpose are the territorial units of the federation, which may also broadly represent linguistic or other distinct societal groups. In addition, in diverse pluralist societies, one chamber in a bicameral legislature may usefully offer descriptive or substantive representation of groupings of people who are not territorially organized.1 Bicameralism is an appropriate topic to include in a commemoration of the 150th anniversary of the Constitution of Canada. It has long been a paradox that Canada has one of the most effective federal democracies in the world but lacks a clearly federal second chamber of the kind commonly viewed as a core attribute of federal arrangements. Other chapters in this collection, however, will deal specifically with the Canadian Senate, drawing on insiders’ understandings of its origins, functions, and potential. My task, instead, is to place the Canadian Senate in comparative context. A comparative approach is used here primarily as a source of additional insight on which Canadians might draw in considering the future of their federation generally, and of the Senate in particular. The issues that are pursued are chosen primarily by reference to questions about bicameralism that might be of interest in Canada or

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throw light on Canada’s own experience. In particular, the possibility that the Senate might be used for the representation of key actors other than the Canadian provinces speaks to quite distinctively Canadian debates. The design and function of bicameral legislatures in federal systems nevertheless is a hot topic in federations around the world. This chapter also canvasses many of the core questions about federal second chambers that are of interest elsewhere. To this extent, the chapter should be regarded as a contribution to the literature on comparative federalism more generally. To these ends, the chapter begins by examining the various roles that typically are sought or claimed for a second chamber in a bicameral federal legislature, including the ways in which some of the classic problems of bicameral design might support or detract from particular roles. The second substantive part of the chapter outlines comparative experience, both to demonstrate the range of bicameral designs presently in use and to draw some general conclusions about their effects, as possible guidance for the future. Comparative experience is constantly in flux, and interest in bicameral reform is by no means confined to Canada, thanks to the tensions to which bicameralism often gives rise. To give this section depth, I use Australia as a case study in the effects of particular design choices. Australia is useful for the purpose, not only because of my own familiarity with it, but also as an example of a triple E Senate that once was in vogue in Canada as well.2 Australian experience offers additional advantages, given this collection’s wider interest in more inclusive constitutional arrangements and institutional designs. The electoral system for the Senate has opened Australian national politics to a wider range of political actors, although not without criticism. For instance, the current debate in Australia about whether the constitution should be amended to provide a “voice” to the Parliament for Aboriginal and Torres Strait Islander peoples is also pertinent to the concerns of this volume.3 The final section of the chapter looks to the future. It asks whether there are other institutions of shared rule in federal democracies that perform or might perform some of the functions generally associated with bicameralism, and whether there are new or emerging functions that a second chamber might perform. A brief conclusion identifies some possible insights for bicameralism in Canada from comparative experience.

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All the usual caveats about comparing governing arrangements apply. Every federal democracy is distinctive. Experiences in one cannot automatically be transferred across jurisdictional lines. Some of the principal variables as far as bicameralism is concerned are the relationship between the legislative and executive branches, with which bicameralism must coexist; the manner in which the federation was formed and other features that influence its current dynamics; and the cohesion and geographical reach of the dominant political parties. However, there are plenty of other, less common, but potentially relevant variables as well. The influence of direct democracy in Switzerland is an example. Allowance must be made for differences in contexts of these kinds. Nevertheless, patterns can be seen and insights gained from comparing approaches to bicameralism that are potentially useful, not only in Canada, but in other federations too.

bicameralism in federal democracies Bicameralism dates to classical times.4 Bicameralism in a federal setting, however, is as old as federalism itself – or at least, federalism as we currently understand it. A federal second chamber in the central legislature has been a typical feature of federations since the US constitution came into force, establishing the first modern federation and providing for the representation of the constituent units in a Senate.5 As the distinguished Canadian scholar Ronald Watts once pointed out, a second chamber is not an essential feature of a federation, if only because not all federations have one.6 But, as he also noted, the institution is sufficiently widespread to require serious consideration for the purposes of federal design. Despite the familiarity of the institution, there is ambiguity about the roles that a federal second chamber is and perhaps should be expected to play. This can also be traced to the United States prototype and has been carried through into other federations since. One or both of two roles are typically claimed for federal second chambers: a federal role, and a role as a house of “review,” or check and balance, in US terminology.7 These terms are general and vague, and each has multiple, potential applications. Moreover, depending on exactly what is intended by each, there also is a question of whether a single institution can do both.

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The “Federal Role” Played by Second Chambers The federal function of a second chamber is sometimes associated with the notion of “shared rule.”8 I return to shared rule towards the end of the chapter. I note here, however, that this term is also ambiguous, in the sense that it might refer to central institutions unilaterally exercising the powers allocated to them;9 to the constituent units joining together with each other or with the centre to exercise their constitutional powers coooperatively;10 or to central institutions, of which a second chamber is a paradigm example, in which the constituent units play a role of some kind.11 Only the last is immediately relevant for present purposes and I use the term here in this sense. The federal role of a second chamber, exercisable in the interests of shared rule, might be largely symbolic or both symbolic and functional. Symbolism arguably is secured by the involvement of the constituent units, in their capacity as units, in the composition of the federal chamber. This occurs either when one or more of the institutions of government of the constituent units play a role in selecting the membership of the federal chamber, or when units are used as the base constituency within which direct election takes place. Symbolism of this kind may have a substantive dimension as well, if the basis for unit involvement ensures broader unit representation in the central legislature than would otherwise have been the case. The question of the function to be performed by a second chamber, in exercising a federal role, is more complicated. There are at least three possibilities. The chamber might be expected to protect the federal principle, whatever that involves in a particular case. Depending on the context, for example, a federal chamber might be alert to compliance with a principle of subsidiarity, or, at an even more basic level, compliance with the federal constitutional division of power itself. Alternatively, it might be expected that the members of a federal chamber pay particular attention to the interests of the constituent units from which they come and seek actively to protect them. Or a federal chamber might simply give the constituent units a voice in federal policy-making to ensure that their perspectives are heard. In the case of this option there may be a question whether the voice should emanate directly from the people organized in regions or from their elected representatives, in governments or legislatures. Given the focus on other actors in this volume’s objectives, a series of further questions also arises at this juncture, about whether and

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31

how groups other than constituent units might be represented in a second chamber, consistently with its federal function. This might be achieved, most obviously, by building provision for other groups into the representation of constituent units in the second chamber, through a process that might be initiated by the centre or by the constituent units themselves. Alternatively, consideration might be given to providing for the representation of other groups in a second chamber in addition to arrangements for the representation of constituent units. These two options are not necessarily mutually exclusive. In some contexts, however, representation of groups other than constituent units may be regarded as incompatible with the federal functions of the second chamber. This would be the case, for example, where the representation of other groups rendered ineffective the voice of the constituent units on particular issues, which the second chamber was designed to provide. In other contexts, it may be possible to reconceptualize the very concept of federalism, as a basis for broader representation within a second chamber in a way that positively promotes its federal functions.12 The review role of a second chamber is complicated for other reasons. It applies most obviously to the enactment of legislation, as the critical function of a legislature. But legislatures perform other functions as well, depending on institutional design, in which a second chamber may have a role, including in relation to public finance. Definition of this aspect of the role of a second chamber may be relatively straightforward in a presidential system, where the government and legislature are separate. It becomes more problematic in parliamentary systems, where governments are dependent on the legislature for office and governments with the support of the more popularly elected chamber generally can assume parliamentary support. The review role of a second chamber may cause that assumption to be revisited. Australia is a case in point: in 1975, the power of the Senate to veto financial legislation led to the fall of a government that retained the confidence of the popularly elected House.13 Such a veto may be avoided and the hegemony of the popular chamber preserved, but at cost to the review role of the federal chamber. Where a second chamber has a relatively robust review role, some other standard questions arise. One concerns the extent to which a second chamber is empowered to engage with questions of government policy and regards it as legitimate to do so. Another question is whether a second chamber can and should exercise its powers as a

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house of a legislature to hold the government to account if the popular chamber is unwilling to do so. These questions may be answered, deliberately or by default, in the course of institutional design. Two sets of issues require attention at the design stage: the constitution of the second chamber and the powers conferred on it. The Composition of Second Chambers In terms of the constitution of the chamber there are at least two key choices to be made. One is whether the chamber should be directly elected or appointed. In either case, important subsidiary questions arise about the framework within which election or appointment occurs. These in turn depend on the intended effect, in terms of the federal and review functions of the chamber. In the case of direct election, for example, it is necessary to determine the electoral system, the terms of members, whether members’ terms are staggered in the interests of continuity, and whether the ground rules, subject to the constitution, are determined by the centre, the constituent units, or a combination of the two. Each of these decisions will have a profound effect on the functions of the chamber and its operation in practice. Another key choice that affects the constitution of the second chamber is whether the constituent units should be represented equally or on some other basis. This is also the point at which a decision should be made about whether other groupings of people, including Indigenous Peoples, who are not organized in units, should be represented in the second chamber as well. In determining the basis for the representation of constituent units a tension arises between the symbolism of equal representation and the democratic standard of one vote, one value. The tension is eased, but not entirely resolved, by weighting a distribution of seats on the basis of population to ensure what is considered to be reasonable representation from each constituent unit. The weighting may apply consistent rules across the federation as a whole or may be asymmetrical in effect, so as to ensure adequate representation from the smallest units.

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The Powers of Second Chambers The second set of issues foreshadowed earlier, which need to be resolved in designing a second chamber, concerns the nature and scope of the powers of the chamber. An initial choice must be made between whether to establish the chamber as effectively coequal with the popular house, with a possible exception for the most significant financial legislation in parliamentary systems, or whether to tailor its powers to more specifically federal purposes, such as making decisions about fiscal distribution, intergovernmental arrangements, or the scope of central vis-à-vis unit powers. In either case, there is a subsidiary question about whether a formal mechanism should be provided for the resolution of deadlocks between the two chambers, and if so, whether it should be weighted towards an outcome that favours the view of a particular chamber generally, or on specific matters. Finally, a decision must be made about whether additional powers should be conferred on the second chamber, for which it is deemed to be appropriately equipped, by composition or status. Roles in impeachment or in making executive appointments are examples, drawing on US experience.14 *** In summary, from a conceptual point of view, a second chamber in a bicameral federal legislature may perform federal functions in a variety of ways. It may, in addition, have other important roles with no particular relationship to federalism. The functions that such a chamber effectively carries out depend not only on the powers and responsibilities conferred on it, but on its composition and its relationship with the more popularly elected chamber. There is no reason to expect that the range of possibilities sketched in this section of the chapter is exhausted by current federal experience. On the contrary, there is already growing interest in the potential of a second chamber as a site in which to provide representation for groups in pluralist societies that are deemed to be underrepresented in national institutions.15 Whether the composition of a federal chamber should be augmented in this way requires an assessment of the effects of such a change on the functions that the chamber is established to perform, and of whether the goals of more pluralistic representation are likely to be achieved by these means.

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canadian bicameralism in comparative context The choices made in relation to each of these sets of issues, at the time the second chamber is put in place or as it evolves over time, vary greatly across the federations. Different combinations of features, in different contexts, produce different results. The Canadian Senate is a case in point: constituted by appointment and with almost coequal powers with the House of Commons, it has performed a relatively restrained role as a chamber of legislative review and a federal role that depends, at best, on regional distribution of Senate membership.16 A brief sketch of current practice serves as an illustration. It also suggests that the Canadian Senate is less of an outlier than it is generally suggested to be. The starting point, once again, is the constitution of the federal chamber.17 Only some federal chambers are directly elected, with electoral systems varying between simple plurality and proportional representation.18 Their composition may be differentiated from that of the popularly elected chamber in various ways, including the use of staggered terms and constituent unit representation, as well as the electoral system itself. Some other federal chambers draw their members entirely from the legislatures of the constituent units, as in Austria. In an important variation, the German federal chamber, or Bundesrat, comprises representatives of the governments of the Länder. Mixed methods of representation are relatively common. There are thus combinations of direct election and constituent unit appointment, as in Spain; of appointment from constituent unit governments and legislatures, as in South Africa; of diversity of representation within the allocation to constituent units, as in Pakistan; and of election by state legislatures and presidential appointment as another potential path to greater diversity, as in India, and, now, Nepal. Federations also divide over the principle of equality in constituting the second chamber. While around half provide for equal representation of the constituent units in some form, the remainder typically divide seats between constituent units on a modified population basis that gives some weighting to the smaller units.19 Where representation is mixed, allowing some appointments from the centre for the purposes of special representation in addition to the representa-

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tion of constituent units, the principle of federal equality may be affected. Malaysia is one such case, where only a minority of seats, shared equally, is used for constituent unit representation and the remaining seats are filled through appointment by the king.20 There is a comparable spread of global experience in relation to the powers allocated to a federal second chamber.21 Some have a veto over all or almost all legislation. Typically, although not invariably, these are the directly elected chambers, which are deemed to have a greater democratic mandate in their own right. Deadlocks between the chambers are more likely in these circumstances. Mechanisms to resolve them vary, from mediation committees, to joint sittings, to elections, to the absence of a deadlock mechanism at all. By contrast, some second chambers have an absolute veto only over issues of federal significance, although they may have a suspensive veto in relation to other matters. The powers of the German Bundesrat over bills that affect the right (and the obligation) of the Länder to administer central legislation, or Land revenues, or constitutional amendment, are an instructive example. The challenge in this category of cases is to identify the issues that should require approval from the federal chamber; this can be a controversial question, as German experience shows. Once this question is settled, however, there may be less concern about providing a mechanism to resolve deadlocks between the two chambers. If the aim of an allocation of powers to the second chamber is to protect against erosion of the role and autonomy of constituent units in order to preserve a working federation, an absolute veto over some matters by the federal chamber might simply be the price to pay. Some federal second chambers are weaker still; the Austrian Bundesrat, for example, has only a suspensive veto.22 Other second chambers have additional powers beyond those relating to legislation. Second chambers in presidential systems often draw on the US model for this purpose, conferring power on a second chamber to approve highlevel public appointments or to ratify treaties. In a thought-provoking example of another kind, the Argentinian Senate was empowered to initiate intergovernmental agreements for fiscal cooperation when the constitution was amended in 1994.23 While the provision has been ineffective (or so I understand), the example raises the possibility to which I will return – namely, that of conferring specific powers on second chambers in relation to intergovernmental relations more generally.

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The experience of most federations shows that political party affiliation is likely to have some influence on the behaviour of a second chamber. The influence is likely to be substantial in second chambers constituted by direct election or indirect choice from constituent legislatures or governments. Exactly how it plays out in practice will depend to some degree on other factors, of which the electoral system is one. As a generalization, collective federal experience also tends to suggest that second chambers that have almost coequal powers with the popular house play less of a substantive federal role, on any understanding of the term, than those with more limited veto powers that relate specifically to federal issues. By definition, such chambers are well placed to perform a powerful review role, however; and where they are directly elected, as is usually the case, they are likely to be regarded as having the legitimacy to do so. On the other hand, in these conditions, a second chamber is likely also to be substantially driven by party politics. Depending on the electoral system and its outcomes from time to time, this may cause such a chamber either to be a mere echo of the popular house, or to be unduly obstructionist. Either of these roles detracts from the review role that such a chamber has the potential to play. Designing a chamber that avoids these extremes is a familiar conundrum, for which there are no easy answers. It may be that a solution would be assisted by a provision for the representation of other social groups, dissipating traditional party structures in the second chamber, albeit at some cost to the stability of majorities. It may also be that chambers whose composition and powers better equip them for legislative review than for playing a federal role could be encouraged to engage more effectively with the latter by conferring on them specific responsibilities in relation to aspects of the federal system.

the australian senate as a case study The Australian Senate is a second chamber that is directly elected, with equal representation from each of the Original States, and almost equal power with the House of Representatives. I use it as a case study in the part that follows, with the following objectives in mind. The first is to show how the details of the constitution and powers of a particular chamber combine to shape the institution as a whole. Secondly, the Australian Senate also offers the opportunity to

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explore the effects of party affiliation on a body of this kind. Third, there is a long-standing debate in Australia about whether the Senate plays a role as a federal second chamber, and, if so, how. Finally, the example of the Australian Senate also provides a chance to reflect both on how the Senate supplies avenues for the representation of Indigenous Australians that are less readily available in the House of Representatives, but also on the limitations of Senate representation as an effective voice for Indigenous Peoples. Composition and Powers of the Senate The Australian Senate is the second chamber in the bicameral Commonwealth legislature. It was modelled loosely on the US Senate on federation, and undoubtedly was established with a federal purpose in view.24 However, provisions for a second chamber in the Commonwealth Parliament can also be traced to the influence of the UK House of Lords, and thus to a more traditional “review of legislation” function. All but one of the Australian states have bicameral parliaments. Queensland is the exception, where the Legislative Council was abolished in 1922.25 Debate about abolition took place elsewhere, too, but was resisted; the revival of the Council in Queensland is still occasionally considered.26 The composition and powers of all state Legislative Councils have been modified over the years, but in most states the Legislative Council still exerts a significant influence on public decisions. The Australian penchant for bicameralism might now be considered a feature of the reliance of Australian constitutionalism on institutions, rather than on express rights. However the phenomenon is rationalized in the Australian context, though, it is highly unlikely to change in the near future, given current levels of distrust of ordinary party politics. When the Senate was established, its potential effect on responsible government was an issue that received much attention. During the course of the Constitutional Conventions, concern was expressed that either “federalism will kill responsible government or responsible government will kill federalism,” treating a powerful Senate as a necessary corollary of federalism.27 The interdependence of the two sets of principles raises interesting questions to which I return below. Yet the problem of the impact of second chambers on the operation of responsible government is by no means confined to the Senate. Aus-

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tralian experience illustrates this point as well, not only at the federal level but also in the legislatures of the states. As a house of the legislature, a second chamber has the same privileges as the first chamber, to call for government documents and to hold members in contempt for refusing to produce them. A second chamber is much more likely to exercise such powers, moreover, than a lower house with a majority of government members on which ministers normally can rely for support. This issue came to a head in 1998 in New South Wales, leading to litigation in which the powers of the Legislative Council of New South Wales to act in such a way was confirmed by the High Court. The terms of the decision accept that bicameralism may have implications for responsible government, not only in New South Wales, but elsewhere in Australia.28 The principal features of the formal framework for the Senate are as follows. The constitution requires the Senate to be directly elected, with each state as a single electorate.29 The electoral system is presently a form of proportional representation, which is not constitutionally mandated, but which has been in place for almost seventy years and has become an integral feature of the constitution of the Senate.30 The Commonwealth Parliament enacts legislation to prescribe the electoral arrangements for the Senate, although the states play a formal role in some matters, including issuing writs for Senate elections and filling casual Senate vacancies.31 The six original states are represented equally in the Senate, and no new states have since been created. The original number of senators was six per state; it is currently twelve. The driver for increasing the size of the Senate is what is described as the nexus with the size of the House of Representatives, which is limited to twice the number of senators and which needs to keep pace to some extent with the growth in population numbers.32 Senators have fixed six-year terms, with half (normally) retiring every three years. There is some flexibility in the timing of elections, which normally enables half-Senate elections to be held at the same time as those for the House, at the cost of what is sometimes a considerable time-lag before newly elected senators take their seats.33 The convenience of holding “simultaneous elections” for the House and the Senate makes it almost impossible to lengthen the term of the House from its present three years, although proposals to do so are intermittently made. The Senate has the same powers as the House, with exceptions for certain categories of money bills that it may reject, but not initiate or

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amend.34 The power to reject financial bills contributed to the famous events of 1975, when failure to secure the passage of budget legislation in the Senate caused the dismissal of the prime minister by the governor-general, in the most graphic instance yet of the potential for conflict between responsible government and federalism.35 There is a deadlock-breaking procedure, which may be triggered by disagreement over one or more bills that can accumulate over the life of the Parliament. The mechanism involves time intervals, an election for both Houses, and, potentially, a joint sitting.36 It has been used only seven times since federation and is not particularly fit for the purpose of resolving disagreement over legislation, which occurs more often through political negotiation. The existence of the deadlock procedure, including the opportunity that it offers to dissolve the Senate as a whole, is a strategic tool, however. It is available for use by the federal government to try to increase the number of government senators if the polls suggest a favourable outcome of an election for the government, not only in the Senate but also, critically, in the lower House. The mere threat of a double dissolution, moreover, may bring some senators who would prefer not to face an early election into line. The deadlock provision has been the subject of some litigation, in which issues were raised that caused the High Court to confirm that the Senate is a coequal House of the Commonwealth Parliament, with the right to deliberate on proposed legislation for a reasonable period before a deadlock is deemed to have occurred.37 The Senate is clearly constituted as a federal chamber. But there are two points to note in this regard. The first is that the guarantee of equality applies only to the Original States. If a new state were to be created, it might be allocated a lesser number of senators, consistent with the constitution. The politics of such a decision would nonetheless be more fraught. The most likely candidate for a new state is the Northern Territory. The size of its representation in the Senate is likely to be a principal point of contention if and when a move to statehood becomes a practical possibility.38 The second qualification in relation to the federal composition of the Senate also concerns the Northern Territory – as well as, in this context, the Australian Capital Territory. Both of these mainland territories have been represented in the Senate by senators with full voting rights since 1975, when a High Court challenge was dismissed.39 Relevantly for present purposes, in reaching this decision, the High Court noted the tension between a provision of the con-

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stitution empowering the Parliament to provide for the “representation” of territories40 and the constitutional description of the Senate as “composed of Senators for each State.”41 It preferred the former, partly on democratic grounds.42 Territory representation in the Senate differs from that for the states in other ways: the number of territory senators is determined by the population size of the territory and the term of territory senators is tied to the term of the House of Representatives.43 The Senate has long since been a house that votes on party lines. The major Australian parties typically are national parties, and party discipline typically is strong. The party balance in the Senate varies over time, but some generalizations may be made. It is rare for a government to have a Senate majority (although when it does, all legislation is likely to pass). It is also rare for the opposition in the House to have a Senate majority (although when it does, the Senate is likely to be quite obstructionist). Typically, thanks largely to the electoral system, the Senate is a House to which smaller parties and independents also can gain election, giving them the balance of power. The composition of the Senate in 2017 is an illustrative, if extreme, example in historical terms. Following the double dissolution of 2016, the governing coalition held twenty-nine of the seventy-six Senate seats and the official opposition party held twenty-six. Of the remaining twenty-one senators, the Australian Greens won nine Senate seats, two other parties won four and three respectively, four parties had one senator each, and one independent senator was elected.44 In other words, neither of the two major party groupings controls decision-making in the Senate in these circumstances, and the balance of power is held by a substantial number of senators who were elected as independents or from minor parties, to form a “crossbench.” The crossbench following the previous election had comprised eighteen senators, which in turn had exceeded the record of thirteen crossbench senators in 2002–05 – forming what is, at least for the moment, a trend.45 Electoral outcomes in which the balance of power is held by minor parties and independents mean that, on the one hand, much Senate business is a matter for negotiation, complicated by the cohesion of the major parties and by extreme views, sometimes accompanied by a lack of sophistication, in the smaller parties. On the other hand, it also ensures that the Senate has the potential to take a view of its own on matters of public importance. As a generalization, in the Australian context, the Senate plays a significant role as a house of review. Legis-

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lation may be amended or rejected, often on the merits. Senate committees have a long-established and important role in the scrutiny of delegated legislation, in which they maintain a degree of bipartisanship by drawing a distinction between “policy position” and other matters.46 Tenuous though the distinction sometimes may be, government senators are more comfortable taking issue with a government initiative for reasons that can be described as technical rather than disagreeing with a policy position. The Senate also plays an important role in the scrutiny of federal government budgetary/financial estimates, when questions of departmental performance and government contracting, among others, may be raised.47 Further, the Senate is much more likely than the House to set up inquiries into difficult or contentious matters. To take a snapshot in time: in September 2017, sixty inquiries were under way in the Senate, under the auspices of Senate Committees.48 By contrast, it is generally assumed, with some justification, that the Senate does not play a federal role. At least as far as the major political parties are concerned, the Senate conceives of itself as a national rather than a federal house. That proposition should be qualified in some respects. If only by virtue of equal State representation, the Senate plays a symbolic role in the federation. Equal Senate representation also ensures the presence of many more members in the Commonwealth Parliament from the smaller states than otherwise would have been the case.49 The idea that the Senate might also give the states a voice in federal deliberations has never been seriously developed, however. Historically, the Senate has not played a substantive federal role in terms of defending either federal principles or the interests of individual states, and it has not taken a consistent interest in intergovernmental arrangements. This may be changing, to some degree, with the election of a larger proportion of senators from smaller parties, some of which draw most of their support from a particular state. Renewed focus on the federal executive’s use of the spending power to bypass the states in direct spending on programs that otherwise fall outside its constitutional competences, following a major decision of the High Court in 2012,50 encouraged the Senate to question the source of constitutional power for subsequent spending schemes and to take new interest in conditions attached to grants to the states.51 Both developments have implications for the operation of Australian federalism that could be significant if sustained over time.

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Senate and Minority Representation The composition of the Senate lends itself more readily to the representation of minorities than that of the House of Representatives. The constitution makes no provision for senators beyond those representing the states and, now, territories. Representatives from underrepresented groups may secure a Senate seat within state or territory delegations, however. This possibility may be attributed to the combined effect of state-wide elections for all senators and a system of proportional representation that is more favourable to minor parties and independents than the constituency-based, preferential voting system used for the House of Representatives.52 These arrangements enable candidates who cannot obtain preselection for a constituency seat in the House of Representatives, or who may not wish to do so, to be elected as senators. Within parties, competition for Senate seats is less fierce, at least for candidates who aspire to leadership of the party or the treasury portfolio, both of which require a base in the House. The most likely path to the Senate for underrepresented groups is with a candidate who is placed in a “winnable position” on the Senate ticket for one of the major parties. Other possibilities include election under the auspices of a minor party or nomination by a party to fill one of its casual vacancies in the Senate, until election for that seat falls due (sec. 15). All of these options depend on decision-making within parties, which are under no legal obligation to diversify their slates of candidates. Senate representation has had some effect on the involvement of at least two otherwise underrepresented groups. One is women, who held 39 per cent of the seats in the Senate after the 2016 election, in contrast to the House of Representatives, in which 29 per cent of the seats were held by women. A breakdown of senators by party shows that some parties perform much better than others in this regard: 54 per cent of senators from the Australian Labour Party were women and 56 per cent of senators from the Australian Greens, while for the Liberal Party and the National Party the proportions were 25 per cent and 40 per cent respectively.53 The second group for which Senate representation has begun to make a difference is Aboriginal and Torres Strait Islander Australians. While women are marginally a numerical majority of the overall Australian population, Indigenous Australians comprise around 3 per cent of the population. This presents an additional challenge for representation in the Commonwealth Parliament. Historically neither house

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has performed particularly well in this regard. Before 2010, there had been only two acknowledged Indigenous members of the Parliament, both of whom held Senate seats, for the Liberal Party and the Democrats respectively.54 In 2010, however, the first Indigenous person was elected to the House of Representatives,55 and in 2013 the first Indigenous woman senator was elected.56 In 2016, there were five Indigenous members of the Parliament, two in the House of Representatives and three in the Senate.57 As with the representation of women, the differential with the House of Representatives was marked, but not so extensively as to identify minority representation as a distinctive characteristic of the Senate. Anecdotally, the presence in the Senate of three Indigenous senators was significant not only symbolically and as role models, but also because of the experiences they brought to Senate proceedings that have a bearing on Indigenous affairs. Two of the three senators, nevertheless, owed their seats to their selection as candidates to represent a major party, the Australian Labour Party, and are bound by party discipline. This said, they also have some opportunity to influence party policy.58 Without detracting from the significance of the representation of Indigenous Australians in Parliament, a parallel series of events has prompted debate about whether parliamentary representation is sufficient for the recognition of Indigenous Australians or whether the constitution should provide for an Indigenous “voice” outside the Parliament as well. The background to these events is as follows. Since Indigenous Australians comprise only around 3 per cent of the total population of Australia, they are never likely to have a major impact on numbers in the Commonwealth Parliament. The Indigenous population is also spread out across the country, although there is a particular concentration in the north. There is no express mention of Indigenous peoples in the constitution as it presently stands. Discriminatory references in the original constitution were removed in 1967.59 In 2006, in the context of an election campaign, the prime minister at the time proposed “recognition” of Indigenous Australians in the constitution. While he lost the election, the idea was taken up by his successors and a series of inquiries was set in motion to identify the ways in which the Australian constitution might be amended to secure recognition.60 The task was complicated by the difficulty of amending the constitution, which requires a referendum where successful proposals for change must attract a

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national majority and majorities in all states.61 The options for recognition identified by these inquiries ranged from symbolic acknowledgment in some form to various guarantees against discrimination. As the debate proceeded, it became evident that the more substantive proposals would attract opposition at referendum, the significance of which was difficult to evaluate. Unusually by comparative standards, Australian constitutionalism relies on the integrity of institutions and the common law rather than constitutional rights protection.62 In this context, anti-discrimination provisions were argued to be a departure from that tradition. On this basis, it seemed possible that all that might be attempted was the symbolic recognition of Indigenous Australians, in a constitutional preamble or substantive section. A breakthrough occurred, however, with a proposal to enshrine in the constitution a requirement for an Indigenous representative body to advise the Parliament in the exercise of its powers in relation to Indigenous peoples, although without a final veto power. This was argued both to have the potential to make a real difference in the relationship between Indigenous Australians and the state, and to fit with the overall constitutional framework. It attracted some support from both conservative and progressive forces.63 More importantly still, it was endorsed as an acceptable form of recognition by a First Nations deliberative process that culminated in a First Nations Constitutional Convention at Uluru in May 2017.64 The Statement from the Heart, in which delegates set out their consensus view of what recognition involves, was presented to the prime minister and the leader of the opposition through a report of the referendum council.65 Notably for present purposes, by pressing for an Indigenous body to represent a collective and informed Indigenous view, Indigenous Peoples rejected the adequacy of representation through the parliamentary process alone. The response from successive prime ministers has been discouraging, but a significant grassroots movement and evidence of support in some quarters in the Commonwealth Parliament suggest that the issue remains very much alive.66 Australia thus provides an instructive example of the use of a federal second chamber, albeit in a particular context. Despite its distinctive federal design and its extensive powers, the Senate plays a relatively minor role in relation to the federation itself. That said, it has proved to be a significant check and balance in the Australian constitutional system, with implications for the operation of the system of

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responsible government. It has also been a vehicle through which minority interests have secured greater representation than would be likely in the House of Representatives. It is by no means regarded as a panacea, however, at least from the perspective of Indigenous Peoples, who presently seek the establishment of an Indigenous representative body that can be a “voice” to the Parliament on Indigenous affairs.

bicameralism and shared rule This final section returns to the idea of bicameralism as an element of shared rule in federal design. It rests on the assumption that provision for shared rule is almost as important in a contemporary federation as arrangements for self-rule, and that this receives too little attention. It asks whether, in addition to a second chamber, there are other institutions that might fulfil the purposes of shared rule in symbolic or functional terms. A second chamber in a federal legislature is an obvious institution for shared rule. Legislative power represents sovereign authority. Representation of the constituent units qua units in a legislative chamber has symbolic significance. Where conditions allow, representation of the units qua units in a legislative chamber also gives them an important voice on matters over which rule is shared. Conditions do not always allow, however. National political partisanship often trumps federal considerations in a legislative chamber, particularly where members are directly elected. This can be observed in the Australian Senate, where senators invariably vote on party lines, even where matters of great moment to the federal structure are concerned and where national solutions invariably are assumed to be preferable. Little thought is given to the nature and relevance of the federal principle and what a constituent voice in national decision-making might be expected to achieve. Whatever the federal role played by a second chamber, the collective experience of the federations of the world suggests that there is room for other institutional arrangements to play a role in providing shared rule: whether those with whom rule is shared are the constituent units, or such other parties as Indigenous Peoples, or both. The nature of the contribution obviously is constrained by the institution in question. Other institutions through which shared rule might be effected in a federation include, but are not necessarily limited to, the following.

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One, most obviously, is the popular house of the legislature. Some federations, including Australia, mandate a minimum representation, even in this house, from the constituent units (sec. 24). A second institution is the court with final authority to interpret the constitution (and, in many federations, to deal with final questions of law on appeal from all jurisdictions). Formerly or informally, many federations ensure that membership of this court reflects the federal character of the country, either by requiring justices to be drawn from different regions or by dispersing sittings around the regions. Canada is a case in point, where federal arguments for regional representation in the Supreme Court are reinforced by differences in provincial legal systems; in particular, the continuation of a system of civil law in Quebec.67 A third potential institutional site for shared rule is the executive branch, and, specifically, the political executive. The central cabinet in most federations is likely to include members chosen by reference to regional considerations. Last but not least, shared rule may take place through the institutions and practices of intergovernmental cooperation.68 In this case the usage may be somewhat different. In some federations, of which Australia is an example, intergovernmental arrangements often seek to coordinate the exercise of state rather than central authority, and so perform a quite different function to that of, say, a federal second chamber.69 And in some cases, of which Australia again is an example, the dominance of the central executive in cooperative arrangements, either as chair of intergovernmental bodies or through its considerable fiscal hegemony, can make it difficult to determine the extent to which decision-making is shared in any meaningful fashion. The purposes of identifying these options for shared rule in a federation are twofold. One is to emphasize the significance of shared rule, not only in binding a federal system together, but in ensuring that central decision-making is informed and seen to be informed by the perspectives and conditions of different parts of the country. The second is to put federal second chambers in perspective. In some federations, as has been seen, federal chambers offer limited opportunity for a substantive regional voice of the kind that shared rule might envisage. In practice, however, the goals of shared rule can also be achieved by the design and operation of other key institutions in the federal sphere.

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conclusions Some brief observations about the Senate of Canada may be made in conclusion, in the light of comparative experience. The Canadian Senate is unusual in comparative terms, insofar as it represents broader regions rather than provinces and in proportions that are hard to justify in present conditions. It is often criticized because it is fully appointed rather than elected, in terms of the formal constitution. This is less unusual, however, in comparative terms. It can to some extent be countered in practice by the ways in which the appointment power is used, including eligibility criteria that require residence in the province and other policies that are presently in play. Comparative experience raises the following other possibilities for consideration in Canada. First, rather than decrying the failure of the Senate to perform a federal role (for a contrasting position, see Ian Peach in this volume), it may be advantageous to articulate more clearly the federal role that it should perform, and why, in relation to both the provinces and other less familiar federal actors. The other Canadian institutions that already provide considerable support for Canadian federalism should be taken into account in this context. These include, for example, the first ministers of the provinces, who are powerful actors in their own right. It may be, therefore, that the Canadian Senate could more usefully perform a role that deals with nationwide issues from a federalism perspective, or that gives greater weight to its review function. Second, as even the Australian case shows, the arrangements for the constitution of many federal chambers can be adapted to take account of gender and minority balance, including Indigenous representation. The requirement for appointment to the Canadian Senate makes this easier than most, and Canadian practice already has been adapted to this purpose (see Linda Cardinal’s chapter in this volume). Appointment on these bases potentially raises other questions about the nature of representation, however. New actors inevitably influence the functions that the Senate performs and may direct it away from traditional federalism concerns. Third, it may be worth considering whether there are other specific functions that the Senate could and should perform in contemporary conditions, whether associated with federalism or review of government action – or both. These include scrutiny of intergovern-

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mental arrangements, including use of the spending power, at least from a Canada-wide perspective. Functions of this kind relate both to federalism and review and represent a gap in present practice in Canada as elsewhere. Comparative experience suggests that if it were thought to be useful for a Senate to perform these functions, explicit provision for them should be made, difficult though this may be. A broader federal or scrutiny role for the Senate may be achieved without constitutional change, as long as cultural change can be secured, to ensure not only that the Senate fulfils its new roles, but that its conclusions are taken seriously by those affected by them.

notes 1 On concepts of representation see Suzanne Dovy, “Political Representation,” in The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta (2017), https://plato.stanford.edu/archives/spr2017/entries/political-representation/. 2 Ronald L. Watts, “The Federative Superstructure,” in Essential Readings in Canadian Constitutional Politics, edited by Christian Leuprecht and Peter H. Russell (Toronto: University of Toronto Press, 2011), 60, 70. 3 Final Report of the Referendum Council, prepared by the Referendum Council of the Australian Commonwealth Government (Canberra, act, 2017), https://www.referendumcouncil.org.au/final-report. 4 Meg Russell, “Bicameralism in Theory and Comparative Perspective,” in The Contemporary House of Lords: Westminster Bicameralism Revived, edited by Meg Russell (Oxford: Oxford University Press, 2013), 41–2. 5 Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, no. 62 Avalon Project at Yale Law School (1996), http://www.yale.edu/lawweb /avalon/federal/fed62.htm. 6 Ronald L. Watts, “Federal Second Chambers Compared,” presented at “Federalizing Process in Italy: Comparative Perspectives” conference, Rome, Italy, 17–19 February 2010, http://pti.regione.sicilia.it/portal/page/portal /PIR_PORTALE/PIR_LaStrutturaRegionale/PIR_AssessoratoEconomia/PIR _Federalismofiscale/PIR_SeminarioIlprocessofederaleinItalia/watts%20inter vento.pdf; Ronald L. Watts, Comparing Federal Systems, 3rd ed. (Kingston: Institute for Intergovernmental Relations, 2008), 147. 7 The Federalist Papers, nos. 62, 63. 8 Daniel J. Elazar, Exploring Federalism (Tuscaloosa: University of Alabama Press, 1987).

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9 Daniel J. Elazar, Self-Rule/Shared Rule (Ramat Gan, Israel: Turtledove Publishing, 1979). 10 Adam Tomkins, “Shared Rule: What Scotland Needs to Learn from Federalism,” The Melting Pot (Reform Scotland, Edinburgh, 2016), https://reform scotland.com/wp-content/uploads/2016/04/Shared-Rule.pdf. 11 Liesbet Hooghe, Gary Marks, Arjan H. Schakel, Sandra Chapman Osterkatz, Sara Niedzwiecki, and Sarah Shair-Rosenfield, A Postfunctionalist Theory of Governance, Volume 1: Measuring Regional Authority (Oxford: Oxford University Press, 2016). 12 See, for example, Yonatan Tesfaye Fessha, Ethnic Diversity and Federalism: Constitution Making in South Africa and Ethiopia (Farnham: Routledge, 2010), 25–60. 13 Cheryl Saunders, The Constitution of Australia: A Contextual Analysis (Oxford: Hart Publishing, 2011), chapter 5. 14 US Constitution, art. I § 3, cl 6; art. II, § 2, cl. 2. See generally Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis (Chicago: University of Chicago Press, 2000). 15 See, for example, Surendra Bhandari, Self-Determination and Constitution Making in Nepal: Constituent Assembly, Inclusion and Ethnic Federalism (Singapore: Springer, 2014). 16 Joel I. Colon-Rios and Allan C. Hutchinson, “Constitutionalizing the Senate: A Modest Democratic Proposal,” McGill Law Journal 60, no. 4 (2015): 599. 17 A typology is available in Russell, “Bicameralism in Theory and Comparative Perspective,” 47–51. See also Watts, Comparing Federal Systems, 148–50. 18 Wholly directly elected federal chambers are found in Australia, Switzerland, Argentina, Brazil, Mexico, Nigeria, and the usa: Russell, “Bicameralism in Theory and Comparative Perspective,” 51. 19 Cheryl Saunders, “Legislative, Executive, and Judicial Institutions: A Synthesis,” in Legislative, Executive and Judicial Governance in Federal Countries, edited by Kate Le Roy and Cheryl Saunders (Montreal and Kingston: McGill-Queen’s University Press, 2006): 344–84. 20 Watts, Comparing Federal Systems, 150. 21 Ibid., 149–50. 22 Ibid., 149. 23 See Gabriel L. Negretto, Making Constitutions: Presidents, Parties and Institutional Choice in Latin America (Cambridge: Cambridge University Press, 2013), chapter 5. 24 Nicholas Aroney, “Imagining a Federal Commonwealth: Australian Concep-

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27 28 29 30

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tions of Federalism, 1980–1901,” Federal Law Review 30, no. 2 (2002): 265, 268–73. Constitution Act Amendment Act 1922 (Qld). A proposal to this effect was recently put forward by the nationalist rightwing party One Nation and subsequently rejected by the premier: see Geoff Chambers and Sarah Elks, “Thumbs Down Queensland for Upper House,” The Australian, 19 January 2017, http://www.theaustralian.com.au/nationalaffairs/state-politics/thumbs-down-queensland-for-upper-house/newsstory/a1a18ba795678e8aaf4e2c2640032103. Official Report of the National Australasian Convention Debates (Adelaide: Government Printer, 1897), 28. Egan v Willis (1998) 195 clr 424. This is subject to an exception for Queensland that has never actually been activated: see section 7 of the 1901 constitution. The rationale for the adoption of proportional representation in 1948 is explained by John Uhr in “Why We Chose Proportional Representation,” in Papers on Parliament No. 34 – Representation and Institutional Change: 50 Years of Proportional Representation in the Senate, edited by Marian Sawer and Sarah Miskin (Canberra, act: Department of the Senate, 1999), https://www.aph.gov.au/binaries/senate/pubs/pops/pop34/pop34.pdf. Australian constitution, sections 12, 15. Ibid., section 24. Ibid., section 13. Ibid., section 53. Jenny Hocking, The Dismissal Dossier: Everything You Were Never Meant To Know about November 1975 (Melbourne: Melbourne University Press, 2016). Australian constitution, section 57. Victoria v Commonwealth (1975) 134 clr 81, 148 (Gibbs J), 186 (Mason J). In 1998, a referendum that would have given the Northern Territory the status of statehood was rejected by voters in the territory, for reasons that reflected inadequacies in the process by which the new draft constitution for a state of the Northern Territory was developed, rather than opposition to statehood itself. There have been more recent moves towards the achievement of statehood for the territory: see Sarah Whyte, “Northern Territory Could become Australian State by 2018,” Sydney Morning Herald, 23 July 2015, http://www .smh.com.au/federal-politics/political-news/northern-territory-couldbecome-australias-seventh-state-by-2018-20150723-giino4.html; and see generally Greg Carne, “We of the Never Never: Constitutional Misconceptions and Political Realities in Pre-Constituting the State of the Northern Territory,” Southern Cross University Law Review 16 (2003): 41.

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39 40 41 42 43 44 45 46 47 48

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Attorney-General (Cht); Ex Rel Mckinlay v Commonwealth (1975) 135 clr 1. Australian constitution, section 122. Ibid., section 7. Attorney-General (Cht); Ex Rel Mckinlay v Commonwealth, 56–7 (Stephen J). Commonwealth Electoral Act 1918 (Cth), section 40. “Senate Composition,” Parliament of Australia, accessed 20 September 2017, http://www.aph.gov.au/About_Parliament/Senate. Ibid. Standing Committee on Regulations and Ordinances, Annual Report 2014–15: Report No. 120, (2016) [1.3]. See generally, “Senate Estimates,” Parliament of Australia, accessed 27 September 2017, http://www.aph.gov.au/Parliamentary_Business/Senate_Estimates. “Current Senate Inquiries,” Parliament of Australia, accessed 20 September 2017, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate /Current_Inquiries. Brian Galligan, “Parliament’s Development of Federalism” in Parliament: The Vision in Hindsight, edited by Geoffrey Lindell and R.L. Burnett (Annandale: Federation Press, 2001), 15. Williams v Commonwealth of Australia [2012] hca 23; (2012) 248 clr 156. Williams v Commonwealth of Australia 317 (Heydon J). Antony Green, “How Long and Short Senate Terms are Allocated after a Double Dissolution,” abc Online, 25 April 2016, http://blogs.abc.net.au /antonygreen/2016/04/how-long-and-short-terms-are-allocated-after-a-double-dissolution.html. “The Gender Composition of the 45th Parliament,” Parliament of Australia, accessed 21 September 2017, http://www.aph.gov.au/About_Parliament /Parliamentary_Departments/Parliamentary_Library/FlagPost/2016/August/ The_gender_composition_of_the_45th_parliament. Neville Bonner, 1971–1983 (Lib); Aden Ridgeway, 1999–2005 (Dem). “First Australian Aboriginal in House of Representatives,” bbc News AsiaPacific, 29 August 2010, http://www.bbc.com/news/world-asia-pacific11125497. “Nova Peris Elected as First Indigenous Woman in Federal Parliament,” abc News, 8 September 2013, http://www.abc.net.au/news/2013-09-08/nova-perisbecomes-first-indigenous-woman-in-federal-parliament/4943820. “Indigenous Parliamentarians, Federal and State: A Quick Guide,” Parliament of Australia Online, updated 11 July 2017, http://www.aph.gov.au /About_Parliament/Parliamentary_Departments/Parliamentary_Library /pubs/rp/rp1718/Quick_Guides/IndigenousParliamentarians. The third Indigenous senator, Senator Lambie, is a former member of the

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Palmer United Party and subsequently became a member of a smaller party of her own. See George Williams, “The Races Power and the 1967 Referendum,” Australian Indigenous Law Review 11 (2007): 8. See, for example, Council for Aboriginal Reconciliation, Final Report of the Council for Aboriginal Reconciliation to the Prime Minister and the Commonwealth Parliament (2000), http://www5.austlii.edu.au/au/orgs/car/finalreport /; Department of the Prime Minister and Cabinet, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (Canberra, act, 2012), https://www.pmc.gov.au/resource-centre/indigenousaffairs/final-report-expert-panel-recognising-aboriginal-and-torres-straitislander-peoples-constitution; Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Final Report (Canberra, act: Parliament of Australia, 2015), http://www.aph.gov.au /Parliamentary_Business/Committees/Joint/Constitutional_Recognition _of_Aboriginal_and_Torres_Strait_Islander_Peoples/Constitutional _Recognition/Final_Report. Australian constitution, section 128. Scott Stephenson, “Rights Protection in Australia,” in Oxford Handbook of the Australian Constitution, edited by Cheryl Saunders and Adrienne Stone (Oxford: Oxford University Press, 2018). See Damien Freeman and Shireen Morris, eds., The Forgotten People: Liberal and Conservative Approaches to Recognizing Indigenous Peoples (Melbourne: Melbourne University Press, 2016), especially chapters 12–14. Referendum Council, Final Report, 30 June 2017. Referendum Council, Uluru Statement from the Heart (May 2017), https://www .referendumcouncil.org.au/sites/default/files/201705/Uluru_Statement _From_The_Heart_0.PDF. Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, Final Report, November 2018. “Mps Unanimously Support Regional Representation for Supreme Court,” cbc News, 27 September 2016, http://www.cbc.ca/news/politics/mps-vote-infavour-of-regional-representation-scc-custom-1.3781520. Johanne Poirier, Cheryl Saunders, and John Kincaid, eds. Intergovernmental Relations in Federal Systems: Comparative Structures and Dynamics (Toronto: Oxford University Press, 2015). Ibid., chapter 2.

2 Bicameralism and the Consequences of Political Structuring in Canada: Lost Alternatives, Future Options Jörg Broschek

introduction In his “Opening Statement to the Special Committee on the Constitution” in 1978, Richard Simeon suggested that “national political institutions are unable to serve as the central arena for reconciling regional and national interests. I do not believe these failures are the effects of any one government or party. They are built into the system.”1 Simeon echoed a concern expressed by other Canadian political scientists especially between the 1970s and 1980s about the lack of “intrastate federalism” in Canada. Donald Smiley, who introduced the distinction between interstate and intrastate federalism, was among the first who pointed to the structural weakness of institutional provisions allowing regional interests to participate effectively in decision-making processes at the federal level.2 This academic debate reflected various historical episodes of frustrated efforts to make Ottawa more responsive towards the interests of different regions or provinces. Since the failure of the Charlottetown Accord and the Reform Party’s disappearance, however, this debate has faded into the background. Even during Stephen Harper’s nearly ten years in power, no serious efforts were being made to strengthen the representation of regional interests in federal institutions. The Harper government’s attempts at Senate reform were flawed and, not surprisingly, they failed. Moreover, they were barely consistent with his vision of “open

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federalism.” Open federalism adheres to the existing division of powers rather than entanglement, and is therefore rooted in the principle of interstate federalism.3 Adopting a comparative-historical approach, this chapter discusses how the institutional “failures” identified by Richard Simeon and others were built into the system, how they became amplified over time, and how these developments affect the prospects for future reforms. It focuses on one particular dimension of the actors-institutions axis that lies at the heart of this volume: the relationship between the political “centre,” represented first and foremost by the federal government and Parliament on the one hand, and regional or provincial interests on the other hand. The comparative-historical framework adopted here draws attention to the long-term implications of early formative and subsequent developments for the politics of territorial accommodation in Canada, or what scholars in the tradition of Stein Rokkan’s state theory call political structuring.4 The notion of political structuring refers to the institutionalization of mechanisms to accommodate centre-periphery conflicts during the formative period of the state. These processes are inherently conflict laden because they imply a large-scale reallocation of political authority towards a new political centre, particularly in the context of federalism through an integrative process. Ensuring a minimal degree of loyalty requires guaranteeing peripheral actors institutionalized rights to protect their interests within the new political order. Most basically, peripheral interests can be accommodated in two ways. First, regional interests can retain authority over substantial policy jurisdictions, allowing them to exercise “self-rule.” Second, they can be provided with rights to participate in decision-making at the federal level, making the political centre more receptive to regional needs through “shared-rule” arrangements. Accordingly, the relationship between actors representing Canadian territorial politics – the federal “centre” on the one hand, “peripheral” territorially organized groups on the other hand – is rooted in formative institutionalization processes. Understanding the weakness of shared-rule arrangements within the federal institutional architecture in Canada thus requires us to reconstruct how political structuring, as a moment of institutional creation, has left a profound imprint on the institutional architecture of the state, impacting on how the federal level interacts over time with provinces in a structured pattern.

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Early institutional alignments matter: they set future developments on a distinct, historically contingent trajectory that shaped the prospects of territorial reforms at later points in time. Variation in political structuring is, therefore, important to understand the peculiarities of the Canadian case against the backdrop of its historical and comparative context. The present chapter reconstructs the increasing imbalance between self-rule and shared rule by examining key historical developments and their repercussions for territorial politics in Canada. Building on a typology that distinguishes inter-institutional (self-rule or autonomy-enhancing) mechanisms and intra-institutional (shared-rule or interdependence-enhancing) mechanisms, it proceeds in three steps. The first part takes a look at the dynamics of state formation. It illustrates how political structuring favored inter-institutional over intrainstitutional mechanisms from the very beginning. Although Confederation unfolded in a situation of historical openness where different institutional options to organize the state became available, political actors did not act in a historical vacuum; past experience and political ideas impinged on the process of political structuring and shifted the constitutional outcome towards an arrangement built more on inter-institutional than intra-institutional mechanisms. The second part illustrates how this initial outcome was perpetuated in the following decades. As a consequence, institutional provisions for regional representation at the federal level became even weaker or were rendered ineffective altogether. Against this historical backdrop, the chapter then discusses the future prospects of two types of regional “checks” on the level of the federal Parliament, or what I call contextual and structural scenarios.

political structuring and federalization The creation of the Canadian state in 1867 is a case of nineteenthcentury state formation.5 As such, it had an inherently centralizing impetus. Regardless of whether state formation unfolded in the context of the long-term transformation of feudal structures, like in Europe, or decolonialization, like in the United States or Canada, these processes have in common the consolidation of a new political centre. This included the construction of new institutions to exercise political authority within a given territory and the attempt to forge

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some form of collective identity or loyalty towards the newly emerging centre.6 At least in formal constitutional terms, the ratification of the British North America Act provided that political authority was transferred towards the newly established federal level from the imperial Parliament in London and those British colonies who decided to join the Confederation project. Although the centralizers in the Great Coalition soon realized that their preferred option of a “legislative union” was impossible to achieve, the bna Act initially reflected their ambition to furnish the new political centre with maximal authority. The bna Act not only vested the federal level with a wide array of significant and exclusively held competencies through sec. 91, but also sought to safeguard Ottawa’s dominant position with additional constitutional powers, most notably the “peace, order and good government clause” (pogg) or the powers of disallowance and reservation. As a centre-building process, modern state formation inevitably creates a demand to accommodate peripheral protest. Centre-periphery conflicts generate territorial politics, which can be defined as the “arena of political activity concerned with the relations between the central political institutions in the capital city and those interests, communities, political organizations and governmental bodies outside the central institutional complex.”7 On the macro level, centre-periphery structures manifest themselves in domestic boundaries that demarcate spatial sites of authority within the modern state. These can be provinces, Länder, states, or cantons in federal states, or regions in unitary states. On the meso level, political structuring leads to the development and internal differentiation of institutional mechanisms intended to accommodate peripheral “protest” resulting from centre-formation processes.8 From a comparative-historical perspective, political structuring in Canada is remarkable for at least two reasons. The first is the adoption of a federal constitution instead of a unitary state. As a federal state, Canada set itself apart from the predominant unitary pathway to state formation. In fact, during the nineteenth century only Switzerland (1848), Canada (1867), and Germany (1867/1871) emerged as federations in Europe and North America.9 Most state formation processes, in contrast, established patterns of peripheral accommodation within a unitary framework, as is brilliantly described in Jim Bulpitt’s account of Britain’s “dual polity.”10 In light of this experience, and the strong British legacy, the federal outcome of the British North America Act looks all the more surprising.

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Second, regarding the meso level, it is remarkable that the Canadian case epitomizes in an almost exceptional way the institutional logic of interstate federalism. The distinction between interstate and intrastate federalism builds on a more general concept to map different types of power relationships between and among branches and levels of government introduced by Karl Loewenstein. According to Loewenstein, “the techniques of control are structurally of two kinds. If the control devices operate within the organization of an individual power holder, they are spoken of as intra-organ controls. If, however, they operate between the several interacting power holders, they are called interorgan controls.”11 This idea inspired Donald Smiley to identify two such institutional mechanisms in federal systems: inter- and intrastate federalism.12 If related to federalism, “interorgan” and “intra-organ” controls can be conceived more broadly as what I call inter-institutional and intra-institutional mechanisms. Inter-institutional mechanisms create an indirect control effect by providing constituent units and the federal level with exclusive competencies and autonomy to assume these responsibilities independently from each other. In other words: inter-institutional mechanisms seek to establish self-rule capacities, in line with the principle of séparation des pouvoirs.13 Vice versa, intraorgan controls reflect the principle of power-sharing – or shared rule – and create interdependence. In line with the principle of distribution des pouvoirs, intra-institutional mechanisms entail strong incentives for territorial tiers to collaborate by assuming different responsibilities within the federation, for example by establishing a functional (or “integrated”) allocation of competencies (one level legislates, the other level implements), or by endowing regional interests with participation rights in decision-making processes at the centre. Donald Smiley used the notion of intrastate federalism primarily in the latter sense, with regard to the formal entrenchment of participation rights for constituent units at the federal level. In principle, however, the distinction’s scope is broader. Table 2.1 summarizes and contrasts how inter- and intra-institutional mechanisms, constructed as ideal types, can variously underpin different institutional dimensions of a federal system. Each of the four core dimensions – the allocation of competencies, fiscal federalism, the system of intergovernmental relations, and the second chamber – can be organized more or less in line with either mechanism.

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Table 2.1 Inter- and intra-institutional mechanisms in federations Inter-institutional: Enhance autonomy through self-rule capacities

Intra-institutional: Enhance interdependence through shared-rule capacities

Allocation of competencies

• Dual and exclusive (fusion of • Functional and shared (one level • legislation and implementation • legislates, the other level • on each governmental tier) • implements)

Fiscal federalism

• Exclusive taxing powers for • each governmental tier • No or only limited equaliza• tion schemes

• Shared taxing powers

Intergovernmental relations (igr)

• Weakly institutionalized • system of igr • Scope for unilateral action • high, voluntary co-operation • contingent on willingness of • governments

• Strongly institutionalized • system of igr • Scope for unilateral action low or • non-existent, compulsory negotia• tions through collaboration and • joint-decision making

Second chamber

• Rather weak, Senate model • (regional interests represented • on federal level through • elected senators)

• Rather strong, Council model • (regional interests represented on • federal level through constituent • units’ governments)

• Encompassing equalization schemes

Source: Broschek, “Pathways of federal Reform.”

Individual federations never correspond completely with either ideal type. If conceived as endpoints of a continuum, however, it is possible to map individual cases in between. While the German example represents a federation where intra-institutional mechanisms are strongly developed in all four dimensions, the Canadian case is located at the other end of the continuum.14 In the following sections, I will advance three arguments. First, these rather exceptional institutional features emerged during the formative period of political structuring. Second, they became more firmly entrenched in the following decades because regional actors experienced inter-institutional mechanisms as being more effective at protecting their interests compared to intra-institutional mechanisms. Third, these developments made it increasingly difficult to rectify the growing imbalance between interand intra-institutional mechanisms in the long term.

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situating the canadian case: confederation as a critical juncture State formation processes are highly contingent events, and the creation of Canada as a federal state in 1867 was all but inevitable. Like in the case of Switzerland (1847–48) or Germany (1867–71), confederation in Canada unfolded at a critical juncture. Critical junctures represent relatively brief historical episodes demarcated by rather exceptional circumstances. Triggered by major events like wars or fundamental crises, critical junctures create momentum for farreaching change.15 The reorientation of British colonial policy, as exemplified in the repeal of the Corn Laws, in combination with order-shattering events like the American Civil War, created a situation of heightened contingency. During such extraordinary circumstances, political actors experience current historical realities more than before in light of alternative options.16 During periods of heightened contingency, previously foreclosed options may become realizable, as actors feel greater pressure than usual to end the situation of increased uncertainty through major institutional reforms. The emergence of the so-called Great Coalition and the gradual foreclosure of alternative scenarios – the colonial status quo, a regionalized unitary state, or regional unions like the Maritime Union – reflected these rather exceptional historical conditions.17 Heightened contingency, however, does not mean that political actors operate in a historical vacuum. Even during a critical juncture, actors interact within a historically pre-structured environment that shapes their capacity to choose among various available options, and, therefore, leaves an imprint on the institutional outcome. In the Canadian case, this raises the question of how and why inter- and intrainstitutional mechanisms were aligned in order to reconcile diverging interests among Confederationists. Authors such as Donald Smiley and Roger Gibbins have argued that mechanisms of “intrastate federalism” featured quite prominently in the original federal scheme.18 Gibbins goes as far to claim that “Sir John A. Macdonald was a firm believer that territorial interests should and must be represented within the institutions of the national government rather than those institutions by provincial governments.”19 More specifically, regional interests were formally

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and informally encapsulated within the federal institutional framework. A formal intra-institutional mechanism was established through bicameralism, with the provision of section 22 of the bna Act, requiring that the three original “divisions,” Ontario, Quebec, and the Maritime provinces, be equally represented with twenty-four senators. In addition, consistent with the idea of entrenching regional interests in federal decision-making was the attempt to establish a regionally balanced composition of the Cabinet and the federal civil service, albeit facilitated informally through political patronage. Finally, given the lack of cohesiveness of political parties at the time of Confederation, it was reasonable to believe that regional caucuses would also contribute to safeguarding regional interests against the new political centre.20 Intra-institutional mechanisms were thus not entirely meaningless. This holds, in particular, for informal intra-institutional mechanisms, most notably the regional composition of the Cabinet. It is also evident that the delegates of the Quebec Conference devoted a considerable amount of time to discussing questions pertaining to the institutional design of the Senate and its relations to the House of Commons. However, it is questionable to infer from these deliberations an overall motivation for entrenching strong, formal regional representation rights at the centre. To be sure, the regional and equal representation of the Senate was an important concession to representatives from Canada East (to become the province of Quebec), the sine qua non for getting negotiations even started.21 At the same time, however, a strong skepticism prevailed among many delegates concerning the Senate’s capacity to effectively fulfill this “participation” function. This sentiment was clearly articulated, among others, by critic Christopher Dunkin: I have to ask the honorable gentlemen opposite how they are going to organize their Cabinet, for these provinces, according to this so called Federal scheme? I think I may defy them to shew that the Cabinet can be formed on any other principle than that of representation of the several provinces in that Cabinet. It is admitted that the provinces are not really represented to any Federal intent in the Legislative Council. The Cabinet here must discharge all that kind of function, which in the United States is performed, in the Federal sense, by the Senate.22

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Addressing the Senate, Dunkin continues: “As vacancies occur, they are to be filled as we are told now – and this is the strangest thing of all – not by the provincial legislatures, nor by any authority or any avowed influence of the local kind, but possibly by the general government. And forsooth, this is called the federal feature of our system.”23 While the Senate’s function to protect regional minorities had played a considerable role during the pre-Confederation debates and raised high expectations in the Maritimes, this was no longer the case during the Confederation debates.24 Instead of envisioning the Senate as an institutional safeguard for regional minorities, it seems that agreement was facilitated through the idea that – as a place for sober second thought – it would serve primarily the interests of economic minorities, thereby cross-cutting territorial cleavages.25 It seems therefore more plausible to assume that, for different reasons, delegates considered inter-institutional mechanisms as the more preferable solution to connect the centre with regional interests. Key to this understanding is the dual allocation of exclusive competencies in sections 91 and 92 of the bna Act. Conceiving federalism primarily in terms of inter-institutional mechanisms made it possible to reconcile two apparently contradictory goals: the creation of a strong federal government endowed with significant powers on the one hand, and the protection of regional interests on the other. Interestingly, unlike in the United States, Germany, or Switzerland, intra-institutional mechanisms were not considered as a crucial institutional check on the federal government to prevent it from intruding into provincial jurisdictions. Obviously, there was a precarious convergence of interests among many delegates in their goal to deliberately limit mutual interference between both governmental tiers, and to create an institutional architecture that would allow the provinces and the federal level to act as independently from each other as possible. In order to reconcile profoundly different visions of federalism, the delegates adopted, as Robert Vipond has demonstrated, a seemingly paradoxical approach. The delegates enumerated and assigned each governmental tier a set of exclusive jurisdictions through separate lists (rather than enumerating only those of one governmental tier), without, however, clearly specifying their respective scope and boundaries. Equipped with constitutionally guaranteed powers to make “exclusively” laws in relation to

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matters falling within the subjects of section 92, those provisions that established a strong federal government – like the powers of reservation and disallowance, along with the peace, order, and good government clause – appeared less as a threat.26 If provinces would enjoy exclusive control over local affairs, it remained open to what extent the federal government could use its powers to transgress provincial boundaries: “They agreed, further, that federalism meant dividing legislative jurisdiction between a national Parliament, which would legislate on those matters of ‘general’ or ‘national’ interest, and several provincial legislatures, which would have the authority to pass laws on matters of ‘local’ significance. But most supporters of the Confederation proposal did their best to avoid giving these general propositions substance … [T]he text [i.e., the Confederation proposal] that, read one way, seemed to guarantee local self-government could be read with equal ease as a massive hedge against local control.”27 Inter-institutional mechanisms, therefore, opened the door to a federal arrangement that would leave many hard questions unresolved. Institutional ambiguity allowed the delegates to reach agreement and to shift the problem of substantiating the concrete meaning and scope of subjects and matters into the future, passing it on to the Judicial Committee of the Privy Council (jcpc). In addition, it is necessary to consider how three antecedent conditions shaped the delegates’ perceptions and preferences during the critical juncture, further reinforcing the pronounced imbalance between intra- and inter-institutional mechanisms in the bna Act. First, there was the British tradition of Westminster-style government, as reflected, among other things, in the preamble’s announcement. Advocates of a unitary state or a highly centralized federation were eager to establish a political system that would resemble that of Great Britain as much as possible. Assigning important jurisdictions exclusively to the federal level while minimizing regional participation rights in federal legislation can thus be seen as a means of realizing Westminster-style government without adapting it more than necessary to Canada’s specific requirements. John A. Macdonald conveyed this understanding of Confederation when he stated: “The true principle of a confederation lay in giving the general government all the principles and powers of sovereignty, and that the subordinate or individual states should have no powers but those expressly bestowed upon them. We should thus have a powerful central government, a powerful central legislature, and a decentralized system of minor legislatures for local purposes.”28

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Second, there was the interpretation of American federalism, especially the anticipation of centrifugal dynamics, and, accordingly, the desire to avoid developments similar to the emergence of states’ rights doctrine in the United States. As a consequence, constitutional ideas about the nature and loci of sovereignty in a federal state permeated discourses surrounding state formation. As the work of Robert Vipond and Jennifer Smith demonstrates, the influence of American federalism was much more complex than much of the traditional literature on Confederation suggests.29 In particular, the Reformers of Canada West (to become Ontario) engaged deeply with American constitutional ideas during the 1860s. This allowed them to develop a concept of “coequal sovereignties,” as opposed to the view held by Conservatives like Macdonald who believed that sovereignty was indivisible. Although Reformers widely shared the belief that a strong federal government was warranted, they simultaneously saw the need for a clear constitutional protection of regional autonomy.30 Inter- rather than intra-institutional controls offered a viable solution: “By 1867, the view that under the Confederation scheme the provinces would be able to legislate without interference from the federal government had become a standard part of Reform rhetoric.”31 Finally, the experience with stalemate or even deadlock in the United Province of Canada, which resembled the “joint-decision traps” in the German context,32 may also have contributed to the desire of many delegates, centralizers, and defenders of provincial autonomy alike to keep both governmental tiers separate through inter-institutional controls. The politics of accommodation in the Province of Canada largely followed the principle of consociational democracy, with its strong focus on shared rule.33 The increasing dysfunctionality of this institutional arrangement became not only an important driving force behind the formation of the Great Coalition who reached out to the Maritimes, but also informed their understanding of adequate solutions for a prospective institutional design. From this viewpoint, a strong preference for inter-institutional over intra-institutional mechanisms can be explained with the expectation that joint decision-making would have to be kept to a minimum, lest institutions became paralyzed by confrontation. Confederation can thus be seen as a rather rare example of successful “dis-entanglement” where political actors successfully escaped the joint-decision trap.

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political restructuring: the decline of intra-institutional mechanisms Political structuring in Canada generated a constitutional scheme in which inter-institutional controls enjoyed an institutional advantage over intra-institutional ones. This initial imbalance, manifested in the combination of Westminster-style democracy and a federal architecture built upon a dualistic allocation of competencies, became further amplified in the decades following Confederation. Institutional change followed a pattern of adaptation rather than deliberate reform, and was driven by “negative and positive feedback effects” accruing to collective actors in the parliamentary and federal arena. As a consequence, the limited intra-institutional mechanisms destined to ensure regional interest representation in the federal parliament and the executive lost further relevance. Scholars in the tradition of comparative-historical analysis deploy the concept of “feedback mechanisms” to theorize endogenous sources of institutional change. Institutional arrangements often allocate power resources and establish asymmetric authority relationships. As such, they tend to produce winners and losers. Those actors who benefit from an institutional setting will seek to consolidate it, while those who are disadvantaged have an incentive to change the status quo. Accordingly, positive feedback effects are self-reinforcing, directing institutional change towards an amplification of existing arrangements, while negative feedback effects are self-undermining. They are reactive, leading to a reversal or reorientation of an institution or a distinct element within a larger institutional architecture. 34 Negative feedback effects can help to understand the declining relevance of intra-institutional checks, most notably the Cabinet, in the aftermath of Confederation. In particular, francophone members in the federal Cabinet and the government of Quebec experienced how intra-institutional controls lacked responsiveness and turned out to be incapable of protecting minority rights, primarily those of French Canadians outside the province of Quebec. The New Brunswick Common Schools Act of 1871 triggered the first major crisis after Confederation. The government of Quebec’s unsuccessful attempt to prevent the abolishment of the system of denominational schools in New Brunswick did more than demonstrate the weakness of the Cabinet as a means of protecting regional interests. It also created a somewhat paradoxical situation in which the Quebec government called

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for John A. Macdonald to evoke the power of disallowance to invalidate provincial legislation: the New Brunswick School Act “had put Macdonald, the great centralizer of 1867, in the position of an unyielding defender of provincial powers … It is interesting, and not wholly ironical, to see a Québec ultramontanist demanding that the federal government be imperial and paramount.”35 The New Brunswick School question reflects a deeper pattern of reactive responses and growing frustration about the ineffectiveness of intra-institutional controls. Francophone Cabinet members, along with the Quebec government, were neither able to prevent the execution of Louis Riel in 1885 nor resolve the Manitoba School Question by intervention through the Cabinet. On the contrary, as the latter controversy unfolded in the aftermath of the Public Schools Act in Manitoba in 1890, it revealed a deep-seated conflict within the Conservative Party of Canada. When the Judicial Committee of the Privy Council (jcpc) eventually confirmed the federal Parliament’s authority to remedy provincial legislation in Brophy vs Manitoba in 1895,36 these divisions turned into open conflict over the federal government’s remedial bill and contributed to the transition from the Macdonald to the Laurier “dynasty” in 1896.37 Under the liberal Laurier government, it was possible to inject some renewed confidence into the responsiveness of intra-institutional mechanisms. Laurier was able to secure a strong electoral base in Quebec flowing from his commitment to guarantee French Canadian’s interests throughout the country. Accordingly, he portrayed his electoral promise in 1896 to resolve the Manitoba Schools Question not as a predominantly religious or educational issue, but as one representing the protection of francophone interests more generally.38 The outcome of the critical election of 1896 was confirmed in the three following elections in 1900, 1904, and 1908, which maintained the Liberals in power. And yet, the revitalization of conflict accommodation through intra-institutional practices remained fragile, and the brief era of revival ultimately came to an end with the Conscription Crisis of 1917.39 Regarding the Senate, the Supreme Court of Canada has emphasized repeatedly the role of the second chamber as a constitutive element of the constitutional architecture of Canadian federalism, most recently in its 2014 reference on Senate reform.40 Provincial consent on any reform of the Senate that seeks to change the nature and role of the second chamber accordingly requires consent of at least two-

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thirds of provincial legislatures, representing at least 50 per cent of the Canadian population (the 7/50 formula), or, in case of Senate abolishment, unanimity. And indeed, all provinces demand to be involved in efforts to reform the Senate, albeit with different preferences. While some, like Quebec, Ontario, or Nova Scotia seem to indicate general support for Senate reform, others, like New Brunswick, seem to be rather indifferent, and Saskatchewan and Manitoba want to abolish it altogether.41 Provinces have always been stakeholders in the politics of Senate reform. But in practice, the Senate has been rather ineffective at protecting regional and, more specifically, provincial interests. At best, such interests found entry into the consideration of bills and corresponding recommendations.42 The Senate, therefore, never emerged as a major arena for the accommodation of federal-provincial conflicts, and the federal Cabinet turned out to be of limited use when it came to protecting regional interests. At the same time, however, the incentive structure of the bna Act encouraged provinces to take advantage of institutional ambiguities entailed in the allocation of competencies to build up capacities against federal intrusion. In other words, negative feedback effects are only one side of the coin. Post-Confederation developments also set into motion a selfreinforcing sequence that continuously strengthened inter-institutional controls through institutional adaptation. Hence, while the enumeration of competencies in sections 91 and 92 suggests the drafter’s deliberate attempt to clearly specify the roles and responsibilities for each governmental tier, the federal principle was, from the very beginning, fraught with considerable ambiguity.43 The demarcation of political authority between the federal government and the provinces through the bna Act was far from clear, and where lines of authority are ambiguous, “original designers may be less capable of sustaining control over long-term paths of institutional development.”44 This opened the door for strategies to counteract the narrative of a dominant federal government, and ultimately to redirect the federation onto a more decentralist pathway. Albert O. Hirschman’s prominent distinction between “exit” and “voice” can help to illustrate this unfolding dynamic. Exit and voice describe two types of collective action triggered by dissatisfaction with organizations like firms, political parties, or (federal) states. In cases of voice, actors seek to improve the relationship through the communication of complaints and demands for change. If applied in the context

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of federal systems, this strategy corresponds with the logic of intrainstitutional controls: constituent units demand more responsiveness of the system by strengthening their participation rights on the federal level. Exit, in contrast, describes the withdrawal from a relationship. This does not necessarily mean secession. While it may be the last resort, “soft” exit strategies entail efforts to revert to the provincial level rather than seek to make the federal level more responsive to regional needs.45 Exit strategies, therefore, seek to strengthen autonomy for constituent units, for example through province-building, and imply secession only under certain circumstances. Whereas Quebec’s initial efforts to protect the cultural minority rights of francophone Canadians through intra-institutional “voice” strategies proved to be rather ineffective, provincial governments, most notably the Mowat government in Ontario, took advantage of institutional ambiguities to embark on a strategy rooted in a logic of “exit.” As the work by scholars such as Robert Vipond, Christopher Armstrong, or Paul Romney shows, the arguments advanced by protagonists such as Edward Blake, David Mills, and Oliver Mowat, which were largely upheld by the jcpc in the key rulings of the 1880s and 1890s, emphasized the necessity of keeping both governmental tiers separate as a means of protecting provincial sovereignty, targeting in particular the power of disallowance. 46 For example, David Mills, Liberal mp from Ontario (1867–82 and 1884–96), stated in the House of Commons: “The functions of Parliament and the Provincial Legislatures were separate and distinct. If Parliament were paramount it would have the power to determine on what subjects they would legislate and what not: but the British North American Act provided that certain subjects should be exclusively vested in the Provincial Legislatures. Those Legislatures had their own legitimate sphere and were as independent of Parliament as if they were separate and distinct sovereignties.”47 The allocation of mostly exclusive competencies laid out in the bna Act was vague, and it opened the door for different interpretations concerning the scope of individual provisions. The so-called provincial rights movement successfully engaged alternative claims about their meaning, mobilized support, and eventually was able to destabilize the interpretative framework upheld by centralizers such as John A. Macdonald. Inter-institutional mechanisms turned out to be more effective than intra-institutional regional checks on the federal level, and this positive experience contributed to amplify the imbalanced

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configuration of both mechanisms in the bna Act. This does not mean that the articulation of regional discontent at the federal level was rendered entirely meaningless. Federal political parties with a strong electoral base in regions, from Social Credit and the Co-operative Commonwealth Federation (ccf) to the Bloc Québécois or the Reform Party, were variously able to exercise, albeit indirectly, pressure on the federal level throughout the twentieth century. In addition, the imperative to forge regional voter coalitions made the Liberals and Conservatives responsive to the demands of a contingent constellation of regional demands. However, the effectiveness of such voice strategies on the federal level has remained limited compared to the potential of exit through what became to be known as province-building.48 Even Tommy Douglas’s ccf government in Saskatchewan, which was not opposed to the idea of a strong role for the federal government, realized the institutional advantage of utilizing dormant institutional capacities on the provincial level. Before coming to power in 1944, he already anticipated the requirement of strengthened provincial powers as a prerequisite for embarking on an ambitious reform program.49 Inter-institutional mechanisms, therefore, encouraged political strategies focusing on the provincial rather than the federal level. This process became self-reinforcing as the scope and depth of provincial activity expanded. In the words of Alan Cairns, initial steps towards province-building were “multiplied by the ramifying effects of the institutional and organizational complexities … The ministries, departments agencies, bureaus, and field offices to which they daily report constitute partially self-contained entities, valued for their own sake, and possessed of their own life and interests.”50 Provincial institutional self-interest is, however, only one part of the story. This factor aligned with the dynamics of party politics to accelerate the decay of intra-institutional regional interest representation. Both factors, in fact, reinforced each other. By today’s standards, the Liberals and Conservatives exhibited a comparatively high degree of vertical integration until the end of the First World War.51 Political patronage facilitated the creation of a relatively coherent and effective organizational structure. Immediately after Confederation, however, contrary to the Conservatives, the Liberals lacked an organizational coherence. Macdonald successfully forged a patronage-based system that tightly linked regional and federal party organizations. This, in turn, encouraged the mutual entanglement of federal and provincial

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politics. By contrast, it was not until Edward Blake became party leader in 1880 that similar structures developed within the Liberal Party.52 This initial organizational disadvantage at the federal level, however, turned into a competitive advantage at the provincial level. It discharged the Liberals from accommodating ethno-cultural differences, in particular between the former Rouges and more radical Reformers, within the framework of the federal party organization, and it allowed them to form a loose alliance of provincial premiers rallying around one common goal: to destabilize Macdonald’s imperial conception of federalism. Inter-institutional mechanisms, therefore, opened up the opportunity to partially redirect partisan competition from the federal towards the intergovernmental arena. While the Conservatives were able to predominate in the former (with the notable exception of the Mackenzie interlude) until 1896, Liberal provincial party organizations successfully focused on the provincial level and were able to consolidate their control in the post-Confederation decades. After the Liberals had replaced Conservative governments in Ontario (1871), Nova Scotia (1882), New Brunswick (1883), Manitoba (1888), and Prince Edward Island (1891),53 the Conservatives began to realize the advantages of a less integrated party structure as well: “Sir Charles [Tupper] considered it inevitable that in a diverse federation the provincial wings of any party would differ among themselves on many questions, and he believed that the ties between federal and provincial parties were a source of inconvenience and embarrassment to both.”54 The expansion of provincial authority thus went hand in hand with initial steps towards a separation of federal and provincial party organizations, a trend that began to materialize fully during the twentieth century.

future options Early institutional developments are important for understanding the path-dependent co-evolution of Westminster-style democracy and federalism. Inter-institutional mechanisms promoted the concentration of power on the provincial and federal level rather than stronger institutional entanglement. Initial steps in this direction were perpetuated as the scope of state functions increased on both levels of government during the twentieth century. Despite profound changes in the social environment, institutional dynamics continued to reinforce

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the initial outcome. “The federalism of contemporary big government at both levels,” as Cairns has argued in The Other Crisis of Canadian Federalism, “can best be understood in terms of the tendency of each government to seek to minimize the policy contradictions in its own jurisdiction and reduce the environmental uncertainty emanating from the conduct of other governments … Each government, in brief, strains, to exaggerate somewhat, to attain and exercise the power of a unitary state.”55 In this respect, Canadian federalism has evolved on a pathway that stands in sharp contrast to many other federations, most notably Germany, where parliamentary and federal arenas became increasingly intertwined.56 This path-dependent institutional configuration has turned out to be, at the same time, highly resilient and highly conducive to change. As for the latter, the concentration of authority in the hands of federal and provincial governments facilitated cyclical swings between centralizing and decentralizing dynamics in Canadian federalism. The powers of reservation and disallowance came into disuse, and the jcpc limited the scope of the pogg clause, which – in addition – had to be balanced against a broad interpretation of section 92 (13). But the federal government cultivated a functional equivalent: the federal spending power doctrine. Although the constitutionality of the spending power doctrine has always remained contested, it furnished the federal government with a powerful institutional resource to intervene unilaterally in a broad range of policy areas, including those formally falling into exclusive provincial domains.57 The provinces, for their part, managed to solidify their role as powerful actors, widening the scope of provincial public policy and exercising deep and pervasive forms of state intervention in social, economic, or cultural policy. However, the history of failed reforms aimed at strengthening intrainstitutional mechanisms clearly reveals the limited scope for institutional change seeking to rectify the structural imbalance between selfrule and shared rule within the institutional architecture of Canadian federalism. In principle, intra-institutional mechanisms can be strengthened in two ways: through contextual and structural scenarios. Contextual scenarios are most feasible and they do happen indeed. The reason is that in these cases change follows from rather unpredictable events – like election outcomes – and does not require an explicit institutional reform. Drawing on recent theories of gradual institutional change, these scenarios can be described as drift or conversion.

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Contextual Scenarios: Drift and Conversion In cases of drift, contextual shifts lead to a change in an institution’s impact.58 For example, shifting voter behaviour and electoral outcomes affect the composition of regional blocks in the House of Commons. This may enable previously marginalized regional interests assume control of federal level institutions. This scenario is perhaps best exemplified in the gradual rise of the “Harper Conservatives” between 2006 and 2011, which former Reform Party leader Preston Manning’s enthusiastically proclaimed as “a shift of the geopolitical centre of gravity of the country from the old Laurentian region of Quebec and Ontario to a new political base rooted in Ontario and the West.”59 The 2006 general election brought a dramatic change to the representation of Western mps in the governing caucus. This empowerment was amplified five years later with the win of a majority government.60 In the case of evolution through conversion, old institutions are redirected to new purposes. Accordingly, the activation of intra-institutional mechanisms in Parliament is contingent on the willingness of party leaders to relax or informally suspend centralizing mechanisms inherent to party competition in parliamentary systems. In this respect, the election of the Justin Trudeau government may have initialized a pathway for gradual institutional change. First, the Senate is undergoing an incremental renewal process that started with Trudeau’s decision to end formal party affiliation of Liberal senators before he was elected prime minister in 2014. In 2016, the Trudeau government then established the Independent Advisory Board for Senate Appointments with a mandate to make merit-based recommendation on how vacant seats should be filled. In combination with other procedural changes, for example related to the composition of committees, these small initial steps have the potential to consolidate a new, more independent role of the Senate within the legislative process, a trend exemplified in the formulation of forty-six amendments to Bill C-45, which introduced the legalization of cannabis.61 While a major focus of a more active Senate will most likely be enhancing issues related to gender equality and Indigenous Peoples, it may also open the door for regional interests to be better reflected in federal decision-making. Second, Justin Trudeau promised a more collaborative approach to politics, within the intergovernmental arena, but also within the fed-

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eral government itself. His announcement that “government by cabinet is back”62 indicated a willingness to reverse the ongoing trend from Cabinet to prime ministerial government, or, as Adam Radwanski has put it, a “Neo-Pearsonian” approach to governing. This attempt at flattening hierarchies in the pmo decision-making process itself does not indicate a deliberate effort to make it more sensitive to regional concerns, but to better reflect non-territorial diversity like gender and ethnicity. Yet, as Smiley and Watts argued already in 1985, a changing political practice of party discipline has the potential to strengthen regional interests’ influence in the operation of committee activities and to give more weight to private members’ bills.63 While the Trudeau government’s effort to change the role of the Senate seems to have gained some momentum, the promise to reverse the historical path of prime ministerial government appears to have been empty rhetoric. Even before the unprecedented resignation of former justice minister Jody Wilson-Raybould in February 2019 and Treasury Board president Jane Philpott in March 2019, who both cited ethical and moral concerns about inappropriate interference of the pmo and pco into matters falling under a ministerial jurisdiction, anecdotal evidence suggested that the Trudeau government’s approach was very similar to Harper’s.64 And yet, even empty rhetoric can matter, unleashing potential for institutional change in the long term. Substantial deviation from a publicly articulated interest or opinion violates, as Jon Elster has argued, the so-called “consistency constraint” in deliberative settings. Accordingly, a public speaker “will be seen as opportunistic if he deviates from it [i.e., the articulated interest] when it ceases to serve his needs.”65 It is unlikely that the unexpected resignation of two high-calibre Cabinet members as a result of the pmo presumably neglecting the consistency constraint in the snc-Lavalin case may immediately initiate a return to Cabinet government. It bears, however, potential for institutional change, as future prime ministers will anticipate a similar reaction, and be more cautious in deploying the power of the pmo within the government like in the past. Structural Scenarios As patterns of informal adaptation, and unlike explicit formal reform attempts, both scenarios of institutional drift and conversion are comparatively easy to achieve. In both cases, institutional change does not

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fundamentally alter the institutional logic of Westminster-style democracy, but modifies its operational process. In cases of conversion, change results from political actors who are willing to use discretion in interpreting and implementing rules. In cases of drift, contextual conditions may empower, at least temporarily, previously marginalized groups and offer a window for change. In both cases, change does not become visible through explicit, formal reform, but unfolds within a stable institutional framework. At the same time, however, the effectiveness of both forms of institutional change is highly contingent on external circumstances that are difficult to predict, like volatile voting behaviour or the personal leadership characteristics of individual party leaders. Political observers like Andrew Coyne, Darrell Bricker, or John Ibbitson profoundly overestimated the sustainability of contextual scenarios when proclaiming a new conservative and more Western-based era in Canadian federal politics based on a “seismic shift” that was believed to have culminated in the 2011 federal election outcome.66 As Andrew Cohen sardonically comments in the Ottawa Citizen a few days after the 2015 election: “It is as if 2011 never happened. An election expected to confirm the decline of the ‘Laurentian Consensus’ … has instead served to entrench it. The locus of political power in Canada returns to eastern and central Canada.”67 Even more importantly, increasing volatility of regional representation especially in the caucus of the governmental party appears almost as problematic as regional predominance over an extended period, as it usually replaces one (semi-) peripheral region with another one. As such, drift is unlikely to produce a more healthy balance among different regions in the governing caucus. Structural scenarios promise more reliable and durable opportunities to strengthen regional representation in parliament. However, as they directly target the institutional logic of Westminster democracy and the established federal system, the prospects of such reform strategies are rather bleak. Institutional reforms require replacing institutional components. Therefore, they have direct implications for established authority relationships within a given political order. 68 Past and more recent experience with two institutional reform options clearly demonstrates the limits of structural scenarios: electoral reform and Senate reform. Regarding the former, the existing first-past-the-post system is not per se irresponsive to regional interests. Based on strong territorially concentrated support, various regional third parties from the Progres-

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sive Party to the Bloc Québécois were able to exercise “voice” on the federal level. Nonetheless, as Cairns has argued in his seminal 1968 article, this has served to exacerbate rather than to accommodate regional conflict.69 Moreover, as mentioned above, such outcomes are contingent on volatile electoral behaviour and, therefore, inappropriate means of consolidating the representation of regional interest in Parliament. Not only has the electoral system contributed to the emergence of rather monolithic regional blocks, but it also magnifies swings in electoral behaviour. The example of Quebec nicely illustrates this dynamic inherent to the first-past-the-post system. Since the 1980s, changing voting behaviour has produced sequences of “collapses” and “waves” of four different parties: from the Liberals to the Progressive Conservatives to the Bloc Québécois to the ndp and then back to the Liberals again. The electoral system has thus been one important target for institutional reform. Proponents of electoral reform expect a more persistent reflection of regional diversity within both government and opposition caucuses from a system of proportional representation. Unlike more recent reform discourses on electoral reform, proposals advanced in the 1970s and 1980s were primarily concerned with the distorting effects of the first-past-the-post-system on the balance of regional interests in the House of Commons, and primarily envisaged some form of parallel voting.70 The main rationale behind these proposals was to strengthen intra-institutional controls by adding “provincial seats” to the House of Commons, meaning that seats would not be filled by regular single-member constituencies, but through a different method aimed at ensuring provincial representation. The overall goal of all these proposals was to establish a greater degree of proportionality between the distribution of seats won by each party in a region on the one hand, their respective share of the popular vote on the other hand. The potential impact of electoral reform on intra-institutional controls in parliament is difficult to assess. Electoral systems generate interacting mechanical and psychological effects, the consequences of which are hard to predict. Within both main types of electoral systems, majority and proportional, multiple reform options are available, and even small technical adjustments can have huge, unintended consequences which only become visible after a sequence of several elections. The high degree of uncertainty concerning their long-term consequences makes electoral reform very difficult to achieve. Yet, the

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prospects of the second structural reform scenario, Senate reform, seem to be even worse. Following Cairns, recommendations for Senate reform can be broadly distinguished in terms of whether they seek to make the federal government more responsive to regional demands without weakening the federal level per se (“centralist intrastate federalism”) or to provide provincial governments with a greater say in federal legislation (“provincial intrastate federalism”). While the second option would perpetuate the power of provincial executives, providing them with formalized access to federal legislation in addition to their increasingly important role in the federal arena, the first option aims at enhancing the attractiveness of Ottawa for regional interest at the expense of provincial governments.71 Various suggestions in line with “provincial intrastate federalism,” inspired by the idea of replacing the Senate with a second chamber similar to the German Bundesrat, found widespread support in the reform discourses of the 1970s, before they became superseded by reform proposals more in line with the first option: centralist intrastate federalism.72 Eventually, these suggestions culminated in the Triple-E Senate proposal. After the failure of the Charlottetown Accord in 1992, the Conservatives under Harper sought to unilaterally implement some elements included in the Triple-E concept through federal legislation. Various bills introduced since 2006 intended to limit terms, to consult the electorate on Senate appointment, or, as in case of Bill C-7, to elect nominees altogether. The Quebec Court of Appeal’s reference of 201373 and the Supreme Court of Canada’s 2014 reference on Senate reform74 confirmed that changing the status quo would require either the 7/50 formula or, in case of abolishing the Senate, the consent of all ten provinces plus the federal parliament. In light of significant preference divergence among provincial governments and federal political parties, Senate reform historically got caught in what Fritz W. Scharpf has called the “joint-decision trap.”75 Joint-decision traps can occur when decisions at the federal level are dependent on the approval of lower level units. Despite overall dissatisfaction with the status quo, institutional change is very difficult to achieve because under the condition of preference heterogeneity, most actors still expect more short-term benefits from existing institutional arrangements. The only viable solution to exit this rather rare case of a jointdecision trap in the Canadian context would probably have to involve

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a radical departure from previous failed efforts. As Matthew Mendelsohn has argued, the answer presumably is to reach, first of all, a general agreement on drastically limiting the formal constitutional powers of the Senate. The rationale is simple: as long as the Senate is endowed with significant constitutional authority, senators may reactivate these resources once they are no longer appointed. Provincial anticipation of a renewed and potentially powerful Senate, however, is detrimental to substantive institutional reform and will prompt resistance. A Senate with less formal authority, in contrast, will make it easier to agree on questions such as selection mechanisms, each province’s share of senators, or tenure.76

conclusion Since Confederation, centre-periphery conflicts in Canada have multiplied and became more intense. The emergence of a territorially diversified and highly interdependent political economy fostered through the National Policy, the changing nature of French-Canadian nationalism, or the rising relevance of the North have contributed to the pervasiveness of territorial politics. Unlike other federations, however, Canada’s institutional architecture has provided regional interests with only minimal and rather ineffective channels to influence decision-making processes at the centre in a meaningful way. This holds, in particular, for the federal Parliament, where the Senate has lost relevance over time and opportunities for regional voice are limited to highly contingent circumstances. At the same time, the constitutional foundation of the Canadian state turned out to be more conducive to exit strategies, thus compensating regional interests for the lack of intra-institutional mechanisms at the centre. In this respect, the Reform Party’s battle cry, “The West Wants In,” represents an exception to the rule. The predominant pattern of articulating regional discontent was anchored in different forms of exit. From the provincial rights movement in the late nineteenth century over William Aberhart’s unsuccessful experiments with social credit policies to Maurice Duplessis’s Grande Noirceur or Jean Lesage’s Révolution tranquille – core episodes in Canadian political history demonstrate the prevalence of this recurrent pattern. As this chapter has argued, the prevalence of exit over voice strategies in Canadian territorial politics has its roots in the process of political structuring. From a comparative-historical viewpoint, the

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bna Act exhibited an exceptional institutional imbalance of inter- and intra-institutional mechanisms, an imbalance that was further amplified through a sequence of events and developments in the post-Confederation era. This has important consequences for the prospects of efforts destined to strengthen regional interest representation at the federal level. The architecture of federalism and democracy in Canada combines a remarkable capacity to facilitate institutional and policy change through adaptation with an equally remarkable tendency to prevent institutional reforms, especially if their intent is to make federal institutions more responsive to regional interests. In light of past experience, major reforms to structurally mitigate the inter/intrainstitutional imbalance are rather unlikely to happen. Instead, it seems reasonable to assume that the opportunity for distinct regions to articulate discontent in Parliament will remain contingent and circumstantial. In that context, powerful governments at both the federal and provincial levels, coupled with intergovernmental relations, are likely to continue marking Canadian federalism.

acknowledgments I wish to thank Johanne Poirier, Alain-G. Gagnon, and Robert Vipond for useful comments and suggestions. The usual disclaimer applies.

notes 1

2 3

4

Richard Simeon, “Opening Statement to the Special Committee on the Constitution,” discussion paper for the Institute of Intergovernmental Relations (Kingston: Queen’s University, 1978). Donald Smiley, “The Structural Problem of Canadian Federalism,” Canadian Public Administration 14, no. 3 (1971): 326–43. On “open federalism” see, for example, James Bickerton, “Deconstructing the New Federalism,” Canadian Political Science Review 4, no. 2–3 (2010): 56–72. Stefano Bartolini, Restructuring Europe: Centre Formation, System Building, and Political Structuring between the Nation State and the European Union (Oxford: Oxford University Press, 2005); Maurizio Ferrera, The Boundaries of Welfare: European Integration and the New Spatial Politics of Social Protection (Oxford: Oxford University Press, 2005); Peter Flora, Stein Kuhnle, and Derek W. Urwin, eds., State Formation, Nation-Building, and Mass Politics in

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Europe: The Theory of Stein Rokkan (Oxford: Oxford University Press, 1999). Garth Stevenson, Unfulfilled Union: Canadian Federalism and National Unity, 4th ed. (Montreal and Kingston: McGill-Queen’s University Press, 2009), 20. Flora et al., State Formation. Jim Bulpitt, Territory and Power in the United Kingdom: An Interpretation (Colchester: ecpr Press, 2008), 59. Bartolini, Restructuring Europe; Flora et al., State Formation; Jörg Broschek, “Authority Migration in Multilevel Architectures: A Historical-Institutionalist Framework,” Comparative European Politics 13, no. 6 (2015): 656–81. In Mexico, the first, short-lived federal constitution was established in 1824. In South America, federalism occurred in Venezuela (1811), Argentina (1853), and Brazil (1891). Bulpitt, Territory and Power. Karl Loewenstein, Political Power and the Governmental Process (Chicago: University of Chicago Press, 1956), 164. First in Smiley, “The Structural Problem,” and then with explicit reference to Loewenstein in Smiley, Canada in Question: Federalism in the Seventies, 2nd ed. (Toronto: McGraw-Hill Ryerson, 1976), 207. As pointed out by Ulrich Lange and Rainer-Olaf Schultze: Lange, “Teilung und Trennung der Gewalten bei Montesquieu,” Der Staat 19, no. 2 (1980), 213–34; Schultze, “Föderalismus als Alternative? Überlegungen zur territorialen Reorganisation politischer Herrschaft,” Zeitschrift für Parlamentsfragen 21, no. 3 (1990), 475–90. Jörg Broschek, “Pathways of Federal Reform: Australia, Canada, Germany and Switzerland,” Publius: The Journal of Federalism 45, no. 1 (Winter 2015): 54–7. On the role of critical junctures for the comparative study of federalism and territorial politics, see Jörg Broschek, “Historical Institutionalism and the Varieties of Federalism in Germany and Canada,” Publius: The Journal of Federalism 42, no. 4 (2012): 662–87; Jörg Broschek, Bettina Petersohn, and Simon Toubeau, “Territorial Politics and Institutional Change: A Comparative-Historical Analysis,” Publius: The Journal of Federalism 48, no. 1 (2018): 1–25. Niklas Luhmann, “Evolution und Geschichte,” Geschichte und Gesellschaft 2, no. 3 (1976): 297. Jörg Broschek, Der kanadische Föderalismus. Eine historisch-institutionalistische Analyse (Wiesbaden: vs Springer, 2009), 110. Smiley, “The Structural Problem”; Roger Gibbins, Regionalism: Territorial Politics in Canada and the United States (Toronto: Butterworths, 1982).

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19 Gibbins, Regionalism, 78. 20 Smiley, “The Structural Problem,” 355 ff.; Donald Smiley and Ronald Watts, Intrastate Federalism in Canada (Toronto: University of Toronto Press, 1985). 21 See, for example, George Brown on 8 February 1865: “Our Lower Canada friends have agreed to give us representation by population in the Lower House, on the express condition that they shall have equality in the Upper House. On no other condition could we have advanced a step; and, for my part, I am quite willing they should have it.” Quoted in Janet Ajzenstat, Ian Gentles, and Paul Romney, eds., Canada’s Founding Debates (Toronto: University of Toronto Press, 1999), 63. 22 Quoted from Ajzenstat et al., Canada’s Founding Debates, 115. 23 Quoted in ibid., 306. 24 Garth Stevenson, Ex Uno Plures: Federal-Provincial Relations in Canada 1867–1896. (Montreal and Kingston: McGill-Queen’s University Press, 1997): 324–5. 25 Jennifer Smith, “Canadian Confederation and the Influence of American Federalism,” Canadian Journal of Political Science 21, no. 3 (1988): 455–7. 26 In a similar vein, George Brown’s Globe argued as early as 1 August 1864: “Let us see also, that the federal authority – whether it be recognized as the “sovereign” power or not – is precluded from any interference with the legislation of local bodies, so long as they keep within constitutional limits, and we shall all be safe.” Quoted in John T. Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism (Toronto: University of Toronto Press, 2002), 5. 27 Robert Vipond, “1787 and 1867: The Federal Principle and Canadian Confederation Reconsidered,” Canadian Journal of Political Science 22, no. 1 (1989): 7–8. 28 Quoted in Ajzenstat et al., Canada’s Founding Debates, 314. 29 Robert Vipond, “1787 and 1867,” 3–25; Jennifer Smith, “Intrastate Federalism and Confederation,” in Political Thought in Canada: Contemporary Perspectives, edited by Stephen Brooks (Toronto: Clarke Irwin Publishing, 1984), 258–77; Smith, “Canadian Confederation,” 443–64. 30 Vipond, “1787 and 1867,” 14; see also Marc Chevrier, “The Idea of Federalism among the Founding Fathers,” in Contemporary Canadian Federalism: Foundations, Traditions, Institutions, edited by Alain-G. Gagnon (Toronto: University of Toronto Press, 2009), 33. 31 Vipond, “1787 and 1867,” 21. 32 The concept of joint-decision traps was originally coined by Fritz W. Scharpf. It describes a pattern in configurations of joint-decision-making, that is, when territorial actors can change the status quo only if a large majority

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supports institutional or policy change. This configuration results in a trap if most political actors are dissatisfied with political outcomes (most notably because of lowest common denominator decisions, or even stalemate), but, at the same time, are unable or unwilling to agree to structural reforms that would effectively replace joint-decision-making with a more flexible institutional configuration. See for example Scharpf, “The JointDecision Trap: Lessons from German Federalism and European Integration,” Public Administration 66, no. 3 (1988): 239–362. Kenneth McRoberts, “The Sources of Neo-Nationalism in Quebec,” Ethnic and Racial Studies 7, no. 1 (1984): 55–85. Comparative: Garth Stevenson, Parallel Paths: The Development of Nationalism in Ireland and Quebec (Montreal and Kingston: McGill-Queen’s University Press, 2006). James Mahoney and Kathleen Thelen, eds., Explaining Institutional Change: Ambiguity, Agency and Power (Cambridge: Cambridge University Press, 2010); Paul Pierson, Politics in Time: History, Institutions and Social Analysis (Princeton: Princeton University Press, 2004); Alan M. Jacobs and R. Kent Weaver, “When Policies Undo Themselves: Self-Undermining Feedback as a Source of Policy Change,” Governance: An International Journal of Policy, Administration, and Institutions 28, no. 4 (2015): 417–581. William Morton, “Confederation, 1870–1896,” in Contexts of Canada’s Past, edited by A.B. McKillop (Toronto: Macmillan Publishers, 1980), 215. Brophy v. Attorney-General of Manitoba, [1895] A.C. 202. Lawrence LeDuc, Judith McKenzie, and John Pammett eds., Dynasties and Interludes: Past and Present in Canadian Electoral Politics, 2nd ed. (Toronto: Dundurn Press, 2016). Ibid., 82. Ibid., 93–9. Reference re Senate Reform, 2014 scc 32; see also Reference re: Authority of Parliament in relation to the Upper House, 1980 1 scr 54. See the survey of official statements by Aaron Wherry, “Where the Provinces Stand on Senate Reform,” Maclean’s, 12 June 2015. See the short historical review in Donald Smiley and Ronald Watts, Intrastate Federalism in Canada (Toronto: University of Toronto Press, 1985): 117–20. As Robert Vipond has put it in “1787 and 1867”: “It is as if the Confederation proposal was crystal clear. The coalition’s unwillingness to discuss matters of substance in any detail was especially noticeable and unsatisfying because the text of the proposal seemed to contradict the very federal principles that it was meant to embody … [T]he text that, read one way, seemed to guarantee local self-government could be read with equal ease as a massive hedge against local control” (9).

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44 Pierson, Politics in Time, 163. 45 Similar to the pattern identified by Hirschman in “Shifting Involvements”: citizens revert to the private sphere as a reaction to disappointment with public engagement. In other words, they do not necessarily immigrate to a different country (“hard exit”), but refrain from active engagement in the public sphere (“soft exit”). Albert O. Hirschman, Shifting Involvements: Private Interest and Public Action, 20th anniversary ed. (Princeton: Princeton University Press, 2002). 46 Robert Vipond, Liberty and Community: Canadian Federalism and the Failure of the Constitution (Albany: State University of New York Press, 1991); “Constitutional Politics and the Provincial Rights Movement in Canada,” Canadian Journal of Political Science 18, no. 2 (1985): 267–94; Paul Romney, “The Nature and Scope of Provincial Autonomy: Oliver Mowat, the Quebec Resolutions and the Construction of the British North America Act,” Canadian Journal of Political Science 25, no. 1 (1992): 3–28; Christopher Armstrong, The Politics of Federalism: Ontario’s Relations with the Federal Government, 1867–1942 (Toronto: University of Toronto Press, 1981). 47 David Mills in Debates of the House of Commons of the Dominion of Canada. Fourth Session, Third Parliament, 11 April 1877 (Ottawa: MacLean, Roger and Co., 1877): 1370; see also Robert Vipond, Liberty and Community, 155. 48 Edwin Black and Alan C. Cairns, “A Different Perspective on Canadian Federalism,” Canadian Public Administration 9, no. 1 (1966): 27–44; John Richards and Larry Pratt, Prairie Capitalism: Power and Influence in the New West (Toronto: McClelland and Stewart, 1979). 49 Al Johnson, Dream No Little Dreams: A Biography of the Douglas Government of Saskatchewan, 1944–1961 (Toronto: University of Toronto Press, 2004), 42. 50 Alan Cairns, “The Governments and Societies of Canadian Federalism,” Canadian Journal of Political Science 10, no. 4 (1977): 703. 51 Rand Dyck, “Links between Federal and Provincial Parties and Party Systems,” in Representation, Integration, and Political Parties in Canada, edited by Herman Bakvis (Toronto: Dundurn Press, 1991), 129–77; Stevenson, Ex Uno. 52 Dyck, “Links between,” 566. 53 Data based on Christopher Dunn, ed., Provinces: Canadian Provincial Politics (Peterborough: Broadview Press, 1996), 519ff. 54 Stevenson, Ex Uno, 184. 55 Alan Cairns, “The Other Crisis of Canadian Federalism,” Canadian Public Administration 22, no. 2 (1979), 191ff. 56 Jörg Broschek, “Historical Institutionalism”; Gerhard Lehmbruch, Parteienwettbewerb im Bundesstaat, 3rd ed. (Wiesbaden: vs Verlag fuer Sozialwissenschaften, 2000).

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57 Hamish Telford, “The Federal Spending Power in Canada: Nation-Building or Nation-Destroying?” Publius: The Journal of Federalism 33, no. 1 (2003): 23–44. 58 Mahoney and Thelen, Explaining Institutional Change. 59 Ernest Manning quoted in Loleen Berdahl, “The West in Canada: Assessing the West’s Role in the Post-2011 Federal System,” in Canada: The State of the Federation 2011: The Changing Federal Environment, ed. Nadia Verelli (Montreal and Kingston: McGill-Queen’s University Press, 2011), 45. 60 Loleen Berdahl, “The West in Canada.” 61 Leslie Seidle, “How to Build on the Senate’s Renewal Process,” Policy Options, 6 November 2018, http://policyoptions.irpp.org/magazines/november-2018/how-to-build-onthe-senates-renewal-process/. 62 Chris Hall, “Justin Trudeau Begins his Bold Experiment in ‘Government by Cabinet,’ cbc News, 5 November 2015, https://www.cbc.ca/news/politics /government-cabinet-chris-hall-1.3304812. 63 See also Smiley and Watts, Intrastate Federalism, 96ff. 64 Samantha Wright Allen, “Trudeau pmo Tightening Control over Ministerial Staffing, ‘Identical’ to Harper Approach, Says Ex-Liberal mp,” The Hill Times, 25 October 2017, https://www.hilltimes.com/2017/10/25/trudeau-pmocentralizes-power-just-like-harper-critics/123427. 65 Jon Elster, “Deliberation and Constitution Making,” in Deliberative Democracy, edited by Jon Elster (Cambridge: Cambridge University Press, 1998), 104. 66 Darrell Bricker and John Ibbitson, The Big Shift: The Seismic Change in Canadian Politics, Business and Culture and What It Means for Our Future (New York: Harper Collins, 2013). 67 Andrew Cohen, “Canada’s Return to the Politics of the Past,” Ottawa Citizen, 20 October 2015, http://ottawacitizen.com/opinion/columnists /canadas-return-to-the-politics-of-the-past. 68 Mahoney and Thelen, Explaining Institutional Change; Jörg Broschek, “Between Path Dependence and Gradual Change,” in Federal Dynamics: Continuity, Change, and the Varieties of Federalism, edited by Arthur Benz and Jörg Broschek (Oxford: Oxford University Press, 2013), 93–116. 69 Alan Cairns, “The Electoral System and the Party System in Canada, 1921–1965,” Canadian Journal of Political Science 1, no. 1 (1968): 55–80. 70 For an overview of different proposals, see Smiley and Watts, Intrastate Federalism, 102ff.

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71 Alan Cairns, “From Interstate to Intrastate Federalism in Canada,” discussion paper for the Institute of Intergovernmental Relations (Kingston: Queen’s University, 1979), 11. 72 Smiley and Watts, Intrastate Federalism, 121ff. 73 Projet de loi fédéral relatif au Sénat (Re), 2013 qcca 1807. 74 Reference re Senate Reform, 2014 scc 32. 75 Scharpf, “The Joint-Decision Trap.” 76 Matthew Mendelsohn, “A Viable Path to Senate Reform?” Mowat Publication no. 64 (May 2013).

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3 Federalism and Fraternity: Formalizing Arrangements to Foster Federal Dialogue in the Institutions of Canada’s Central Government Ian Peach

introduction: what confederation wrought The Canadian federation designed by the “Fathers of Confederation” between 1864 and 1867 only weakly demonstrated a commitment to federalism. Federalism, at least in its Canadian, multinational form, should have been built on the principle of fraternity, or an attitude of mutual support, “fellow-feeling,” and friendship, to avoid the conflicts that have been a consistent element of the country’s politics. Cheryl Saunders, in her contribution to this volume, is correct that, in achieving this, “provision for shared rule is almost as important in a contemporary federation as arrangements for self-rule, [though] this receives too little attention.”1 As the Supreme Court of Canada has described it in the Reference re Secession of Quebec, “Federalism was the political mechanism by which diversity could be reconciled with unity.”2 Unfortunately, Canada’s central institutions, most notably the Senate, have failed in the task of reconciling diversity and unity. As Saunders points out, “It has long been a paradox that Canada has one of the most effective federal democracies in the world, but lacks a clearly federal second chamber of the kind commonly viewed as a core attribute of federal arrangements.”3 A serious dialogue about the reform of our central

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institutions, with replacement of our current Senate at the top of the agenda, is necessary if our federal government’s institutions are to reflect genuinely the evolution of Canada into an effective federal democracy; while reform of the Senate has proven, throughout Canada’s history, to be extremely difficult, one can imagine a strategy that holds promise for reforming our central institutions of federal governance. After an introduction to the design and evolution of Canadian federation and previous efforts to reform the Senate, I will propose such a strategy for the reader’s consideration. There was a tension over whether the new country of Canada should fully reflect the principle of federalism and foster a process premised on fraternity and federal dialogue in making national policy, or be a quasi-unitary state from the beginning of discussions on the Confederation of the British North American colonies. That tension has remained with us ever since. For several of the delegates to the conferences that formed the Canadian federation, particularly those from what was then known as Canada West, a legislative union of the British North American colonies was the ideal. Because of conflicting views among some of the delegates, however, some form of federalism was seen to be a requirement to secure Confederation. Peter Hogg and Wade Wright note that English-Canadian politicians from central Canada admired the highly centralized form of government in the United Kingdom, so they preferred a strong central government. FrenchCanadian politicians, on the other hand, were acutely aware that they would be a minority in the new Parliament of Canada but that they would control the legislature of the new province of Quebec, so they insisted that the provincial legislature be vested with enough power to safeguard the French language and culture, the civil law, and the Roman Catholic religion of Quebec.4 A.-A. Dorion, the leader of the Rouge party in Canada East, observed, in the Legislative Assembly of Canada on 16 February 1865, that: I may well ask if there is any member from Lower Canada, of French extraction, who is ready to vote for a legislative union … The British government is ready to grant a federal union at once, and when that is accomplished the French element will be completely overwhelmed by the majority of British representatives. What then would prevent the federal government from passing a set of resolutions in a similar way to those we are called upon to

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pass, without submitting them to the people, calling upon the imperial government to set aside the federal form of government and give a legislative union instead of it?5 Moore notes that, in the spring of 1864, when George Brown was floating the idea of federation in the Parliament of Canada, John A. Macdonald condemned the idea, saying, “We should have a legislative union, in fact, in principle, and in practice.” However, when Brown asked if that was the policy of the government of Macdonald and George-Étienne Cartier, Cartier replied – “grimly,” as Moore describes it – “That is not my policy.”6 Similarly, opposition to legislative union existed in the Maritime colonies, as Maritime politicians feared for the survival of their local traditions and institutions; they wanted to maintain a measure of their independence by insisting that their legislatures be vested with enough power to regulate matters largely as they had been doing before Confederation.7 Joseph Howe saw Confederation as an illegitimate, and even unconstitutional, scheme to transfer the rights of Nova Scotians to a government answerable essentially to the people of Canada East and Canada West.8 The aspiration of some of the delegates to the Confederation conferences, nonetheless, was that a federation would prove to be no more than a temporary stage in the political development of the colonies towards a legislative union, or unitary state. Part of the influence on the thinking of the Fathers of Confederation about federalism was the fact that, when they began discussing the idea of a union of the British North American colonies, it was in the midst of the US Civil War: a war begun because of a “states’ rights” movement that the British North American delegates saw as a consequence of a loose federation with a weak central government created by the US Constitution. At the Quebec Conference on 11 October 1864, John A. Macdonald argued that “we must have a strong Central Government with all authority except what is given to the local governments in each Province and avoid the errors of the American Constitution.”9 George Brown also commented, at the November 1864 banquet for Quebec Conference delegates in Toronto, “There is one point to which I am desirous of calling particular attention. I refer to the fact that in framing our constitution we have carefully avoided what has proved a great evil in the United States, and that is the acknowledgment of an inherent sovereign power in

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the separate States, causing a collision of authority between the general and States governments, which, in times of trial like the present, has been found to interfere gravely with the efficient administration of public affairs.”10 As a consequence of this dynamic among the delegates to the Confederation conferences, as well as the interests of the British Colonial Office,11 the text of the Canadian Constitution provided the new central government with a number of significant jurisdictions and powers to affect the government of the provinces, as well as providing limited voice to the provinces, as constituent units in the federation, in the central institutions of the federation; this approach to “federal” governance was certainly inconsistent with the principle of fraternity. Such a result was by no means universally popular. A.-A. Dorion commented, in the Legislative Assembly of Canada on 16 February 1865, that “the Confederation I advocated was a real confederation, giving the largest powers to the local governments, and merely a delegated authority to the general government – in that respect different in toto from the one now proposed which gives all the powers to the central government and reserves for the local governments the smallest possible amount of freedom of action.”12 The Canadian federation that was designed lacked formal institutions either of interstate federalism (the formal inclusion of provincial governments in national governance decisions) or intrastate federalism (direct representation of the governments of the constituent units, or at least their interests, in the institutions of the central government), such as a Senate that was structured to be representative of the interests of the constituent units of the federation. As well, the balance of powers was skewed in favour of the general government. For example, the federal government has the general, residual authority to make laws “for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces,” and has paramountcy over conflicting provincial legislation.13 As well, the governor general has the powers (admittedly long unused) to reserve Royal assent on provincial legislation or disallow that legislation, and lieutenant governors of the provinces are appointed by the governor general on the advice of the federal Cabinet, not by the monarch on the advice of the British government.14 The historical record also indicates that John A. Macdonald intended the lieutenant governors, and by extension the provincial govern-

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ments, to be subordinate to the federal government. To quote Macdonald in the Legislative Assembly of Canada on 6 February 1865, “With respect to the local governments, it is provided that each shall be governed by a chief executive officer, who shall be nominated by the general government. As this is to be one united province, with the local governments and legislatures subordinate to the general government and legislature, it is obvious that the chief executive officer in each of the provinces must be subordinate as well. The general government assumes towards the local government precisely the same position as the imperial government holds with respect to each of the colonies now.”15 As to the Senate, though a senate could be a key institution to support federalism and the idea of fraternity among the constituent units of the federation (as the second chamber in the central parliament of other federations can be), Canada’s Senate, regrettably, never was.16 Cheryl Saunders points out that: The federal role of a second chamber, exercisable in the interests of shared rule, might be symbolic or both symbolic and functional. Symbolism arguably is secured by the involvement of the constituent units, in their capacity as units, in the composition of the federal chamber. This occurs either when one or more of the institutions of government of the constituent units play a role in selecting the membership of the federal chamber, or when units are used as the base constituency within which direct election takes place. Symbolism of this kind may have a substantive dimension as well, if the basis for unit involvement ensures broader unit representation in the central legislature than would otherwise have been the case. The question of the function to be performed by a second chamber, in exercising a federal role, is more complicated … The chamber might be expected to protect the federal principle, whatever that involves in a particular case … Alternatively, it might be expected that the members of a federal chamber pay particular attention to the interests of the constituent units from which they come and seek actively to protect them. Or a federal chamber might simply give the constituent units a voice in federal policy-making to ensure that their perspectives are heard.17 Part of the problem with the Canadian Senate is that senators are appointed on the advice of the prime minister, originally for life, so

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that Senate appointments have become a patronage opportunity. At the London Conference, on 13 December 1866, W.P. Howland argued that “my remedy [to the problem of the Senate lacking in a federal quality] would be to limit the period of service and vest the appointment in the Local Legislatures. It would then be a true Federal Parliament. Now it is an anomaly. It won’t work and cannot be continued.”18 As well, the provinces, the constituent units of the federation, were not equally represented in the Senate, so that the voice and influence of the Maritime provinces was structurally less than that of the central Canadian provinces. Saunders points out that “the Canadian Senate is unusual in comparative terms, insofar as it represents broader regions rather than provinces and in proportions that are hard to justify in present conditions.”19 All of this suggests that, despite the Supreme Court of Canada’s description that “a primary purpose of the creation of the Senate, as a part of the federal legislative process, was … to afford protection to the various sectional interests in Canada in relation to the enactment of federal legislation,”20 the Senate was not designed particularly to be an effective chamber of intrastate federalism, to provide a place for federal dialogue and fraternity among the constituent units of the federation within the central government. As Christopher Dunkin observed in the Legislative Assembly of Canada on 27 February 1865, There is a sort of attempt to prevent its numbers from resting on a population basis; and this is about the only principle I can find in it … As vacancies occur, they are to be filled as we are now told – and this is the strangest thing of all – not by the provincial legislatures, nor by any authority or under any avowed influence of the local kind, but possibly by the general government. And forsooth, this is called the federal feature of our system! … It is admitted that the provinces are not really represented to any federal intent in the Legislative Council [Senate].21 As Whitcomb argues, the appointment of senators by the federal government ensured that the Senate would be “an echo of the House of Commons, rather than a powerful voice for the provinces and regions.”22 While it was designed as, at best, a quasi-federal state, Canada has evolved into a true federation in which the federal and provincial governments are of comparable status, and in some opinions even a decentralized federation, through judicial interpretation of the divi-

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sion of powers in the Constitution Act, 1867, in particular by the British Judicial Committee of the Privy Council, which was Canada’s final court of appeal until 1949. Oliver Mowat, as premier of Ontario from 1872 to 1896, certainly made the argument for federalism and provincial rights in the political arena, along with Honoré Mercier after he became Quebec premier in 1887, against John A. Macdonald’s continuous attempts to weaken provincial governments; they argued that provinces were sovereign within their areas of jurisdiction, rather than being subordinate to the federal government.23 As Moore has commented, Mowat won a string of resounding victories in the Judicial Committee that “permanently established the provinces as powerful partners in confederation.”24 Through late-nineteenth-century decisions such as Hodge v. the Queen,25 The Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick,26 and Ontario (Attorney General) v. Canada (Attorney General) (i.e., the Local Prohibition Reference),27 the Judicial Committee established the independence of provincial governments from the federal government, and, by doing so, established Canada as a genuinely federal state. The Judicial Committee’s achievements in making Canada a truly federal state, while significant, were nevertheless limited, as no judicial institution has the power to rewrite constitutional text because the text is inconsistent with the principles that they understand are meant to underlie it. Thus, despite the Judicial Committee’s apparent commitment to interpreting the Constitution Act, 1867 to make it more consistent with the principle of federalism, we are left with the Senate that was designed in 1867 for what some hoped would be no more than a quasi-federal, and only temporarily federal, country. It has, therefore, primarily represented partisan interests rather than federalist interests, and has failed to provide a forum for federal dialogue.

assessing the value of the senate against the underlying principles of the constitution In recent years, the Supreme Court of Canada, in the Reference re Secession of Quebec, has identified four underlying, unwritten principles at the foundation of our Constitution: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities.28 As these are the fundamental principles that our constitutional arrangements are designed to uphold, it is reasonable to assess the value of our institutions of government according to whether, and how, they

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support those fundamental principles. The institutions of government do not each need to uphold and support all four of the fundamental principles, but all institutions should uphold and support at least one of them, and, in doing so, not undermine any of the others. One can imagine a second chamber that supports some or all of those fundamental principles; unfortunately, the Senate, as an institution, supports none of them.29 The Supreme Court of Canada’s conception of federalism as the political mechanism by which diversity could be reconciled with unity should have been the principle at the heart of the Senate’s design. As an appointed chamber, rather than an elected one, the Senate was never really designed to advance the principle of democracy in our constitutional arrangements; neither did its institutional design ever really serve the principle of protecting minorities, other than by the rather weak mechanism of requiring Quebec senators to reside in particular regions of the province and represent those particular regions, so that the anglophone minority of Quebec would be represented in the Senate.30 How does our current Senate do at reconciling diversity with unity by representing the diversity of the country in our central Parliament? In a word, terribly. The Supreme Court of Canada’s 2014 descriptions of the Senate display a rather idealistic understanding of the Senate’s place in Canadian federal governance, namely that the Senate “played the additional role of providing a distinct form of representation for the regions that had joined Confederation and ceded a significant portion of their legislative powers to the new federal Parliament,” and that “each region was provided equal representation in the Senate irrespective of population … to assure the regions that their voices would continue to be heard in the legislative process even though they might become minorities within the overall population of Canada.”31 As various scandals over the last several years have reminded us, senators do not so much represent the interests of the province they are appointed to represent, so much as they represent the interests of the prime minister who recommends their appointment to the governor general. Indeed, in the cases of Mike Duffy and Pamela Wallin, it is highly questionable that their appointments to represent Prince Edward Island and Saskatchewan, respectively, were even constitutional, as neither had been full-time residents in those provinces for decades, being Ottawa-based journalists.32 If advancing the principle of federalism and federal dialogue within our central institutions of

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government is the key rationale for having a Senate, as would seem must be the case, today’s Senate cannot justify its existence.

efforts at senate reform since 1867: the potential for “federalizing” our central institutions unfulfilled While the Supreme Court of Canada once described the Senate as having “a vital role as an institution forming part of federal system created by the [British North America] Act,”33 critiques of the Senate as being inadequately responsive to the interests of the provinces and ineffective at fostering federal dialogue within the central institutions of government have been a regular source of political discourse for nearly as long as Confederation itself. Indeed, the Supreme Court of Canada, in 2014, described the Senate as “one of Canada’s foundational political institutions … at the heart of the agreements that gave birth to the Canadian federation” – yet the court noted that “from its first sittings, voices have called for reform of the Senate and even, on occasion, for its outright abolition.”34 The first effort at Senate reform came in 1874, when mp David Mills introduced into the House of Commons a proposal to have senators appointed by provincial governments.35 At the 1887 interprovincial premiers’ conference, Ontario premier Oliver Mowat proposed a resolution to have half of the senators appointed by the provinces.36 These were the beginnings of a regular effort, throughout the twentieth century and into the twentyfirst, to reform the Senate to make it more legitimate and responsive to federalist pressures, and an institution that properly reflected the idea of federalism as fraternity. The first efforts of the twentieth century were attempts to reform the appointments process by Parliament in 1906 and 1909.37 Senate reform was also discussed at the Dominion-Provincial Conference of 1927.38 In more recent decades, there have been efforts to bring the provinces into the process of appointing senators, such as Bill C-60 of 1978, which would have transformed the Senate into a House of the Federation, with closer to equal provincial representation and provincial governments appointing half of the delegates and the House of Commons appointing the other half.39 There were also various “council-type” reforms, to make the Senate more like the German Bundesrat, such as those proposed by the government of British Columbia in 1976, the Ontario Advisory Committee on Confederation in

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1978, and the Task Force on Canadian Unity (the Pepin-Robarts task force) of 1979, all of which would have had delegates appointed by provincial governments.40 Later, the election of senators became the focus of Senate reform efforts, including the Molgat-Cosgrove Special Joint Committee of the Senate and the House of Commons on Senate Reform of 1984, the Macdonald Royal Commission (the Royal Commission on the Economic Union and Development Prospects for Canada), the Alberta select committees of 1985 and 2003, which proposed reforming the Senate along “Triple-E” lines (equal, elected, and effective), and the Charlottetown Accord of 1992 (which will be discussed in more detail below).41 Despite all of this activity over the decades, our 1867 Senate has not been substantially reformed, either in its representation of the provinces or in its method for appointing senators. Now, as the Supreme Court of Canada recently decided, it has become more difficult to reform the Senate to make it a more federalist institution or simply abolish it than it previously was.42 Ironically, this is because, since 1982, Canada has had a constitutional amending formula built on a federalist foundation and designed to require federal dialogue on constitutional reform. The need for Canada to become a more genuinely functional and coordinated federal state, built on a conceptual foundation of fraternity, by including the voices of the constituent units of the federation more seriously and formally in the institutions of our federal government, remains since 1874, and, indeed, has grown stronger. Yet we have consistently failed to reform the Senate so that it becomes truly a chamber of intrastate federalism and make Canada a more functional and coordinated federal state. This suggests that, if the next attempt at establishing federalism and federal dialogue within our constitutional and institutional architecture is to be successful, a new strategy for advancing reform proposals is needed.

what next? a new strategy for building federalism into our central institutions of government If the Senate fails to contribute uniquely to the protection and advancement of any of the fundamental principles of the Constitution, it is reasonable for one to ask, “What should we do about the Senate? Should we even bother to keep it?” I would propose a three-step

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solution to the problem that is the Canadian Senate. As a first step, I would propose that the prime minister introduce a resolution to amend the Constitution to abolish the Senate. The text of the resolution could be quite simple – “that sections 21 to 36 of the Constitution Act, 1867 and all other references to the Senate in the Constitution of Canada be repealed.” The “silver lining” in the decision of the Supreme Court of Canada that Senate abolition requires the concurrence of Parliament and the legislatures of all ten provinces43 is that, under the constitutional amending formula, resolutions to amend the Constitution that require the concurrence of all the provincial legislatures do not expire, unlike those that can be made under the general (“7/50”) formula, which expire after three years.44 Thus, the prime minister can introduce the resolution into the House of Commons at any time, as an indication of his commitment to abolish the chamber, and negotiate the concurrence of the provinces over time, without having to worry about a three-year deadline looming. Of course, it would be valuable, in order to demonstrate some momentum to abolish the Senate, if the prime minister sought the agreement of those provinces which have indicated that they support Senate abolition to introduce equivalent resolutions at the same time as the prime minister introduces one into the House of Commons. As well, it is important to remember that the Senate cannot veto a constitutional amendment resolution that would have the chamber abolished. While the Senate can defeat such a resolution and send the resolution back to the House of Commons, under section 47 of the Constitution Act, 1982, even if the Senate refuses to pass the resolution, a proclamation to amend the Constitution can be issued if the House passes the resolution again 180 days after it initially passed the resolution.45 Thus, the Senate cannot protect itself against the will of the elected chamber of Parliament and the provincial legislatures. Introducing a single constitutional amendment to abolish the Senate would challenge the current binary in the conventional political wisdom in Canada that proposing a constitutional amendment must open a “Pandora’s box” of mega-constitutional reform and so, since the political price of attempts at mega-constitutional reform in the Meech Lake and Charlottetown Accord negotiations proved to be too high, all efforts at constitutional reform must be avoided. The fear of constitutional amendment that the Meech Lake and Charlottetown Accord processes created in Canada’s political class binds us to a constitutional text, and to political institutions created by that text, even

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if, in some respects, that text and those institutions may no longer be seen as legitimate in the eyes of those who are governed by them. If Canada is actually to be a self-determining political community, which, after all, was the promise of patriation in 1982, then our political leaders need to be prepared to treat the idea of constitutional amendment as sometimes a necessary means to fulfil a public policy objective and approach constitutional amendment in that way, such as by proposing a single amendment to abolish the Senate. As former Ontario premier and federal Liberal leader Bob Rae said, in response to Prime Minister Justin Trudeau’s dismissal of Quebec premier Phillippe Couillard’s proposal to amend the Constitution at some future date to secure Quebec’s assent, constitutions are never closed: “The Constitution is a living thing. It’s a living document. It’s not some dead piece of paper. The Constitution is about how we live together as Canadians. And that’s a conversation none of us wants to shut down.”46 Why, though, would one propose abolition, rather than reform? Surely, reform of the Senate to allow it to better secure the principle of federalism and possibly even to advance some of the other principles of the Constitution, such as democracy, would be easier to get the necessary provincial concurrence on? This should especially be true since constitutional amendments to reform the Senate would only require the concurrence of seven provinces representing 50 per cent of the population of the provinces, whereas the Supreme Court of Canada tells us that Senate abolition requires unanimous agreement of the provinces.47 This is where my experience, as part of the last attempt to negotiate a set of constitutional amendments to reform the Senate, comes into play. That experience suggests that achieving concurrence on Senate reform is not, in fact, any easier than it would be to achieve unanimous agreement on abolition. In the negotiations that led to the Charlottetown Accord in 1992, reform of the Senate proved to be the most difficult issue to reach agreement on; it was the last item that was agreed upon by the ministers and first ministers involved in the negotiations, and the result of that agreement seriously damaged the political careers of more than one premier, including causing then bc premier Michael Harcourt to be stuck with the nickname “Premier Bonehead” in the media and among the public.48 In fact, late in the ministerial process, when there were still only nine provinces represented (Quebec had not agreed to participate in the negotiations, awaiting an “offer” from the “Rest of

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Canada”), one premier participating in the negotiations, in his frustration with the lack of progress being made in coming to an agreement on Senate reform, asked the assembled delegates who would be prepared to simply abolish the Senate entirely, rather than continue to try to find an agreeable compromise on how to reform the chamber; of the nine provincial premiers or ministers present, seven raised their hands in agreement. In 1992, then, Canada probably came as close as it ever did to abolishing the Senate, with greater support for abolition, near unanimity, than there had been for any reform option up to that point in the negotiations. The agreement that was achieved through the Charlottetown Accord negotiations was a Senate that certainly did not achieve the aspirations of those committed to a “Triple-E” reform of the Senate. While it had equal representation from each province (except if a new province was created out of what is today a territory), it allowed each provincial government to decide how to select the senators that represented that province, rather than requiring that senators be elected, and had an extremely complex deadlock-breaking mechanism that would be triggered if the House of Commons and the Senate voted in different ways on a bill; this mechanism was designed to ensure that, ultimately, the Senate would not be effective at preventing the will of the House of Commons to prevail.49 As well, in exchange for a Senate that would move towards equality of provinces, election of senators, and effective power over the legislative process only by half-measures, the first ministers agreed to protect Quebec’s overall level of representation in Parliament by providing the province a guarantee of being overrepresented in the House of Commons relative to what a “representation by population” formula would justify, at the expense of the representation of some other provinces in the House, most notably British Columbia.50 It was his concession to Quebec’s interests in representation that caused the media to label Premier Harcourt “Premier Bonehead.” What does this tell us about the difficulties involved in reforming the current Senate? This history suggests that securing not only the necessary consensus among the provinces but securing a social consensus in support of the decisions of the provincial governments to agree to any model of Senate reform is, effectively, impossible. There are simply too many vested interests among provincial governments, in particular, that must be brokered among the parties to any constitutional amendment proposal, especially about provincial representa-

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tion, as well as an element of path-dependency that serves to limit governments’ capacity to engage in creative thinking on the matter of Senate reform, for any reform proposal to be broadly acceptable to the governments of even seven provinces, all of whom must explain and justify any proposal to their voters and secure adequate support within their societies to agree to the amendment package. Abolition is thus the better approach, in the sense of being clearer and easier to explain to citizens. Not all premiers, though, are prepared to support Senate abolition. Some still seem to believe the rather romantic proposition that having a Senate gives their province some sort of voice in Parliament and therefore a greater influence over national politics than having just the House of Commons. In the face of the fact that senators are appointed on the recommendation of the prime minister and that some appointments in recent years have been of people who do not even reside in the provinces they are meant to represent, it is hard to imagine the cognitive dissonance required for premiers to retain such an idea – but, nonetheless, some premiers claim to want to retain the Senate.51 This reality, then, requires a strategy to help secure unanimous support for Senate abolition by providing an opportunity to build institutions that will better respect and promote the voice of democratically elected provincial and territorial governments in national decision-making than the current Senate does in exchange for the premiers’ concurrence in abolishing the Senate. The second step of my proposed strategy would therefore be for the prime minister to commit to introduce, in exchange for securing unanimous provincial support to abolish the Senate, a motion to constitutionally entrench a federal/provincial/territorial Council of the Federation, as a consultation and coordination body for joint decision-making on issues of national politics and public policy, and to require a minimum of one First Ministers’ Conference annually. There have periodically been efforts to secure a guarantee of regular First Ministers’ Conferences, to ensure that Canada has a vehicle for interstate federalist dialogue, particularly in recent decades. In this, we have the example of that other developed Commonwealth federation, Australia, with its Council of Australian Governments, established in 1992, to draw on. As well, Canada already has in place the Council of the Federation, a body of provincial and territorial premiers, which could be adapted to be a federal/provincial/territorial first ministers’ body. Yet efforts to establish formal processes for clos-

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er intergovernmental relations, including a requirement for regular First Ministers’ Conferences, have amounted to nothing. In this context, though, a commitment by the prime minister to constitutionally entrench a federal/provincial/territorial Council of the Federation has at least some potential to be seen by premiers as a serious effort to create a site of federal dialogue and fraternity within the process of national policy-making. Such a reform would clearly give premiers and provincial and territorial governments a stronger and more direct voice in national policy-making than the current Senate does. A constitutionally entrenched Council of the Federation would, thus, better support both the constitutional principle of federalism and that of democracy; it would establish the conditions for federal dialogue by ensuring that the democratically elected governments of the provinces and territories have a constitutionally entrenched role in national policy discourse and decision-making. This is not to say that a second chamber, properly designed, would become redundant or useless in the face of a federal/provincial /territorial Council of the Federation. A second legislative chamber that represented the interests of the constituent units of the federation in the legislative process at the federal level could, at least potentially, offer even better protection for the federal principle within the central government than a Council of the Federation that only met periodically and, essentially, as an agenda-setting body for national policy debate. The key, though, is to carefully design a second chamber that appropriately represents the interests of the constituent members of the federation. This, then, raises the third element of my proposed three-step plan. At the first meeting of the newly constitutionalized Council of the Federation, the prime minister should propose a process by which the governments of the federation could attempt to design a new second chamber of Parliament from first principles. So that this process did not go on forever in an attempt to achieve a “perfect” second chamber and a spirit of compromise was encouraged, the prime minister should propose a time limit for this process and require that a constitutional amendment to create this new second chamber be passed by Parliament and the necessary provinces within that time limit, for example, five years.

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conclusion Canada was not designed as a genuine federation. The country that was designed in the 1860s was really only a quasi-federation, as K.C. Wheare and other scholars of federalism have noted,52 and some delegates involved in the design of the new country hoped that federalism would only be a temporary arrangement. The institutions of the central government, such as the Senate, therefore were designed to function more like those of the unitary state of Britain than those of other federations around the world. Canada evolved into a genuine, and effective, federal democracy subsequent to the passage of the British North America Act and the creation of the new country through judicial interpretation of the Constitution. The institution of the Senate, however, has not evolved along with our understanding of the Canadian federation, as such an evolution would require formal reform of the Constitution and we have yet to succeed in implementing constitutional reform to make the Senate a chamber of fraternity and federal dialogue within the federal Parliament.53 It is time for our institutional architecture to catch up to the reality of Canada as a genuinely federal state, and a strategy to make this happen is imaginable. If the prime minister and the federal government were to engage in the constitutional reform discussions that I propose, such a modernization of Canada’s central institutions is, indeed, possible. If the governments of the federation were to succeed in designing a new second chamber that better upholds the fundamental principles of the Canadian Constitution than does the current Senate, we would be better off as a federation, with a chamber that appropriately represents the interests of the provinces and territories, as constituent units of the federation, in Parliament, and which encourages federal dialogue. On the other hand, if the governments fail to design such a second chamber within the allocated time limit, we will still be better off as a country. After all, we will have done away with a second chamber that costs taxpayers money while doing nothing to advance the fundamental principles of our Constitution, and we will have constitutionally entrenched a federal/provincial/ territorial Council of the Federation, to give a guaranteed voice to the democratically elected governments of the constituent parts of the federation in national policy decisions and to promote federal dialogue. With this three-step process, even the worst result would be an improvement over what we are stuck with today.

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notes 1 2 3 4

5 6 7 8 9 10

11

Saunders, this volume, 45. Reference re Secession of Quebec, [1998] 2 scr 217, para 43. Saunders, this volume, 27. Peter W. Hogg and Wade K. Wright, “Canadian Federalism, the Privy Council and the Supreme Court: Reflections on the Debate about Canadian Federalism,” ubc Law Review 38, no. 2 (2005): 332. Janet Ajzenstat, Paul Romney, Ian Gentles, and William D. Gairdner, eds., Canada’s Founding Debates (Toronto: University of Toronto Press, 2003), 340. Ibid., 143. Ibid. Christopher Moore, 1867: How the Fathers Made a Deal (Toronto: McClelland and Stewart, 1997), 180. Ibid., 133. Hon. Edward Whelan, A Brief Account of the Several Conferences Held in the Maritime Provinces and in Canada, in September and October, 1864, on the Proposed Confederation of the Provinces, together with a Report of the Speeches Delivered by the Delegates from the Provinces on Important Public Occasions (Summerside, pei: Pioneer Publishing, 1949), 196–7. Colonial Secretary Edward Cardwell, in a letter to Governor General Monck of 3 December 1864, commented that “although large powers of legislation are intended to be vested in local bodies, yet the principle of Central Control has been steadily kept in view. The importance of this principle cannot be overrated. Its maintenance is essential to the practical efficiency of the system, – and to its harmonious operation.” See G.P. Browne, ed., Documents on the Confederation of British North America (Montreal and Kingston: McGill-Queen’s University Press, 2009), 169. It is also interesting that Moore judges the Colonial Office staff as “dubious” about federalism and comments that they “drafted a bill that recklessly breached the Quebec agreements in order to reinforce the central power.” He also describes officials in London as being “obtuse” about the political realities that made federalism necessary, commenting that “expecting deference, not direction, from colonials, they largely ignored the elaborate division of powers worked out in the Quebec resolutions when they began to draft a text for the British North America bill.” However, Lord Carnarvon, Cardwell’s successor as colonial secretary, understood that changes to the Quebec resolutions to centralize power in the federal government could only be made with the assent of the British North American delegates, so he overruled his advisors. See Moore, 1867, 236–7.

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12 Ajzenstat et al., Canada’s Founding Debates, 295. 13 Constitution Act, 1867, s. 91; The Grand Trunk Railway Company of Canada v. The Attorney General for the Dominion of Canada [1907] ac 65, http://www .bailii.org/uk/cases/UKPC/1906/1906_72.html, 68. 14 Indeed, in the 23 January 1867 draft of the British North America Act, the section on the lieutenant governors entitled what we know today as lieutenant governor’s superintendents, presumably to make it clear that they were not intended to be representatives of the Queen in the provinces, separate from the governor general. See Browne, Documents on the Confederation, 256. 15 Ajzenstat et al., Canada’s Founding Debates, 284. Interestingly, Whitcomb claims that John A. Macdonald’s “continuing struggle for a unitary government” led him to propose that only the federal government would be elected democratically; therefore, the powers the colonies had wrested from the lieutenant governors with responsible government in 1848 would be returned to the lieutenant governors, who, of course, would be appointed by the federal government. This, in effect, would have made the provinces nothing more than colonies of the federal government. In response, Charles Fisher of New Brunswick introduced a motion at the Quebec Conference which stated that both orders of government would be democratically elected. See Ed Whitcomb, Rivals for Power: Ottawa and the Provinces; The Contentious History of the Canadian Federation (Toronto: James Lorimer and Company, 2017), 36. 16 Moore notes that the argument over the Senate was the longest of the Quebec Conference and the one that brought it closest to breakdown. See Moore, 1867, 104. Interestingly, this was also the case in the Charlottetown Accord negotiations in 1992. 17 Saunders, this volume, 30. 18 Browne, Documents on the Confederation, 212. 19 Saunders, this volume, 89. 20 Reference re the Authority of Parliament in Relation to the Upper House, [1980] 1 scr 54, at 67. 21 Ajzenstat et al., Canada’s Founding Debates, 306–7. 22 Whitcomb, Rivals for Power, 36. 23 Moore, 1867, 116. 24 Ibid., 127. 25 Hodge v. the Queen, [1883] 9 ac 117, http://www.bailii.org/uk/cases/UKPC/1883/1883_59.pdf. 26 The Liquidators of the Maritime Bank of Canada, [1892] ac 437, http://www .bailii.org/uk/cases/UKPC/1892/1892_34.pdf.

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27 Ontario (Attorney General) v. Canada (Attorney General) [the Local Prohibition Reference], [1896] ac 348, http://www.bailii.org/uk/cases/UKPC/1896 /1896_20.pdf. 28 Reference re Secession of Quebec, para 49. 29 This is not to say, of course, that various senators, as individuals, have not demonstrated a commitment to using their position as senators to influence Canadian governance in the direction of such things as respect for federalism, democracy, and the protection of minorities; the Senate, as an institution, however, is not structured to support any of the fundamental principles of the Constitution identified by the Supreme Court of Canada in the Reference re Secession of Quebec. 30 Constitution Act, 1867, s. 22; see also Reference re Senate Reform, [2014] 1 scr 704, para 92. 31 Reference re Senate Reform, para 15. 32 While not a constitutional law case, “resident” was defined for the purposes of the Income Tax Act in the Supreme Court of Canada decision in Thomson v. Minister of National Revenue, [1946] scr 209. There, Justice Estey defined someone as being “ordinarily resident” in “the place where in the settled routine of his life he regularly, normally or customarily lives” (231), and Rand J. similarly defined “ordinarily resident” as “residence in the course of the customary mode of life of the person concerned” (224). It is hard to imagine that, on this definition of “ordinarily resident,” either Mike Duffy or Pamela Wallin could be considered residents of Prince Edward Island or Saskatchewan, respectively, at the time of their appointments to the Senate. 33 Reference re the Authority of Parliament in Relation to the Upper House, 66. 34 Reference re Senate Reform, para 1. 35 Rhonda Parkinson, “Senate Reform in Canada: The Battle to Reform Canada’s Upper Chamber,” Mapleleafweb, 25 September 2003, http://www.rhondaparkinson.com/senate-reform.htm. 36 Whitcomb, Rivals for Power, 91. 37 Parkinson, “Senate Reform in Canada.” 38 Ibid. 39 Ibid. See also Jack Stilborn, Senate Reform Proposals in Comparative Perspective (Ottawa: Library of Parliament, 1992), 2–3; Jay Makarenko, “Senate Reform in Canada,” Mapleleafweb, 1 October 2006, http://www.mapleleaf web.com/features/senate-reform-canada.html. 40 Parkinson, “Senate Reform in Canada”; Stilborn, Senate Reform Proposals in Comparative Perspective, 3; Makarenko, “Senate Reform in Canada.” 41 Stilborn, Senate Reform Proposals in Comparative Perspective, 3; Makarenko,

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47

48 49 50 51

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“Senate Reform in Canada”; Charlottetown Accord draft legal text, 9 October 1992, http://www.efc.ca/pages/law/cons/Constitutions/Canada/English /Proposals/CharlottetownLegalDraft.html. Reference re Senate Reform, para 3. Reference re Senate Reform, para 110. Constitution Act, 1982, ss. 41, 39(2). Ibid., s. 47. Catharine Tunney, “‘Constitutions Are Never Closed’ Says Former Ontario Premier Bob Rae,” cbc News, 3 June 2017, http://www.cbc.ca/news/politics /bob-rae-constitution-debate-quebec-justin-trudeau-1.4143134. Reference re Senate Reform, paras 70, 82, 110. I would note, in passing, that I actually think the Supreme Court was wrong in coming to this conclusion. A purposive understanding of the text of Part V of the Constitution Act, 1982 (the amending formula) that would, in part, consider the history of how the amending formula came to be, would suggest that the purpose of the amending formula was a federalist one; the purpose of including specific references to the Senate in the amending formula was to be clear how the “will of Parliament” would be determined in the amending process when Parliament is bicameral, rather than to provide the ultimate protection to the Senate by making abolition of the Senate require unanimous provincial concurrence. As such, I would argue that there would be no need to amend the text of the amending formula after the Senate provisions of the Constitution Act, 1867 were repealed under the general formula; the references to the Senate in the amending formula would simply be spent provisions. That, however, is a discussion beyond the scope of this paper. Chris Wood, “Harcourt Resigns,” Maclean’s, 27 November 1995, http://www .thecanadianencyclopedia.ca/en/article/harcourt-resigns/. Charlottetown Accord draft legal text, article 4. Ibid., article 5. One of the odder supporters of the Senate among the premiers in recent years was then-Quebec premier Philippe Couillard, who stated that Senate abolition is against the political interests of Quebec as the Senate serves to “balance regional interests,” despite the fact that senators are appointed on the recommendation of the prime minister, rather than the premier of the province they are appointed to represent. See Canadian Press, “Mulcair Vows to Abolish the Senate despite Complaints from Quebec,” National Post, 10 June 2015, http://news.nationalpost.com/news/canada/canadian-politics /mulcair-vows-to-abolish-the-senate-despite-complaints-from-quebec. K.C. Wheare, Federal Government, 4th ed. (New York: Oxford University Press, 1964), 20; J.R. Mallory, “The Five Forces of Canadian Federalism,”

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in Canadian Federalism: Myth or Reality, 3rd ed. (Toronto: Methuen, 1977), 20. 53 While the current prime minister, Justin Trudeau, has removed senators from the Liberal caucus and implemented a new process for recommending people for appointment as senators, in the name of removing partisanship from Senate appointments, his reforms have done nothing to address the federalism deficit in the design of Canada’s Senate. Recently, he also admitted that he would not appoint people as senators whose ideology, or “values,” were inconsistent with his, a consideration that would not be relevant if senators were not appointed by the federal government. See Joan Bryden, “Trudeau Government Wants to Make Senate Independence Reforms Harder to Reverse,” Global News, 15 December 2018, https://globalnews.ca/news /4766163/trudeau-government-senate-reform/.

4 Minority Group and Women’s Representation in the Senate since 1867 Linda Cardinal

introduction Debates on group representation in bicameral institutions mainly focus on increasing the participation of women and national minorities in lower chambers.1 While these debates have raised crucial questions concerning how these groups can have better access to political representation, we still need to address their situation in upper chambers and senates. This chapter’s main purpose is to start filling this vacuum through an overview of women and minority group representation within the Canadian Senate since its inception in 1867. More specifically, my objective is to discuss the representation of three types of groups, namely francophone and Acadian minorities in Canada;2 First Nations, Inuit, and Métis; and women. The context for this study is the different attempts made by the Canadian government from 2006 to 2015 to transform the Senate from a non-elected to an elected body but without any success.3 I argued at the time that members from francophone and Acadian minorities in particular would be penalized by an elected senate given their small numbers.4 They represent around 4 per cent of the Canadian population and are already underrepresented in the Lower Chamber. Being appointed to the Canadian Senate is a way to compensate for their lack of opportunity to elect representatives from their communities. In 2015, with the change of government from Conservative to Liberal, things went in the opposite way. An important shift in the Canadian Senate appointment process was introduced in favour of group

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representation. To be sure, the government of Canada established the Independent Advisory Board for Senate Appointments to preside over senatorial nominations.5 Notably, the committee’s mandate entails recommending person with disabilities, visible minorities or ethno-cultural minorities, linguistic minorities, Indigenous Peoples, and women to the Prime Minister’s Office for him to choose amongst a list of five candidates. Between 2016 and the beginning of 2018, the prime minister of Canada has appointed thirty-three senators, including twenty women, four members of First Nations, three members of francophone or Acadian communities, as well as persons belonging to a visible minority and persons with disabilities.6 The representation of minorities in the Senate is a recent phenomenon for which there is still very little available data.7 I will not be discussing all types of group representation in this chapter. Instead, I will focus on the following groups: francophone and Acadians; First Nations, Métis, and Inuit; and women. As suggested by Tully, struggles for recognition need to be informed by history because it is a key dimension of group identity. I argue that the history of those groups within Canadian constitutionalism is important for understanding the key role of group representation within the Canadian Senate.8 The chapter is divided into three sections. The first section explains our choice of studying francophone and Acadian minorities in Canada, First Nations, Inuit, and Métis, and women’s representation in the Senate. The second section presents data collected on the three groups in order to provide a better description of their presence in the Canadian Senate since 1867. The third section proposes ways to guarantee their representation in the Senate. Among other things, I will evaluate the new advisory board as an answer to promoting group representation in the Senate. I will also suggest correctives measures for a more robust approach guaranteeing the representation of francophone and Acadians, First Nations, Inuit, and Métis, and women.

on the importance of francophone and acadian minorities, first nations, inuit, and métis, and women’s representation for the study of the canadian senate Constitutionalism and demographics are crucial for understanding the importance of group representation in the creation of the Canadian Senate. At the time of Confederation, the population of Canada

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was 3,200,000 people, of whom 1 million were French Canadian.9 As the English-speaking population of Canada was growing at a quick pace – 4.35 per cent per year in Upper Canada (Ontario) – adopting the principle of representation by population in the new House of Commons was disadvantageous to Quebec. It was thus necessary to find a compromise in order to ensure and protect the interests of French Canadians, particularly those living in Quebec. This explains why the creation of the Canadian Senate owes so much to the principle of minority representation. The new institution would be based on the principle of equal representation at the regional level in order to limit the negative effects of political representation solely based on population. Lower Canada (henceforth “Quebec”) would have a fixed and guaranteed representation to compensate for its growing numerical disadvantage in Parliament. Thus the British North America Act 1867 created a Senate composed of seventy-two members distributed amongst its four founding provinces: Ontario (twenty-four), Quebec (twenty-four), and the Maritime provinces of New Brunswick (twelve) and Nova Scotia (twelve). In 1873, when Prince Edward Island decided to join the federation, the Maritimes were considered as a whole. Later, a new region was created with twenty-four seats when the four provinces from the Western part of Canada joined Confederation, representing six senators per province. Finally, with the joining of Newfoundland to Canada in 1949, the province was given six seats. In 1999, with the redefinition of the northern territories, three seats were allocated to Nunavut, the Northwest Territories, and the Yukon. Even though the distribution of seats in the Senate has been guided by a principle of regional equality, the 1867 Constitution Act is not explicit to that effect – despite the fact that commentators on the Canadian Senate often regard the Senate as a regional chamber.10 The 1867 Constitution Act also does not specify how francophone and Acadian minorities should be represented in the Senate. However, as I will show below (see figure 4.1 in section 2), there is a tradition of representing members coming from those communities as well as from Indigenous Peoples, in particular the Métis communities. I would further add that from the 1960s to the 1990s, a period well known in Canada for its constitutional debates on the status of Quebec in the federation, the federal and provincial governments were already aware of the constitutional importance of francophone and Acadian minorities as well as Indigenous Peoples for the country.11 Canadian prime ministers continued to appoint members from those

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groups to the Senate with a notable increase of women as of the 1990s. Moreover, in the 1998 Reference on Quebec Secession, the Supreme Court of Canada asserted that the Canadian constitution rests on four unwritten principles, including a principle of protecting minority rights.12 In 2014, in its Reference on the Senate Reform (2014, para 16), the Supreme Court of Canada further recognized that the Canadian Senate had amongst its attributes the role of representing “minority interests.”13 Thus I would argue that with the regional principle, the representation of “minority interests” constitutes an important compromise with the principle of representation by population. The multinational character of Canadian federalism is another significant factor for considering the situation of francophone and Acadians as well as Indigenous Peoples in a study of group representation in the Canadian Senate. In 1867, the adoption of federalism was meant to provide specific protection to Quebec’s culture and language. More generally, Quebec has been well known for using federalism to develop its own approach to public policy.14 At the time of Confederation, French-Canadian senators from Quebec used their voice in the Senate to argue for more protection for the French language and culture in Quebec but also in Canada as a whole.15 They asked for more representation of French-Canadian representatives from outside of Quebec in the Senate.16 This is most relevant because in other provinces, francophones and Acadians were not particularly well treated by their governments.17 For example, after Confederation and early in the twentieth century, measures taken by the provinces in order to prohibit the French language were considered as part of the prerogative of the provinces.18 At the time, representatives from those minority communities as well as French-Canadian senators from Quebec fought tooth and nail against those measures. They were an important voice for the defense and the promotion of the French language in Canada.19 They did not succeed in countering the actions of provincial governments against those communities, but they did play a role in making the situation of francophones and Acadians better known to their colleagues and the Canadian population as a whole.20 In the 1960s the situation in many provinces started to change for the better, but francophone and Acadian senators continued to demand better guarantees in order to protect their communities in the provinces. For example, amongst actions taken by senators for the promotion of the situation of francophone and Acadian communities, in 2001, Franco-Ontarian senator Jean-Robert Gauthier’s motion

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for the creation of a permanent committee for official languages in the Senate was adopted.21 Since then, the committee has conducted many studies, held numerous consultations of issues relevant to francophone and Acadian communities, and led many initiatives to improve the Official Languages Act. For example, from 2001 to 2005, the committee led a major initiative which resulted in amending the Official Languages Act to require that the Canadian government takes “positive measures” for the enhancement and development of official language minority communities. Following this initiative, Franco-Manitoban senator Maria Chaput launched a consultation calling for a review of the official languages regulations in order to address the fact that francophones and Acadians are being penalized under the present calculation of what is an “important demand” in order for a community in a region to receive governmental services in both official languages.22 Those measures are a test for federalism because they imply renewed collaboration between the federal and provincial government in the promotion of official languages in a wide range of sectors, of which many fall under provincial jurisdictions such as health, employment, and social services. Thus, francophone and Acadian representatives play a key role in helping Canadians better understand the close ties between federalism, language, and culture. Indigenous Peoples also have a history that ties them to the development of Canada as a multinational federation. Such history continues to play a dominant role in Canadian constitutionalism, particularly in the development of a certain type of treaty federalism.23 To be sure, Indigenous Peoples are part of Canada as much as the founding provinces and peoples. For example, the Métis people’s struggles against colonialism forced the creation of the province of Manitoba in 1870. The Northwest Territories were created the same year, followed by the provinces of Saskatchewan and Alberta in 1905. All those provinces represent important territories for Indigenous Peoples. Furthermore, there is a tradition of appointing Métis senators as early as 1888 in Canada. As of the 1950s (see figure 4.1 in section 2) Indigenous Peoples were appointed more regularly. Data does not show how vocal they were in the Canadian Senate at the time. However, in the 1990s the Senate created the Standing Committee for Aboriginal Affairs, renamed in 2017 the Standing Committee on Indigenous and Northern Affairs, to help address issues of concern to First Nations, Métis, and Inuit communities.24

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Finally, I include women as a separate category in this chapter. They entered the second chamber in the early 1930s. They also deserve particular attention since they represent 50 per cent of the population. Since the 1980s, as we will see, the rapid progress they made in being represented in the Canadian Senate is worth mentioning as it serves as an important reference for other groups. More specifically, during the 1990s, women senators showed how the Senate could be a collaborative space for the protection of women’s rights.25 To be sure, the debate on the criminalization of abortion in Canada during the 1990s (Bill C-43) is a revealing example of how the Senate can be such collaborative space. At the time, both Conservative and Liberal women rallied to defeat the bill. As this example illustrates, increasing group representation can help the institution better play its role as a chamber of sober second thought in assessing bills and political debates. Amongst other things, the abortion case reveals how women have helped move beyond partisanship on difficult issues by promoting alliances between senators. To conclude this section, demographics, constitutionalism, multinational federalism, and collaboration are key factors which led to the development of the Canadian Senate. To recall the role of francophones and Acadians as well as Indigenous Peoples and women helps us to understand how the representation of “minority interests” is an important part of its history and identity.

group representation in the canadian senate since 1867 This section presents data on the situation of group representation for francophone and Acadian minorities, Indigenous Peoples, and women since 1867. Figure 4.1 provides an initial, general look at all appointments to the Senate since 1867. First, it shows that appointments to the Senate of members from francophone and Acadian minorities were made as early as 1871 and in 1888 for Métis peoples. Second, figure 4.1 illustrates that from the 1980s onwards, appointments of francophones and Acadians have been steady although never numerous – but elections of members from those groups to the Lower Chamber is even less likely.26 Third, it reveals that since the 1980s, women have been increasingly enjoying senatorial appointments, to the point of becoming a group potentially wielding collective power.27 Finally, the representation of members of

Source: “PARLINFO,” Library of Parliament, accessed 17 April 2018, http://www.parl.gc.ca/parlinfo

Figure 4.1 Group representation in the Senate since 1867

Women

First Nations, Inuit, and Métis

Francophones and Acadian Communities

Total number of senators

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Indigenous Peoples is much more limited. We examine the data for each group below. Francophone and Acadian Senators On the Canadian Senate website, francophone senators are defined as French-speakers outside of Quebec when declaring French as their language of correspondence. I also refer to francophone senators from the Atlantic provinces as “Acadians” because of the distinct national character of the group. Acadians are specifically identified with the Atlantic provinces of Newfoundland, New Brunswick, Nova Scotia, and Prince Edward Island. At the time of Confederation there were roughly 75,000 francophones or French Canadians living in the province of Ontario.28 As for Acadians, they were approximately 87,000 people at the end of the nineteenth century.29 Because no representatives from those groups participated in the Confederation debates, Acadians in particular were quite active in opposing the new Constitution.30 However, once Confederation was established Acadians lobbied for senatorial appointments. In 1871 Macdonald appointed the first francophone senator from outside of Quebec to represent Manitoba, followed by the first Acadian in 1885 and the first Franco-Ontarian in 1887. In 1895, Bowell appointed the first Acadian from Prince Edward Island. In 1906 Laurier appointed the first francophone senator for Alberta, and in 1907 it was the turn for the first francophone from Saskatchewan and the first Acadian from Nova Scotia to be appointed. In 1975, Trudeau appointed the first francophone from the Yukon. Other provinces, such as British Columbia and Newfoundland and Labrador, as well as territories including Nunavut and the Northwest Territories, have never had a francophone senator. Figure 4.2 confirms that Canadian prime ministers have established a solid tradition of appointing francophone and Acadian community members to the Senate. Since its creation, a total of 958 individuals have been appointed to the Senate. The number includes sixty-five senators (fifty-six male and nine female) from francophone and Acadian communities. Out of twenty-three Canadian prime ministers, seventeen have nominated one or more francophone senators from outside of Quebec.31 Representatives of the francophone and Acadian communities were thus amongst the first cohorts of senators appoint-

Source: “PARLINFO,” Library of Parliament, accessed 17 April 2018, http://www.parl.gc.ca/parlinfo.

Figure 4.2 Senatorial Nominations of Francophone and Acadian minorities under successive prime ministers since 1867

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ed by Prime Minister Macdonald. For example, Manitoba’s and Alberta’s first senatorial nominations of francophones were made at the time of the creation of the two provinces. Moreover, Prime Minister Macdonald and those who followed continued to appoint francophone and Acadian senators in other provinces. In doing so, they ensured continuity and confirmed the importance of maintaining a francophone and Acadian presence in the Senate. In 1928, a total of seven senators representing francophone and Acadian communities sat in the Senate. Those seven senators represent a first group with common interests as French Canadians and Acadians, of whom three were from New Brunswick, two from Ontario, one from Nova Scotia, and one from Manitoba. Together, they represented 7.3 per cent of all ninety-five senators. They were eight in 1931, when another senator from Saskatchewan joined the group, representing 8.4 per cent of all ninety-five senators. The tradition of appointing senators from the francophone and Acadian communities has continued into the twentieth and twenty-first centuries in almost all provinces. In 1968, a total of nine senators represented Canadian francophone communities. They were ten in 1979, 1985, and 1995. In 1996, they were eleven: six from New Brunswick, two from Ontario, one from Nova Scotia, one from the Yukon, and one from Manitoba. In 2010, the number decreased to nine, and in 2012 to eight. The appointment of the first francophone women from outside Quebec came from Ontario and New Brunswick, made by Prime Minister Chrétien in 1995. Since then, a total of nine francophone women have been appointed from Ontario, New Brunswick, Alberta, and Manitoba. The prime ministers who have appointed the most senators from francophone and Acadian communities have been Liberals. Chrétien appointed the largest number: eleven during his tenure, followed by P.E. Trudeau (nine), King (eight), Laurier (six), St Laurent (five), and J. Trudeau (four). Conservative nominations have been less frequent. But one must also remember that, historically, the Conservatives have held power less frequently than the Liberals: sixty-five years for the Conservatives in comparison with eighty-six years for the Liberals. Admittedly, the numbers of francophone senators from outside Quebec, including Acadians, are very small relative to the total number of senators appointed. However, their presence is constant, which attests to the fact that there is a solid tradition of appointing senators from francophone and Acadian communities since the creation of the Senate.

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First Nations, Inuit, and Métis Prime ministers have also, very early in Canada’s history, appointed Indigenous Peoples, in particular Métis representatives, to the Senate (see figure 4.1). In 1888, Prime Minister Macdonald appointed the first Métis senator to represent the Northwest Territories. In 1957, Prime Minister St Laurent appointed another Métis to represent Saskatchewan in the Senate. The nomination of First Nations members started in 1958. Since then, First Nations and Métis senators have been appointed with some regularity. In 2017, Trudeau appointed the first representative from Nunavut to sit in the Senate. Altogether, the number of First Nations, Inuit, and Métis senators has remained small, to say the least. Both Prime Minister P.E. Trudeau and Prime Minister J. Trudeau appointed the greatest number; that is, four senators each, including one member from British Columbia in 1971, followed by another from the Northwest Territories in 1977, then one from Quebec and another one from British Colombia in 1984. In 2009 Prime Minister Harper called an Indigenous person to the Senate from Quebec. In 2016, Prime Minister J. Trudeau appointed Indigenous representatives from Ontario and Manitoba. At the time of writing, none of the three Territorial senators are Indigenous. Prime Minister Jean Chrétien also stands out for his appointments of the first Métis woman from Alberta in 1997. In 2005, Paul Martin appointed two First Nations women, one for Saskatchewan and another for New Brunswick. They still sit in the Senate, with one more Indigenous woman appointed in December 2017 and the first Métis woman appointed in March 2018. There are also three Indigenous male senators at the time of writing, for a total of seven senators. Women In 1930, Prime Minister King appointed the first female senator, Cairine Wilson.32 This appointment coincides with the “persons” case (Edwards v. A.G. of Canada), an important case in Canada which was brought to the British Privy Council in 1928 by a group of women called the Famous Five.33 They had been told by the Supreme Court of Canada that women were not persons according to the Canadian constitution, which implied that they could not sit in the Senate. After much debate, the Privy Council confirmed that women were “qualified persons” and confirmed the rights of women to office. Even

Total nominations

Source: “PARLINFO,” Library of Parliament, accessed 16 May 2018, http://www.parl.gc.ca/parlinfo

Figure 4.3 Senatorial nominations of First Nations, Inuit, and Métis under successive prime ministers since 1867

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Source: “PARLINFO,” Library of Parliament, accessed 23 February 2017, http://www.parl.gc.ca/parlinfo

Figure 4.4 Female representation in the Senate under successive prime ministers since 1867

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though Wilson was not part of the Famous Five, she was called to the Senate shortly after the “persons” case. Furthermore, she was also the first female Canadian delegate to the United Nations in 1949.34 Appointing her to the Senate inaugurated a new tradition for women. In 1935, Prime Minister Bennett appointed another woman to represent Ontario to the Senate. In the history of the Senate, Chrétien appointed the largest number of women (thirty-three), followed by J. Trudeau (twenty), Harper (fifteen), Mulroney (thirteen), and P.E. Trudeau (twelve). Although there was the appointment of two women in the 1930s, it was the 1960s that marked the turning point for women’s appointments to the Senate. Conservatives, for their part, are more likely to appoint women than appoint representatives of francophone and Acadian communities, or Indigenous Peoples. Table 4.1 shows all nominations and their regional affiliation. In 1953 St Laurent appointed New Brunswick’s first female senator and Quebec’s first French-speaking female senator. Thirty years later, in 1984, Trudeau appointed the first female coming from a visible minority. As can be seen in table 4.1, female senators are mainly from Ontario (twenty-seven) and Quebec (twenty-four), followed by New Brunswick (fourteen), Nova Scotia (fourteen), Manitoba (nine), Alberta (eight), British Columbia (six), Prince Edward Island (six), Saskatchewan (five), Newfoundland and Labrador (three), and the Yukon (one). No female senators have ever been appointed from the Northwest Territories or Nunavut. To conclude this section, it is important to underline the fact that francophone and Acadian minorities as well as First Nations, Inuit, and Métis are greatly underrepresented in the Senate and the House of Commons.35 As for women, even though they represent over 50 per cent of the population, they are only beginning to be better represented in the Senate and their presence within Canada’s Parliament is still not guaranteed.36 However, if we use Dahlerup’s 33 per cent37 symbolic threshold to assess the institutional influence of a minority, we will see below that only women have reached that proportion in the Senate. As shown in table 4.1, they reached the threshold of 44 per cent in 1993 during Chrétien’s tenure. Since 2015, Trudeau has appointed more women (twenty) than men (thirteen) to the Senate, which is a first in the history of the institution. Put differently, under his leadership, 61 per cent of the appointments to the Senate have been women; they represent 46 per cent of all senators. At the time of

I or NA C L L pc pc L pc L L C L C L C C L C C C C L C ––– –––

Justin Trudeau (2015–) Stephen Harper (2006–15) Paul Martin (2003–06) Jean Chrétien (1993–2003) Kim Campbell (1993–93) Brian Mulroney (1984–93) John Turner (1984–84) Joe Clark (1979–80) Pierre Trudeau (1980–84, 1968–79) Lester Pearson (1963–68) John Diefenbaker (1957–63) Louis St-Laurent (1948–57) Richard Bennett (1930–35) Mackenzie King (1935–48, 1926–30, 1921–26) Arthur Meighen (1926–26, 1920–21) Robert Borden (1917–20, 1911–17) Wilfrid Laurier (1896–1911) Charles Tupper (1896–96) Mackenzie Bowell (1894–96) John Thompson (1892–94) John Abbott (1891–92) Alexander Mackenzie (1873–78) John A. Macdonald (1878–91, 1867–73) Nomination by Royal Proclamation (pre-1867) Total

20 18 6 33 0 13 0 1 12 1 2 4 1 1 0 0 0 0 0 0 0 0 0 0 112

Nb

61 32 35 44 0 23 0 10 15 3 5 7 3 1 0 0 0 0 0 0 0 0 0 0 11

%

13 39 11 42 0 44 3 10 69 38 35 51 32 102 15 62 81 1 13 5 6 16 89 69 846

Nb

Men

39 68 65 56 0 77 100 90 85 97 95 93 97 99 100 100 100 100 100 100 100 100 100 100 89

%

33 57 17 75 0 57 3 11 81 39 37 55 33 103 15 62 81 1 13 5 6 16 89 69 958

Total nominations Nb

* C=Conservative, I=Independent, NA=Non-Affiliated, L=Liberal, pc=Progressive-Conservative Note: The categories “Independent” and “Non-Affiliated” are not synonymous. Independent senators are part of a new group of 43 senators mostly appointed in the process put in place by the Liberal government since 2015. The category “non-affiliated” senators comprises 6 senators who used to belong to a political party. For the list of senators at time of writing, see https://sencanada.ca/fr/senateurs/, accessed 14 May 2018. Source: “parlinfo,” Library of Parliament, accessed 23 February 2017, http://www.parl.gc.ca/parlinfo.

Party*

Prime ministers (years)

Women

Table 4.1 Female representation in the Senate under successive prime ministers and political affiliation since 1867

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writing, twelve seats remain vacant in the Senate. In comparison, we have a long way to go with francophone and Acadian minorities or with Indigenous Peoples if we ever contemplated reaching a comparative threshold.

increasing group representation in the senate Section 2 of the chapter highlighted a notable trend in the evolution of the Senate, namely the representation of members from francophone and Acadian communities, First Nations, Inuit, and Métis, as well as women. As members from those groups enter the Senate, questions concerning the appointment process arise. If we do not want a partisan process, the establishment of an independent committee, such as the one put in place by the Trudeau government in 2015, remains insufficient to guarantee a more balanced Senate. While increasing minority group representation and women in the Senate is an achievement within the history of Canadian democracy, it is still not constitutionally guaranteed. How can we guarantee the appointment of minorities and women? What procedure would ensure that group representation is not negatively impacted at the time of appointment? Current research on this issue is limited. Despite debates between those who want an elected Senate and those who prefer the status quo, few have discussed the impact of Senate selection practices on minority group representation and women.38 In the past, discussions on Senate reforms have given rise to a number of proposals to increase senatorial representation of Acadians from New Brunswick from three to four, from two to three francophones in Ontario, and to ensure a proper representation of francophones in British Columbia who have never had any senator appointed.39 In the 1990s, the Federation of Francophone and Acadian Communities of Canada also proposed the creation of francophone senatorial ridings. However, these recommendations were never taken up by the government.40 In the absence of constitutional amendments regarding the selection of senators or the number of seats reserved for minorities or women, increasing attention has been paid to the appointment of women by a number of former prime ministers. For example, Marjory LeBreton (a senator until 2016) was named director of appoint-

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ments by Prime Minister Mulroney and was given an explicit mandate to appoint women to government positions.41 Under Chrétien, the appointments director Penny Collenette led a similar initiative in appointing women. According to Griffith, Collenette is responsible for the significant increase in female representation during the Chrétien government.42 Under Harper, efforts to recruit senators belonging to visible minority groups and to diversify the professional origin of senators have also been made.43 Lastly, in 2015, Prime Minister J. Trudeau made the appointment process more formal with respect to minority representation and women via the Independent Advisory Board for Senate Appointment. This board is composed of three members appointed by the federal government and two members appointed by the province from which senators should be named, should that province wish to take part in the process. The committee assesses candidates in connection with a list of criteria including character and ethics, experience with the legislative process, service to the community, and an outstanding record of accomplishments. For each vacancy, the committee proposes a list of five names and the prime minister takes this list into consideration. In addition, the government states that it seeks to achieve gender parity in the Senate and will give priority to Indigenous candidates or those from linguistic, minority, and cultural communities “with a view to ensuring representation of those communities in the Senate consistent with the Senate’s role in minority representation.”44 This more formal process is a significant step forward. It constitutes a commitment to follow a predetermined process according to a set of pre-established criteria before exercising the power of appointment conferred to the prime minister by the Constitution. This procedure is similar to the one used over the past three decades for the appointment of superior court judges.45 This senatorial appointment procedure does not (officially) limit the (constitutional) power of the prime minister and does not, in itself, eliminate patronage and partisanship in a fundamental way.46 At best, the current process could lead to the establishment of a new constitutional convention, as noted by both Macfarlane and Verrelli.47 Reforming the Selection Process It would be possible to go one step further and adopt federal legislation that formally constrains the discretion of the prime minister with

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respect to the appointment of senators. This would institutionalize the process that is so far based only on a government’s statement of intent. A law would be harder to modify. It would apply to subsequent governments – at least until they chose to amend it, which would lead to public debate. The fact that the power to appoint senators is provided for through a constitutional provision does not prevent Parliament from enacting legislation to modify this practice, provided that Canada’s constitutional architecture is not modified. As an analogy, the Constitution also gives the federal executive power to appoint judges, whereas an act of Parliament imposes conditions on the exercise of that power by requiring that the person appointed has been a member of the bar for at least ten years. It also seems possible that a law could determine how to prepare a list of candidates to be presented to the minister of justice. It is thus possible to imagine the adoption of legislation dealing with a senatorial appointment procedure. First of all, the law would formalize the existence of the Independent Advisory Board and would provide for provincial participation in that committee. The law could also establish a mechanism for guaranteeing minority group representation and women. For example, the law could fix a minimum number of francophone senators for certain provinces – a proposal echoing that of Yvon Fontaine from the Federation of Francophone and Acadian Communities in the 1990s – as well as a minimum number of Indigenous senators. These numbers could be determined by taking into account the total size of the francophone population of a province, its proportion relative to the population of a province, and the number of seats the latter has in the Senate. The same process would be necessary to establish thresholds for Indigenous Peoples. As for the representation of women, since parity has almost been attained, a next step would be to formalize the process in order to guarantee gender parity in the Senate. More ambitious reforms would require a constitutional amendment, which would protect negotiated procedures from hostile parliamentary majorities. Assuming, for the sake of argument, that such reforms are possible, which innovations would be beneficial in terms of increasing group representation in the Senate? We can conceive of a formal distribution of seats and of a selection process that better guarantees inclusion of women, francophone and Acadian communities, and Indigenous Peoples. We should also identify mechanisms for

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ensuring a greater voice for senators who are concerned with gender (women’s rights), linguistic duality, and the self-determination of Indigenous Peoples. Finally, the representation of groups raises two challenges. First, we must ensure that the proposed selection process does not impact negatively on the possibility of minorities becoming senators. The election of senators, especially if an election were to be held at the province-wide level, is significant for minorities because of their numbers. As already mentioned, they would have very little chance of being elected in a province-wide election. However, if Senate elections were under consideration, the risks of minority underrepresentation could be offset by reserving seats specifically for them. In 1992, the Charlottetown Accord had envisaged a similar mechanism for Indigenous Peoples, for whom a number (not specified in the proposed agreement) of seats for senators would have been reserved. A similar mechanism should be implemented to ensure representation of francophones and Acadians. For example, a minimum of five seats could be added to the Senate to represent francophone and Acadian communities, and could be distributed among the provinces where they have a stronger presence. Representatives from francophone and Acadian communities would still be able to seek election in the general senatorial elections process. It would also be possible to emulate New Zealand’s model of separate representation of the Maori people in its parliament. There, parliament is composed of members elected by the Maori electorate and the general electorate. Any Maori individual or person of Maori ancestry may opt to register his or her name in the Maori voter registry, but may also choose to remain part of the general electorate. The number of Maori members of parliament is determined, at each election, according to the number of people who exercise this option.48 The representation of Indigenous Peoples in the Senate could also be governed by a similar system. Voters could choose to identify themselves as Indigenous or francophone and Acadian – in provinces other than Quebec for the latter. Based on the proportion of people who identify as such, the number of seats reserved for Indigenous and francophone/Acadian senators in the Senate would be fixed, and electoral districts would be delineated. These Indigenous or francophone/ Acadian constituencies would cover the entire country (except Quebec), and, in some cases, could cover more than one province. Consequently, Indigenous Peoples and francophones/Acadians across the

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country would be represented – even in provinces where no francophone senators have yet been appointed, such as British Columbia or Newfoundland and Labrador. With regard to francophones and Acadians, it is possible that such a system could function without the adoption of a precise definition of who is a “francophone.” Otherwise stated, all persons would be granted the option of registering in the francophone pool, irrespective of their actual membership within a francophone community. In fact, it is unlikely that a person who is not a francophone would have any interest in identifying as such and being represented by a francophone in the Senate. It must be understood that in such a system, a francophone who chooses to vote for a “francophone seat” cannot vote in the “general” elections of other senators, and vice versa. If there is concern that such a system would give rise to abuses, it would be possible, as in New Zealand, to only allow francophones to register as such. It would thus be necessary to choose a definition. The concept of a “right-holder” in section 23 of the Canadian Charter of Rights and Freedoms is undoubtedly too restrictive to play this role, as it was largely conceived in response to issues concerning access to English education in Quebec and because it limits the definition of a francophone to only those with French as a mother tongue.49 If a definition is needed, the more inclusive definition used by Ontario since 2009 should be adopted. It includes persons whose mother tongue is French, as well as those whose mother tongue is neither French nor English, but who have good knowledge of French and speak French at home.50 As a matter of principle, the adoption of a system of separate representation would constitute a form of personal autonomy conferred to francophone and Acadian communities.51 This system would not give francophones additional rights, as every individual – francophone or not – would only vote once in senatorial elections. Now for the Question of “Why?” As already mentioned in the first section of this chapter, I believe that minority representation is important and necessary. I argue that an increase in minority representation could help the Senate to play its role better, notably as a chamber of sober second thought assessing bills and appraising political debates, in addition to representing regional interests. Among other things, the Senate can help move

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beyond partisanship on difficult issues, promoting alliances between senators. Minority senators can also become “critical actors” – that is, key players, since they can constitute a strong voice for their communities. As Childs and Krook52 highlight, these players are important, because they can advance group interests. Thus, the nomination of key players can serve to compensate for the demographic deficit of certain minorities. Finally, the increasing presence of non-partisan Senate appointments since 2015 has not changed the fact that the institution’s strength remains contingent on the appointment of competent senators.53 This competence is particularly crucial for senators’ investigative role in multiple domains, including issues relevant to minorities. “Critical actors” from minority groups have no choice but to be “hyper competent” senators: they will be judged on this basis. They might also be subject to a double standard, reminiscent of how women and minorities are judged in other domains and contexts.54

conclusion To conclude, data on minority representation in the Senate since its creation in 1867 show that as an institution it has made significant progress, in particular since the 1980s. The increase in the number of members who represent certain minorities is not linear, partly because it was mostly Liberal ministers who appointed minority senators. However, Harper’s efforts to appoint minorities must not be overlooked, even if it can be assumed that these appointments were made for purely electoral purposes, just as previous appointments before him. Minority representation is one of the fundamental attributes of the Senate, as pointed out by the Supreme Court of Canada in its Senate Reference.55 The representation of women is better ensured thanks to Chrétien’s efforts on this front – efforts that are still felt to this day. By nominating so many women during his time in office, he created a tradition than can no longer be dismissed, even if it is not fully guaranteed. However, such a tradition is much more fragile for francophone and Acadian communities as well as for Indigenous peoples. This is why I argue for more guarantees for the representation of those groups, as well as for women. Furthermore, as shown in figure 1, this tradition of appointing francophone and Acadian senators dates from the foundation of the Canadian Senate. Such tradition should not be discarded.56

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Finally, in order to build on these arguments, I propose the adoption of legislation within the existing constitutional framework, or, more ambitiously, for constitutionally enshrining minority group representation for francophone and Acadian communities as well as Indigenous Peoples. This, in itself, constitutes an important precedent. It is a compelling case for arguing that Canada’s democracy is not solely based on the principle of popular representation. Canada’s history of representation includes minority interests. This is why it should not be a surprise to Canadians that at one point minority group representation could be made more explicit in the constitution of the country since it is an important part of the country’s identity.

acknowledgments This chapter builds on work in Linda Cardinal and Sébastien Grammond, Une tradition et un droit: La représentation de la francophonie canadienne au Sénat (Ottawa: Les Presses de l’Université d’Ottawa, 2017), and Linda Cardinal, Rapport d’expert, prepared for the Fédération des communautés francophones et acadienne du Canada with regard to Reference re Senate Reform, Ottawa, Supreme Court of Canada, 2014. I would like to thank the editors of this volume for their comments and suggestions and Guillaume Deschênes-Thériault for his valuable assistance in preparing the figures and table for this chapter.

notes 1 See Manon Tremblay, ed., Femmes et parlements (Montreal: Éditions du Remue-ménage, 2005); Mona Lena Krook and Diana Z. O’Brien, “The Politics of Group Representation: Quotas for Women and Minorities Worldwide,” Comparative Politics 42, no. 3 (2010): 253–72. 2 For more details on the history of Acadians in Canada, see http://www .canadahistoryproject.ca/1755/1755-02-early-history.html. See also Donald Savoie, I’m from Bouctouche, Me (Montreal and Kingston: McGill-Queen’s University Press), 2009. 3 For a summary of the events, see Sean Pin, “‘Stuck with the Status Quo’ on Senate, Says Harper after Courts Rejection,” Globe and Mail, 25 April 2014 (updated 12 May 2018), https://www.theglobeandmail.com/news /politics/senate-ruling/article18205700/. 4 See Linda Cardinal, Rapport d’expert, prepared for the Fédération des

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6

7

8

9 10

11

12 13

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communautés francophones et acadienne du Canada with regard to Reference re Senate Reform, Ottawa, Supreme Court of Canada, 2014. Comité consultatif indépendant sur les nominations au Sénat, Government of Canada, accessed 24 July 2017, https://www.canada.ca/fr/campagne /comite-consultatif-independant-sur-les-nominations-au-senat.html. https://bdp.parl.ca/sites/ParlInfo/default/fr_ca/Personnes/parlementaires ?refiners=4-1&refiners=4-2&refiners=5-5&refiners=1-2&refiners =1-1&refiners=1-3&projectionCode=1&q=&parlType=all&parlinfo _parliamentarians_length=25. Accessed 1 February 2018. For an overview, see Andrew Griffiths, “Diversity in the Senate,” Policy Options, http://policyoptions.irpp.org/magazines/february-2017/diversity-inthe-senate/. The notion of group representation is a broad one. For example, James Tully, in his seminal book A Strange Multiplicity: Constitutionalism in the Age of Diversity (Cambridge: Cambridge University Press, 1995), is of the view that all groups should be treated as constitutional actors. Women, francophone, and Acadian minorities as well as Indigenous Peoples in Canada are not the only groups that behave as constitutional actors in the country. To be sure, all struggles for recognition should be understood as struggles for self-determination. I make this argument building on Tully’s view that history is still relevant even today. For Tully, only individuals and groups who are engaged in a constant dialogue with history can claim to be free beings. See Tully, A Strange Multiplicity, as well as Cardinal and Larocque, La constitution bilingue du Canada: Un projet inachevé (Québec: Les Presses de l’Université Laval, 2017). For details, see Statistics Canada, “Canadian Statistics in 1867,”26 August 2008, https://www65.statcan.gc.ca/acyb07/acyb07_0002-eng.htm. For an overview of the debate on the Senate and the regional principle, see Serge Joyal, ed., Protecting Canadian Democracy (Montreal and Kingston: McGill-Queen’s University Press, 2003). For details, see Cardinal and Grammond, Une tradition et un droit: La représentation de la francophonie canadienne au Sénat (Ottawa: Les Presses de l’Université d’Ottawa, 2017), chapter 4. Reference re Secession of Quebec, [1998] 2 scr 217. https://scc-csc.lexum.com /scc-csc/scc-csc/en/item/1643/index.do?site_preference=normal. Renvoi sur la réforme du Sénat, 2014, csc 32. Noël A. Kinsella, “The Senate – An Essential House of Parliament,” Canadian Parliamentary Review, Spring 2014, 12, http://www.revparl.ca/37/1/37n1e_14_kinsella.pdf. For details, see Daniel Béland and André Lecours, Nationalism and Social Policy (Oxford: Oxford University Press, 2008).

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15 Jean-Charles Bonenfant, “La vocation manquée du Sénat canadien,” Les Cahiers des dix, no. 37 (1972): 75, doi:10.7202/1025293ar. 16 Jean-Charles Bonenfant, “La vocation manquée du Sénat canadien,” 75. 17 Bonenfant recognizes that at the time of Confederation French-Canadian minorities outside of Quebec were not well represented, which might partly explain their lack of power in the subsequent events leading to the prohibition of the French language in the provinces. Bonenfant suggests that religion was generally viewed by actors as more important than language. See Jean-Charles Bonenfant, Les Canadiens français et la naissance de la Confédération (Ottawa: La Société historique du Canada, 1966 [1984]), 19. 18 On the provinces’ role in the prohibition of French in Canada, see Edmund A. Aunger, “Justifying the End of Official Bilingualism: Canada’s NorthWest Assembly and the Dual-Language Question, 1889–1892,” Canadian Journal of Political Science/Revue canadienne de science politique, 34, no. 3 (2001): 451–86, https://journals.scholarsportal.info/details/00084239 /v34i0003/451_jteoobaatdq1.xml; Edmund A. Aunger, “Legislating Language Use in Alberta: A Century of Incidental Provisions for a Fundamental Matter,” Alberta Law Review 42, no. 2 (2004): 463–97, http://heinonline.org /HOL/PrintRequest?collection=journals&handle=hein.journals/alblr42&id= 469&print=section&div=21&ext=.pdf&format=PDFsearchable&submit=Pri nt%2F; and Michel Bock and François Charbonneau, eds., Le siècle du Règlement 17: Regards sur une crise scolaire et nationale (Sudbury: Prise de parole, 2015). 19 On the role of Quebec senators, see Bonenfant, “La vocation manquée du Sénat canadien,” 75. 20 For details, see Cardinal and Grammond, Une tradition et un droit, chapter 3. At the time, New Brunswick made English and French the official languages of the province. Later in 1986, a French Language Services Act was adopted in Ontario. 21 For details on the creation of the new committee, see Comité sénatorial permanent du règlement, de la procédure et des droits du parlement, Journaux du Sénat, 1st session, 37th legislature (11 June 2002), https://sencanada.ca/en /Content/Sen/chamber/371/journals/122ap_2002-06-11-f#B. Un Comité des langues officielles. Accessed 9 May 2018. 22 Cardinal and Grammond, Une tradition et un droit, 105–8. 23 The concept of treaty federalism has been widely discussed in Canada in many forums, including the recent Truth and Reconciliation Commission (www.trc.ca). There is also a growing body of literature on treaty federalism in Canada. For example, see Martin Papillon, “Canadian Federalism and the Emerging Mosaic of Aboriginal Multi-Level Governance,” in Canadian Fed-

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25

26 27

28

29

30

31

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eralism: Performance, Effectiveness and Legitimacy, 3rd ed., edited by Herman Bakvis and Grace Skogstad (Toronto: Oxford University Press, 2012), 284–301; Kiera Ladner, “Treaty Federalism: An Indigenous Vision of Canadian Federalism,” 2nd ed., edited by François Rocher and Miriam Smith, New Trends in Canadian Federalism (Peterborough: Broadview Press, 2003), 167–96; and James Youngblood Henderson, “Empowering Treaty Federalism,” Saskatchewan Law Review 58 (1995): 241–329. Senate of Canada, Standing Committee on Aboriginal Peoples, 1st session, 42nd legislature, https://sencanada.ca/en/Committees/appa/Contact/42-1. Accessed 21 May 2018. Stephanie Mullen (in collaboration with Manon Tremblay and Linda Trimble), “‘Way Past That Era Now?’ Women in the Canadian Senate,” in Stalled: The Representation of Women in Canadian Governments, edited by Linda Trimble et al. (Vancouver: University of British Columbia Press, 2013); Manon Tremblay and Guylaine Boivin, “La question de l’avortement au Parlement canadien: De l’importance du genre dans l’orientation des débats,” Canadian Journal of Women and the Law 4, no. 2 (1990–91): 459–76. Cardinal and Grammond, Une tradition et un droit, 20–2. Louis Massicotte arrives at similar conclusions in “Le Sénat a-t-il change depuis 1980? Quelques indicateurs statistiques,” Revue parlementaire canadienne (Spring 2016): 14–18. This number is taken from Jean-Charles Bonenfant, Les Canadiens Français et la naissance de la Confédération (Ottawa: Société historique du Canada 1966), 10. These data are taken from the Canadian Encyclopedia. See Nicolas Landry and Père Anselme Chiasson, “History of Acadia,” Canadian Encyclopedia, last edited 4 March 2015, http://www.thecanadianencyclopedia.ca/en/article /history-of-acadia/. Before being deported in 1755 for refusing to plead allegiance to Britain, Acadians were mostly concentrated in Nova Scotia. After their deportation, they were found in other Atlantic provinces as well as in the United States, particularly Louisiana. For an overview of the Acadian deportation, see James H. Marsh, “Acadian Expulsion (the Great Upheaval),” Canadian Encyclopedia, last edited 15 July 2015, http://www.the canadianencyclopedia.ca/en/article/the-deportation-of-the-acadiansfeature/. See Gaétan Migneault, “Le Canada français et la Confédération: Les Acadiens du Nouveau-Brunswick,” in Le Canada français et la Confédération: Fondements et bilan critique, edited by J. Caron, M. Martel, and R. Pelletier (Quebec: Presses de l’Université Laval, 2016), 9–28. Given that Prime Minister Campbell did not make any senatorial appoint-

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37 38

39 40 41

42 43 44

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ment, it is more accurate to say that seventeen out of twenty-one premiers appointed francophone senators outside of Quebec. See Mullen, “‘Way Past That Era Now?,’” 363–4. For more details, see Tabitha Marshall and David A. Cruickshank, “Persons Case,” Canadian Encyclopedia, last edited 18 October 2019, http://www.the canadianencyclopedia.ca/en/article/persons-case/. parlinfo, Library of Parliament, http://www.parl.gc.ca/parlinfo. Accessed 4 March 2017. For details, see Cardinal and Grammond, Une tradition et un droit. The data collected for the three main groups studied in this chapter are based on the information available on the Canadian Senate website, parlinfo.ca. We also have some data on visible minorities, religious minorities, and persons with disabilities, but they were obtained from secondary sources. For this reason, we will treat them with a certain level of parsimony. Drude Dahlerup, “From a Small to a Large Minority: Women in Scandinavian Politics,” Scandinavian Political Studies 11, no. 4 (1988): 275–98. Mullen, “‘Way Past That Era Now?,’” 273–89; Emmett MacFarlane, “Senate Reform: The Good, the Bad, and the Unconstitutional,” Policy Options, 21 September 2015, http://policyoptions.irpp.org/fr/magazines/september2015/the-future-of-the-senate/senate-reform-the-good-thebad-and-theunconstitutional/; Nadia Verrelli, “The Senate: Should It Stay or Should It Go?,” Policy Options, 21 September 2015, https://policyoptions.irpp.org /magazines/september-2015/the-future-of-the-senate/the-senate-should-itstay-or-should-it-go/. Cardinal and Grammond, Une tradition et un droit, 105–8. Ibid. Andrew Griffith, “Diversity in the Senate,” Policy Options, 14 February 2017, http://policyoptions.irpp.org/magazines/february-2017/diversity-in-the-senate/. See also David McKie, “Female Appointments Dip under Tories,” cbc News, 8 January 2011, http://www.cbc.ca/news/canada/story/2011/01/07 /mckie-gender-equity.html. Griffith, “Diversity in the Senate.” Ibid. Independent Advisory Board for Senate Appointments, “Assessment Criteria” (Ottawa: Government of Canada), htpp://www.democraticinstitutions .gc.ca/fra/content/annexe-qualifactions-et-criteres-fondes-sur-le-merite. Cardinal and Grammond, Une tradition et un droit, 105–8. According to section 24 of the Constitutional Act, 1867, “Senators are officially appointed by the Governor General of Canada but by convention under advice of the Prime Minister.” “The Governor General shall from

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49

50

51

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Time to Time, in the Queen’s Name, by Instrument under the Great Seal of Canada, summon qualified Persons to the Senate; and, subject to the Provisions of this Act, every Person so summoned shall become and be a Member of the Senate and a Senator.” http://laws-lois.justice.gc.ca/eng/Const /FullText.html. Accessed 23 May 2018. MacFarlane, “Senate Reform”; Verrelli, “The Senate.” For details on the New Zealand model for Maori representation, see Augie Fleras, “From Social Control towards Political Self-Determination? Maori Seats and the Politics of Separate Maori Representation in New Zealand,” Canadian Journal of Political Science/Revue canadienne de science politique 18, no. 3 (1985): 551–76. “Aboriginal Electoral Districts in Canada: Lessons from New Zealand,” in Aboriginal Peoples and Electoral Reform in Canada, Royal Commission on Electoral Reform and Party Financing, Vol. 9, edited by Robert A. Milen (Toronto: Dundurn Press, 1991), 67–104; Dominic O’Sullivan, “Needs, Rights and ‘One Law for All’: Contemporary Debates in New Zealand Maori Politics,” Canadian Journal of Political Science/Revue canadienne de science politique 41, no. 4 (2008): 973–86. For a detailed discussion of article 23’s difficulties, see Linda Cardinal and Pierre Foucher, “Minority Languages, Education and the Constitution in Canada,” in The Oxford Handbook of the Canadian Constitution, edited by Peter Oliver, Patrick Macklem, and Nathalie Des Rosiers (Oxford: Oxford University Press, 2017), 553–74. For details, see Office of the French Language Services Commissioner, “1.4. Inclusive Definition of Francophone (idf),” 2013, http://csfontario.ca/en /rapports/ra1516/30-ans-de-la-loi/dif. On the different models of representation of francophone and Acadian communities in Canada, see also Johanne Poirier, “Au-delà des droits linguistiques et du fédéralisme classique: Favoriser l’autonomie institutionnelle des francophonies minoritaires du Canada,” in L’espace francophone en milieu minoritaire au Canada: Nouveaux enjeux, nouvelles mobilisations, edited by Linda Cardinal, Anne Gilbert, and Joseph Yvon Thériault (Montreal: Fides, 2008), 513–63; and Johanne Poirier, “Protection constitutionnelle des minorités linguistiques: un exercice-fiction de transposition du modèle fédéral belge au Canada,” in Langues, constitutionnalisme et minorités / Language, Constitutionalism and Minorities, edited by André Braën, Pierre Foucher, and Yves Le Bouthillier (Toronto: Butterworths, 2006), 161–200. Sarah Childs and Mona Lena Krook, “Analysing Women’s Substantive Representation: From Critical Mass to Critical Actors,” Government and Opposition 44, no. 2 (2009): 125–45.

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53 C.E.S. Franks, The Parliament of Canada (Toronto: University of Toronto Press, 1987), 190. 54 For examples of hyper-competent senators see Cardinal and Grammond, Une tradition et un droit, 45–69. 55 Ibid., 41. 56 I argue in ibid. that it is a constitutional convention. For details, see 22–4.

The Backstory

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5 The Role of the Judiciary in Federal States: Comparing the Belgian and Canadian Experiences Marc Verdussen

introduction Comparative constitutional law teaches us that, in federal states, the judicial power and judges do not necessarily have the same position or status, and do not inevitably play the same role within the institutional system. The jurisprudential output of these judges is intimately linked to the specific dynamic of the federal state in which it takes place. This jurisprudential output is also dependent on the fundamental principles upon which the division of powers rests in the state, and upon the interpretative method favoured by the judges. As such, the impact of this production on different orders of government must be measured with caution in each federation. This study compares the place and role of the judicial power in two federal states, namely Belgium and Canada. Through this comparison, this contribution seeks to advance – and only from a legal perspective – a better perception and a subtler understanding of the impact of judges, justice, and jurisprudence on federal states and the mechanics of federalism. The scope of this chapter does not allow us, however, to examine seriously this impact on all the key actors in a federation. To the extent that both federal states are privy to bipolarization – anglophone/francophone in one case, and Flemish/francophone in the other – we explore the judicial impact on this relationship. As Canadian francophones are not, in contrast with Belgian francophones, in a position of codominance, our choice of study

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led us to examine closely, for the Canadian federal state, the impact of the judicial factor on the province of Quebec. This focus on Quebec must obviously not make us forget that other key actors are also subject to this impact. These actors notably include Aboriginal Peoples, who were not part of the initial federal pact but who are recognized by discourses – rather than by actions – as being integral components of Canada’s multinational nature. The purpose of this study is not to proceed to a global and exhaustive comparison of Canadian and Belgian federalism.1 This exercise has already been done, either in a generic fashion,2 or with respect to specific aspects of federalism such as the spending power3 or the protection of linguistic minorities.4 To set the scene for this comparison, it seems useful to start by underlining a number of convergences and divergences between the Canadian and Belgian federations. First, in contrast to the Belgian Constitution, which is formally composed of a determined number of articles,5 the Canadian Constitution is a composite document: it “is not formed of a founding document,” but “rather is the result of a long process of adjustment and evolution,” which started in 1867 and which “leads today to a Constitution that is neither entirely written nor entirely customary.”6 In Belgium, the constituent units – communities and regions – do not have inherent constitutional power. In Canada, provinces do have “material” constitutions; however, only British Columbia has a formal constitutional text.7 Furthermore, many provincial laws have a “quasi-constitutional” status, so that other legislation must, if possible, be interpreted in accordance with them. For instance, section 52 of the Quebec Charter of Rights and Freedoms states that “no provision of any Act, even subsequent to the Charter, may derogate from sections 1 to 38, except so far as provided by those sections, unless such Act expressly states that it applies despite the Charter.” Moreover, many provisions of section V of the Constitution Act, 1867 – entitled “Provincial Constitutions” – can be unilaterally amended by each province. Secondly, the Belgian federal state is propelled by a dynamic of dissociation. It stems from a slow metamorphosis from a structure that was centralized in its beginnings, by the fractioning of a sovereign state and under the pressure of centrifugal forces. The identity-based federalism at its core was thus constituted over time, the result of long historical evolution. As such, if we refer to the classic distinction between integrative federalism and devolutionary federalism, Bel-

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gium is part of the second category. Autonomist claims arose within the state – non-federal at first – and led to the constitution of federated entities, and thus to a federal transmutation of the state. Not only did this centrifugal dynamic lead to the creation of the federal state, it also subsequently continued to play a role. “The dynamic goes on,” writes Jacques Chevallier about Belgium.8 Is a federal state created by devolution not in perpetual movement, a state whose federalism is never truly achieved? “Ongoing ambiguity and deep disagreement are basic ingredients of a federal structure that – surprisingly enough – continues to function quite effectively, without major conflicts.”9 In Canada, the dynamic that led to the creation of the federal state and its evolution is generally considered to be both centripetal and centrifugal, combining integration and devolution. In comparative law, the difference between these two processes of federalization – integrative and devolutionary – is not, however, always clear.10 Third, in Belgium, there are two distinct types of overlapping constituent units: communities and regions. According to article 1 of the Constitution, “Belgium is a federal State composed of Communities and Regions.” Articles 2 and 3 respectively specify that Belgium includes three communities and three regions: on one hand, the French, Flemish, and German-speaking communities, and on the other hand, the Walloon, Flemish, and Brussels (or Brussels-Capital) regions. As such, a triple order of government actually exists, as communities are not adjacent to regions but overlap with them. In other words, every location on the territory of the state represents a point of overlap between a region and at least one community. In contrast, the Canadian federal state is also constituted of two types of constituent units – ten provinces and three autonomous territories – but rather than overlapping with the provinces, the territories are adjacent to them, and have a distinct constitutional status. Fourth, while the Belgian federation is subjected to a stratification with three overlapping levels of government and composed of many constituent units, a deep fracture between the Flemish and Frenchspeaking population exists within it. Its distinctive bipolarization of interests is not exclusively linguistic; it is also cultural, and even socioeconomic. All economic indicators favour Flanders: the gross domestic product (gdp), unemployment rates, poverty rates, average disposable income, et cetera.11 This bipolarization is so deep that the Belgian legal system bears its mark, as federal institutions are somewhat organized according to this

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bipolarity. Indeed, each institution has a Flemish component and a francophone component, sometimes in a strictly equal manner. In some way, this institutional bipolarity, while finding its source in a sociological bipolarity, feeds and reinforces it. “The dual character of many of the Belgian institutions, as well as the division of the territory into largely linguistically homogeneous units, has had the effect of erecting invisible walls between the North and the South of the country. Social and psychological barriers underline and reflect political ones, in a continuous dialectical process.”12 In Canada, the federal pact was also made between two “founding” groups. However, the power relationship between these two groups is in no way comparable to the one between Flemish and francophones in Belgium. Without going into too much detail, we notice that the latter benefit from substantial protections, in the form of a generally equitable representation guarantee within federal institutions (Council of Ministers, Constitutional Court, Concertation Committee …), and of protecting rights, known in French as droits-freins, according to an expression coined by Nathalie Des Rosiers.13 These protections include mechanisms that, in many ways, draw more from confederalism than federalism. In Canada, some rules or customs reflect the bipolar character of society, such as the bilingualism of federal institutions, but the protection offered to the minority francophone group is not comparable to the one found in Belgium: the protection is essentially linguistic, and is not necessarily constitutionalized, or even institutionalized, and is granted to a minority group representing about 21 per cent of the Canadian population and mostly concentrated on the territory of a single province, Quebec.14 In this regard, José Woehrling notes that “Canadian francophones would have wanted, at one time, to secure this type of joint management rights at the federal state, on an equal or quasiequal footing with anglophones,” and that “such a solution may have only been conceivable in 1867, when Canada was founded, at a time when francophones constituted a third of the Canadian population.”15 Fifth, as Guy Laforest writes so well, building on the Canadian example, “The political and intellectual communities of multinational states produce their own interpretive traditions of the federal regime in which they live.” He adds: “On this point, as a general rule, we see major differences at work between the interpretive traditions of majority national communities and those of minority national communities. Regarding the aspects of federalism that have to be balanced, majorities focus on unity and solidarity/interdependence sup-

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ported by arguments based on efficiency, performance, uniform justice, and social integration. In contrast, minorities focus on autonomy, asymmetry, and their own symbolic and legal empowerment.”16 Belgium offers an unusual layout in this regard. Indeed, unity, solidarity, and interdependence are carried by the francophone “minority,” while the Flemish “majority” highlights autonomy. In Flanders, the desire for autonomy leads to diverse claims: for some, demands for greater self-determination within the state – intrastate autonomy – and, for others, separatist claims aiming for independence at the international level. In all cases, we witness an evanescence of the affectio societatis in Flanders. As noted by a Flemish historian, “it is becoming increasingly difficult to talk of a common Belgian frame of reference – there is no longer any sense of a shared national past … As a result, there is no longer a feeling of common national consciousness which is a precondition for the existence of any nation state.”17 A final difference must be noted: Belgium is tied to the civilian legal tradition – or legal culture – while Canada is marked by bijuralism, as it is attached to two legal traditions: civil law and common law. As observed by Johanne Poirier, “the constitutional culture in which continental federations exist grant[s] a larger space to written positive law than in regimes founded on principles derived from English Law,” as the latter is “fond – or at the very least, more tolerant – of unwritten rules with an uncertain status.”18 According to some authors, this fracture extends to the interpretation of legal texts. As such, francophones would essentially possess “a backdrop of Cartesian and positivist culture that lead them to search the meaning of law, independently of the historical or political contingencies that existed at the time of its elaboration,” while the Flemish are “imbued of a culture of affirmation and revenge that illuminates the text with a meaning that is not visible to a reader of another culture.”19 To follow these preliminary observations, the comparison between the two federal states concerning the place and role of judicial power will take place in three sections: (1) the organization of judicial power, (2) the legal status of the judiciary, and (3) the attributes of judicial power.

1 the organization of judicial power The Belgian Constitutional Court was conceived as a specialized judicial body, independent of the legislative, executive, and judiciary pow-

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ers and whose status and composition are adapted to the review of laws.20 It is a Kelsenian organ, comparable to the Federal Constitutional Court of Germany or the Constitutional Courts in Italy and Spain, for example. The Constitutional Court has a monopoly on reviewing the constitutionality of laws (rules having force of law). That is the reason why the review performed by the Constitutional Court is called “constitutional review” and not “judicial review,” which is more suited to reviews performed by all ordinary courts, as in the United States or in Canada for example. Constitutional review is widely used throughout Western and Eastern European countries that have civil law legal systems. These specificities of constitutional justice in Belgium force us to study it separately from general jurisdictional architecture. General Jurisdictional Architecture Throughout the Belgian federalization process, a unified judicial system was preserved, although the situation is more complex for administrative courts.21 Indeed, the organization of the judiciary has always remained a federal competence, as the Constitutional Court observed in its first decisions22 and keeps on pointing out when it must.23 The concentration of the organization of judicial power in the hands of a single federal authority is a consequence of the specific conditions that existed at the time of the blossoming of federalism. In federal states formed by integration, such as the United States, each federated unit possessed jurisdictional organizations before the birth of the federal nations, and would understandably wish to conserve them, in whole or in part. Conversely, in a federal state like Belgium, which possessed a single judicial system at the time, it is no surprise that, at least in the initial stages, the priority was given to the federalization of the legislative and executive powers, by a dismemberment of political and administrative organs. Keeping courts “federal” has the advantage of ensuring “the unification of community and regional law, in the same way that national law always was.”24 Given the centrifugal dynamic at the core of the system, Belgium will not be able to forgo – in the short or long term – a debate on the future of the judiciary in the federal state. By contrast, in Canada, the legislative authority to create judicial courts is shared between two orders of power.25 Pursuant to section 101 of the Constitution Act, 1867, the federal Parliament may “provide for the Constitution, Maintenance, and Organization of a Gen-

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eral Court of Appeal for Canada” – the Supreme Court was created on this basis – and “for the Establishment of any additional Courts for the better Administration of the Laws of Canada,” which has led to the creation of the Federal Court and the Federal Court of Appeal. However, according to section 92(14) of this same act, each province has authority regarding “the Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.” In each province, there thus exist provincial superior courts: a court of appeal and a first-instance court, whose name varies from one province to the next. In the province of Quebec, for instance, the superior courts are the Court of Appeal and the Superior Court. There also exist, below provincial superior courts, provincial courts and tribunals. In Quebec, the main lower court is the Court of Quebec, composed of three divisions (the civil division, the criminal and penal division, and the youth division). Yet, for a number of reasons, the Canadian judicial system has a fairly centralized and integrated character, which leads to a uniformization of its jurisprudence, and thus of the interpretation of federal and provincial laws.26 First, section 96 of the Constitution Act, 1867 reserves the right to appoint judges of the provincial superior courts to the federal order. According to section 100 of the Constitution Act, 1867, the salaries, allocations, and pensions of judges are fixed and provided by the federal Parliament. Second, “the court system in Canada is generally unitary; provincially constituted inferior and superior courts of original and appellate jurisdiction apply federal as well as provincial laws.”27 To put it plainly, provincial courts apply federal law as well as provincial law. We should however specify that section 101 of the Constitution Act, 1867 allows the federal Parliament to assign exclusively the application of rules of federal law to federal courts. The Federal Court was created in 1970 on this basis. The federal Parliament’s power to assign the application of federal law to federal courts is not unfettered. As such, section 91(27) reserves solely to provinces the “constitution of courts of criminal jurisdiction,” while also specifying that criminal procedure is within the jurisdiction of the federal Parliament.28 Furthermore, “when no federal law is involved or when no law attributes jurisdiction to the Federal Court, provincial superior courts have jurisdiction, pursuant to section 96 of the Constitution Act, 1867.”29

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Finally, any matter can be deferred to the Supreme Court of Canada as a last resort, as it is a “General Court of Appeal for Canada,” within the meaning of section 101 of the Constitution Act, 1867.30 It should be recalled that, from 1867 to 1949, a supreme jurisdiction existed in Canada and was charged with reviewing, as a last instance, the constitutionality of laws, and thus the respect of the division of powers between legislators: the Judicial Committee of the Privy Council. In 1875, the federal Parliament created a general court of appeal for Canada, the Supreme Court, through the Supreme Court Act, adopted on the basis of section 101 of the Constitution Act, 1867. But it was only in 1949 that the Supreme Court was recognized as the ultimate and exclusive jurisdiction for all decisions rendered on the Canadian territory, by provincial and federal courts. Notwithstanding a few exceptions where there are appeals as of right, an appeal to the Supreme Court also has jurisdiction to render advisory opinions at the request of the federal executive branch, while provincial governments may do the same with their respective courts of appeals. In that latter case, the advisory opinion may be revisited by the Supreme Court. A large number of significant federalism case law derives from those so-called references. Supreme Court implies the prior written permission of a leave to appeal, which will only be granted if the matter contains a question of importance for the public or raises a question of law sufficiently important to justify the intervention of the court. In a way, Belgium and Canada share an unfinished judicial federalism, and this incompleteness is not entirely accepted by their various intrastate components. It should however be kept in mind that Canadian justice, as opposed to Belgian justice, is in large part rendered by provincial courts. In Belgium, the constituent units can only create administrative jurisdictions. Even though some aspects of the judicial system were transferred to communities in the last phase of the state reform, it remains marginal. We can think, for example, of the regulation of court houses (maisons de justice), which are institutions with the mandate to execute judicial decisions. However, a federal law from 15 June 1935, often amended, determines the use of languages in judicial matters, since the rules differ depending on the linguistic region. Constitutional Justice In any federal state, the division of powers between the federal order and the constituent units is laid out in the constitution or by laws

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adopted pursuant to the constitution. The development of a constitutional review of laws, both federal and federated, is thus unavoidable. Constitutional justice – which includes, at the very least, disputes concerning the review of the compliance and compatibility of legislative norms – is, without a doubt, integral to federalism. In Belgium, it is, in fact, federalism that actually led to the creation of a constitutional court. As soon as the Belgian state “endowed itself of many legislators who were fatally led to encroach on the neighbour’s domain, it had to resign itself to submit these disputes to an arbitrator.”31 Moreover, the emergence of a bipolar federalism, resting on the confrontation of two major sociological groups, convinced people of the necessity of choosing a model centred on a specialized and distinct jurisdiction. Consequently, Belgium aligned itself with the centralized model of constitutional review, where the review of the constitutionality of laws, and even of other laws, is given exclusively to a court created specifically for this purpose, independent from other courts as well as from other branches of government. The Belgian “court of arbitration” – which has since been renamed the Constitutional Court – is composed of an equal number of Dutch-speaking and French-speaking judges. Gradually, the court was also granted the jurisdiction to review the conformity of federal, regional, and community legislation with constitutionalized rights and freedoms. Litigation can be triggered in three different ways: an unconstitutional action by a political authority or by a public organization; an individual action introduced by a person, an association, or a private group; or a preliminary question asked by an ordinary court, in the context of a concrete case. In Canada, the constitutional review follows the decentralized model.32 The judicial branch, with the Supreme Court at its apex, may rule on the division of powers between the federal and the provincial orders, as well as, since 1982, rules on the compliance of laws with the Canadian Charter of Rights and Freedoms. The widening of the judicial review of laws to this new Charter led to a considerable expansion of the role of courts.33 This difference between the Belgian and the Canadian systems tends to show that federalism has no impact on the choice of one model of constitutional review over the other. In the Festschrift honouring José Woehrling,34 we attempted to demonstrate that the distinction between these two models deserved to be put into perspective. The comparison between the constitutional review of laws in Canada and Belgium confirms the relevance of such a relativization.

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In Canada, if the constitutional review of laws is exercised by all courts, this group is nonetheless overseen by the Supreme Court. By its position, its functions are similar to those of a specialized constitutional court. An important portion of its decisions relate to constitutional questions: either the protection of rights and freedoms, or the division of powers. Furthermore, on these constitutional questions – as with all others – it has the last “judicial word.” Meanwhile, when the Belgian Constitutional Court answers a preliminary question its intervention is increasingly concrete.35 In this case, the court reviews not the norm itself – in its application to all situations it abstractly captures – but how norm applies to a specific situation, the one that is adjudicated in the original jurisdiction. This contextualization of the norm leads the Constitutional Court to give concrete expression to its judgment of constitutionality: to a case-specific question, a case-specific answer. 36 The contextualization of the question is sometimes such that the Constitutional Court’s answer directly determines the solution of the dispute a quo. For countries such as the United States and Canada, the question of the contextualization of the constitutional review of legislation seems trivial: it goes without saying for their judges.37 In any event, given this relative impact of the distinct models of constitutional review, and despite the fact that the composition of the Belgian Constitutional Court seems to offer a more balanced federal approach than that of the Supreme Court of Canada,38 a rapprochement between the respective compositions of the courts is tempting. In both cases, this composition is not directly grounded in the constitutional text, but in a statute that is federal (in Belgium, it is considered a framework “organic” legislation). It is important to note that in 2014, in the Reference re Supreme Court Act, the Supreme Court opined that, given the role it plays in the evolution of the structure of the Constitution, the federal Parliament may not modify unilaterally the composition or other essential features of the court.39 In both cases, the judges of the court are also named by the federal executive branch, with no direct intervention of the constituent units. Such a situation significantly jeopardizes the institutional independence that we have a right to expect from a jurisdiction that must act as an arbitrator. Shouldn’t the collaboration of constituent units to the appointment of constitutional judges be self-evident in a federal state?40 We note that, in 2016, the government of Canada established an Independent Advisory Board for

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Supreme Court judicial appointments, tasked with the recommendation of “qualified, functionally bilingual candidates who reflect a diversity of backgrounds and experiences for appointment to the Supreme Court.”41 But even this new approach gives no official voice to provinces in the appointment of the “arbitrators” of the federal pact.

2 the legal status of the judiciary In both states, the Constitution contains a number of provisions concerning the judicial branch. In Belgium, the Constitution elevates justice to the rank of a true state power (a “pouvoir”) and defines its place relative to other branches of the state apparatus.42 It reserves to the federal legislator the power to create and maintain courts and to appoint judges and public prosecutors, but specifies that federal legislation must respect several fundamental rules established by the Constitution, in its articles 144 to 159. These constitutional warranties are sometimes organic (prohibition of extraordinary courts, life tenure for judges, etc.), sometimes procedural (public hearings, obligation to give formally reasons for decisions). Furthermore, the Constitution itself institutes certain courts: a Court of Cassation, five appellate courts, military jurisdictions, commercial tribunals, labour tribunals, and sentencing tribunals. It provides that some infractions, including crimes, must be judged by a jury. It also creates a High Council of Justice, which must intervene in the presentation of candidates for appointment as judge or public prosecutor. In Belgium, article 142 of the Constitution, adopted in 1980 and amended in 1988, 2007, and 2014, creates and lays the foundations of the Constitutional Court. To repeat, the latter does not sit at the apex of the entire judicial branch: in fact, it sits alongside the “ordinary” judicial structure (headed by the Court of Cassation) and the administrative law courts (with the Council of State as the major and final body). As an extension of the constitutional text, the special (quasiconstitutional) law of 6 January 1989 on the Constitutional Court, also amended on several occasions, regulates in detail the competence, composition, organization, functioning, and procedure in front of the court. Nonetheless, only a few elements of the Constitutional Court’s status are constitutionalized, and the rest are within the control of the federal legislator, in a way that finds an echo in the Canadian context.

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In Canada, the legislative power to create judicial courts is shared. Sections 96 to 100 of the Constitution Act, 1867 contains rules on the appointment of superior court judges, the length of their tenure, and their salaries. As we saw, section 92(15) also provides for the creation of provincial courts, including those which are meant to apply the (federal!) criminal law. With sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms, these provisions contribute to the independence of courts and the impartiality of judges. The Supreme Court, however, holds that these provisions “are not an exhaustive and definitive written code for the protection of judicial independence in Canada,” adding that “judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867 – in particular its reference to ‘a Constitution similar in Principle to that of the United Kingdom’ – which is the true source of our commitment to this foundational principle.”43 As such, “the separation of powers and its corollary, judicial independence, are … principles embedded within the formal Constitution of the country.”44 The Supreme Court, for its part, has no explicit constitutional foundation, and for a long time, it was thought that its destiny rested solely in the hands of the federal authorities.45 However, as we saw above, in 2014, a unanimous court ruled that the essential elements of the court could not be altered unilaterally by the federal Parliament. Given its central place in the structure of the Canadian constitutional scene, the court thus recognized its own (unwritten) constitutional status, one that is reinforced in explicit rules concerning certain aspects of the court in the formal constitutional amending formula.46 In the absence of a formal text constitutionalizing the court, however, it is difficult to determine with precision which of its dimensions may be altered by the federal order, and which require specific constitutional amendments involving the provinces.

3 the attributes of judicial power We focus in this section on the judicial interpretation of the division of powers. We recall that “as a classic phenomenon in federal states, the division of powers is a staple of constitutional interpretation.”47 This observation – which raises a few questions on the legitimacy of judges who intervene on this topic48 – is shared by Belgium and Canada. But it is not the only point of comparison. Indeed, the convergence between the two states on jurisdictional review of the division

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of powers allows the emergence of other common denominators, which can be articulated around three key concepts: arbitration, completion, and balance. Obviously, given the scope of these questions, we must limit ourselves to only a few observations. Arbitration Interestingly, in Canada and Belgium, the jurisdictional review of the division of powers, as a component of constitutional justice, is described – notably by scholarly sources – as a form of “arbitration.” Eugénie Brouillet writes that a federal state suggests “an impartial and independent interpretation of the Constitution,” specifically to respect the division of legislative powers between the federal and federated orders, and that the jurisdiction of ultimate arbitrator is “granted to a constitutional court, or simply to the Supreme Court of a country.”49 The relationship between arbitration and the review of the division of powers is omnipresent in Canadian legal literature.50 Henri Brun, Guy Tremblay, and Eugénie Brouillet highlight the necessity of arbitration in the division of legislative powers, which necessarily must be given to “a third party” with “sufficient guarantees of objectivity and neutrality such as to not appear subservient to one order of government or the other.”51 This link is also very strong in Belgium, where the Constitutional Court was born “of the necessity to protect the existence of a state comprised of various entities, within which the respect of the balance of powers between each unit needed to be ensured.”52 In this regard, the initial name of the Belgian constitutional jurisdiction – the “Court of Arbitration” – reveals the importance of the function of arbitrator. In our view, this function has become more and more important. Political breaking points between Flemish and francophones span an increasing number of sectors, and are sensitive to life in society: economic governance, social benefits, wage policies, the fight against delinquency, immigration and asylum, et cetera. Many of the sectors remained, in whole or in part, part of federal competency, which requires the Flemish and francophone partners of the federal order to engage in perpetual consultations. When divergences take a constitutional turn, the Constitutional Court must adjudicate the dispute. We can seriously hypothesize that the cases that divide judges at the court relate to social questions more varied than at the origin of the court, where oppositions were usually connected to linguistic

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questions. This intuition is reinforced by the observation that an increasing number of cases are heard, not by an ordinary bench of seven judges, but by the whole court. Despite “internal” division, or polarization, however, it must be stressed that the court must render a decision, freed of any dissenting opinions. Hence, to fulfil its function, the court must, somehow, overcome any internal divisions. And with a full bench of twelve, no language group can tip the balance, given linguistic parity. The semantics of arbitration may be specific to federal states characterized by some bipolarity. In a bipolar federal state, focused on two main partners, the political and jurisdictional game easily turns to confrontation. The issue of arbitration thus allows a resolution of the confrontation such that no one wins nor loses. The reference to arbitration is even more vivid in federal states who give precedence to federal law over the laws of the constituent units. Nonetheless, we believe that the function of arbitrator is harder to exercise when there is an important imbalance between the two poles. There is then a risk that the scale will tilt the balance in favour of the dominant values and expectations, to the detriment of the ones specific to the minority community.53 In Belgium, before arriving in courtrooms, arbitration takes place around political negotiating tables, particularly at each step of the state reform. Indeed, rather than being “the result of a deliberate choice,” Belgian federalism “is the incremental and pragmatic solution to the conflicts and community crisis, resting on subtle compromises between divergent visions of peaceful and harmonious coexistence.”54 “The gradual evolution towards a federal State was thus reached in the classical Belgian way, by letting the tension build up and then finally opting for compromise.”55 This observation is hardly transferable to Canada. The rigidity of the constitutional amending procedure renders political arbitration leading to constitutional reform difficult, if not impossible, whereas in Belgium it is not only common, but frequent. Is the importance of the court’s role as arbitrator then inversely proportional to the lack of arbitration at the political level? In other words, does the Supreme Court of Canada play a more crucial role in the maintenance (or transformation) of the Canadian federal order than is the case in Belgium, where other actors may also contribute to constitutional transformation? This hypothesis deserves further comparative analysis.

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Completion Federalism is always an unfinished business. This incompleteness is particularly visible in the evolution of the respective legislative competences of the federal order and the federated units. The delineation inevitably evolves, either by formal amendments, or – if this process is too rigid – through jurisprudential interpretation. One might think that the more a formal system of division of powers is frozen, the more “creative” the case law may be. And conversely. Yet, the Belgian example demonstrates that while its formal division of powers constantly evolves through regular formal modification, the Constitutional Court still consolidates and completes the federal structure in its interpretation of the division of powers, but also contributes to improving its effectiveness. We can cite constitutional jurisprudence concerning exclusive competencies, implied powers, matters “reserved” to the federal authorities, or even the principles of proportionality and federal loyalty, which we address briefly below. Applied to the division of powers, the proportionality principle prohibits the authority to “exercise the power it is granted in such a way that it is impossible or extremely difficult for another authority to carry out efficiently its own competency.”56 This principle appeared in the Constitutional Court’s decision as early as 1986, in a case that opposed the federal order, the communities, and the regions.57 According to the Constitutional Court, the proportionality principle is a specific application of the principle of federal loyalty, inspired by German constitutional law. It was “codified” through article 143, §1 of the Belgian Constitution in 1993, which imposes on the federal and federated orders, in the exercise of their respective responsibilities, a duty to act “with respect for federal loyalty, in order to prevent conflicts of interests.” The loyalty principle includes an obligation “not to disturb the balance of the federal structure as a whole,” such that this principle “involves more than a mere division of powers: it indicates the spirit in which it must take place.”58 More specifically, it emerges from the search for a “viable balance between the autonomy of the constituent units and the integrity of the community of destinies represented by the federal union.”59 By giving consistency to the principle of federal loyalty, by using the notion of proportionality, the Court offered to this principle an intelligibility and a justiciability that were unsuspected at the time of its constitutionalization. From a

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political tenet at the beginning, the principle of federal loyalty was converted into legal principle through a constitutional amendment, and erected as a justiciable principle by constitutional judges. In 2014, the Belgian Parliament tried to formally add the constitutional principle of federal loyalty to the body of constitutional rules, that is, rules that are justiciable and may be used in the constitutional review of legislation.60 According to the new articles 1, 3, and 26, §1, 4° of the Special Law on the Constitutional Court (slcc), the court may invalidate legislation and answer prejudicial questions when there is an alleged or suspected violation of federal loyalty. In other words, the role of the Constitutional Court in the determination of the content of article 143, §1 is now officially affirmed – “ratified”61 – by the special legislator. Only the future will show how the court will use its new “power.” We hope that it will seize the opportunity “to better structure its jurisprudence,” by “using the principle of federal loyalty in a more explicit and coherent manner.”62 Moreover, we think that the court will see it as an incentive to give greater autonomy to the principle of federal loyalty, transforming it into a general principle of constitutional law with a global reach.63 In any event, this legislative amendment reveals the important role played by the Constitutional Court – occasionally prophetic – as some jurisprudential creations have later been incorporated into “special laws” by Parliament.64 In Canada, one could think that the adoption of the Canadian Charter of Rights and Freedoms in 1982 marginalized the place of the division of powers in the jurisprudence of the Supreme Court. This fear, however, proved to be unfounded. Decisions of the Supreme Court on federalism are as numerous and decisive as before. In fact, the Supreme Court continues to complete and clarify constitutional doctrines regarding the constitutional division of powers. Therefore, we observe that the Supreme Court, moving away from a strict dualist conception of federalism, enlisted the principle of cooperative federalism to legitimize certain overlaps of power between orders of government. However, if the court encourages cooperation in a way that tends to restrict the idea of exclusivity, it shies away from imposing cooperation, or from controlling how federal partners actually exercise their respective competences. In the Quebec (Attorney General) v. Canada (Attorney General) decision – which concerns the abolition of the firearms registry – the Supreme Court implicitly refused to recognize an obligation to act in good faith on the part of the various legislators, in a way that – paradoxically – had the effect of reinforcing

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not cooperative federalism, but its dualist version.65 In other words, without actually saying it, the court refused to acknowledge any limitation on legislative authority that would be grounded in some form of federal loyalty.66 Balance Gérald-A. Beaudoin highlighted that, in a federal state, “courts must protect a form of equilibrium in federalism,” and that the maintenance of such a delicate balance leads courts “to act with restraint on occasion and with more activism in other situations.”67 In Belgium, in a political context marked by an increasing estrangement between the two great sociological components of the state, does the Constitutional Court “contribute to lowering the fever,” or does it rather “accompany the movement, going so far as to provide oxygen to the communitarian fire”?68 In fact, the Court found itself responsible for policing conflicts of competency between legislators, without being given a clear purpose. Federalism was, for some, a factor of unity, and for others, a stepping stone toward separatism. This mission was, at once, important, since the jurisprudence of the Court can exacerbate the separation or preserve the union, difficult because the Court was only offered weak interpretative guidance, and evolutionary, as federalization occurred by successive steps … The Court thus needed to draw inspiration from the successive advances of the federalization process, considering both the intent of the special legislator to deepen federalism but also its refusal to lead it to separatism.69 In this regard, the jurisprudence of the Constitutional Court can give “the impression of a pendulum.”70 This back-and-forth movement may favour the federal order. Indeed, in many decisions, the Constitutional Court gave paramountcy to federal law on the basis of the need to preserve the coherence and efficiency of the division of powers, in rare cases where there is actual concurrency. A centralizing jurisprudence was notably developed in the field of taxation.71 Generally, in Belgium, when a competence is found to be “concurrent,” the communities or the regions, depending on the issue, may legislate to the extent that the federal authority has not intervened. In other words, two orders of government share their competence over

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the same matter – the federal order and the communities or the regions – but precedence is given to the former. This paramountcy only arises in situations where the federal order actually legislates on the matter; the federal then apply to the constituent units, who are thus deprived of the power to legislate except with regard to particular aspects which the federal parliament has not settled. Most of the time, imperatives of coherence and efficiency are invoked to justify this type of interference with the autonomy of the constituent units. Nonetheless, the use of concurrent powers – and of the doctrine of paramountcy – is in obvious contradiction with the ideal of equality, as it predicates a hierarchy between the laws adopted by different orders of government, in case of conflict.72 Yet, the use of concurrent powers does not necessarily only benefit the federal order, as constituent units may also use them to encroach on federal powers. This observation leads to the conclusion that the back-and-forth movement may also favour federated units. Indeed, the Constitutional Court also issued decisions that clearly contribute to the centrifugal dynamic specific to Belgian federalism.73 This leads to three observations. First, the Constitutional Court is particularly deferential to measures adopted by political majorities, when these measures are part of the constitutional reforms in Belgium, usually known as “state reforms.”74 As Patricia Popelier and Koen Lemmens underline: “the Constitutional Court exercises its role as the watchdog of Belgian consensus democracy in several ways … the Constitutional Court confers considerable weight on political consensus agreements.”75 On many occasions, the Constitutional Court admitted, explicitly or implicitly, that some transfers of competences from the federal order to the federated units must be understood with due regard to the general institutional system delineated by political actors. By necessity, the court’s political consequentialism reinforces the centrifugal dynamic that was given to the state reform by the same political actors.76 It bears pointing out that constitutional judges were not appointed to ratify merely measures taken by political majorities and reproduce the imbalances of power that exist in Parliament. The Constitutional Court cannot be reduced to a third legislative chamber. In 1997, a judge of the court wrote that “by tolerating the creation of a Constitutional Court after persistently resisting it until the federalization of the state forced it to allow it, the political world introduced a Trojan horse in the parliamentary realm, whose strong kicking power it is only beginning to realize.”77

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Secondly, the Constitutional Court does not hesitate to introduce exceptions to the principle of exclusivity of competencies, despite the fact that it was deemed in the court’s first decisions to be a foundational principle in the Belgian state. Yet, one of the hallmarks of the Belgian federal state is the existence of “exclusive” competencies. The principle is simple: for each situation, only one order of government has power, either the federal order, or the communities, or the regions.78 This impermeability is so strong that there is no rule of paramountcy in case of conflicting laws in the Belgian federal regime. Yet, the realities of federalism have incrementally disturbed this segmented conception of the division of powers. The logic of exclusivity was corrected by other approaches to the division of competences, which translate to greater intertwining between them.79 The attenuation of the principle of exclusivity is not only the result of constitutional amendment or modifications to special legislation relative to the division of powers. It derives from constitutional jurisprudence, particularly through the use of the proportionality principle.80 The Constitutional Court’s case law sometimes legitimizes federal laws, but it generally seems more beneficial to constituent units, who are then allowed to encroach both on matters explicitly “reserved” to the federal order and the latter’s residual powers.81 This case law reflects a significant evolution of federalism in Belgium, where the centre of gravity of political power gradually moved from the federal to the federated order. The Constitutional Court sometimes goes very far in its logic of intertwining of competencies, which runs the risk of mishandling the basic lines of the system of the division of powers. A 2001 decision stands out in this regard.82 A Flemish law83 organized the takeover of costs borne by persons with reduced autonomy, by putting in place a coverage regime for the targeted social risk. The constitutionality of the Flemish legislation was challenged on the grounds that it encroached on the matter of social security, which is an explicit federal matter. The Constitutional Court’s answer was scathing: “a community does not exceed its power if, in the exercise of its competency in the matter of care and assistance to individuals, it grants to some of them a specific help, distinct from the social security granted by the federal authority, and without affecting a matter reserved to it.” This decision generated considerable controversy. There are two possibilities here. Either one considers that the intervention of the legislator of a constitutive unit prevents the federal

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legislator from putting into place a program covering the same social risk. Or one considers that the federal legislator retains its entire autonomy in this regard. The second interpretation of the decision would support the idea that the Court used the “double aspect” theory, well known in Canada. This theory recognizes that, without violating the division of powers, two orders of government can legislate on the same matter based on distinct heads of power. This is highly contested in Belgium, as it represents the most significant breach of the principle of exclusivity, a traditionally untouchable principle in the Belgian federal state, and because it presupposes a willingness to collaborate between the various parties, a real gamble in a confrontational federal state. Interestingly, the court clearly excluded the application of this theory in another decision, rendered subsequently and concerning the construction of nurseries and schools by the Brussels-Capital Region.84 That case opposed the Flemish community and the Brussels Region, which was proposing to fund child care and educational institutions, which both fall within the exclusive competences of communities. In any event (now or in the future), in a state such as Belgium, allowing for some sort of “double aspect” theory is likely to favour constituent units to the detriment of the federal order. It may also favour the richest constitutive units, which are able to fund programs, to the detriment of those less well endowed.85 Finally, the Constitutional Court sometimes resorts to the doctrine of “implied powers” – but tacitly – to operate a jurisprudential transfer of power from the federal order to the constituent units. Implied powers refer to powers that are not expressly granted to communities or regions, but which these constituent units find necessary for the implementation of the powers that have been granted to them.86 But they are deemed needed by the legislator as having to be exercised in matters attributed to the federal order, because in Belgium, residual power is federal while communities and regions only have competency for powers that are expressly granted to them. The foundation of implied powers can be found at article 10 of the special law on institutional reform of 8 August 1980, which allows each regional or community legislator to adopt provisions in areas that do not fall within their competencies “if these provisions are necessary to the exercise of their own competency,” and as long as “the matter can be regulated by different regimes and the impact of the provisions on this matter is only marginal.”87 For instance, the court used this doctrine on several occasions

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to justify the creation of administrative courts by communities and regions to the extent that we may wonder whether they now have “a permanent or quasi-inherent power to establish administrative courts to review the legality of administrative acts within the scope of their competency.”88 This is a jurisprudentially created exception to the conception that judicial power and administrative law remain federal. These three observations – the deference of the Constitutional Court regarding transfers of competencies toward constituent units, the breach introduced by the court to the principle of exclusive powers, more frequently in favour of constituent units, and the use by the court of implied powers to grant to constituent units (in some cases, competencies that political actors refuse to give them through formal amendments) – confirm an unavoidable decentralizing impulsion in Belgium, that the court generally supports. Can we discern a similar trend in Canada? First, just as in Belgium, we can observe in Canada forms of the “decompartmentalization” of competencies. The Supreme Court’s recent case law points to the idea that, in the interpretation of the division of powers, the court will favour cooperative federalism to create overlapping zones of competency, in which both orders of government can legislate and interact. In Canadian Western Bank v. Alberta, the court cites an earlier opinion of Chief Justice Dickson, who championed “a view of federalism that puts greater emphasis on the legitimate interplay between federal and provincial powers.”89 Alongside the so-called double aspect and incidental effects doctrines, cooperative federalism derogates from the principle of exclusivity – or at least attenuates it – despite its explicit endorsement in sections 91 and 92 of the Constitution Act, 1867. In sum, in both federations, judges seem to hold that a federal state cannot thrive under the exclusive reign of dualist federalism, which must sometimes yield to more sophisticated forms of delineation of competency. It is significant that this observation stems from the analysis of two federal states known to be committed to exclusive powers. Just as significant is the fact that, in both cases, the move away from exclusivity and thus from dualist federalism is not particularly coherent. In this regard, Johanne Poirier warns against the temptation to idealize this endorsement of cooperative federalism: “The dualism conception of federalism gives way, in a fractioned, incremental, nonlinear and opaque fashion, to a hybrid system that combines dualism and cooperative federalism.”90

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The jurisprudence of the Supreme Court does not escape the backand-forth movement to which the Belgian Constitutional Court also falls prey. Do these movements tilt the balance on one side or the other? It is difficult for a foreign observer to make up one’s mind on this topic. On the one hand, in the Reference re Supreme Court Act91 and the Reference re Senate Reform,92 the Supreme Court seems to defend a conception of federalism that respects “the specificities and preoccupations of each component of the federal pact by an interpretation that takes into account the dividing lines and the asymmetric nature of Canadian federalism.”93 On the other hand, some Quebec authors doubt that this reference to the federative principle, which we also find in older decisions of the Supreme Court such as the Reference re Secession of Quebec94 decision, plays a decisive role in the jurisprudence on the division of powers between the two orders of government. “For a minority nation such as Quebec within Canada,” write Eugénie Brouillet and Yves Tanguay, the Supreme Court’s case law introduces “such a federal/federated imbalance [that] has legal and political consequences on its ability to self-determine in several matters that are vital to its collective fulfillment.”95 Our sentiment, which we express with caution, is that if there is a back-and-forth movement, over the long term, the balance overall seems to favour the federal order. However, we must recognize that, on the one hand, recent jurisprudence moderates this observation, and that, on the other hand, the perception of the different components of the federal state by its actors and by observers is somewhat mixed, including among francophone lawyers in Canada.

conclusion Constitutions play a central role in the regulation of democratic states. In that context, they cannot ignore that a common will to live together96 or to coexist peacefully97 is not irreconcilable with the presence of specificities that render the idea of a complete unification illusory. Aspirations for greater autonomy may reflect centrifugal forces. Sometimes, these aspirations precede the existence of the state itself, but are perpetuated, or even reinforced, through it. In any case, they stem, to some extent, from a desire to assert a group identity. The Constitution is thus designed not only to recognize these common aspirations, but to integrate them within the organization

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of the state’s structure. It does so by recognizing distinct political entities with legal personality, granting them jurisdiction over certain matters and providing them with specific public institutions. It is a form, among others, of “constitutional design of composite states.”98 The federal state is one form, among many, of such institutional accommodation of diversity. Nonetheless, nothing resembles a federal state more than another federal state, and nothing is more dissimilar to a federal state than another federal state. Indeed, all comparative scholars know that federalism can be defined in the singular form when we speak of the essential values that constitute it, but that it must be described in the plural when, beyond these common values, we discuss paths that lead to it and the modalities of the configuration of specific federations. The fate of the court system and the mechanics of constitutional review offer an example, as this study seeks to demonstrate with regard to two federal states. Of course, there are common denominators between Belgium and Canada on this front. We highlighted the centralized and integrated character of the judiciary; the fact that constituent units do not participate in the appointment of judges either to the Supreme Court or the Constitutional Court; and the conception of constitutional review of the division of powers between the distinct orders of government as a form of “arbitration.” Beyond these common denominators, an analysis of the back-andforth movement of each body of constitutional jurisprudence on the division of powers, suggests a difference in the way the balance tilts. In Canada, the perceptions regarding the impact of the Supreme Court’s case law on the federal “equilibrium” are mixed, which perhaps reflects the ambivalence of federalism itself. For certain observers from Quebec, this case law actually does not protect the federal equilibrium between centralizing and decentralizing trends, and thus is not always respectful of the diversity that federalism is meant to guarantee. By contrast, in Belgium, an analysis of the Constitutional Court’s case law – whose creative character is required somewhat by the deficiencies of the distribution of competencies – shows that it does not automatically favour the federal level. One might even be inclined to argue that it is generally favourable to the constituent units. This confirms that federations live and evolve under the pressures of the political forces that animate them. Canada was born of an ambivalent combination of an integrative and a dissociative process,

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while Belgium is one of the clearest examples of contemporary “federalism by disaggregation.” One could argue that the two highest courts’ jurisprudence reflects and perpetuates these tendencies. This leads to two principal and final observations. First, the Belgian federal state is built upon a foundational bipolarity between two groups that are (largely) equal in numbers, as well as politically and legally codominant. Second, the Belgian federal state is moved by a centrifugal dynamic that we no longer find in Canada, or at least, not with the same intensity. These observations refer back to two essential readings and crucial elements regarding the Belgian federal state: a bipolar federalism, which is moved by a dynamic of dissociation.99 This suggests a possible evolution regarding the “key” actors of the Canadian federation: the central role played by Quebec and by the French-English dynamics may not be as central as it once was in Canada. The demographic weight of French-speakers in relation to “the rest of Canada” has been diminishing basically since the beginning of Confederation. Multiculturalism and the recognition of Indigenous Peoples seem to be leading many to question the initial “bipolar” nature of the Canadian federation. This is notably reflected in the discussions surrounding the legitimacy of requiring Supreme Court justices to master both French and English, for instance. The situation is very different in the Belgian federation, where the Flemish-francophone dynamic still permeates every aspect of public life – including constitutional jurisprudence. In comparative terms, we are reminded that geography, history, demography, and the process through which a federal regime emerges – to name but a few factors – will affect both institutional design and the actual work of institutions. Higher courts are no exceptions. The dynamics in play in the Canadian and the Belgian federations share obvious similarities and elicit significant differences. This, however, should not prevent institutionalists from “learning” from each other; quite the contrary. Looking through the lens of other federations that have sought to structure diversity and protect minorities in the design of the “neutral umpire” of the federation, even if not to replicate solutions, is always fruitful. Exploring another umpire’s jurisprudential work to reflect on how one’s own umpire addresses diversity is fruitful as well. Canada at 150 has offered us a welcome avenue for this kind of bilateral institutional introspection.

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notes 1 There are numerous scientific studies about Belgian federalism. Some of these have been published in Canada. Among the most recent ones, see Hugues Dumont, “Le fédéralisme multinational belge se prête-t-il à une mutation confédérale? Les onze leçons d’un fédéralisme immature,” in Le fédéralisme multinational: Un modèle viable? edited by Michel Seymour and Guy Laforest (Berne: Peter Lang, 2011), 177–210; Johanne Poirier, “Les fédérations belge et canadienne: Essai de comparaison synthétique et systématique,” Fédéralisme et protection environnementale: Regards croisés sur les expériences belge et canadienne, special issue of Revue de droit de l’Université libre de Bruxelles 39 (2009): 13–33; “The Belgian Federation: Tools of Appeasement, Instruments of Confrontation,” in Varieties of Federal Governance: Major Contemporary Problems, edited by Rekha Saxena (Cambridge, Cambridge University Press, 2011), 344–77; Min Reuchamps, Conrad Meulewaeter, Pierre Baudewyns, and Lieven De Winter, “Les facteurs d’unité en Belgique: Diables rouges, attitudes politiques et sentiments identitaires,” in L’unité et la fragmentation des fédérations multinationales, edited by J.-F. Caron (Quebec: Presses de l’Université Laval, 2016), 99–126; Caroline Van Wynsberghe, “L’exemple belge: Les faiblesses de la formule fédérale mise en place en Belgique,” in L’idée fédérale, Réseau québécois de réflexion sur le fédéralisme (2011), https://pdfs.semanticscholar .org/e33c/f4e2541bf0253fc49deeb5b482a4b4c95967.pdf; Marc Verdussen, “La Belgique: Un fédéralisme bipolaire mû par une dynamique de dissociation,” in Le fédéralisme multinational: Un modèle viable? 211–25; “La protection des minorités linguistiques en Belgique: Heurs et heurts,” in La mobilisation du droit et la protection des collectivités minoritaires, edited by Eugénie Brouillet and Louis-Philippe Lampron (Quebec: Presses de l’Université Laval, 2012), 55–70; “Les paramètres de la fragmentation de l’État belge,” in L’unité et la fragmentation des fédérations multinationales, 77–98. 2 See especially Bernard Fournier and Min Reuchamps, Le fédéralisme en Belgique et au Canada: Comparaison sociopolitique (Brussels: De Boeck, 2009); Johanne Poirier, “Fédéralisme en Belgique et au Canada: Parallèles, dissonances et paradoxes,” Septentrion: Arts, lettres et culture de Flandre et des Pays-Bas 3 (2004): 26–32. 3 See Valéry Vander Geeten, “Le pouvoir de dépenser en Belgique et au Canada: Gage d’efficacité ou entorse au fédéralisme?” Revue belge de droit constitutionnel (2008): 335–67. 4 See especially Nicolas Bonbled, “La protection des droits des minorités et la répartition des compétences dans les États fédéraux: Les expériences belge

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10 11

12 13

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et canadienne,” Annales de droit de Louvain (2012): 19–79; Johanne Poirier, “Protection constitutionnelle des minorités linguistiques: Un exercicefiction de transposition du modèle fédéral belge au Canada,” in Langues, constitutionalisme et minorités / Language, Constitutionalism and Minorities, edited by André Braen, Pierre Foucher, and Yves Le Bouthillier (Toronto: Butterworths, 2006), 161–200. Note on translation: “article” was translated as “article” regarding Belgian laws, and as “section” for Canadian and Quebec law. Dave Guénette, “Le silence et l’inachèvement de la Constitution du Canada,” Le Devoir, accessed 12 April 2016 (our translation). Constitution Act, [rsbc 1996] chapter 66, http://www.bclaws.ca/EPLibraries /bclaws_new/document/ID/freeside/00_96066_01#section1. Jacques Chevallier, L’État post-moderne, 2nd ed. (Paris: Librairie générale de droit et de jurisprudence, 2004), 81 (our translation). Kris Deschouwer, “Belgium: Ambiguity and Disagreement,” in A Global Dialogue on Federalism, vol. 1, Dialogues on Constitutional Origins, Structure, and Change in Federal Countries, edited by Raoul Blindenbacher and Abigail Ostien (Montreal and Kingston: McGill-Queen’s University Press, 2005), 10. See also R. Mnookin and A. Verbeke, “Persistent Nonviolent Conflict with No Reconciliation: The Flemish and Walloons in Belgium,” Law and Contemporary Problems 72 (2009): 153–4. Tania Groppi, Il federalismo (Roma-Bari: Laterza, 2004), 80. See mainly Pierre Pestiau and Mathieu Lefebvre, “L’économie belge, l’économie des Belges: Inégalités et politique économique depuis l’aprèsguerre,” in Singulière Belgique, edited by Astrid von Busekist (Paris: Fayard, 2012), 160–1. Poirier, “The Belgian Federation,” 368. Nathalie Des Rosiers, “Le droit et la protection de la langue: Noblesse oblige ou habilitation des minorités,” Revue générale de droit d’Ottawa (2010): 40. Poirier, “Fédéralisme en Belgique et au Canada,” especially 28–9. José Woehrling, “Les trois dimensions de la protection des minorities en droit constitutionnel comparé,” Revue de droit de l’Université de Sherbrooke 34 (2003–04): 105 (our translation). Guy Laforest, with the collaboration of Oscar Mejia Mesa, Interpreting Quebec’s Exile within the Federation: Selected Political Essays (Brussels: Peter Lang, 2014), 35. Herman Van Goethem, Belgium and the Monarchy: From National Independence to National Disintegration (Antwerpen: Antwerpen University Press, 2010), 269.

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18 Johanne Poirier, “Les ententes intergouvernementales et la gouvernance fédérale: Aux confins du droit et du non-droit,” in Le fédéralisme dans tous ses États: Gouvernance, identité et méthodologie, edited by Jean-François Gaudreault-Desbiens and Fabien Gélinas (Cowansville: Yvon Blais; Brussels: Bruylant, 2005), 466 (our translation). See also Johanne Poirier and Cheryl Saunders, “Comparative Experiences of Intergovernmental Relations in Federal Systems,” in Intergovernmental Relations in Federal Systems: Comparative Structures and Dynamics, edited by Johanne Poirier, Cheryl Saunders, and John Kincaid (Toronto: Oxford University Press, 2015), 450; Thomas Fleiner, “Constitutional Underpinnings of Federalism: Common Law vs. Civil Law,” in The Federal Idea: Essays in Honour of Ronald L. Watts, edited by Thomas J. Courchene, John R. Allan, Christian Leuprecht, and Nadia Verrelli (Kingston: Institute of Intergovernmental Relations, Queen’s University, 2011), 99–110. 19 Paul Martens, Théories du droit et pensée juridique contemporaine (Brussels: Larcier, 2003), 248–9 (our translation). 20 See Marc Verdussen, Justice constitutionnelle (Brussels: Larcier, 2012), 34–47. 21 See Anne-Sophie Bouvy, “La place des juridictions administratives régionales et communautaires dans la Belgique fédérale,” Revue belge de droit constitutionnel (2015): 215–64. 22 See mainly Constitutional Court (C.C.), judgment n° 46/88 of 11 February 1988. 23 See mainly C.C., judgment n° 144/2005 of 21 September 2005. 24 Anne Rasson-Roland, “Les autorités de justice,” in La Belgique fédérale, edited by Francis Delpérée (Brussels: Bruylant, 1994), 189 (our translation). 25 On this judicial structure, and on constitutional review in Canada, see Johanne Poirier, “Les recours des particuliers devant les plus hautes juridictions: Une perspective de droit comparé,” Rapport national sur le Canada, Préparé pour le service de recherche de la Bibliothèque de droit comparé du Parlement européen, October 2017, 22, http://www.europarl .europa.eu/RegData/etudes/STUD/2017/608733/EPRS_STU%282017 %29608733_FR.pdf. 26 Frederick Lee Morton, ed., Law, Politics and the Judicial Process in Canada, 2nd ed. (Calgary: University of Calgary Press, 1994), 47. 27 scc, Ontario (Attorney General) v. Pembina Exploration Canada Ltd., [1989] 1 rcs 206. 28 Marc Verdussen, “Le partage du pouvoir de répression pénale au Canada,” Revue de science criminelle et de droit pénal comparé (2000), 780–3. 29 Gérald-A. Beaudoin, Le fédéralisme au Canada (Montreal: Wilson and Lafleur, 2000), 178 (our translation).

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30 About the history of the Supreme Court of Canada, see James G. Snell and Frederick Vaughan, The Supreme Court of Canada: History of the Institution (Toronto: University of Toronto Press, 1985). 31 Paul Martens, “Le rôle constitutionnellement politique du juge,” in Justice et politique: Je t’aime, moi non plus... (Brussels: Bruylant, 2009), 62 (our translation). 32 See scc, Re Manitoba Language Rights, [1985] 1 rcs 721; Amax Potash Ltd. v. The Government of Saskatchewan, [1977] 2 rcs 576. 33 See Marc Chevrier and David Sanschagrin, “Le juge superlégislateur au Canada ou la politique par soustraction,” in Les juges: décideurs politiques? Essais sur le pouvoir politique des juges dans l’exercice de leur fonction, edited by Geoffrey Grandjean and Jonathan Wildemeersch (Brussels: Bruylant, 2016), 95–132. 34 Marc Verdussen, “La justice constitutionnelle en droit comparé: Évolution des modèles,” in Constitutionnalisme, droits et diversité: Mélanges en l’honneur de José Woehrling, edited by Alain-G. Gagnon and Pierre Noreau (Montreal: Thémis, 2017). 35 See Paul Martens, “Le contrôle préjudiciel de constitutionnalité est-il un art abstrait?” in Mélanges en hommage à Robert Andersen (Brussels: Bruylant, 2009), 423–50; Marc Verdussen, “La Cour constitutionnelle belge exerce-telle un contrôle concret?” Annuaire international de justice constitutionnelle 29 (2013), 17–23. See also Verdussen, “Table ronde: Le contrôle de constitutionnalité a posteriori sur renvoi est-il concret?” in La question prioritaire de constitutionnalité: Approche de droit comparé, edited by Laurence Gay (Brussels: Bruylant, 2014), 667–70; “La Cour constitutionnelle de Belgique: Une juridiction politique?” in Les juges: Décideurs politiques? Essais sur le pouvoir politique des juges dans l’exercice de leur fonction, edited by Geoffrey Grandjean and Jonathan Wildemeersch (Brussels: Bruylant, 2016), 340–2. 36 Two main examples, see C.C., judgment n° 65/200 of 30 May 2000; judgment n° 167/2006 of 18 October 2006. 37 Yet, this does not mean that American and Canadian jurisdictions consider solely the elements of a specific case, without putting them in perspective and situating them in their general context and a longer time frame. Moreover, the Supreme Court of the United States admits that it is possible, if certain conditions are fulfilled, to oppose a law itself in all its potential applications (facial challenge) rather than in a specific application (asapplied challenge). On this distinction and its pitfalls, see Richard H. Fallon, “Fact and Fiction about Facial Challenges,” California Law Review 99 (2011): 915–74. Moreover, when the Supreme Court of Canada renders an

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advisory opinion, it does so without the benefit of the concrete case law and evidence that lies at the foundation of an appeal. See Marc Verdussen, “Le mode de composition de la Cour constitutionnelle est-il légitime?” Revue belge de droit constitutionnel (2013): 67–86. scc, Reference re Supreme Court Act, ss. 5 and 6, [2014] 1 scr 433. On the necessity of representation of constitutional judges in all levels of power in a federal state, see Olivier Beaud, “De quelques particularités de la justice constitutionnelle dans un État fédéral,” in La notion de justice constitutionnelle, eds. Constance Grewe, Olivier Jouanjan, and Patrick Wachsmann (Paris: Dalloz, 2005), 70; Christophe Parent, Le concept d’État fédéral multinational: Essai sur l’union des peuples (Berne: Peter Lang, 2011), 242–4. Justin Trudeau, “Independent Advisory Board for Supreme Court of Canada judicial appointments,” http://pm.gc.ca/eng/news/2017/07/17 /independent-advisory-board-supreme-court-canada-judicial-appointments. Francis Delpérée, “Quelques propos sur la justice et la politique,” Journal des tribunaux (1997), 69. See Paul Errera, Traité de droit public belge (Paris: Giard and Brière, 1909), 221; Oscar Orban, Le droit constitutionnel de la Belgique, vol. 2 (Liège: Dessain; Paris: Giard and Brière, 1908), 524–6; Jean-Joseph Thonissen, La Constitution belge annotée, 3rd ed. (Brussels: BruylantChristophe and Cie, 1879), 119–20. scc, Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 rcs 3. Henri Brun, Guy Tremblay, and Eugénie Brouillet, Droit constitutionnel, 6th ed. (Cowansville: Yvon Blais, 2014), 851 (our translation). Barry Lee Strayer, Judicial Review of Legislation in Canada (Toronto: University of Toronto Press, 1968), 209. scc, Reference re Supreme Court Act, ss. 5 and 6, [2014] 1 scr 433. Olivier L. Courtemanche, “Les théories constitutionnelles de Louis-Philippe Pigeon: L’efficience du partage législatif des compétences et l’incrédulité face à la protection législative des droits fondamentaux,” Revue de droit de McGill 57 (2011): 41. See Jessie Choper, Judicial Review and the National Political Process (Chicago: University of Chicago Press, 1980): the author, professor emeritus at the University of Berkeley, favours review focused on fundamental rights – which he believes are not sufficiently represented in parliamentary hemicycles – as the Supreme Court should refrain from intervention on the constitutional division of powers. Eugénie Brouillet, La négation de la nation: L’identité culturelle québecoise et le fédéralisme canadien (Quebec: Septentrion, 2005), 84–5 (our translation).

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50 See mainly Yves de Montigny, “La Cour suprême du Canada et le partage des pouvoirs,” in The Supreme Court of Canada/La Cour suprême du Canada, edited by Gérald-A. Beaudoin (Cowansville: Yvon Blais, 1986), 77. 51 Henri Brun, Guy Tremblay, and Eugénie Brouillet, Droit constitutionnel, 416 (our translation). 52 Marie-France Rigaux and Bernadette Renauld, La Cour constitutionnelle (Brussels: Bruylant, 2008), 25 (our translation). 53 Eugénie Brouillet, La négation de la nation, 259. 54 Min Reuchamps, “Structures institutionnelles du fédéralisme belge,” in Le fédéralisme belge: Enjeux institutionnels, acteurs socio-politiques et opinions publiques, edited by Régis Dandoy, Geoffroy Matagne, and Caroline Van Wynsberghe (Louvain-la-Neuve: Academia-L’Harmattan, 2013), 36–7 (our translation). 55 Kris Deschouwer, “And the Peace Goes on? Consociational Democracy and Belgian Politics in the Twenty-First Century,” West European Politics 29 (2006): 903. 56 Mainly C.C., judgment n° 116/2009 of 16 July 2009, B.8. About this, see Anne Rasson-Roland and Marc Verdussen, “Le juge constitutionnel et la proportionnalité. Belgique,” Annuaire international de justice constitutionnelle 25 (2009): 124–8 (our translation). 57 C.C., judgment n° 27 of 22 October 1986. For other examples, see C.C., judgment n° 55/92 of 9 July 1992; judgment n° 58/95 of 12 July 1995. 58 C.C., judgment n° 119/2004 of 30 June 2004, B.3.2 (our translation); judgment n° 124/2010 of 28 October 2010, B.39.1; judgment n° 7/2012 of 18 January 2012, B.11.1; judgment n° 56/2016 of 28 April 2016, B.6.1. On the reception of federal loyalty by the Constitutional Court, see Paul Dermine, “La loyauté fédérale et la sixième réforme de l’État. Essai d’interprétation,” Administration publique (2015), 211–25; Joëlle Sautois, “Le concept de loyauté fédérale et la sixième réforme de l’État,” in Evoluties in het Belgisch coöperatief federalisme/Évolution dans le fédéralisme coopératif belge, edited by Emmanuel Vandenbossche (Brussels: la Charte; Bruges: die Keure, 2013), 85–98. 59 Paul Dermine, “La loyauté fédérale et la sixième réforme de l’État,” 212 (our translation). 60 The expression “body of constitutional rules” refers to all the rules and principles, generally but not necessarily constitutional, that can be sanctioned by the constitutional jurisdiction if they are not complied with. 61 Doc., Sén., sess. ord. 2012–13, n° 5-2232/5, 284. 62 Joëlle Sautois, “Le concept de loyauté fédérale et la sixième réforme de l’État,” 100 (our translation).

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63 Paul Dermine, “La loyauté fédérale et la sixième réforme de l’État,” 218. 64 It will be recalled that “special laws” require a two-thirds majority in the overall federal Parliament, as well as a simple majority in each of the two linguistic groups, hence effectively providing a veto to the French-speaking minority. 65 Johanne Poirier, “Souveraineté parlementaire et armes à feu: Le fédéralisme coopératif dans la ligne de mire?” Revue de droit de l’Université de Sherbrooke 45 (2015), 47. On the impact of the cooperative principle on interpretative doctrines, see Jean-François Gaudreault-Desbiens and Johanne Poirier, “From Dualism to Cooperative Federalism and Back? Evolving and Competing Conceptions of Canadian Federalism,” in The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press, 2017), edited by Peter Oliver, Patrick Macklem, and Nathalie Des Rosiers, 391–413. 66 See the sources cited in the previous note. 67 Gérald-A. Beaudoin, Le fédéralisme au Canada, 227 (our translation). 68 Francis Delpérée, “La Constitution, l’État et la Cour constitutionnelle,” in Le dialogue des juges: Mélanges en l’honneur du président Bruno Genevois (Paris: Dalloz, 2009), 326 (our translation). 69 Paul Martens, “Le rôle de la Cour d’arbitrage dans l’édification du fédéralisme en Belgique,” R.B.D.C. (2003), 4–5 (our translation). 70 Marc Uyttendaele, Trente leçons de droit constitutionnel (Brussels: Bruylant; Limal: Anthemis, 2014), 917 (our translation). 71 See C.C., judgment n° 119/2007 of 19 September 2007; judgment n° 68/2008 of 17 April 2008. 72 In 1988, the legislative section of the Council of State, in a non-binding advisory opinion, confirmed that concurrent powers cannot be reconciled with a regime of exclusive competencies, except if the action of the federal authority neither excludes not deprives of its substance the exercise of the power of regions or communities. Avis n° 18638/vr, of 13 July 1988: draft bill amending special law of institutional reform of 8 August 1980, Doc., Ch. repr., sess. extr. 1988, n° 516/1, 45. The Council of State provides a priori constitutional review of legislation, whether federal, regional, or community-based. 73 Céline Romainville, “Dynamics of Belgian Plurinational Federalism: A Small State under Pressure,” Boston College International and Comparative Law Review 38, (2015): 234–5. 74 In Belgium, the expression “state reforms” is used in both singular and plural forms. In the singular form, because it refers to one major state reform which incrementally transformed a unitary state into a federal one. This transformation occurred in six phases (1970, 1980, 1988–89, 1993, 2000–01, and 2012–14), which are referred to as state “reforms” in the plural form.

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Typically, each phase proceeds in two stages: a political one and legal one. In the first step, a number of political bodies engage in negotiation. After a certain period, the political agreement has to be translated into law by, on the one hand, an amendment to the constitution, and on the other hand, the adoption or amendment, concurrent or successive, of “institutional reform legislation.” Patricia Popelier and Koen Lemmens, The Constitution of Belgium: A Contextual Analysis (Bloomsbury: Hart Publishing, 2015), 205–6. See, for example, C.C., judgments n° 35/2003 and n° 36/2003 of 27 March 2003. Paul Martens, “De quelques contrôles juridictionnels sur les acteurs politiques,” Revue de droit de l’Université libre de Bruxelles (1997): 320 (our translation). See Francis Delpérée and Marc Verdussen, “L’égalité, mesure du fédéralisme,” in Le fédéralisme dans tous ses États: Gouvernance, identité et méthodologie, edited by Jean-François Gaudreault-Desbiens and Fabien Gélinas (Cowansville: Yvon Blais; Brussels: Bruylant, 2005), 199. See Johanne Poirier, “Layered Social Federalism: From the Myth of Exclusive Competences to the Categorical Imperative of Cooperation,” in Social Federalism: The Creation of a Layered Welfare State – The Belgian Case, edited by Bea Cantillon, Patricia Popelier, and Ninke Mussche (Cambridge/Antwerp /Portland: Intersentia, 2011), 279–90; Céline Romainville and Marc Verdussen, “The Enforcement of Federal Law in the Belgian Federal State,” in The Enforcement of eu Law and Values: Ensuring Member States’ Compliance, edited by Andras Jakab and Dimitry Kochenov (Oxford: Oxford University Press, 2017). See supra. See numerous examples quoted in Marc Uyttendaele, Trente leçons de droit constitutionnel (Brussels: Bruylant; Limal: Anthemis, 2014), 897–902. C.C. judgment n° 33/2001 of 13 March 2001. In Belgium, the legislative acts of constitutive units are called “décrets/decreten.” This should not be confused with “décrets/orders in council” in Canada, which acts are taken by the executive branch. C.C., judgment n° 67/2012 of 24 May 2012. The fundamental problem with the nursery and primary schools in Brussels is the insufficient resources of the French-speaking community, a deficit the Brussels-Capital Region tried to palliate in this case. The decision also illustrates the rejection of any power to spend outside one’s sphere of legislative competences in Belgium, in contrast to the tolerance regarding the “spending power” in Canada.

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86 In Canada, the “incidental effects” doctrine applies “when a provision, in pith and substance, lies within the competence of the enacting body but touches on a subject assigned to the other level of government.” See scc, Quebec (Attorney General) v. Lacombe, [2010] 2 rcs 453 at para 36. 87 See mainly C.C., judgment n° 9/2014 of 23 January 2014 (our translation). Note that “implied” powers only benefit constituent units, since the latter only have explicitly attributed powers, while the federal order enjoys residual powers, which plays a similar role. 88 A.-S. Bouvy, “La place des juridictions administratives régionales et communautaires dans la Belgique fédérale,” 262 (our translation). 89 scc, Canadian Western Bank v. Alberta, [2007] 2 rcs 3 at para 36. 90 Johanne Poirier, “Souveraineté parlementaire et armes à feu,” 126 (our translation). 91 scc, Reference re Supreme Court Act, [2014] 1 rcs, 433. 92 scc, Reference re Senate Reform, [2014] 1 rcs, 704. 93 Catherine Mathieu and Patrick Taillon, “Le fédéralisme comme principe matriciel dans l’interprétation de la procédure de modification constitutionnelle,” Revue de droit de McGill 60 (2015): 792 (our translation). 94 scc, Reference re Secession of Quebec, [1998] 2 rcs, 217. 95 Eugénie Brouillet and Yves Tanguay, “La légitimité de l’arbitrage constitutionnel en régime fédératif multinational: Le cas de la Cour suprême du Canada,” in Le fédéralisme multinational – Un modèle viable? edited by Michel Seymour and Guy Laforest (Berne: Peter Lang, 2011), 143 (our translation). 96 Jean Dabin, L’État ou le politique: Essai de définition (Paris: Dalloz, 1957), 32 (“vouloir-vivre collectif”). 97 Michel Maffesoli, La transfiguration du politique: La tribalisation du monde (Paris: Grasset, 1992), 19 (“être-ensemble”). 98 Bernard Touret, L’aménagement constitutionnel des États de peuplement composite (Quebec: Les Presses de l’Université Laval, 1972), especially 34 (our translation). 99 Marc Verdussen, “La Belgique. Un fédéralisme bipolaire mû par une dynamique de dissociation,” 211. See also Wilfried Swenden, Marleen Brans, and Lieven De Winter, “The Politics of Belgium: Institutions and Policy under Bipolar and Centrifugal Federalism,” West European Politics 29 (2006): 869; Alain-G. Gagnon and Dimitrios Karmis, “Federalism, Federation and Collective Identities in Canada and Belgium: Different Routes, Similar Fragmentations in Multinational Democracies,” Canadian Journal of Political Science 29 (1996): 435–68.

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6 Consensual Constitution? Contractual Thinking in the Interpretation of the Canadian Constitution Sébastien Grammond

introduction Is the Canadian constitution the result of a “compact”? This question has weighed on politicians, political scientists, and lawyers, among others, since the country was founded 150 years ago. For many anglophone scholars, any doubt was laid to rest a long time ago: compact theory is a fabrication devoid of any historical basis. In Quebec, though, many subscribe to an entirely opposite theory: the Canadian constitution is indeed a compact – one that was broken by the patriation of the Constitution in 1982 without Quebec’s consent. An unbridgeable gulf separates these two visions. In this chapter, we do not purport to provide any new arguments for settling this longstanding controversy in any definitive manner. Rather, we seek to show how the Supreme Court of Canada uses contractual thinking, that is, forms of reasoning typically employed when analyzing contracts or agreements, in order to interpret certain provisions of the Canadian Constitution, despite the predominant view of compact theory. While contractual thinking had already featured in the Reference re Secession of Quebec,1 it became a decisive factor in the two consultative opinions rendered in the spring of 2014, the Reference re Supreme Court Act (the case of the appointment of Justice Nadon)2 and the Reference re Senate Reform.3 We will also highlight the presence of contractual reasoning in certain decisions concerning language rights.

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The concept of contractual thinking renews the debate surrounding compact theory. As we will explain below, this debate has so far focused on the search for a historical “truth,” with the proponents of the theory emphasizing the many statements of politicians that lend it credence, while its detractors seek to demonstrate that, strictly speaking, the events of 1864–67 constitute neither a contract nor an international treaty. In contrast, our approach does not attempt to give a correct legal characterization to the events of the period. Rather, it focuses on how the contractual analogy is used today to justify judicial decisions concerning the Constitution. In this sense, history is considered as an object in a continual state of evolution that can nourish contemporary normative judgments. As with the rights of Indigenous Peoples,4 it cannot be ruled out that the judicial process influences the construction of history, either by orienting historical research towards issues identified by jurists or by creating an “official” history that acquires a heightened authority because it is told by the courts. In the first part of this chapter, we begin by specifying what we mean by contractual thinking before linking it to the various “compact theories” that were developed in order to give a political explanation of the Constitution of 1867. In the second part, we will explore how this type of thinking allows the Supreme Court to interpret various constitutional provisions whose origin can be traced back to an agreement. We will show how the court conceives of the constitution as a set of agreements, which will allow us to explain in detail the place of certain key actors, notably Quebec, but also that of Indigenous Peoples and linguistic minorities. Finally, we will show how contractual reasoning is used, sometimes surprisingly, to “repair” or “mend” certain “defects” in the development of the Constitution.

contractual thinking First of all, we need to clarify what we mean by contractual thinking. We use this concept to designate types of reasoning that, in law, fall within the contractual sphere. The distinctive character of the contract is that a legal obligation arises from the meeting of two minds or wills – in other words, from mutual consent. In this respect, a contract can be distinguished from legislation, an authoritative act that emanates from a unilateral will, in the sense that legislation applies to citizens, whether or not they have consented to it. The concepts of

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agreement, promise, consent, and a meeting of the minds therefore lie at the heart of contractual thinking.5 Applied to the political sphere, contractual thinking invites us to reflect in terms of egalitarian rather than hierarchical relations. Under such a framework, the state’s authority flows from an agreement, whereby citizens accept its authority, rather than from the existence of a supreme power – the sovereign – which confers parts of that power on subordinate entities and gives rise to a pyramid of norms. Incidentally, the idea of consensual and egalitarian relations lay at the heart of Indigenous diplomacy,6 and it was also central to the “ancient constitution” studied by James Tully.7 The concept is also at the heart of the practice of intergovernmental agreements within federations.8 Since the beginning of the modern era, contractual thinking has been used to justify the state’s authority by the consent of its citizens: this is the “social contract” of Locke or Rousseau.9 The contract in question is usually considered to be one between all citizens who renounce a part of their freedom in favour of the state. From this perspective, all citizens are also in a relationship with each other, thereby erasing all differences within a given population. Thus, even if the sovereignty of the state is of contractual origin, this origin is sublimated by the establishment of a hierarchical relationship between the sovereign state and the citizen. The largely fictitious nature of the social contract (as admitted by Rawls10) also helps to deprive this theory of any practical utility for the purposes of analyzing concrete political relations. This is why classical social contract theories lead, in practice, to justifying an institutional conception of the state and a setting aside of contractual thinking. In “complex” states (federal, multinational, etc.), such an institutional approach may prove unsatisfactory because it obscures the existence of different groups within the wider population that give rise to distinct political loyalties. Contractual thinking can then be pressed into service once again to explain the authority of the state not only as a result of an agreement reached by the citizenry, but also of an agreement between the various groups or key players that make up the country. In this sense, contractual thinking relates to the consociative theories of the state,11 by emphasizing negotiation and agreement as a means of ensuring coexistence between the different segments of the population. Certainly, using the concept of a contract to describe political relationships can give the impression of rigidity, which is often associated

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with law and legal concepts. After all, when we sign a contract, are we not locked into strict rules that are difficult to change? Let us dispel this fear right at the outset. Contractual thinking cannot be reduced to the application of contract law or to the reductionist image that can sometimes be made of it. On the one hand, the law is not as rigid as one may believe, and it has the means to adjust contractual obligations to different social or economic realities. As will be seen, the law itself offers examples in which contractual thinking is used in the absence of a contract in the strict sense. On the other hand, by using the concept of contractual thinking rather than that of a contract, the emphasis is placed on the type of reasoning rather than on the application of a specific set of legal rules. It should also be underscored that the use of contractual thinking to explain the state’s organic character or to interpret the constitution does not result in the complete exclusion of the institutional conception of the state. In practice, both conceptions can coexist and provide intellectual tools useful for understanding political relations. Superimposing two kinds of thinking is not foreign to the law. For example, in the case of business corporations, where the institutional conception prevails, article 313 of the Civil Code of Quebec12 states that “the bylaws of a legal person establish contractual relations between the legal person and its members.” It would also be consistent with theories of constitutional ambivalence, according to which it is possible to adopt a constitution while avoiding making decisions with respect to certain fundamental issues that concern the nature of the state,13 or indeed the idea that a country can be said to be “plurinational” when there are not only several national groups within it, but also several irreducible conceptions of the relations between these groups and the nature of the state.14 In the same way, Olivier Beaud15 proposes a federative theory based on both consensual origins and the establishment of an institutional architecture that transcends the contract between founding peoples. In short, contractual thinking does not claim exclusivity.

illustrations of “compact theory” in canada Compact theory is the principal means by which contractual thinking explains the origins of the Canadian Constitution. There are several variations of this theory, in that the adoption of the Constitution of 1867 can be seen as the result of an agreement between two founding

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peoples (anglophones and francophones), between the three colonies that federated, or between the four original provinces. The idea of a compact between anglophones and francophones, aimed at guaranteeing the distinct political existence of francophones, originated in the aftermath of the Conquest.16 The idea that the Constitution of 1867 was a compact finds support in numerous statements by the politicians of the time17 and in certain decisions of the Privy Council, which was then the final court of appeal for Canada.18 Compact theory was used to support various types of claims, with varying degrees of success. As early as the 1880s, the provinces wanted to come to an agreement amongst themselves to demand amendments to the Canadian Constitution as parties to the compact. The imperial authorities opposed such an approach, arguing that the federal government had by that time become a key player.19 In the 1920s, compact theory was used to justify claiming a provincial role in a proposed constitutional amending formula. This claim was a success, at least to the extent that, at the time of the adoption of the Statute of Westminster in 1931, London retained a role in amending the Canadian Constitution to protect provincial jurisdiction. During this period, English-Canadian intellectuals fiercely criticized compact theory.20 This criticism was based, in part, on legal arguments. It was impossible, the critics said, to find a specific constitutional text that would have been the subject of a formal agreement between the founding colonies. In any event, they were deprived of the ability to conclude an agreement that would be binding on the Imperial Parliament and, a fortiori, to conclude an international treaty. The creation of the Prairie provinces by the federal Parliament was also seen as an insurmountable obstacle to the idea that the provinces could, by way of a contract, create the federal state. It was also asserted that compact theory constitutes an interpretation given after the fact to the events of 1864–67, one which does not correspond to the intentions of the actors of the time.21 Since that time, although compact theory has generally been rejected in English Canada, it remains alive in Quebec. For example, in 1981, in its advisory opinion on the patriation of the Constitution, the Supreme Court expressed serious doubts about the validity of this theory, stating that it was not relevant to the interpretation of the constitutional text.22 The patriation of the Constitution the following year, over Quebec’s objections, has often been considered to be a breach of the federal compact.23

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Thus far, we have analyzed how contractual thinking has been used to understand anglophone-francophone relations or relations between the provinces and the federal state. It is an undeniable fact that Indigenous Peoples were excluded from the discussions that led to the adoption of the Constitution of 1867. Nevertheless, during the same period, the Canadian government maintained contractual relations with them, concluding treaties to open the land to colonization.24 It is true that these treaties were part of a colonial policy that sought to appropriate Indigenous Peoples’ lands, deprive them of their autonomous governance, and then assimilate them into Canadian society. However, from an Indigenous perspective, treaties constitute sacred commitments whose objective was to ensure the continuation of their way of life, one that was, and is, closely linked to the land. Treaties also had the effect of embedding newcomers into the Indigenous kinship networks, which resulted in obligations of mutual assistance. This means that these treaties convey a very precise conception of the nature of the Canadian state in which Indigenous Peoples retain their autonomy.

contractual thinking in supreme court decisions Different conceptions of the nature of the Canadian state have been advanced in public debate, intergovernmental relations, and academic reflection. Identifying these conceptions in Supreme Court decisions is of particular interest, not only because of the structuring effect that these decisions have on political and legal discourse, but also because the judges’ obligation to give reasons facilitates an analysis of the court’s arguments. We will therefore track the use of contractual thinking in the case law of the court. We will pay particular attention to the reasoning related to the interpretation of the constitution, the identification of the stakeholders, and what we will call the mending of the constitutional contract. In each case, we shall briefly outline certain characteristic traits of contractual thinking in the field of private law, and then illustrate its presence in the court’s decisions on constitutional matters. In particular, we shall attempt to emphasize the elements that, in law, distinguish contract-based reasoning – bilateral legal acts – from what applies to legislation – a unilateral act. This is where the difference between contractual thinking and institutional thinking

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becomes clear. It should also be recalled that this is not a question of proving a contract in the strict sense of the term, nor of seeking any historical truth as to the events of 1864–67. Our objective is rather to highlight the various types of reasoning or argument that can be linked to contractual thinking. “Contractual” Interpretation of the Constitution The use of contractual thinking as a tool of constitutional interpretation is conspicuous in the two advisory opinions given by the court in 2014. Some explanations may be useful in this regard. Legal texts do not, in and of themselves, apply to factual situations and their meaning is never entirely predetermined. The text must therefore be interpreted, which is to say that its meaning must be clarified before it can be applied to the factual situation under review.25 The legal interpretive exercise is framed by generally accepted methods, which can be roughly categorized as literal interpretation (according to the meaning of the words used in the text), contextual interpretation (according to the other parts of the text, other legal texts, or the environment in which the text was adopted), and teleological or purposive interpretation (according to the purpose pursued by the legislator). Developed mainly in the context of statutory interpretation – where the legislation to be interpreted is a unilateral act – the methods of interpretation have to undergo some adjustments when applied to bilateral acts such as contracts.26 As such, in a contract, the intention is twofold and even if there must be a meeting of the minds, the interests of the parties and the goals that each of them pursues are different. Moreover, article 1426 of the Civil Code of Quebec indicates that when interpreting a contract, one must consider the circumstances of its conclusion, which includes the negotiations that preceded it. The interpretation of a contract therefore considers the individuality of each party rather than resorting to the abstract concept of a single legislator. Contractual thinking is first reflected in the way in which the Supreme Court describes the origins of the Constitution Act, 1867.27 In the 1998 Reference re Secession of Quebec, the court employs a narrative framework based on the agreement and consent of the colonies concerned:

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On 1 September 1864, 23 delegates (five from New Brunswick, five from Nova Scotia, five from Prince Edward Island, and eight from the Province of Canada) met in Charlottetown. After five days of discussion, the delegates reached agreement on a plan for federal union. The salient aspects of the agreement may be briefly outlined. There was to be a federal union featuring a bicameral central legislature. Representation in the Lower House was to be based on population, whereas in the Upper House it was to be based on regional equality, the regions comprising Canada East, Canada West and the Maritimes. The significance of the adoption of a federal form of government cannot be exaggerated. Without it, neither the agreement of the delegates from Canada East nor that of the delegates from the maritime colonies could have been obtained.28 The Court stresses, moreover, the raison d’être of federalism: The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province. This is the case in Quebec, where the majority of the population is French-speaking, and which possesses a distinct culture. This is not merely the result of chance. The social and demographic reality of Quebec explains the existence of the province of Quebec as a political unit and indeed, was one of the essential reasons for establishing a federal structure for the Canadian union in 1867. The experience of both Canada East and Canada West under the Union Act, 1840 (UK), 3–4 Vict., c. 35, had not been satisfactory. The federal structure adopted at Confederation enabled French-speaking Canadians to form a numerical majority in the province of Quebec, and so exercise the considerable provincial powers conferred by the Constitution Act, 1867 in such a way as to promote their language and culture. It also made provision for certain guaranteed representation within the federal Parliament itself.29 This was certainly not the first time the Supreme Court had used the concept of an agreement or compromise to explain the basis of certain provisions of the Constitution. For example, the provisions on denom-

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inational schools (section 93), the judiciary (section 96), or language rights (in particular, sections 16 to 23 of the Canadian Charter of Rights and Freedoms30) have been described as being the result of negotiations.31 The Reference re Secession of Quebec, however, is different in that it used the contractual metaphor to both describe the origins of the Constitution of 1867 as a whole, and to identify one of its underlying principles: federalism. Although the court did not draw any practical implications in that case, subsequent decisions applied the principle of federalism in order to influence the interpretation of the division of powers in a manner that was favourable to the provinces.32 The court’s opinion is also known for singling out Quebec as the main “beneficiary” of federalism, even though the Maritime provinces were also concerned. This differentiation between the interests of each founding province is an element that distinguishes contractual thinking from the typical reasoning inherent to statutory interpretation. Indeed, the court does not interpret the Constitution Act, 1867 as the mere product of the will of the Imperial Parliament. Rather, it gives it a meaning that considers the situation and needs of each province, including those of Quebec. The two advisory opinions issued in 2014 provided an opportunity for the court to reconsider the consensual nature of various parts of the constitution. Contractual thinking is particularly evident in the Reference re Supreme Court Act. According to the court, the provision at issue in this case, section 6 of the Supreme Court Act,33 was intended to “enshrine the historical compromise that led to the creation of the court by narrowing the eligibility for the Quebec seats. Its [section 6] function is to limit the Governor in Council’s otherwise broad discretion to appoint judges, in order to ensure expertise in civil law and that Quebec’s legal traditions and social values are reflected in the judges on the Supreme Court, and to enhance the confidence of the people of Quebec in the Court.”34 The connection between section 6 and an agreement between Quebec and the rest of Canada is not without practical consequences. This, for the court, justifies a narrow interpretation of this statute. In the court’s view, “s. 6 leads to a more restrictive interpretation of the eligibility requirements in order to give effect to the historical compromise aimed at protecting Quebec’s legal traditions and social values.”35 In this case, the court also had to consider, for the very first time, the meaning of the constitutional amending formula adopted in 1982. Again, the court has accorded vital importance to the negotia-

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tions that preceded the adoption of this part of the Constitution. The specific issue to be determined by the court related to section 41(d) of the Constitution Act, 1982,36 which provides that any amendment to the constitution relating to “the composition of the Supreme Court of Canada” requires the consent of Parliament and the legislative assemblies of all the provinces. The difficulty stems from the fact that the Supreme Court Act is not formally part of the Canadian Constitution: it is instead an ordinary federal statute. In fact, nothing in the Constitution deals with the “composition of the Supreme Court of Canada.” The court had to consider therefore whether section 41(d) has the effect of protecting the present composition of the court from unilateral change,37 or whether it only contemplates the adoption of future constitutional provisions on that subject matter. In order to decide this question, the court adopts a line of reasoning that is clearly contractual. First, it points out that section 41(d) originates in the “April Accord” of 1981, a proposal advanced by eight provinces (including Quebec) that opposed the federal government’s plan to patriate the Constitution unilaterally. The court highlights the objectives pursued by these eight provinces by citing an explanatory note to the text of the April Accord. This is typical of contractual reasoning: understanding the intention of the parties to the contract through their statements and positions taken during negotiations. What is this objective in this case? Pointedly, the explanatory note to s. 41(d) states: “this clause would ensure that the Supreme Court of Canada is comprised of judges a proportion of whom are drawn from the Bar or Bench of Quebec and are, therefore, trained in the civil law” (9n9[d]). The intention of the provision was demonstrably to make it difficult to change the composition of the court, and to ensure that Quebec’s representation was given special constitutional protection.38 Although the rest of the reasoning is somewhat elliptical, its logic is straightforward. If the provinces (including Quebec) are portrayed as the authors of section 41(d), what about the other “party” to the constitutional contract, that is, the federal government? It is well known that the adoption of the Constitution Act, 1982 was made possible by the November 1981 compromise, according to which nine provinces agreed to an entrenched charter of rights, while the federal government accepted the amending formula proposed by the provinces. Thus, it can be assumed that the federal government accepted the provinces’ demands in the April Accord, thereby making

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“provincial intent” particularly relevant to understanding the meaning of the amending formula, including section 41(d). This is what allows the court to decide the issue before it: section 41(d) is not only about future constitutional amendments, it also protects the current composition of the court from unilateral changes that the federal Parliament might wish to make. Contractual thinking makes a somewhat subtler appearance in the Reference re Senate Reform. The narrative surrounding the negotiations that preceded the patriation of the Constitution is not directly related to an interpretation of the constitutional text. Critical elements of the Constitution are nevertheless described as being the result of an agreement, beginning with the Senate itself, that “lies at the heart of the agreements that gave birth to the Canadian federation,”39 and which had been the product of a “consensus.”40 This is also the case with the amending formula added to the Constitution in 1982. Although it condenses half a century of history into a single paragraph, the court is careful to recall that this amending formula was the subject of lengthy discussions, before noting in passing the episodes of the Fulton-Favreau formula of 1964 and the Victoria Charter of 1971.41 The court also referred to the role of the April Accord as a direct source of Part V of the Constitution Act, 1982. This history of a consensual formula allows the court to present “the political consensus that the provinces must have a say in constitutional changes that engage their interests” as an interpretive guide to Part V.42 On the main issue at stake in this case, namely the validity of the proposed “consultative” elections for the appointment of senators, the court uses reasoning that barely refers to the interests of the provinces. It was only at the very end of its reasons that the court reiterated that “ss. 38 and 42 of the Constitution Act, 1982 are intended to ensure that substantial provincial consent will be obtained for constitutional changes that engage provincial interests,”43 without specifically explaining the nature of the threatened provincial interest. It can be assumed that the interest at stake was not so much a question of maintaining the status quo as it was ensuring the participation of the provinces in the choice of an alternative. In opting for popular election, the contested bill ruled out another possibility: the appointment of senators as representatives of each province. However, the court also had to decide whether Parliament could unilaterally limit the term of office for senators. This time, the two ideas set out above are combined as follows: “The Senate is a core

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component of the Canadian federal structure of government. As such, changes that affect its fundamental nature and role engage the interests of the stakeholders in our constitutional design – i.e. the federal government and the provinces – and cannot be achieved by Parliament acting alone.”44 Contractual thinking is also present in the court’s reasons regarding the abolition of the Senate. The federal government argued that the Senate could be abolished using the “7/50” formula, because abolition would nullify the “powers of the Senate” and reduce the “number of members” to zero, two issues that explicitly fall under the 7/50 formula under section 42. To reject this claim, the court attempts to elucidate the intention of the “stakeholders,” in particular by examining the negotiating history for the patriation of the Constitution. The court noted that the negotiations in the 1970s had dealt with several plans for Senate reform, but that “these proposals assumed the continued existence of an upper chamber.”45 This is what allows the court to give a narrower interpretation to section 42, which refers only to the reform of the Senate and not to its abolition.46 Indeed, the court tells us that “abolition of the Senate was not on the minds of the framers of the Constitution Act, 1982.”47 This line of reasoning can be seen as running in parallel with article 1431 of the Civil Code, which states that “the clauses of a contract cover only what it appears that the parties intended to include, however general the terms used.”48 Moreover, the court has taken advantage of this to develop a theory of the constitutional status quo, whereby the provinces and the federal government have agreed that certain elements of the constitutional structure be preserved pending agreement as to their reform.49 In recent decades, the Supreme Court has been called upon a number of times to rule on another part of the constitution that resulted from an agreement which allowed for the annexation of Rupert’s Land and the Northwest Territory, and the creation of Manitoba, in 1870. Indeed, even though federal politicians at the time attempted to hide this reality, the Manitoba Act, 187050 was the result of an agreement with the delegates of the provisional government of the territory, led by Louis Riel. This act is now part of the Canadian Constitution. Over the years, however, the court has been somewhat hesitant about how exactly to characterize this agreement. In 1985, in Reference re Manitoba Language Rights,51 the court noted the negotiations between the delegates of the provisional government and the federal government, but merely asserted that certain provisions of the “Bill of Rights” claimed

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by the provisional government had been “re-drafted by the Crown lawyers in Ottawa and included in a Bill to be introduced in Parliament.”52 Eighteen years later, in the Blais case, the court was hardly more positive, referring to the Métis as “negotiating partners [of the federal government] in the entry of Manitoba into Confederation.”53 However, in 2013, in the Manitoba Métis Federation case, the court offers a much more detailed account of the events of 1869–70, culminating in the finding that “the parties settled on a grant.”54 Yet, when deciding the scope of the provision at issue in this case, section 31 of the Manitoba Act, 1870, the court wavers. It asserts that this provision is “treaty-like” and that it “sets out solemn promises”55. The court says that while it is not a treaty in the strict sense,56 it is still a “constitutional obligation to an Aboriginal group.”57 Finally, in 2015, in Caron, both for the majority and the dissenting judges, the contractual nature of the Manitoba Act, 1870 is no longer in doubt. According to the majority, “the end result of the negotiations regarding legislative bilingualism was the enactment of the Manitoba Act, 1870.”58 For their part, the minority judges placed this agreement in a much broader perspective, offering a master class in contractual thinking: “The Constitution of Canada emerged from negotiations and compromises between the founding peoples, and continues to develop on the basis of similar negotiations and compromises. Such compromises are achieved when parties to the negotiations make concessions in pursuit of a mutual agreement and reach a meeting of the minds. Therefore, our reading of constitutional documents must be informed by the intentions and perspectives of all the parties, as revealed by the historical evidence.”59 What separates the majority from the dissenting judges in this case is a different interpretation of the scope of the agreement in question. According to the majority, the agreement was limited to the content of the Manitoba Act, 1870, while for the dissenting judges, the agreement covered the entire territory annexed to Canada (including Alberta and Saskatchewan) and was part of a broader set of constitutional documents. What is striking, however, is that both the majority and dissenting judges employ techniques typical of contractual interpretation. The majority relies on the negotiations themselves to say that several of the demands of the provisional government had to be dropped,60 whereas the minority concludes that Canada’s lack of formal objection shows that it had implicitly accepted demands for bilingualism.61 The judges also examined the subsequent conduct of the

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parties, highlighting elements that supported their respective theories.62 The latter technique is characteristic of the interpretation of contracts in civil law, as reflected in article 1426 of the Civil Code. What this disagreement tells us is that it is more difficult for judges to think of the Constitution in contractual terms in the absence of a historical framework that is widely known and generally accepted by all.63 The links between the “rebellion” or “resistance” of 1869–70, the negotiations between the delegates of the provisional government and the Canadian government, and the enactment of the Manitoba Act, 1870 have long been hidden from view. For example, in his major work on the history of the Canadian Constitution, Kennedy64 described the Manitoba Act, 1870 as a unilateral decision of Parliament. Its consensual origins were revealed to the general public only through the work of historian George Stanley,65 who would later discover and publish the journal of Father Ritchot,66 which offered direct evidence of the content of the negotiations. These historical roots are much less known than those of the 1867 Constitution, which probably explains the reluctance of the majority in Caron to draw interpretive consequences, and the hesitation of the court in its decisions made between 1985 and 2013 to state explicitly that there was an agreement. Contracts and Multiple Parties Another aspect that distinguishes contractual from institutional thinking is its inherent capacity to differentiate between the participants to a contract and to single out their interests. In other words, contractual thinking makes it possible to respect the specificity of each key player in the federation. The contrast between contracts and business corporations illustrates this point. In a business corporation, which is usually analyzed from an institutional point of view, all shareholders of the same class are deemed to have the same rights, regardless of the reasons for which they acquired their shares. On the other hand, nothing prevents the parties to a contract from organizing their relations asymmetrically. Moreover, even if the interpretation of a contract is based on the common intention of the parties,67 it is well known that this intention stems from the meeting of distinct interests. In France, a theory of groups of contracts or contractual groupings has been developed based on the assumption that a single economic operation can result in a multiplicity of contracts between

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various parties. It follows that a contract that is part of such a whole cannot be analyzed in isolation.68 Applied to the Constitution, contractual thinking makes it possible to isolate the interests of certain key actors, whom the court calls “participants in Confederation”69 or “stakeholders in Canada’s constitutional design,”70 and to understand the raison d’être of certain provisions, even when their text is drafted in such a way that does not distinguish between different provinces. It is therefore possible to uncover the implicit asymmetries of the Constitution. This process can also be applied independently to different provisions, such that the “parties” to one provision of the Constitution are not necessarily the same as for other provisions. This allows us to solve the problem of identifying the parties to the federal compact. It is not necessary to choose between the two competing versions of compact theory, that is to say a compact between the founding provinces or one between anglophones and francophones. The constitution can instead be seen as supporting both at the same time. In Beckman, Justice Marie Deschamps of the Supreme Court also suggested that the Constitution is the result of the superimposing of several compacts: “this Court identified four principles that underlie the whole of our constitution [and which] are interwoven in three basic compacts: (1) one between the Crown and individuals with respect to the individual’s fundamental rights and freedoms; (2) one between the non-Aboriginal population and Aboriginal peoples with respect to Aboriginal rights and treaties with Aboriginal peoples; and (3) a ‘federal compact’ between the provinces.”71 The seeds of this method were sown in the 1998 Reference re Secession of Quebec, where federalism was justified notably by the linguistic and cultural distinctiveness of Quebec. It is, however, in the 2014 Reference re Supreme Court Act that the use of contractual thinking to discern specific dimensions in provisions worded in general terms is most clearly used. It is to be recalled that the court had to define the meaning of the expression “composition of the Supreme Court of Canada” in the list of subject matters found in section 41 of the Constitution Act, 1982 which can be amended only with the unanimous consent of the provinces. The court identifies the objective underlying this provision by insisting on the special bilateral relationship between Quebec and the rest of Canada: “the intention of the provision was … to ensure that Quebec’s representation was given special constitutional protection.”72 In fact, this is related, according to the court, to the desire to respect

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another historic bilateral agreement concerning the representation of Quebec that was reached at the time of the court’s creation in 1875. Although section 41 requires the unanimous consent of the provinces, in reality only Quebec is concerned: “requiring unanimity for changes to the composition of the Court gave Quebec constitutional assurance that changes to its representation on the Court would not be effected without its consent.”73 Considering unanimous consent as a veto for some provinces is not a novel idea. In the Meech Lake Accord, Quebec’s “right of veto” was in fact an extension of the requirement of unanimous consent to certain matters. In the Reference re Senate Reform, the court refers to the connection between unanimous consent and the right of veto.74 The opinion on Senate reform may seem insensitive to Quebec’s unique situation. The reasoning of the court is based on an apparently generic provincial interest with respect to the constitution of the Senate. A specific role for Quebec emerges only when the court deals with a side issue. The Constitution Act, 1867 provides that Quebec – and only that province – is divided into senatorial districts. Each Quebec senator is appointed for a specific district and, according to section 23(6), s/he must either reside in that district or possess real property valued at more than four thousand dollars in that district. In its advisory opinion, the Supreme Court ruled that this provision was subject to the bilateral amendment formula under section 43, which means that this provision and the senatorial districts of Quebec cannot be amended without the consent of Quebec. In practice, this also means that the number of Quebec senators cannot be reduced without Quebec’s consent. This is a form of veto power that goes beyond what is set out in sections 38 and 42 and applies only to Quebec. The practical significance of this right of veto stems from the fact that almost every Senate reform proposed in the last fifty years has involved a reduction in the number of seats for Quebec. The court’s opinion therefore guarantees Quebec that such reforms could not be imposed without its consent. Thus, in the two advisory opinions rendered in 2014, the Supreme Court gave consideration to Quebec’s special place as a key player in a way that is usually not apparent in its division of powers jurisprudence. Even though the court has given more importance to the balance of federalism in recent years, it did so without mentioning Quebec’s specificity.75 Moreover, the principle of federalism alone does not justify a particular role for Quebec in the constitutional amend-

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ment process, as demonstrated by the 1982 advisory opinion on Quebec’s veto.76 On the other hand, the analysis of the court’s recent advisory opinions shows that the principle of federalism can be enriched by taking into account the specificity of Quebec.77 Beyond the distinctive character of Quebec, does contractual thinking give a voice to other key players in the federation? In the two advisory opinions of 2014, the reference to “participants in Confederation” involved in the constitutional amendment process refers only to the federal state and the provinces. However, other decisions refer to agreements involving players other than the provinces. In Caron, as mentioned above, the dissenting judges used the expression “founding people” to describe the Métis who agreed to join Canada in 1870.78 Similarly, language rights decisions also spoke of the consensual origins of certain sections of the Canadian Charter of Rights and Freedoms. It is not possible in the context of the present chapter to provide a complete analysis of the discussions that preceded the adoption of section 23 of the Charter, which deals with the right to education in the language of the minority.79 For our purposes, it suffices to point out that the precursor to this provision would have allowed parents across Canada to choose the language of instruction for their children: this is the principle of free choice. From the early 1970s, it became clear that Quebec wanted to adopt a language policy based on the restriction of free choice and on the obligation of francophone and allophone parents to have their children educated in French. A constitutional provision enshrining free choice would have prevented Quebec from pursuing such a policy. That is why Quebec tried to convince the other provinces in the 1970s that a guarantee of language of instruction had to be formulated in terms of the rights of members of the linguistic minority in each province and not in terms of freedom of choice. In the Gosselin80 and Solski81 decisions rendered in 2005, the Supreme Court was sensitive to the “contractual” origin of section 23 of the Charter, particularly in the following passage: The current wording of s. 23 undoubtedly reflects the difficulties encountered in the discussions and negotiations that led up to the patriation of the Canadian Constitution in 1982. In formulating those constitutional rights, the framers could not turn a deaf ear to the recognition sought by Francophones outside Quebec for substantive equality in education. It was also impossible to ignore

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the concern felt by Quebec’s Anglophone minority as a result of the language disputes arising out of the “Quiet Revolution,” which had culminated in the enactment of the [Charter of the French Language]. Finally, the anxiety of a significant segment of Quebec Francophones about the future of their language was a known fact, if only because of the upheavals it had caused in Canadian politics, and even more so in Quebec politics.82 In this excerpt, there is a recognition of the key actors – francophone minorities outside Quebec and the English-speaking minority of Quebec, as well as the francophone majority in Quebec – which the court describes a few paragraphs earlier as also being a minority in Canada. Although these key actors are not formal participants in the constitutional amending formula, the court is aware that their interests have been the subject of major compromises in section 23. The court rejects any interpretation that would call into question this historic and fundamental compromise by enshrining the free choice of the language of instruction in Quebec.83 It might be argued that it is somewhat ironic to speak of an agreement or compromise, when we know that Quebec did not consent to the Constitution Act, 1982, and that section 23 was one of the reasons for its opposition. However, contractual reasoning can be used even in the absence of a contract in the strict sense, and we will now consider this process. Giving Meaning to the “Contract” and Mending a Relationship The civil law provides for remedies in the event of non-performance of contracts or when a contract’s formation is affected by a defect. Thus, finding a defect of consent may lead to the annulment of a contract and to the restitution of prestations already performed. Under certain conditions, the same applies to non-performance. However, all difficulties in the formation or execution of a contract do not lead to the radical remedy of annulment. Paul-André Crépeau has emphasized the existence of the principle of “favor contractus,” “according to which, as far as possible, measures should be taken to promote validity and enforcement, in short, the survival rather than the nullity or extinction of a contract.”84 For example, a situation where the parties do not agree on the meaning to be given to a contract can be conceptualized either as a defect of consent, which compromises the very

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existence of the contract, or as a problem of interpretation, which ensures its survival. The law even provides tools to render justice in the absence of a contract. For example, the concept of unjustified enrichment, which is often referred to as a “quasi contract,” obliges a person to compensate another for situations where the former has been enriched at the expense of the latter.85 In corporate law, recourse in the event of abuse (commonly referred to as an “oppression remedy”) is based on the identification of reasonable expectations of interested parties.86 These expectations are not limited to the written agreements between the parties. They can also be inferred from the relationships between the parties, the type of corporation involved, the usual practices or the behaviour of the parties, and so on. These expectations may also change as the circumstances of the corporation in question changes. In short, in these cases, the parties’ obligations flow from their conduct and not from their consent. This is to say that the law is not lacking when it comes to ruling on situations where consent is vitiated or fails entirely. The concept of “hypothetical negotiation” has sometimes been used to describe judges’ reasoning in such situations: they seek to determine what the parties would have agreed upon if they had considered the issue that is now the subject of litigation.87 The Supreme Court’s jurisprudence on treaties with Indigenous Peoples, in particular “historic” treaties concluded in the nineteenth century, provides examples of this process of contractual mending. These treaties have given rise to considerable controversy, particularly with regard to the surrender of land rights contained in their English text.88 However, transcripts of the negotiations and the oral tradition of the peoples concerned show that this clause was not really discussed during the negotiations. For Indigenous signatories, it was more a matter of sharing the land, especially for agricultural purposes. Considering these difficulties, the Supreme Court has adopted principles of interpretation requiring greater reliance on the spirit of the treaty than on its letter, taking into account the oral tradition of the people concerned, and trying to understand what the Indigenous party would reasonably have understood.89 In a case where an Indigenous group claimed that the Crown had not adhered to a treaty, the court preferred to rule otherwise, while preserving the group’s claim against the Crown based on the Crown’s breach of the treaty.90 In another case where the territorial scope of a treaty was at issue, the court proceeded with a hypothetical negotia-

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tion exercise to determine what the parties had agreed upon.91 Finally, the court held that the state had an obligation to consult with Indigenous Peoples who had signed a treaty before authorizing a natural resource extraction project, even if the territory concerned had been subject to a “surrender” by way of a historic treaty.92 Without saying so explicitly, the court mitigates the effects of a clause whose meaning is particularly controversial. Recent Supreme Court decisions in constitutional matters also lend support to this form of contractual justice without a meeting of the minds. As mentioned above, the court has had to interpret the amending formula contained in the Constitution Act, 1982, which was adopted without the consent of Quebec. In the Reference re Supreme Court Act, the issue was whether the phrase “composition of the Supreme Court of Canada” (found in section 41(d)) referred to the current rules governing that composition or whether it was instead aimed only at future additions to the constitution. In deciding the issue, the court shows that Quebec had in fact consented to what has become section 41(d), and that this provision is primarily, and indeed exclusively, aimed at protecting the interests of Quebec. As such, the court gives this provision a meaning consistent with those interests. This is articulated in the following way. The court begins by describing the amending formula contained in Part V of the Constitution Act, 1982, as the result of a request by the provinces in the “April Accord” discussed above. The court takes care to point out that Quebec was a signatory to this agreement. The court can then analyze Part V as if Quebec had consented to it and as if it reflected certain demands from Quebec. The phrase “the intention of this provision” or the reference to an abstract “intention” somewhat attenuates this specificity, but when this intention is described more precisely, there is no room for confusion: “the intention of the provision was demonstrably … to ensure that Quebec’s representation was given special constitutional protection.”93 The court then assesses the federal government’s argument that section 41(d) applies only to future additions to the constitution. To rebut this claim, the court inquires into the potential reaction of the provinces, particularly Quebec, in the following terms: Accepting this argument would have two practical consequences that the provinces could not have intended. First, it would mean that Parliament could unilaterally and fundamentally change the

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court, including Quebec’s historically guaranteed representation, through ordinary legislation. Quebec, a signatory to the April Accord, would not have agreed to this, nor would have the other provinces.94 This is a hypothetical negotiating exercise, which includes not only the provinces that reached an agreement with the federal government in November 1981, but also Quebec, which was among the provinces that had put forward a text that became the direct predecessor of Part V. In a way, the court finds itself rebuilding a contractual arrangement based on the interests of the parties and the positions that are presumed to be non-negotiable, such as the protection of Quebec’s representation. The previous “contracts” also play a part in this reconstruction: elsewhere in its opinion, the court recalls that the creation of the court in 1875 was made possible only though an agreement aimed at the preservation of the civil law of Quebec.95 Maintaining the place of the civil law was also one of the important compromises that enabled Quebec to adhere to the Constitution Act, 1867. The Reference re Senate Reform does not employ this technique as explicitly. However, as noted above, Quebec has a right of veto over a wide range of reform options for this institution. Quebec also emerges with a right of veto over any change in the composition of the Supreme Court. Thus, it would appear that the Supreme Court was prepared to give Quebec, by way of judicial interpretation, a number of elements that were included in the Meech Lake Accord (such as the right of veto or the recognition of Quebec as a distinct society).96 However, this exercise of judicial reconstruction does not guarantee that the perspectives of minorities will be fully considered. The treatment of the 1870 agreement between the Métis and Canada shows that the court cannot undertake such an exercise in the absence of a version of history that is sufficiently well established to constitute a basis for its decisions. Thus, the new historical interpretations of the events of 1869–70 eventually led all the judges of the court in the Caron case in 2015 to explicitly recognize that an agreement was reached between the Métis and Canada, something that the court had been careful not to say in its earlier decisions. Still, the judges were unable to agree on the precise scope of this agreement. The majority held that it was limited to the Manitoba Act, 1870, reflecting the understanding of the events of 1870 that had become prevalent in recent years. Meanwhile, the minority would have concluded that the

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agreement implicitly aimed to ensure bilingualism in all the territories annexed to Canada in 1870, based on documents and other historical evidence that had emerged only recently. Be that as it may, the dualistic explanation of Confederation is sufficiently well known in Quebec, and has even been taken up by certain English-speaking Canadian authors,97 such that the court has been able to draw inspiration from it. The work of reconstructing historical compromises is therefore as much a question for historians as it is for judges.

conclusion Has the impossible happened? It has often been argued that the adoption of the Constitution Act, 1982 marked the victory of a centralizing vision of Canada which excluded any consideration of the existence of national pluralism within the country.98 And yet we have the Supreme Court explicitly using contractual thinking to explain the origins of the Canadian Constitution and the functioning of some of its components, including the amending formula adopted in 1982. This manner of thinking is sufficiently flexible to encompass elements of interest to all provinces and elements specific to Quebec, marking the return of a dualistic analysis that was thought to be banished forever. Contractual thinking is broad enough to encompass other key players in the federation, including Indigenous Peoples and linguistic minorities. One can wonder about the reasons for this major reversal. It may be that the adoption of a constitution, despite its symbolic and practical importance, is not sufficient to impose a particular conception of the country and to dismiss other conceptions that are firmly anchored in the minds of a segment of the population. It may also be that the outcome of the Quebec referendum of 1995 led the Supreme Court judges to become aware of the risks associated with the denial of the multinational character of the country. Finally, the parallel development of a theory of Indigenous Peoples’ rights based on their national specificity – which is explicitly recognized by the Constitution Act, 1982 – has led Canadian authors99 to develop a general theory of minority rights that may include both Indigenous Peoples and Quebec. Presumably the court was aware of these developments as well. It may also be thought that contractual thinking differs from the usual methods of interpreting the Canadian constitution according to the “living tree” doctrine, which is to say that the meaning of the Con-

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stitution was not frozen at the moment of its adoption. In this context, one could fear that contractual thinking would have the effect of freezing the meaning and scope of the Constitution in the distant past. Yet our study demonstrates the flexibility of contractual thinking, which makes it possible to envisage current situations while taking into account the interests of the various participants in Confederation, and which even makes it possible to “mend” tensions in the relationship. Contractual thinking has the advantage of emphasizing the mutual promises that underlie the foundation of the country, while at the same time acknowledging the need for the majority group to fulfill its promises to minority groups.100 Be that as it may, the reinstatement of contractual thinking in constitutional jurisprudence is significant. It has led the Supreme Court to describe Quebec as having distinct “social values” and to give it a right of veto over certain types of reforms of the Senate and the Supreme Court by adopting an interpretation of the Constitution that had not reached consensus in the past. It is to be recalled that these elements were part of the Meech Lake Accord. The use of contractual discourse is likely to have long-term symbolic effects. Indeed, decisions of the Supreme Court are often brandished as evidence of the historical assertions they contain. The decisions considered here could therefore ultimately enhance the legitimacy of a multinational reading of the Canadian Constitution.

notes 1 2 3 4 5 6

7 8

Reference re Secession of Quebec, [1998] 2 scr 217. Reference re Supreme Court Act, ss. 5 and 6, 2014 scc 21, [2014] 1 scr 433. Reference re Senate Reform, 2014 scc 32, [2014] 1 scr 704. Arthur J. Ray, Aboriginal Rights Claims and the Making and Remaking of History (Montreal and Kingston: McGill-Queen’s University Press, 2016). Stephen A. Smith, Contract Theory (Oxford: Oxford University Press, 2004). Robert A. Williams, Linking Arms Together: American Indian Treaty Visions of Law and Peace (New York: Routledge, 1997); Leanne Simpson, “Looking After Gdoo-naaganinaa: Precolonial Nishnaabeg Diplomatic and Treaty Relationships,” Wicazo Sa Review 23, no. 2 (2008): 29–42. James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995). Johanne Poirier and Cheryl Saunders, “Comparative Experience of Inter-

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governmental Relations in Federal Systems,” in Intergovernmental Relations in Federal Systems: Comparative Structures and Dynamics, edited by Johanne Poirier, Cheryl Saunders, and John Kincaid (Toronto: Oxford University Press, 2015), 440–98, section II.4. Martin Loughlin, Foundations of Public Law (Oxford: Oxford University Press, 2010). John Rawls, A Theory of Justice, rev. ed. (Cambridge, ma: Belknap Press of Harvard University Press, 1999). Arend Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries, 2nd ed. (New Haven: Yale University Press, 2012). Civil Code of Quebec, sq 1991, c 64. Hanna Lerner, Making Constitutions in Deeply Divided Societies (Cambridge: Cambridge University Press, 2011); Jeremy Webber, The Constitution of Canada: A Contextual Analysis (Oxford: Hart, 2015); Robert Vipond, “1867: Confederation,” in Oxford Handbook of the Canadian Constitution, edited by Peter Oliver, Patrick Macklem, and Nathalie Des Rosiers (New York: Oxford University Press, 2017), 83. Robert Schertzer, The Judicial Role in a Diverse Federation: Lessons from the Supreme Court of Canada (Toronto: University of Toronto Press, 2016). Olivier Beaud, Théorie de la fédération (Paris: Presses universitaires de France, 2009). George F.G. Stanley, “Le journal de l’abbé N.-J. Ritchot – 1870,” Revue d’histoire de l’Amérique française 17, no. 4 (1964): 537; see also Jean-François Caron, “Le Québec et la Confédération: Le fédéralisme et la théorie du pacte,” in Le Canada français et la Confédération, edited by Jean-François Caron and Marcel Martel (Quebec: Presses de l’Université Laval, 2016), 29. Richard Arès, Dossier sur le Pacte fédératif de 1867 (Montreal: Bellarmin, 1967). Sébastien Grammond, “Compact Is Back: The Supreme Court of Canada’s Revival of the Compact Theory of Confederation,” Osgoode Hall Law Journal 53, no. 3 (2016): 799–823. Peter H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People?, 3rd ed. (Toronto: University of Toronto Press, 2004), 40. See, among others, Norman McLeod Rogers, “The Compact Theory of Confederation,” The Canadian Bar Review 9, no. 6 (1931): 395; Donald Creighton, “The Myth of Biculturalism,” in Towards the Discovery of Canada: Selected Essays (Toronto: Macmillan, 1972), 256. Ramsay Cook, Provincial Autonomy, Minority Rights and the Compact Theory, 1867–1921. Studies of the Royal Commission on Bilingualism and Biculturalism (Ottawa: The Commission, 1967); Stéphane Paquin, L’invention d’un mythe: Le pacte entre deux peuples fondateurs (Montreal: vlb éditeur, 1999).

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22 Re Resolution to Amend the Constitution, [1981] 1 scr 753 at 803. 23 For example, Eugénie Brouillet, La négation de la nation: L’identité culturelle québécoise et le fédéralisme canadien (Quebec: Septentrion, 2004). 24 Sébastien Grammond, “Treaties as Constitutional Agreements,” in Oxford Handbook of the Canadian Constitution, edited by Peter Oliver, Patrick Macklem, and Nathalie Des Rosiers (New York: Oxford University Press, 2017), 305. 25 Pierre-André Côté, The Interpretation of Legislation in Canada, 4th ed. (Toronto: Carswell, 2011). 26 Sébastien Grammond, “The Interpretation of Contracts in Civil Law,” Supreme Court Law Review (2d) 52 (2010): 411–47; Vincent Caron, Jalons pour une théorie pragmatique de l’interprétation du contrat: Du temple de la volonté à la pyramide de sens (Montreal: Thémis, 2017). 27 Constitution Act, 1867 (UK), 30 and 31 Victoria, c 3. 28 Reference re Secession of Quebec, paras 36–7. 29 Ibid., para 59. 30 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 31 See, e.g., Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 scr 1148 at 1173–4 (Wilson J.); MacMillan Bloedel Ltd v. Simpson, [1995] 4 scr 725 at 759, para 51 (McLachlin J., dissenting). 32 In particular, Canadian Western Bank v Alberta, 2007 scc 22, [2007] 2 scr 3. 33 Supreme Court Act, rsc 1985, c S-26. 34 Reference re Supreme Court Act, ss. 5 and 6, para 59. 35 Ibid., para 69. 36 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 37 This is what we have called the “protective function” of the constitutional amending formula: Sébastien Grammond, “The Protective Function of the Constitutional Amending Formula,” Review of Constitutional Studies 22, no. 2 (2017): 171. 38 Reference re Supreme Court Act, ss. 5 and 6, para 92. The “note” in question is a document drafted by the provinces. 39 Reference re Senate Reform, para 1. 40 Ibid., para 17. 41 Ibid., para 30. 42 Ibid., para 31. 43 Ibid., para 67. 44 Ibid., para 77. 45 Ibid., para 18.

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64 65 66 67 68 69 70 71 72 73 74 75

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Ibid., para 99. Ibid., para 101. Civil Code of Quebec, s 1431. Reference re Senate Reform, para 100; see also Reference re Supreme Court Act, ss. 5 and 6, para 100. Manitoba Act, 1870, SC 1870, c 3 [reprinted in rsc, 1985, App II, No 8]. Re Manitoba Language Rights, [1985] 1 scr 721. Re Manitoba Language Rights, 731. R v Blais, [2003] 2 scr 236, 2003 scc 44, para 33. Manitoba Metis Federation Inc v Canada (Attorney General), 2013 scc 14, [2013] 1 scr 623, para 30. Manitoba Metis Federation Inc v Canada (Attorney General), para 92. Ibid., para 93; see Grammond, “Treaties as Constitutional Agreements,” 305. Manitoba Metis Federation Inc v Canada (Attorney General), para 94. Caron v Alberta, 2015 scc 56, [2015] 3 scr 511, para 58. Caron v Alberta, para 235. Ibid., paras 68–9. Ibid., paras 173, 189–92. Ibid., paras 64, 75–80, 196–205. See Mark C. Power, François Larocque, and Darius Bossé, “Constitutional Litigation, the Adversarial System and Some of Its Adverse Effects,” Review of Constitutional Studies 17, no. 2 (2012): 1. William Paul McClure Kennedy, The Constitution of Canada 1534–1937, 2nd ed. (London: Oxford University Press, 1938). George F.G. Stanley, The Birth of Western Canada: A History of the Riel Rebellions, 2nd ed. (Toronto: University of Toronto Press, 1960 [1936]). Stanley, “Le journal de l’abbé N.-J. Ritchot – 1870,” 537. Civil Code of Quebec, s 1425. Pierre-Gabriel Jobin, “Comment résoudre le casse-tête d’un groupe de contrats?,” Revue juridique Thémis 46, no. 9 (2012): 9. Reference re Secession of Quebec, para 69. Reference re Senate Reform, paras 48, 77, and 82. Beckman v Little Salmon/Carmacks First Nation, 2010 scc 53, [2010] 3 scr 103, para 97. Reference re Supreme Court Act, ss. 5 and 6, para 92. Ibid., para 93. Reference re Senate Reform, para 41. See, for example, Canadian Western Bank v Alberta, or Reference re Securities Act, 2011 scc 66, [2011] 3 scr 837, in which the federal initiative was challenged by Quebec and Alberta; see also Jean-François Gaudreault-DesBiens

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and Johanne Poirier, “From Dualism to Cooperative Federalism and Back? Evolving and Competing Conceptions of Canadian Federalism,” in The Oxford Handbook of the Canadian Constitution, edited by Peter Oliver, Patrick Macklem, and Nathalie Des Rosiers (Oxford: Oxford University Press, 2017), 391. Jean-François Gaudreault-DesBiens, “The ‘Principle of Federalism’ and the Legacy of the Patriation and Quebec Veto References,” Supreme Court Law Review (2d) 54 (2011): 77. See also Sébastien Grammond, “Louis LeBel et la société distincte,” Cahiers de droit 57 (2016): 251. Caron v Alberta. Sébastien Grammond, Identity Captured by Law: Membership in Canada’s Indigenous Peoples and Linguistic Minorities (Montreal and Kingston: McGillQueen’s University Press, 2009), 152–71. Gosselin (Tutor of) v Quebec (Attorney General), 2005 scc 15, [2005] 1 scr 238. Solski (Tutor of) v Quebec (Attorney General), 2005 scc 14, [2005] 1 scr 201. Solski (Tutor of) v Quebec (Attorney General), para 9. Gosselin (Tutor of) v Quebec (Attorney General), para 2; see also Johanne Poirier, “Fédéralisme coopératif et droits linguistiques au Canada: Peut-on ‘contractualiser’ le droit des minorités ?” in Constitutionnalisme, droits et diversité: Mélanges en l’honneur de José Woehrling, edited by Alain-G. Gagnon and Pierre Noreau (Montreal: Thémis, 2017), 317. Paul-André Crépeau, Les Principes d’unidroit et le Code civil du Québec: Valeurs partagées? (Toronto: Carswell, 1998), 12. Translated by the author. Civil Code of Quebec, s 1493. Raymonde Crête and Stéphane Rousseau. Droit des sociétés par actions, 3rd ed. (Montreal: Thémis, 2011), 711–26. Ejan Mackaay and Stéphane Rousseau, Analyse économique du droit, 2nd ed. (Paris and Montreal: Dalloz and Thémis, 2008), 377. Grammond, “Treaties as Constitutional Agreements,” 305. Sébastien Grammond, Terms of Coexistence: Indigenous Peoples and Canadian Law (Toronto: Carswell, 2013), 297–305. Ontario (Attorney General) v Bear Island Foundation, [1991] 2 scr 570. R v Sioui, [1990] 1 scr 1025, 1068–72. Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 scc 69, [2005] 3 scr 388. Reference re Supreme Court Act, ss. 5 and 6, para 92. Ibid., para 99. Ibid., paras 46–55.

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96 Grammond, “Louis LeBel et la société distincte,” 251; Jeremy Webber, The Constitution of Canada: A Contextual Analysis (Oxford: Hart, 2015), 54–6. 97 For example, George F.G. Stanley, “Act or Pact? Another Look at Confederation,” Report of the Annual Meeting of the Canadian Historical Association 35, no. 1 (1956): 1; Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Oxford University Press, 1995); Kenneth McRoberts, Misconceiving Canada: The Struggle for National Unity (Toronto: Oxford University Press. 1997). 98 Guy Laforest, Trudeau and the End of a Canadian Dream (Montreal and Kingston: McGill-Queen’s University Press, 1995); François Rocher, “The Quebec-Canada Dynamic or the Negation of the Ideal of Federalism,” in Contemporary Canadian Federalism: Foundations, Traditions, Institutions, edited by Alain-G. Gagnon (Toronto: University of Toronto Press, 2009), 81–131. 99 In particular, Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights. 100 Grammond, “Compact Is Back,” 799.

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The Backstory

part three Electoral System and Parties

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7 Reconciling Federalism and Parliamentary Democracy: Political Competition and Negotiated Policy-Making in Canadian Federalism Arthur Benz

introduction For a long time, scholars have regarded the US and Switzerland as models of democratic federations. In contrast, they have considered federalism and parliamentary democracy as incompatible, for different reasons. In constitutional theory, the division of power between the federal and sub-national governments has been said to contradict the principle of sovereignty, be it sovereignty of the state or of parliament.1 Political scientists have perceived the extending practice of intergovernmental coordination as a driving force strengthening the executive to the detriment of parliaments. In view of the need to manage interdependence between jurisdictions, others have argued that a government responsible to parliament, supported by the majority party, and challenged by opposition parties lacks the necessary discretion to negotiate effective intergovernmental agreements. According to both types of reasoning, intergovernmental negotiations and party competition in parliamentary democracy presumably cause conflicts in real politics.2 From a theoretical point of view, some scholars have declared the combination of these concepts to be “an oxymoron if there ever was one.”3 However, comparative research has shed light on varieties of democracies4 and types of democratic federalism5. These findings constitute a

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valuable basis for a differentiated analysis of the interplay between federalism and parliamentary democracy. In Canada, we find a particular constellation of these institutional dimensions of government. In 1867, the founding fathers of the Canadian federation combined a dual federalism partly designed along the US model with the Westminster type of a parliamentary system inherited from Great Britain. As will be illustrated in the following sections, this institutional constellation of a democratic federation generates many conflicts and problems, and sometimes even contradicting effects. However, it works, and probably more than federal democracy in the US, which Morton Grodzins had in mind when he, after pointing out many flaws, exclaimed: “But it works, it works – and sometimes with beauty.”6 Such an assessment might contradict many studies revealing executive dominance and ineffective intergovernmental coordination, the decline of parliaments, and the interference of the federal government into provincial affairs, not to speak of the failure to solve constitutional conflicts. These problems cannot be neglected. Yet governance failure occurs in all democracies; the decisive question is how political actors respond to failure, and whether institutions establish mechanisms to correct it. As I will substantiate below, federal democracies in principle entrench these mechanisms. Although federalism and democracy might constitute contradicting rule systems, they are linked in various ways, with variations flowing from constitutional frameworks, but also from structural and procedural changes over time. Like the balance of power in federal systems,7 each particular combination and coupling of federalism and democracy is unstable and in flux. Yet it is exactly this dynamic that explains why federalism and democracy work together more or less smoothly, and sometimes “with beauty.” Accordingly, the analysis presented in this chapter is grounded on two theoretical premises. First, it is the coupling of federalism and democracy which explains how the particular combinations operate.8 Second, federalism in general and democratic federalism in particular are dynamic institutional constellations. Political actors coping with the contradicting effects of institutions and interested in extending their power are the drivers of government dynamics. Moreover, these actors play their power games under various conditions, with the party system being an essential one. These dynamics can increase tensions inherent in democratic federations, but they can also generate an elasticity of power structures, which is decisive for the operation of government. By examining Canadian federalism from a comparative

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point of view, I draw attention to new patterns of negotiated policymaking, which have introduced new challenges. Moreover, recent changes in party politics tend to threaten the elasticity, which for a long time characterized the institutional design of the Canadian federation. For this reason, changes in the parliamentary system might require adjustments of federal institutions and patterns of intergovernmental relations, yet under conditions that make institutional or constitutional reform extremely difficult.

two logics of politics: parliamentary democracy and multilevel governance A normative approach takes federalism and democracy as complementary principles of a political order.9 From an empirical-analytical perspective, they designate distinct institutional structures of government, each generating specific and conflicting logics of politics. Since no division of power can actually clearly separate domains of governments, a federal system necessarily requires multilevel governance, that is, policy-making in interactions between heads of governments, ministers, or civil servants determined to coordinate or mutually adjust their policies.10 These interactions, either following competitive or cooperative procedures, are at odds with parliamentary government. On the one hand, neither parliaments nor the electorate can sufficiently scrutinize and control multilevel governance.11 On the other hand, party politics in democracy might hamper intergovernmental policy-making in federalism if executives committed to the will of parliaments or electorates lack the discretion to negotiate or adjust their policies. This general problem finds different expression in various democratic federations. Patterns of parliamentary democracy or party politics and intergovernmental relations or multilevel governance vary,12 and so do the linkage and interplay between these two logics of politics.13 In North America, two contrasting models emerged. The constitution of the US aimed at a double separation of powers, meant to prevent the tyranny of a majority controlled by powerful “factions.” In contrast, the British North America Act that created the “Canadian Confederation” established the first federation with a parliamentary system designed according to the Westminster model, including a bicameral legislature at the federal level. Later, in Germany, a third combination of federalism and democracy emerged when the inte-

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grated federalism requiring joint decisions between governments was linked to a parliamentary system. Putting the Canadian case in a comparative perspective allows us to highlight the particular institutional logics and their consequences for politics and policy-making. (a) Competitive Democracy and Sovereign Parliaments Intergovernmental relations in a federal system are – largely – the domain or the executive. More often than not, they serve to implement grants or to harmonize the execution of law, and therefore concern tasks that the administration is responsible for. Whenever agreements on policies are negotiated and concluded, the responsibility belongs to ministers or heads of governments. While they decide autonomously, in parliamentary systems they are accountable to parliament. Hence, in contrast to presidential systems, they have to consider the will of the majority parties and the reaction of opposition parties. For this reason, party competition affects intergovernmental policy-making far more in parliamentary regimes than in presidential ones. The conflict between party competition and multilevel governance attracted attention in German federalism, when after a change in the federal government in 1969 the opposition party threatened to use the federal council (Bundesrat) to block a policy change by the government then led by Social Democrats.14 In fact, parliamentary politics strongly impacts on federal-Länder relations in the “integrated federal system,”15 as executives of Länder governments directly participate in federal law-making. In Germany, this is reinforced by the close integration of political parties at the federal and the Länder level. In addition, this tight coupling of federalism and democracy is also due to particular features of the German parliamentary system, for at least two reasons. First, proportional representation at both the federal and Länder level make one-party governments extremely rare, and parties regularly form coalition governments by negotiating contracts as their program. Second, although the chancellor and the prime ministers of the Länder are in a leading position, their Cabinets enjoy greater power than in the Westminster model of a parliamentary government, as they constitute the arena where conflicts between ministers and coalition parties are settled. As a result, governments are bound by negotiated coalition agreements or have to find compromises on contested policies, and competition with the opposition parties reinforces this commitment.

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In the Westminster system of democracy, parliaments are more powerful than in the German type of consensus democracy, and party competition usually turns out more intense, for three reasons. First, sovereignty is vested in the parliament. It has, so to speak, the last word. In contrast to the British system, Canada’s Constitution empowers the Supreme Court to determine whether a legislation violates the Charter of Rights and Freedoms. Thus, it seems to constrain parliamentary sovereignty. However, this principle applies to Parliament-executive relations. The executive is subject to the will of the House of Commons, and of the provincial legislatures.16 Second, while accountable to the whole Parliament, the executive depends on the support of the majority party to implement its policy. The fusion of power between the prime minister and his/her Cabinet and the majority in Parliament, which is typical for the effective operation of parliamentary democracy, is rather strong in the Westminster system. Consequently, the prime minister occupies a preeminent position in the political system. His/her leadership is based on his/her ability to control the agenda of Parliament and symbiotic relation with his/her party. More so that in the German chancellor democracy (Kanzlerdemokratie17), Canadian prime ministers have been able to concentrate executive power in their hands,18 and premiers of the provinces have attained a comparable leadership position. This implies that accountability to Parliament clearly lies with the heads of government. Third, members of Parliament are elected according to the firstpast-the-post system favouring clear majorities. With the increasing number of effective parties since the 1990s, a majority for one party is no longer guaranteed in Canada. Yet, in cases of a hung Parliament, parties have preferred minority governments to coalitions, and forming a one-party government still is the convention in Canadian politics both at the federal and the provincial levels. This has the effect of tying the premiers to their parties without tying their hands by coalition agreements. In addition, the power of the prime minister and Cabinet is not effectively limited by a second chamber, as is the case in other democratic federations. The Canadian Senate was conceived to mimic the British House of Lords. While Canadians had no lords, they decided to name senators by the federal executive branch. Despite having the power to veto most legislative decision of the House of Commons, the Senate works de facto as a consultative body, an institution that evaluates bills and gives advice,19 and is considered a “lame institution.”20 At the provincial level, a second chamber had existed in some provinces,

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but for a longer time only in Quebec, where it was abolished in 1968. Hence, in clear contrast to other federations, bicameralism is weak in Canada. Consequently, the Canadian parliamentary system constitutes a majority democracy with intense party competition taking place basically in only one chamber. This competition shapes parliamentary and public debates.21 By contrast with the German case of a parliamentary system constraining governments through coalition agreements and party competition, Canadian democracy increases the power of premiers (including the prime minister), who are supported by a majority party in a sovereign parliament. Nonetheless, the Canadian type of executive federalism is not separated from parliamentary politics; it operates under the condition that executives are accountable to parliament, which has the final say. Although premiers control the majority party, it is their leadership position in their party that makes them key actors in party politics. This also applies in multilevel governance. The rise of federalprovincial cooperation found expression in the concept of “executive federalism.” As a normative statement, this term should point out a democratic deficit and a shift in power contradicting the constitutional convention of parliamentary government: Parliaments lost influence on policy-making the more that premiers and their ministers became more engaged in intergovernmental relations.22 However, in contrast to intergovernmental policy-making in the presidential system of the US, which for a long time was dominated by professional bureaucracies and interest groups and only recently became affected by party politics,23 Canadian executives involved in federalprovincial negotiations have remained subject to the control of the parties in the parliaments.24 They negotiate and settle agreements in the “shadow” of their respective parliamentary decisions. This requires them to continuously communicate with or anticipate the positions of their parliamentary majority groups. This linkage of executive politics to parliamentary procedures contributes to the democratic legitimacy of intergovernmental relations. However, it also encumbers federal-provincial agreements (or inter-provincial agreements) since they can still be called into question after they have been concluded, may fail to be implemented, or have their trajectory considerably altered through opt-outs by individual provincial parliaments.25 Hence, the federal prime minister, provincial premiers, and their ministers are subject to the rules and logics both of competitive democracy in the parliamentary system and of multilevel governance

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in the federal system. These two logics are difficult to harmonize. This interference of party competition into multilevel governance is a common issue in federations with parliamentary democracies. It might obstruct agreements designed to coordinate policies between the federal and provincial governments and might prevent an institutionalization of intergovernmental relations.26 However, how this “double edged” constellation can be coped with depends on the specific structure of federalism and of intergovernmental relations. (b) Multilevel Governance by Negotiated Intergovernmental Agreements or Mutual Adjustment While Canadians designed their democracy according to the British model, their federal constitution was inspired by the US experience. They adopted the idea of clear divisions of powers, but strengthened the federal order, in particular its fiscal and economic powers, whereas responsibility for public goods and services – which were embryonic in 1867 – was left to the provinces. Based on this dual federalism, the Canadian welfare state developed at the provincial level, but was later supported by the federal government in order to provide equal standards across the country.27 This was the main reason for the rise of intergovernmental relations. The intensity of coordination between federal and provincial governments increased significantly during the second half of the last century.28 Premiers dominate the processes of coordination, supported by their members of Cabinet and their administration. These political actors have to negotiate agreements, while they simultaneously compete as actors in party politics. Apparently, these conditions are not conducive to effective governance. In Germany, empirical studies revealed that policy-makers avoid threats of deadlock in this constellation through compromises and package deals. These regularly turn out to be ineffective, because real problems are not addressed, or package deals are inefficient because they are often more expensive than unilateral decisions.29 However, these outcomes of multilevel governance are caused by the particular institutional conditions of German federalism. This integrated or interlocked federalism emerged from a centuries-old practice of power-sharing among governments and cooperation, which now is based on constitutional law and on constitutional conventions. The Länder governments participate in federal legislation via the Bundesrat, and in a significant number of important legislative matters,

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they can veto federal legislation through majority voting. In addition, the constitution of the Federal Republic requires governments to coordinate their policies in joint decision-making not only in legislation if the domain of Länder governments is affected, but also in some areas of administration. In these cases, governments are compelled to negotiate agreements in order to fulfil their tasks, and no government can make a policy on its own. Not only is the federal executive branch bound to negotiate agreements between parties forming a governing coalition, it is also frequently compelled to come to agreements with its counterparts from the Länder. Furthermore, in both parliamentary and intergovernmental arenas, party competition affects the behaviour of negotiating actors. Fritz W. Scharpf appropriately characterized this constellation as “antagonistic cooperation.”30 Executives committed to party positions usually tend to defend these positions in bargaining processes that leave little room for compromises. Therefore, agreements tend to hinder effective policy-making.31 Bargaining between executives can be observed in Canadian intergovernmental policy-making as well, but institutional conditions are different. Here, dualist federalism separates powers and politics at different levels. As the Canadian Senate does not represent provincial interests, there is no need for the federal government to enter into negotiations with provincial actors when it introduces a bill in Parliament. Moreover, despite the actual need for intergovernmental coordination of policies in many fields, both federal and provincial governments are free to make a policy in their respective jurisdiction. Consequently, federal and provincial executives coordinate their policies by voluntary negotiations. If negotiations fail, mutual adjustment of federal and provincial policies remains an option, whereas in Germany, failed intergovernmental negotiations end in a standstill of policy-making.32 Moreover, in contrast with the situation in Germany, Canadian intergovernmental relations need not aim at multilateral agreement, with the exception of those concerning constitutional amendments which are addressed below. The federal government can conclude bilateral agreements with individual provinces, and individual provinces can opt out of multilateral bargains instead of exerting a veto power over an overall arrangement. Bilateral vertical agreements strengthen the federal government and have been criticized as a divideand-rule strategy alienating individual provinces. However, opt-out options have fostered decentralization and protected the basic interests of provinces (mainly those of Quebec). For this reason, executives

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resort to a kind of diplomacy33 determined to motivate and convince representatives from as many jurisdictions as possible to participate. Yet regardless of the success or failure of such efforts, disagreement does not necessarily lead to stalemate, as responsible governments can proceed with their own policy, in their own sphere of competence. These options make Canadian federalism work, although it is combined with a democracy that provokes competition and confrontation rather than cooperative behaviour. It generates mechanisms that seem at odds with a federal order, since they favour unilateral action.34 Despite these structural obstacles, multilevel “collaborative” governance evolved in a number of policy fields.35 Since parliaments, whether at federal or provincial level, maintain their right to veto agreements negotiated between executives, intergovernmental coordination is less stable than in Germany or the US, though high degrees of policy coordination have nonetheless been attained.36 Certainly, intergovernmental coordination can fail, in particular if provincial governments’ policies reflect the different economic and societal conditions of their constituency.37 However, with the exception of constitutional amendments,38 this failure of coordination does not cause a deadlock in policy-making. It entails mutual adjustment through competition, but usually on the condition that governments nevertheless talk to each other or take into account decisions made in other jurisdictions. Thus, they avoid the unintended effects of a race to the bottom in decentralized policies.39 This routinized intergovernmental communication excludes parliaments and raises the issue of accountability. Yet Canadian federalprovincial relations are less dominated by bureaucracy than multilevel governance in other federations. More often than not, negotiations of intergovernmental agreements include non-governmental stakeholders and the implementation of agreements is subject to regular monitoring. Meetings of federal and provincial leaders of governments constitute “key moments in Canadian political life and are widely covered by the media.”40 Participants in these meetings have to consider the will of their party in Parliament and thus are subject to parliamentary control. Certainly, under the conditions of the Westminster system, premiers (including the prime minister) profit from their leadership position in their party usually supporting the government. Nonetheless, intergovernmental politics is not isolated from party competition in Parliament.41 For this reason, federalprovincial relations can be considered as an element of negotiation

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democracy42 which is loosely linked to parliamentary democracy. In general, this arrangement enhances not only the democratic quality of federalism, but also its adaptability.43

challenges for canadian federal democracy In the previous section, I have outlined two basic mechanisms in parliamentary democracy and federalism: one causes competitive politics between actors, who, in the other arena, need to coordinate their policies by negotiation. In the Canadian system, these arenas are loosely coupled, unlike in the US, where they are institutionally separated, and in Germany, where they overlap in a tightly coupled institutional constellation. The particular combination of federalism and parliamentary democracy in Canada works despite incompatible mechanisms causing – simultaneously – competitive and cooperative collective action. This is due to actors having sufficient room to manoeuvre with a view to adjusting their policies, and because executive intergovernmental cooperation remains subject to the power of sovereign parliaments. The loose coupling between federalism and democracy creates a dynamic system which allows policy-makers to avoid the traps of joint decision-making or divided government. It must be emphasized that these mechanisms of policy-making established in existing institutions guide and constrain, but never determine, the behaviour of actors. Without breaking rules, prime ministers and premiers can shift from a cooperative to a competitive mode of intergovernmental relations, can resort to unilateral action, or avoid dealing with certain matters altogether. This is the price of a loosely coupled democratic federation. Moreover, the dynamic interplay of intergovernmental and parliamentary politics often ends with decisions that are provisional, and cannot be protected against unilateral actions of governments. While revision of policies and their provisional character is an essential consequence of democracy, it can undermine the stability of a federal system, if unilateral policy changes in one jurisdiction affect policy-making in other jurisdictions. Such external effects of democracy in a federation can cause serious consequences if federal partners are unable to renegotiate agreements or manage conflicts by mutual adjustment. The flexible adjustment of policies in parliamentary democracy and in intergovernmental relations has often been perceived as an indication of instability or ineffectiveness. Yet, failures to

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adjust policies have produced crises of Canadian federalism and undermined the legitimacy of governments when they appeared unable to cope with salient issues. This is not surprising given the challenges of a divided society, the disintegration of the party system, the need to include Indigenous Peoples in intergovernmental relations and democratic government, and unresolved issues in constitutional politics. (a) Divided Society and Disintegrated Party Systems According to theoretical models, competitive democracy works best with a two-party system.44 A federal regime theoretically requires an integrated party system, creating cross-cutting cleavages and preventing authority migration.45 Neither of these conditions applies in Canada. The multinational federation finds expression in a pluralist party system and “truncated” parties.46 In other words, parties organized at the two levels of government and distinct party constellations in various provinces reflect the pluralist – territorially differentiated – social structure. The Canadian party system has been dominated by the Conservatives and the Liberal Party since the foundation of the federation. Both constitute state-wide parties and participate in elections at the federal level. Nonetheless, the provincial Liberal and Conservative Parties act independently from their respective national counterpart. Only the New Democratic Party (ndp), founded in 1961, participates both in general and provincial elections as an integrated party, although its coherence has weakened due to recent conflicts between provincial party groups. By its vertically differentiated structure, the Canadian party system adjusted to the federal organization of government.47 During the first half of the twentieth century, new parties emerged in Alberta (Social Credit) and Saskatchewan (Co-operative Commonwealth Federation, ccf). They supported the development of the welfare state in these provinces and thus influenced federal policies. The ccf was later replaced by the ndp, which competes with the Liberals and the Conservatives at the federal level. In Quebec, nationalist or regionalist parties advocated the province’s endeavours to gain sovereignty or the status of a distinct nation in the Canadian federation. Among them, the Bloc Québécois (bq) succeeded in gaining seats in the federal Parliament, whereas its provincial counterpart, the Parti Québécois, achieved a majority in the provincial legislature in 1976 and was re-elected to form the government several times. Meanwhile,

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it has since lost its predominant position in Quebec, and at the federal level, the bq also saw its number of seats and its impact in party competition diminishing in the elections of 2011 and 2015. In 1987, the Reform Party was founded to give voice to the interests of Western provinces. The party merged with the Progressive Conservative Party in 2003 to form the Conservative Party of Canada, a party strongly committed to decentralization, autonomy of provinces, and an “open federalism.” These and more recent changes demonstrate the significant dynamics of the party system and the regional divides in Canadian politics.48 In this vertically and regionally differentiated party system, crossjurisdictional linkages among parties are weak.49 For this reason, a majority party in a parliament can evaluate autonomously the policy of its corresponding executive, including the latter’s position and strategic behaviour in intergovernmental relations, without having to consider the interests of either other provinces, the federal order, or the federation as a whole. This way, parliamentary sovereignty is strengthened, and coupling between parliamentary and intergovernmental politics is attenuated. However, in intergovernmental policymaking, parties in government at the federal or provincial level participate as “external veto-players.”50 They can prevent the conclusion of an agreement or compel the government to opt out. As they are not involved in negotiations, they only react to the outcomes. Hence executives have to anticipate the will of the majority party when they negotiate in intergovernmental relations. With the increasing diversity of party politics at the federal and provincial levels, coordinating policies between the federal and provincial governments has become more complicated. However, since there is “little ideological coherency”51 within federal and provincial parties of the same name and a territorial diversity within the party system, intergovernmental relations are less influenced by party competition than in the US or Germany. Hence, on the one hand, if federal and provincial governments negotiate a particular policy arrangement, party politics do not cause antagonistic behavior. On the other hand, party politics do not create a “cross-cutting cleavage” and thus do not contribute to reduce divergence of interests. Federal and provincial interests clearly dominate intergovernmental bargaining. Yet compromises settled in these bargaining processes are threatened to fall apart if general or provincial elections lead to a change in government. The regionalization of the party system has further undermined an integrative function of party politics. It has divided provincial gov-

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ernments in intergovernmental negotiations with the federal government. Therefore, the institutionalization of inter-provincial relations in the Council of the Federation was a logical response to this development. The council has contributed to better horizontal cooperation among provinces and territories, but it has failed to settle significant conflicts that, for example, afflicted climate policy in Canada.52 This trend towards an intensification of intergovernmental cooperation might have strengthened the executive and weakened the loose coupling of intergovernmental relations and parliamentary democracy. On the other hand, the Council of the Federation, like regional patterns of inter-provincial cooperation which have gained ground, has made intergovernmental policy-making visible for the general public. Recent trends in intergovernmental policy reveal the constant efforts in Canadian federalism to cope with constitutional problems by nonconstitutional means. Nonetheless, managing the tension between federalism and democracy in a divided society and a disintegrated party system remains a wicked constitutional problem. (b) Intergovernmental Relations and Aboriginal Issues With the integration of Indigenous Peoples in Canadian federalism, a new variety of multilevel governance and democracy has emerged. As Martin Papillon convincingly explained, Canadian executive federalism facilitated the inclusion of different groups of Aboriginal Peoples. He observed “the layering of new multilevel governance (mlg) regimes that coexist with the existing division of powers and intergovernmental relation systems.”53 Considering the multitude of Indigenous organizations and the variety of their governance structures and modes of making decisions, these new multilevel regimes combine executive negotiations with different patterns of democracy, some of them rooted in old ways of finding consensus and others adjusted to the system of Canadian government. In general, Aboriginal groups have developed self-government resembling consensus democracy rather than majority democracy. In many Indigenous communities, “band councils” – which are political structures recognized by the federal government – make decisions. In the Northwestern Territories and Nunavut, a kind of parliamentary system exists. Yet members of the Legislative Assemblies are not elected from competing parties, but as independents. Those without offices in the Cabinet are considered as opposition, but the legislative agenda and decisions are based on negotiated agreements. As a rule, a deliberative

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style of negotiations is practised, allowing members to come to a consensus. Treaties with the Canadian government or with provincial governments are often ratified by referenda, also following the tradition of governing by consensus of the people or their leaders. The “treaty federalism” that materialized with the inclusion of Indigenous Peoples forsakes competitive relations between governments and requires negotiated agreements. Thus, it comes close to what in Germany is known as joint decision-making. Yet, in contrast to the German form, Aboriginal policies are dealt with in trilateral negotiations between the federal government, the responsible provincial government, and the Indigenous community concerned by a specific issue. Whereas representatives of governments can rely on their parliamentary majority, Indigenous leaders, or premiers of the territories with “consensus government,” need to find support for each specific decision. Consequently, party conflicts have no effect on these processes of intergovernmental negotiations. However, adjusting the preferences of the participants representing their people might turn out to be just as complicated and time-consuming. Given the deep conflicts over the interpretation and implementation of Indigenous rights, which can clash with federal or provincial interests, it goes without saying that these particular structures of negotiated intergovernmental policy-making, connecting Indigenous consensus democracy and the parliamentary democracy of federal and provincial governments, contributes to the complexities of accommodating these diverse communities. (c) Politics of Constitutional Change In general, federalism and parliamentary democracy are loosely coupled and executives and members of parliaments cope with tensions in strategic ways. Multilevel governance in policies dealing with Aboriginal rights and the concerns of these peoples deviate from this pattern of negotiation systems as they rule out unilateral decisions in case of disagreement. Yet they also escape the model of joint decision-making. In policies aiming at constitutional amendment, this latter type of multilevel governance applies in Canada as it does in other federations, and in this case, parliaments are involved and party competition impacts on intergovernmental negotiations. Changing a federal constitution is a demanding task, as Canadians learned during the era of “mega-constitutional” politics starting in the

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early 1970s and ending in 1992.54 Federal prime ministers and provincial premiers had been able to negotiate agreements in intergovernmental relations, but either the consensus was insufficient to include Quebec or ratification failed in some provincial parliaments or by referendum. It appears that leaders of governments and parties cannot utterly control the competitive process of ratification, which tends to be affected by the deep conflicts among the distinct societies existing in the Canadian federation. For this reason, constitutional policy ended in what Fritz W. Scharpf has called the “joint-decision trap.”55 For different reasons, constitutional policy in German federalism also has been caught in this trap. Here, heads of governments and party leaders control the ratification process in the federal parliament and the Bundesrat since they anticipate the interests of those actors who are able to mobilize veto power. Therefore, constitutional amendments are regularly passed in legislature, but they are limited to the lowest-common-denominator interests of the participants in intergovernmental negotiations.56 In comparative perspective, Canadian federalism nonetheless reveals significant evolution, whereas Germany federalism tends towards constitutional rigidity.57 In Canada, this dynamic has recently been driven by the logics of parliamentary democracy at the federal level rather than intergovernmental politics. Without intending to amend the constitution, the Harper government announced an “open federalism” when it gained power in 2006.58 This concept emphasized the separation of power between orders of government and was designed to enhance provincial autonomy by avoiding federal intervention through its spending power. In fact, the federal government more or less abandoned intergovernmental coordination, at least in terms of meetings of first ministers. To a certain degree, this strategy of the federal government moderated tensions with Quebec. Yet it left many problems in social policy and environment unresolved. Open federalism finally appeared as a policy of retrenchment of the state rather than an appropriate response to pressing issues in society. The change in government in November 2015 demonstrated the other side of a federal system lacking any constitutional or institutional foundation of intergovernmental relations, when the Liberal prime minister Justin Trudeau revived cooperation with the provinces. This demonstrated that the main mechanism of parliamentary democracy, elections, can leave some clear marks on Canadian federalism, as it has done in the past. Like in the US, political parties in Canada have dif-

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ferent concepts of federalism which they can implement in a highly flexible constitution. The last decades have proved the advantages of change by way of “non-constitutional renewal.”59 The Supreme Court of Canada was one of the driving forces of this change. However, for many, the court lacks an undisputed legitimacy as an umpire of federal provincial conflicts and as safeguard of federalism.60 Therefore, although its rulings cannot be underrated, decisions of political institutions and politics also have contributed to shape Canadian federalism. Parliaments by legislation or resolutions, prime ministers by intergovernmental agreements,61 and (although this was not intended) the electorate by determining parliamentary majorities, influence the interpretation of constitutional law and the balance of power between orders of government. Thus, federal change, by and large, remained linked to parliamentary democracy, at least to a wider extend than in Germany and the US, where the Federal Constitutional Court and the Supreme Court respectively became the main drivers of constitutional change.

conclusion In this chapter, I have characterized Canadian federal democracy as a case of loose coupling between parliamentary democracy and intergovernmental relations, in contrast to German federalism as a tightly coupled combination of both institutional dimensions and the US system which, for a long time, separated parliaments and intergovernmental relations.62 In Canada, both are subject to the logic of political competition among collective actors, who strive for power and influence in policy-making, but can decide to cooperate on a voluntary basis. In the parliamentary system, parties prefer competition to cooperation through coalitions, whereas in intergovernmental relations cooperative arrangements have gained ground, but are interrupted by periods of competition and unilateralism. The concept of loose coupling describes linked dialogical processes.63 In the parliamentary arena they materialize in public debates; in intergovernmental relations they find expression in negotiations or enable federal and provincial governments to mutually adjust their policies. Depending on the institutional, fiscal, and political conditions, these processes evolve in a more or less asymmetric power structure. In contrast, the German type of democratic federal system tightly couples two negotiation systems, those of coalition governments depending on support

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in parliament on the one hand, and those of joint decision-making on the other. In consequence, institutional rules and established norms compel actors, who are competing in party politics, to cooperate and negotiate agreements. In the US, the executive-legislative relations are institutionally separated from informal intergovernmental relations, although in both arenas of negotiations, party confrontation makes governance by agreements rather difficult. In Canada, informal federal-provincial relations are institutionally linked to parliamentary democracy. Yet, the system is loosely coupled because of the strong power of the prime ministers, who are less constrained in their boundary-spanning role than executives in German federalism, who have their hands tied, in that they are committed to coalition agreements and compelled to cooperate with their counterparts in intergovernmental relations for either legal or political reasons. Generally speaking, loosely coupled arrangements provide conditions to resolve the structural conflict between federalism and parliamentary democracy. They avoid an immediate interference between incompatible logics of politics, the logic of party competition in parliament and the logic of intergovernmental coordination. Moreover, they provide room for manoeuvre for actors to adjust both political processes and the relative weight of the intergovernmental or parliamentary politics to particular situations. This adjustment has to be achieved in ongoing interactions among parties and executives, of political leaders and civil servants in administration, of federal and provincial representatives or those speaking for First Nations, and sometimes also of governments and private interest organizations.64 In these processes, power always shifts between intergovernmental and parliamentary arenas. As Canadian history illustrates, political actors have been able to reconcile the divergent effects of institutions and decision-modes in policy-making. It disproves theories suggesting that federalism cannot work in a parliamentary democracy or that intergovernmental relations undermine democracy. 65 During Canadian history, federalism and democracy went through serious crises: tensions and conflicts remained. Moreover, changes in party politics, divides in society, and unresolved constitutional problems led to new challenges. However, despite the disintegration of the party system, the inclusion of First Nations deciding by consensus, and the need for joint decision-making on amendments of the Constitution, Canadian federalism and democracy seemed to evolve towards a balance between fairly effective intergovernmental coordination and

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democratic legitimacy through the accountability of executives to parliaments or councils. This balance results from political processes and cannot be fixed by constitutional rules. The concept of coupling federalism and democracy that has been introduced in theory points to this necessarily dynamic aspect of federal democracy.66 How this balance between federalism and democracy can be achieved and maintained is an open question. As institutional conflicts cannot be avoided through constitutional law, imbalance is a permanent threat that political actors have to cope with. In the Canadian case, there is a certain risk that parliaments become decoupled from intergovernmental relations. Moreover, the latter lack stability and effectiveness due to party competition and potential parliamentary vetoes. For this reason, loose coupling should be reinforced by an institutional framework stabilizing intergovernmental relations and linking them to democratic processes. A Senate reform is probably a relevant approach to address this challenge, but unlikely in view of constitutional amendment rules. A conversion of the Council of the Federation into a federal institution could be an option easier to implement.67 Such an institution could provide a venue for federal, provincial, and Aboriginal governments to deliberate on their common concerns on joint policies. As a consultative body it might establish a permanent dialogue without compelling participating executives to come to agreements and without undermining the principle of parliamentary sovereignty. Certainly, a comparative analysis cannot justify recommendations for institutional reform, though it might suggest alternative institutional designs existing in other federations. Its purpose is to highlight specific features and developments in particular federations, each of which combines federalism and democracy in a unique political system, with its strengths and weaknesses. The most important message we can gain from comparing democratic federations relates to their dynamic nature. Accordingly, the fundamental challenge is to maintain this dynamic and to find a way to stabilize power structures not only between levels of government, but also between the parliamentary and intergovernmental arenas. Institutions can constrain dynamics, but driving forces are actors. From this point of view, Canada provides an interesting case. Canadians have learned that a federal and democratic constitution entrenches divergent principles and that good governance requires dealing with particular policy interests and with conflicting institu-

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tionalized principles at the same time. Ongoing debates about imperfect solutions to these conflicts have inspired democracy and change in federalism. Observers from abroad, in particular those from Germany, representing a static and overregulated unitary federal system, are fascinated by the Canadian ability to manage deep conflicts under institutional conditions which are amazingly flexible yet difficult to amend. Recognition of conflicts, acknowledgment of diversity, and pragmatic strategies to cope with a complicated constitution contribute to the surprising success story. This assessment should not neglect constitutional dissent between Quebec, Aboriginal Peoples, and the so called “rest of Canada,” nor the impact of unresolved constitutional issues. Those responsible for making policies in the complicated Canadian political system, those engaged in Canadian politics with the ambition to solve problems, and those suffering from unresolved conflicts or imperfect solutions all have good reasons to identify more failures than successes. Yet their critique and their engagement in politics contributes to processes that this chapter has described as evolution towards a fairly balanced democratic federation. Or, as Thomas Hueglin has put it: “If Canadians are a people then they are so primarily by means of an ongoing conversation.”68

notes 1 Stefan Oeter, Integration und Subsidiarität im deutschen Bundesstaatsrecht (Tübingen: Mohr Siebeck, 1998), 74–87. 2 Gerhard Lehmbruch, Parteienwettbewerb im Bundesstaat: Regelsysteme und Spannungslagen im Institutionengefüge der Bundesrepublik Deutschland (Wiesbaden: Westdeutscher Verlag, 2000). 3 Richard Simeon and David Cameron, “Intergovernmental Relations and Democracy: An Oxymoron If There Ever Was One,” in Canadian Federalism: Performance, Effectiveness, and Legitimacy, edited by Herman Bakvis and Grace Skogstad (Don Mills, on: Oxford University Press, 2002), 278–95. 4 Arend Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries (New Haven: Yale University Press, 1999). 5 Thomas Hueglin, “Models, Varieties, and Dimensions of Federalism,” in Federal Dynamics: Continuity, Change, and the Varieties of Federalism, edited by Arthur Benz and Jörg Broschek (Oxford: Oxford University Press, 2013), 28–47; Thomas O. Hueglin and Alan Fenna, Comparative Federalism (Toronto: University of Toronto Press, 2015); Ronald L. Watts, “German Federalism

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in Comparative Perspective,” in Recasting German Federalism, edited by Charlie Jeffery (London, New York: Pinter, 1999), 265–84. Morton Grodzins, The American System: A New View of Government in the United States (Chicago: Rand McNally and Company 1966), 7. William H. Riker, Federalism: Origins, Operation, Significance (Boston, Toronto: Little Brown and Co., 1964). Arthur Benz and Jared Sonnicksen, “Patterns of Federal Democracy: Tensions, Friction, or Balance between Two Government Dimensions,” European Political Science Review 9, no. 1 (2017): 3–25. For example, see Andreas Føllesdal, “Federalism,” in The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta, https://plato.stanford.edu/archives/sum2016/entries/federalism/. Johanne Poirier and Cheryl Saunders. “Conclusion: Comparative Experience of Intergovernmental Relations in Federal Systems,” in Intergovernmental Relations in Federal Systems, edited by Johanne Poirier, Cheryl Saunders, and John Kincaid (Toronto: Oxford University Press, 2015), 440–98. The limits of parliamentary control are indicated by literature on the democratic dilemma in multilevel governance; see, for example, Joan DeBardeleben and Achim Hurrelmann, “Democratic Dilemmas in eu Multilevel Governance: Untangling the Gordian Knot,” European Political Science Review 1, no. 2 (2009): 229–47; Yannis Papadopoulos, “Accountability and Multi-level Governance: More Accountability, Less Democracy?” West European Politics 33, no. 5 (2010): 1030–49. Limited effects of electoral control increases with informality and complexity of intergovernmental relations, which facilitate blame-avoidance by office holders. Watts, “German Federalism,” 275. Benz and Sonnicksen, “Patterns of Federal Democracy,” 12–18. Lehmbruch, Parteienwettbewerb, 141–9. Johanne Poirier and Cheryl Saunders, “Comparing Intergovernmental Relations in Federal Systems: An Introduction,” in Intergovernmental Relations in Federal Systems, edited by Johanne Poirier, Cheryl Saunders, and John Kincaid (Toronto: Oxford University Press, 2015), 6. Jeremy Webber, The Constitution of Canada: A Contextual Analysis (Oxford: Hart, 2015), 60–4. Karlheinz Niclauß, Kanzlerdemokratie: Regierungsführung von Konrad Adenauer bis Angela Merkel (Wiesbaden: Springer vs, 2015). Donald J. Savoie, “The Rise of Court Government in Canada,” Canadian Journal of Political Science 32, no. 4 (1999): 635–64. Savoie states that since the 1990s, the power has shifted into the hands of the prime ministers and a small group of “courtiers,” whereas the Cabinet has been bypassed. The

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reasons for this power concentration, which Savoie mentions, also apply to Germany. Here, however, the need to govern with a coalition prevents the chancellor from exploiting these conditions to concentrate power. David E. Smith, The Canadian Senate in Bicameral Perspective (Toronto: University of Toronto Press, 2003). Webber, The Constitution of Canada, 65. Lijphart, Patterns of Democracy, 249. Kathy Brock, “Executive Federalism: Beggar Thy Neighbour?” in New Trends in Canadian Federalism, edited by François Rocher and Miriam Smith (Peterborough: Broadview Press, 2003), 67–83. Timothy Conlan, “Intergovernmental Relations in a Compound Republic: The Journey from Cooperative to Polarized Federalism,” Publius: The Journal of Federalism 47, no. 2 (2017): 171–87. Thomas O. Hueglin, “Federalism and Democracy: A Critical Reassessment,” in The Global Promise of Federalism, edited by Grace Skogstad, David Cameron, Martin Papillon, and Keith Banting (Toronto: University of Toronto Press, 2013), 28–32. The tensions between intergovernmental relations, cooperative federalism, and parliamentary sovereignty are also reflected in judgments of the Supreme Court of Canada; see Johanne Poirier, “Souveraineté parlementaire et armes à feux: le fédéralisme coopératif dans la ligne de mire?” Revue de droit de l’Université de Sherbrooke 45 (2015): 47–131. Nicole Bolleyer, Intergovernmental Cooperation: Rational Choices in Federal Systems and Beyond (Oxford: Oxford University Press), 71–91. Keith Banting, “Canada: Nation Building in a Welfare State,” in Federalism and the Welfare State, edited by Herbert Obinger, Stephan Leibfried, and Francis C. Castles (Cambridge: Cambridge University Press, 2005), 129–34. Richard Simeon, Federal-Provincial Diplomacy: The Making of Recent Policy in Canada (Toronto: University of Toronto Press, 2006); Grace Skogstad, “Canada: Dual and Executive Federalism, Ineffective Problem-Solving,” in Public Policy and Federalism, edited by Dietmar Braun (Aldershot: Ashgate, 2000), 57–77. Fritz W. Scharpf, “The Joint-Decision Trap: Lessons from German Federalism and European Integration,” Public Administration 66, no. 3 (1988): 247–50. Fritz W. Scharpf, “Der Bundesrat und die Kooperation auf der dritten Ebene,” in 40 Jahre Bundesrat, edited by the Bundesrat (Baden-Baden: Nomos, 1989), 132. Scharpf, “The Joint-Decision Trap.” Martin Painter, “Intergovernmental Relations in Canada: An Institutional Analysis,” Canadian Journal of Political Science 24, no. 2 (1991): 269–88. Richard Simeon described the federal-provincial diplomacy in 1972, and in

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the 2006 edition of his book, he considered it “as solidly established as ever.” Federal-Provincial Diplomacy, 316. Campbell Sharman, “Parliamentary Federations and Limited Government: Constitutional Design and Redesign in Australia and Canada,” Journal of Theoretical Politics 2, no. 2 (1990): 205–30. David Cameron and Richard Simeon, “Intergovernmental Relations in Canada: The Emergence of Collaborative Federalism,” Publius: The Journal of Federalism 32, no. 2 (2002): 49–72. Marc-Antoine Adam, Josée Bergeron, and Marianne Bonnard. “Intergovernmental Relations in Canada: Competing Visions and Diverse Dynamics,” in Intergovernmental Relations in Federal Systems: Comparative Structures and Dynamics, edited by Johanne Poirier, Cheryl Saunders, and John Kincaid (Toronto: Oxford University Press, 2015), 157–8; Herman Bakvis and Douglas Brown, “Policy Coordination in Federal Systems: Comparing Intergovernmental Processes and Outcomes in Canada and the United States,” Publius: The Journal of Federalism 40, no. 3 (2010): 484–507. See, for example, Herman Bakvis and Grace Skogstad, eds., Canadian Federalism: Performance, Effectiveness, and Legitimacy (Oxford: Oxford University Press, 2012). Peter H. Russell, The Constitutional Odyssey: Can Canada Become a Sovereign People? (Toronto: University of Toronto Press, 2004). Kathleen Harrison, ed., Racing to the Bottom? Provincial Interdependence in the Canadian Federation (Vancouver: University of British Columbia Press, 2006). Adam, Bergeron, and Bonnard, “Intergovernmental Relations in Canada,” 147. Anna Lenox Esselment, “A Little Help from My Friends: The Partisan Factor and Intergovernmental Negotiations in Canada,” Publius: The Journal of Federalism 43, no. 4 (2012): 701–27. Hueglin, “Federalism and Democracy,” 38. Herman Bakvis, Gerald Baier, and Douglas Brown, Contested Federalism: Certainty and Ambiguity in the Canadian Federation (Don Mills, on: Oxford University Press, 2009); Jörg Broschek, Der kanadische Föderalismus: Eine historisch-institutionalistische Analyse (Wiesbaden: vs Verlag für Sozialwissenschaften, 2009); Rainer-Olaf Schultze, “Zur Möglichkeit des Regierens in postnationalen Mehrebenensystemen: Lehren aus dem kanadischen Föderalismus,” Zeitschrift für Parlamentsfragen 39, no. 3 (2008): 612–32. Lijphart, Patterns of Democracy, 13–15. Riker, Federalism, 136.

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46 Lori Thorlakson, “Patterns of Party Integration, Influence and Autonomy in Seven Federations,” Party Politics 15, no. 2 (2009): 161, 166. 47 Herman Bakvis and Brian A. Tanguay, “Federalism, Political Parties, and the Burden of National Unity: Still Making Federalism Do the Heavy Lifting?” in Canadian Federalism: Performance, Effectiveness, and Legitimacy, edited by Herman Bakvis and Grace Skogstad (Don Mills, on: Oxford University Press, 2008), 112–33. 48 William Cross, “Canada: A Challenging Landscape for Political Parties and Civil Society in a Fragmented Polity,” in Parties and Civil Society in Federal Systems, edited by Klaus Detterbeck, Wolfgang Renzsch, and John Kincaid (Toronto: Oxford University Press, 2016), 70–93; Lawrence LeDuc, Jon H. Pammett, Judith I. McKenzie, and André Turcotte, Dynasties and Interludes: Past and Present in Canadian Electoral Politics (Toronto: Dundurn Press, 2016). 49 Cross, “Canada: A Challenging Landscape,” 79–82. 50 Arthur Benz, “Konstruktive Vetospieler in Mehrebenensystemen,” in Die Reformierbarkeit der Demokratie: Innovationen und Blockaden, edited by Renate Mayntz and Wolfgang Streeck (Frankfurt and New York: Campus, 2003), 213. 51 Cross, “Canada: A Challenging Landscape,” 80. 52 Emmet Collins, “Coming into Its Own? Canada’s Council of the Federation, 2003–16,” irpp Insight 15 (March 2017): 11–13. 53 Martin Papillon, “Adapting Federalism: Indigenous Multilevel Governance in Canada and the United States,” Publius: The Journal of Federalism 42, no. 2 (2011): 291. 54 See Russell, The Constitutional Odyssey, 72–227. 55 Scharpf, “The Joint-Decision Trap,” 271. Scharpf definded the joint-decision trap as “an institutional arrangement whose policy outcomes have an inherent (non-accidental) tendency to be suboptimal – certainly when compared to the policy potential of unitary governments of similar size and resources. Nevertheless, the arrangement represents a “local optimum” in the cost-benefit calculations of all participants that might have the power to change it. If that is so, there is no “gradualist” way in which joint-decision systems might transform themselves into an institutional arrangement of greater policy potential.” 56 Nathalie Behnke and Sabine Kropp, “Marble Cake Dreaming of Layer Cake: The Merits and Pitfalls of Disentanglement in German Federalism Reform,” Regional and Federal Studies 26, no. 5 (2017): 667–86; Fritz W. Scharpf, Föderalismusreform: Kein Ausweg aus der Politikverflechtungsfalle? (Frankfurt: Campus, 2009), 69–116.

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57 Arthur Benz, “From Joint-Decision Traps to Over-Regulated Federalism: Adverse Effects of a Successful Constitutional Reform,” German Politics 17, no. 4 (2008): 440–56. 58 Institute of Intergovernmental Relations, ed., Open Federalism: Interpretations, Significance (Kingston, on: Institute of Intergovernmental Relations, 2006). 59 Harvey Lazar, “Non-Constitutional Renewal: Towards a New Equilibrium in the Federation,” in Canada: The State of the Federation 1997; Non-Constitutional Renewal, edited by Harvey Lazar (Kingston, on: Institute of Intergovernmental Relations), 3–35. 60 Eugénie Brouillet, “The Supreme Court of Canada: The Concept of Cooperative Federalism and Its Effects on the Balance of Power,” in Courts in Federal Countries: Federalists or Unitarists? edited by Nicolas Aroney and John Kincaid (Toronto: University of Toronto Press, 2017), 150–64. 61 Johanne Poirier, “Une source paradoxale du droit constitutionnel canadien: les ententes intergouvernementales,” Revue québécoise de droit constitutionnel 1 (2009): 1–31. 62 Benz and Sonnicksen, “Patterns of Federal Democracy,” 12–17. 63 Hueglin, “Federalism and Democracy,” 38. 64 Julie Simmons, “Democratizing Executive Federalism: The Role of NonGovernmental Actors in Intergovernmental Negotiations,” in Canadian Federalism: Performance, Effectiveness and Legitimacy, 2nd ed., edited by Herman Bakvis and Grace Skogstad (Don Mills, on: Oxford University Press, 2008), 255–379. 65 Hueglin, “Federalism and Democracy”; see also Alain-G. Gagnon, “Executive Federalism in Canada,” In Federal Democracies, edited by Michael Burgess and Alain-G. Gagnon (Abingdon: Routledge, 2010), who points out that intergovernmental policy-making (“executive federalism”) can protect the interests of distinct societies in a multinational federation and therefore can be considered “a sign of health of democracy in Canada” (246). 66 Arthur Benz, “Politische Steuerung in lose gekoppelten Mehrebenensystemen,” in Gesellschaftliche Komplexität und kollektive Handlungsfähigkeit, edited by Raimund Werle and Uwe Schimank (Frankfurt: Campus, 2000), 99–126; Benz and Sonnicksen, “Patterns of Federal Democracy”; Martin Landau, “Federalism, Redundancy, and System Reliability,” Publius: The Journal of Federalism 3, no. 3 (1973): 173–96. 67 Different options for Senate reform are discussed by Cheryl Saunders and Ian Peach in this volume. 68 Hueglin, “Federalism and Democracy,” 27.

8 Parties, Elections, and Canadian Federalism in the Twenty-First Century: Cairns Revisited – Again A. Brian Tanguay

introduction Since the 1920s, when the Progressives shattered the political duopoly held by the Liberals and the Conservatives, Canada’s national parties have played at best a limited integrative role in the federal system, mainly by being the principal source of recruits for Cabinet, which remains to this day an occasionally effective mechanism of intrastate federalism. Other institutions of the central government, however, such as the various mechanisms of executive federalism, have done the heavy lifting in knitting together the different sections – regional, linguistic, and religious – of the country.1 The federal parties’ task of nation-building has been made all the more difficult by the operation of the single-member simple plurality (smp) electoral system, which, as Alan Cairns pointed out in his seminal article published fifty years ago, “foster[s] a particular kind of political style” that rewards regionalized party campaign strategies and even party programs.2 Cairns rejected the conventional wisdom that Canada’s big-tent, brokerage-style parties3 had acted as nationalizing agencies, making the necessary compromises to keep the country together. In his view, this was to give credit to the parties that rightfully belonged to the parliamentary system itself, “which requires agreement among contending interests to accomplish anything at all.”4 According to Cairns, the national parties, with their regional cau-

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cuses distorted by the effects of the smp electoral system, have proven particularly ineffective at dealing with two of the most intractable cleavages in Canadian politics – tensions between centre and periphery, and the linguistic divide between French and English.5 Canada’s 150th anniversary provides us with an ideal opportunity to reassess the role that our electoral system has played either in exacerbating or mitigating the regional and linguistic cleavages that have been such a prominent feature of politics in this country. Gibbins6 and Johnston7 undertook a similar evaluation over a decade ago, and this analysis will build on those studies and draw on the recent, somewhat fraught experience of the Special Committee on Electoral Reform (erre)8 in order to shed some light on the interrelationships between Canada’s smp electoral system and its party system. The rest of the chapter will be structured around four overarching sets of questions. First, what mechanical flaws does Cairns find in smp, and are the defects he identified in the mid-1960s still relevant today? Second, are Cairns’s conclusions about smp’s systematic bias against specific minor parties and its pernicious regionalizing effects still persuasive in 2017? Third, in the time since Cairns wrote his article, has first-pastthe-post helped or hindered efforts to resolve the “Quebec question”? In the fourth and final section of the chapter, we will ask whether the abortive efforts of the Special Committee on Electoral Reform mean that substantive reform of the existing system is off the table for the foreseeable future. If that is indeed the case, are there any other less fundamental reforms of the system that might alleviate some of its pernicious side effects?

cairns on the “failure rate” of single-member simple plurality (smp) Cairns argues that one of the principal flaws in Canada’s version of smp is that it has simply failed to display the cardinal virtue ascribed to it in most textbooks on political science, namely the ability to create stable, single-party majority governments out of a plurality of votes. In the words of David Butler, smp “fosters strong parties and discourages weak ones; two parties are likely to predominate, and whichever gets a plurality in votes usually gets a clear majority in seats. Elections therefore choose governments.”9 Examining the fourteen general elections that had taken place between 1921 and 1965, Cairns

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Table 8.1 Percentage of votes and seats for governing party, 1968–2019 Election year

Government

% votes

% Seats

Ratio seats/votes

1968 1972 1974 1979 1980 1984 1988 1993 1997 2000 2004 2006 2008 2011 2015 2019

Lib Lib Lib pc Lib pc pc Lib Lib Lib Lib Con Con Con Lib Lib

45.5 38.5 43.2 35.9 44.3 50.0 43.0 41.3 38.5 40.8 36.7 36.3 37.7 39.6 39.5 33.1

58.7 41.3 53.4 48.2 52.1 74.8 57.3 60.0 51.5 57.1 43.8 40.2 46.4 53.9 54.4 46.4

1.29 1.07 1.24 1.34 1.18 1.50 1.33 1.45 1.34 1.40 1.19 1.11 1.23 1.36 1.38 1.40

Source: For elections from 1968 to 2015, figures are calculated from data in Alain-G. Gagnon and A. Brian Tanguay, eds., Canadian Parties in Transition, 4th ed. (Toronto: University of Toronto Press, 2017), Appendix A. For 2019, figures calculated from Elections Canada, October 21, 2019 Federal Election: Election Results, https://enr.elections.ca/National.aspx?lang=e.

concluded that smp’s “performance … has been only mediocre,” having successfully transformed “a minority of votes into a majority of seats on only six of twelve occasions.”10 Cairns was writing at a time of unparalleled instability in the Canadian political system, which had yielded minority governments in the 1957, 1962, 1963, and 1965 elections, and so his observations are not all that surprising. Table 8.1 shows that in the fifteen national elections held since Cairns’s article was published, smp has succeeded in translating a minority of votes into a majority of seats for a single party on nine out of fourteen occasions, with the exceptions occurring in 1972, 1979, and the string of minority governments in 2004, 2006, and 2008.11 On this basis alone, the “failure rate” of smp, to use Cairns’s terminology, would be 36 per cent (five out of fourteen) for this period. Thus, for the entire period from 1921 to 2015, smp in Canada has failed to transform a plurality of votes into a single-party majority almost 40 per cent of the time (eleven elections out of twenty-nine). Canada’s

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version of smp clearly fails to live up to the textbook view of the system as articulated by Butler and many others. In fact, the Canadian case constitutes an obvious exception to Duverger’s “Law,” namely that “the simple-majority single-ballot system favours the two-party system.”12 As the authors of a 2000 article on the impact of differing electoral systems on ethnically divided societies argue, “the conventional wisdom of a causal relationship between an electoral system and a party system is increasingly looking out of date.” They base their conclusion on the fact that “first-past-the-post (fptp) has facilitated the fragmentation of the party system in established democracies such as Canada and India, while pr [proportional representation] has seen the election of what look likely to be dominant single-party regimes in Namibia, South Africa, and elsewhere.”13 Cairns did stack the deck somewhat in formulating his indictment of smp by adding another criterion to his performance indicators: not only should the electoral formula yield stable single-party majorities, in his view, but it ought to be conducive “to the maintenance of effective opposition, arbitrarily defined as at least one-third of House Members.” This only happened four times during the 1921–65 period.14 Using the two measures together – stable majority government created out of a plurality of votes and a numerically effective combined opposition – Cairns claims that during that timeframe, Canada’s electoral system “has a failure rate of 71 per cent, on ten of fourteen occasions.”15 This second measure of the “failure rate” of smp, the maintenance of an effective opposition that holds at minimum a combined 33 per cent of the seats in Parliament, is much more problematic than the first. As Cairns acknowledges, the 33 per cent threshold is purely arbitrary, and it is inordinately difficult to prove that a combined opposition that comprises, for example, only 29 per cent of the seats in Parliament is necessarily any less effective in a Westminster-style system than one that constitutes 38 per cent of Parliament’s seats. Lovink points out that simply lowering Cairns’s arbitrary threshold of 33 per cent of the seats in the House of Commons to an equally arbitrary but still reasonable 25 per cent reduces the “failure rate” of smp from four out of fourteen (28 per cent) to one out of fourteen occasions (7 per cent) for the period examined by Cairns.16 For the 1968–2015 period, the combined opposition strength in the House failed to reach Cairns’s 33 per cent threshold only once – in 1984, when the opposition parties accounted for 25 per cent of the seats in Parliament – which, according to Lovink’s revised criterion, would not have constituted a failure of smp at all.

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Interestingly, in a reply to Lovink’s critique of his article, Cairns acknowledges that much more research needs to be done before we know precisely how big, in relative and absolute terms, a parliamentary opposition must be in order to perform its functions effectively.17 He also admits that his objective in writing the original article was “somewhat polemical,”18 and the notion of a failure rate of smp, to which a single (high) number could be attached, would obviously have been quite useful in mounting an indictment of our electoral system. Evaluations of the relative merits of competing electoral systems, however, rarely if ever permit such artificial precision. Cairns’s indictment of smp would have been more persuasive had he focused in greater depth on two crucial features of this electoral system in the Canadian context. First of all, Cairns could have explored more systematically the nature of the minority governments during the period he was examining, which included the highly productive – from a legislative standpoint – Pearson administrations of 1963–65 and 1965–68. In the estimation of Tom Kent, one of the key architects of the modern Canadian welfare state, these governments “transformed Canada” more rapidly and more substantively than almost any previous government.19 Paul Thomas has also shown that minority governments – in this case, the Liberal government of Paul Martin Jr (2004–06) – can be “no less efficient than [their] predecessors, feature … greater legislative deliberation, and … [be] better able to hold the executive accountable for its actions.”20 In this sense, while minority governments in the Canadian context represent a deviation from the ideal-type smp system, they also serve as a demonstration of the potential that some proportional or semi-proportional electoral systems, depending on their design, might have to improve the quality of democracy in the country. Secondly, the flip side of this argument about the possible benefits of minority government is that majority governments are not necessarily all that good for Canadian citizens because they foster excessive concentration of executive power in the hands of the leader of what is frequently a regionally unbalanced party. As Peter Russell puts it: “If you prefer prime ministerial, ceo-style government – governing without meaningful parliamentary debate and regardless of popular support in the country – then … [u]se your vote to give the leader of one of the larger parties control of government for four years.”21 In the period since Cairns published his article, when smp has produced artificial majorities in Parliament, it has done so with a diminishing proportion of the popular vote. Arguably, the formula for trans-

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lating votes into seats under Canada’s variant of smp has become too efficient.22 For the 1921–65 period examined by Cairns, if we exclude those elections (1940 and 1958) when the winning party obtained a majority of the votes, parties forming majority governments won, on average, 46.5 per cent of the popular vote and never less than 41 per cent. Between 1968 and 2015, however – again excluding the 1984 election, when the Progressive Conservatives won more than 50 per cent of the votes – parties forming a majority government did so with an average of 41.7 per cent of the vote. In the case of the last four majority governments (in 1997, 2000, 2011, and 2015), an average of 39.6 per cent of the votes was needed to win more than 50 per cent of the seats. In the era of modern campaigning, with new communications technologies, social media, data mining, and marketing software that allow parties to microtarget very specific or specialized constituencies, a parliamentary majority manufactured by smp can be quite unrepresentative of the electorate as a whole. Yet these artificial legislative majorities, as critics of the existing electoral system endlessly point out, possess one hundred per cent of the power for a period of four or five years and are able to enact highly partisan legislation, such as, for example, the Fair Elections Act, passed by the Conservative government of Stephen Harper in 2014. Some of the more controversial provisions of this bill hacked away at the educational role of Elections Canada, under the pretext that this arm of the bureaucracy undertook research or initiatives to encourage voter turnout only in order to swell the number of its “clients.”23 Even more questionable was the fact that the legislation removed the power to investigate electoral fraud from the chief electoral officer and transferred it to the director of public prosecutions. Peter Loewen, who found this measure “unobjectionable in the abstract,” did observe that the measure was being enacted by “a party which, while in government and before, has been engaged in a long-running if sometimes lowlevel fight with Elections Canada. That the electoral agency has been aggressive in the pursuit of potential electoral wrongdoing by this party is an equally fair conclusion.”24 smp, then, has certainly contributed to the excessive consolidation of executive power in a political system in which there are few effective institutional constraints on the prime minister.25 In the next section of the chapter we explore the role played by smp both in narrowing the range of political debate in the country by discriminating

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against left-leaning parties and in contributing to ongoing regionalization of the political system.

smp, the left, and regionalism in canada A well-known bias in smp identified by Cairns and many other observers is that it rewards minor parties that have concentrated regional support and punishes smaller parties “whose support is diffused across the whole political system without a territorial stronghold.”26 In the period examined by Cairns, the minor parties that suffered the most under smp were the ccf-ndp27 and the Reconstruction Party, the latter a protest movement founded during the Great Depression “by H.H. Stevens, a former minister of trade and commerce in the [Conservative] Bennett government [that] offered voters concerned with monopoly power and corporate pricing policies a moderate alternative to the ccf.”28 Reconstruction won 8.7 per cent of the vote in the 1935 election but only one seat, disappearing quietly in the next election cycle, whereas the Western populist party, Social Credit, took seventeen seats with a mere 4 per cent of the vote and remained a regional force in the West throughout the 1940s and ’50s.29 As for the ccf-ndp, it can lay claim to being the most consistent victim of smp’s formula for converting votes to seats: only once in its history, since it first ran candidates in the 1935 election, has Canada’s social democratic party obtained a bigger share of the seats than its proportion of votes would entitle it to, and that was in the “Orange Wave” of 2011 (see table 8.2). As Lovink notes, Canada’s electoral system has “hurt the political left,”30 an assessment that is as valid today as it was in 1970. In the past decade, the Green Party has also been severely penalized by smp, winning almost one million votes in 2008, but no seats, and just one seat in both the 2011 and 2015 elections, despite obtaining 3.9 per cent and 3.4 per cent of the vote respectively, which would have entitled it to roughly twelve seats in a purely proportional electoral system. In the general election held on 21 October 2019, the Green Party won almost 1.2 million votes, or 6.5 per cent of the total, which gained it a mere three seats. Contrast those results with the performance of the Bloc Québécois, which was able to translate 1.4 million votes (7.7 per cent of the total) into thirty-two seats, or almost ten per cent of the seats in the House of Commons.31 It is no surprise, then, that supporters of parties that have never formed the government at the federal level are most strongly in favour

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Table 8.2 Bias of Canada’s smp electoral system in translating votes into seats, 1968–2019 Rank order of parties by % vote Election year

1

2

3

4

1968 1972 1974 1979 1980 1984 1988 1993 1997 2000 2004 2006 2008 2011 2015 2019

Lib 1.29 Lib 1.07 Lib 1.24 Lib 1.01 Lib 1.18 pc 1.50 pc 1.33 Lib 1.45 Lib 1.34 Lib 1.40 Lib 1.19 Con 1.11 Con 1.23 Con 1.36 Lib 1.38 Lib 1.40

pc 0.87 pc 1.16 pc 1.02 pc 1.34 pc 1.12 Lib 0.51 Lib 0.88 Ref 0.94 Ref 1.02 ca 0.85 Con 1.08 Lib 1.10 Lib 1.09 ndp 1.09 Con 0.92 Con 1.04

ndp 0.49 ndp 0.66 ndp 0.40 ndp 0.51 ndp 0.57 ndp 0.56 ndp 0.72 pc 0.04 pc 0.35 pc 0.33 ndp 0.39 ndp 0.54 ndp 0.66 Lib 0.58 ndp 0.65 bq 1.23

Créd 1.20 Soc 0.75 Soc 0.84 Soc 0.46

bq 1.36 ndp 0.63 bq 1.18 bq 1.41 bq 1.58 bq 1.59 bq 0.21 bq 0.63 ndp 0.45

5

ndp 0.44 bq 1.36 ndp 0.50 Grn 0.00* Grn 0.00* Grn 0.00* Grn 0.08 Grn 0.09 Grn 0.14

Note: The numbers in each cell represent the ratio of the percentage of seats won by a party to the percentage of votes that it obtained. Values greater than 1 indicate that the party benefits from the operation of smp, while values less than 1 indicate that the electoral system is discriminating against the party – it is winning a share of seats smaller than what its share of the votes would warrant in a proportional system. *the Green Party won 4.3% of the vote in 2004, 4.5% in 2006, and 6.8% in 2008, while winning no seats in each election. Éric Bélanger, “Third Parties in Canada: Variety and Success,” in Canadian Parties in Transition, 4th ed., edited by Alain-G. Gagnon and A. Brian Tanguay, 187 (Toronto: University of Toronto Press, 2017). Legend bq – Bloc Québécois ca – Canadian Alliance Con – Conservative Party Créd – Ralliement des créditistes Grn – Green Party

Lib – Liberal Party of Canada ndp – New Democratic Party pc – Progressive Conservative Party Ref – Reform Party Soc – Social Credit

Source: Calculated from data in Gagnon and Tanguay, Canadian Parties in Transition, Appendix A. Figures for 2019 are calculated from October 21, 2019 Federal Election: Election Results, https://enr.elections.ca/National.aspx?lang=e.

of substantive electoral reform. In a study conducted for the Broadbent Institute after the 2015 federal election, Abacus Data found that 42 per cent of Canadians eighteen years of age and older were in favour of either “complete” or “major” changes to the existing electoral system.

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Conservative and Liberal voters – 36 per cent in each case – were the least likely to support significant changes to the electoral system, whereas ndp (41 per cent), Green (57 per cent), and Bloc Québécois (61 per cent) voters were most supportive of major or complete change.32 These findings make perfect sense when one considers that it is the smaller parties like the Greens that would benefit the most from a move to a more proportional system, as Laura Stephenson and her colleagues have observed.33 This prospect exercises some opponents of electoral reform, who are convinced that a move to a more proportional system in Canada would guarantee that the country would fragment “into a large number of political parties making not only regional appeals, but also direct appeals to ethnicity or language.”34 A more realistic view, however, is that the extent of fragmentation would depend to a considerable degree on the design of whatever system replaced smp, a fact not always recognized by defenders of the status quo. Data in table 8.2 show that the biggest beneficiary of smp over the last two decades or so has been the sovereignist Bloc Québécois (bq). In 2006 and 2008, the bq’s share of the seats in Parliament was almost 1.6 times larger than its share of the votes, the biggest such ratios in the table. The widespread support among Bloc voters for pr, noted above, would therefore seem to be at odds with the party’s own organizational best interests. This could possibly be explained by a strong philosophical commitment among many Bloc voters to the idea of proportional representation as a bulwark of democracy, but this is purely speculative. The only other party to benefit to such an extent from the largesse of the first-past-the-post electoral system was the Progressive Party in the elections of 1926 and 1930, although Social Credit was rewarded by smp as well.35 Interestingly, in the period since 1968, the bias in favour of regionally based third parties did not actually work on behalf of the Reform Party or its successor, the Canadian Alliance (ca) (see column 2 of table 8.2). Only once, in 1997, did the Reform Party – whose original motto was “The West Wants In” – receive more seats than its share of the vote warranted, and then only fractionally (a seat-to-vote ratio of 1.02). In his assessment of Cairns’s article, Roger Gibbins notes that the mechanics of smp ensured that Reform-Alliance won very few seats outside of the West, even though the parties garnered many votes in provinces like Ontario. Echoing Cairns’s arguments, Gibbins claims that as a result of the electoral system, “Reform/Alliance in the House of Commons is far more sectional than it is within the Canadian elec-

9.2 (13) 43.4 (59) 1.4 (2) 28.9 (61) 28.4 (48)

Liberal LIBERAL

Pcon LIBERAL

PCON PCON LIBERAL LIBERAL LIBERAL

1972 1974 1979 1980 1984 1988 1993 1997 2000

9.4 (16)

11.0 (17)

16.4 (29)

6.4 (7)

18.2 (28)

LIBERAL

1968

West2

Governing party1

General election

58.5 (100)

65.2 (101)

55.4 (98)

27.2 (46)

31.8 (67)

35.4 (52)

41.9 (57)

39.0 (55)

33.0 (36)

40.9 (63)

Ontario

% of seats from (# of seats)

21.1 (36)

16.7 (26)

10.7 (19)

37.3 (63)

27.5 (58)

50.3 (74)

1.5 (2)

42.6 (60)

51.4 (56)

36.4 (56)

Quebec

11.1 (19)

7.1 (11)

17.5 (31)

7.1 (12)

11.8 (25)

12.9 (19)

13.2 (18)

9.2 (13)

9.2 (10)

4.5 (7)

Atlantic

28

28

23

33

40

33

30

29

30

29

Total3

Table 8.3 Regional representation in government caucus and federal Cabinet, 1968–2019

17.6 (5)

17.6 (5)

21.7 (5)

24.2 (8)

32.5 (13)

12.1 (4)

30.0 (9)

13.8 (4)

13.3 (4)

20.7 (6)

West

42.9 (12)

42.9 (12)

43.5 (10)

33.3 (11)

27.5 (11)

36.4 (12)

40.0 (12)

34.5 (10)

40.0 (12)

34.5 (10)

Ontario

% of cabinet positions from (# of cabinet positions)

25.0 (7)

25.0 (7)

21.7 (5)

30.3 (10)

27.5 (11)

36.4 (12)

13.3 (4)

37.9 (11)

33.3 (10)

34.5 (10)

Quebec

14.3 (4)

14.3 (4)

13.1 (3)

12.1 (4)

12.5 (5)

15.1 (5)

16.7 (5)

13.8 (4)

13.3 (4)

10.3 (3)

Atlantic

232 A. Brian Tanguay

Con Con CON LIBERAL Liberal

2006 2008 2011 2015 2019

10.8 (17)

17.4 (32)

44.6 (74)

48.2 (69)

53.2 (66)

11.9 (16)

50.3 (79)

43.5 (80)

44.0 (73)

35.7 (51)

31.4 (39)

55.2 (74)

22.3 (35)

21.7 (40)

3.0 (5)

7.7 (11)

8.0 (10)

15.6 (21)

16.6 (26)

17.4 (32)

8.4 (14)

7.7 (11)

7.3 (9)

17.1 (23)

37

31

39

38

27

38

13.5 (5)

29.0 (9)

38.5 (15)

42.1 (16)

40.7 (11)

23.6 (9)

45.9 (17)

35.5 (11)

38.5 (15)

31.6 (12)

33.3 (9)

39.4 (15)

29.7 (11)

22.6 (7)

10.3 (4)

13.1 (5)

18.5 (5)

21.0 (8)

10.8 (4)

12.9 (4)

12.8 (5)

10.5 (4)

11.1 (3)

15.7 (6)

Sources: 1968–2011: Bakvis and Tanguay, “Federalism, Political Parties, and the Burden of National Unity,” 104–6. 2015: Elections Canada, Forty-second General Election 2015: Official Voting Results. Table 7: Distribution of seats by political affiliation and sex, http://www.elections.ca/res/rep/off/ovr2015app/41/table7E.html (accessed 19 March 2017); Canadian Parliament, “The Ministry (Cabinet). 29th Ministry. Cabinet Shuffle of 2015.11.04,” http://www.parl.gc.ca/Parliamentarians/en/ministries?ministryNumber=29&precedenceReviewId=78 (accessed 19 March 2017). 2019: Elections Canada, October 21, 2019 Federal Election: Election Results. https://enr.elections.ca/National.aspx?lang=e (accessed 18 January 2020); Justin Trudeau, Prime Minister of Canada, “The Team,” https://pm.gc.ca/en/cabinet (accessed 18 January 2020).

2

Upper-case = majority government; lower-case = minority government. “West” includes nwt, Yukon, and Nunavut. 3 Size of cabinet for the year of each general election includes changes occurring up to and including 31 December of that year (i.e., includes the last ministerial shuffles for each portfolio but does not include portfolios terminated in that year).

1

Liberal

2004

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torate. This sectional distortion in turn makes it difficult for the party to expand beyond its Western base; it is perceived, and attacked by its opponents, as a sectional party lacking national sensitivity or appeal.”36 Obviously, the regional distortions produced by smp in the parliamentary caucuses of the Reform and Alliance parties ceased to be a problem once the latter merged with the remnants of the Progressive Conservative Party in 2004. The newly formed Conservative Party of Canada managed to win a substantial proportion of seats in all regions of the country, with the exception of Quebec, as the data in table 8.3 show. Cairns was as interested in the psychological effects of smp on voters as he was in the mechanical effects on regions and parties. He contended that the smp electoral system “distorts” the parliamentary representation of certain parties by depriving them of seats even in regions of the country where they win substantial numbers of votes. Over time, this process leads voters to identify these parties with only certain regions and drives the parties themselves to fashion their policies and programs in such a way as to appeal to those parts of the country where they have had the greatest electoral strength. According to Cairns, the dynamic of smp “pulled” the Liberal caucus toward Quebec and the Conservative caucus toward Ontario, making “sectional cleavages between the parties much more pronounced in Parliament than they were at the level of the electorate… [I]t is self-evident that the effects of the electoral system … can be appropriately described as divisive and detrimental to national unity.”37 It is certainly true that the regionalizing effects of smp have at times been compounded by conscious party electoral strategy, as party officials quite rationally decide to direct the bulk of their organization’s resources to those regions in which they have the best chance of winning. Cairns cites the Progressive Conservative Party’s strategic choice in the 1957 general election to reduce its effort in Quebec and focus on other regions where the payoff in terms of the conversion of votes to seats would be substantially higher than it would have been in Quebec. This strategy worked, at least for the pcs, who successfully ended the Liberals’ twenty-two-year reign, but it had perverse consequences for Quebec, “which contributed only 8 per cent of the new government’s seats and received only three cabinet ministers.”38 This situation led the editorialists at Le Devoir to lament that Quebec had been reduced to “‘the status of a second-class, nearly third-class province’” within the new Diefenbaker government.39

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The Liberal Party of Canada made a similar strategic choice at virtually the same time, after its massive defeat at the hands of Diefenbaker and the Progressive Conservatives in 1958. A group of young, mostly urban reformers known as “Cell 13” shifted the focus of the party’s electioneering efforts to the urban ridings of British Columbia, Ontario, and Quebec, effectively conceding rural voters to the pcs.40 This manoeuvre yielded tangible results: the Liberals’ biggest gains in the 1962 election were in bc and Ontario, which, when added to the party’s partial recovery in Quebec, brought them to power – albeit in a minority government – in 1963. Over time, the Liberal Party atrophied in the West, a situation that was felt most acutely after the election of 1980, which returned Pierre Trudeau and the Liberals to majority power after the brief Joe Clark interregnum. Only two members of the Liberal caucus, or 1.4 per cent of the party’s representation in Parliament, came from the Western provinces in 1980 (see column 3 in table 8.3).41 This regionally unbalanced government enacted the National Energy Program (nep), a policy that provided rocket fuel to Western alienation and seriously damaged national unity.42 Overwhelmingly dominated by representatives from central Canada – in 1980, 126 out of 147 Liberals, or just under 86 per cent of the caucus, were from Ontario and Quebec – it was perhaps not surprising that the oil-producing West was marginalized in the Trudeau government’s definition of the national interest. Would a stronger Liberal contingent from the West, more reflective of the nearly 25 per cent of the vote it won in that region in 1980, have prevented the implementation of the nep? This is certainly plausible, especially if the Liberal Party had been part of a minority or coalition government produced by a more proportional electoral system, and thus been forced to negotiate with, for example, the ndp, over 80 per cent of whose caucus (twenty-six out of thirty-two mps) represented the Western provinces at the time. By 1980, as the implementation of the nep demonstrated, the Liberal Party of Canada was no longer a big-tent, brokerage-style party that accommodated the competing interests of all regions. Its organizational and electoral weakness in the West was mirrored by the Progressive Conservatives’ inability to make progress in Quebec, where it managed to win at least 13 per cent of the vote in each election held between 1968 and 1980, but this yielded two or three seats at best. R. Kent Weaver has noted that one of the most harmful consequences of smp is that it can heighten the probability that one region will be “dra-

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matically overrepresented in the governing party, while another region may end up with virtually no representatives” in either the governing caucus or Cabinet.43 This feeds into perceptions that one region or another is excluded from government, and this certainly appears to have been the case in the West for much of the 1970s and early 1980s whenever the Liberals were in power, and more recently, after the 2019 election, in which the governing Liberals failed to win a seat in either Alberta or Saskatchewan. This distorted election result came at a time of heightened regional tensions between the West and central Canada over Alberta’s desire to build more pipelines that could ship oil from the tar sands to international markets. This in turn contributed to a burgeoning sentiment of Western separatism, in the form of the nascent “Wexit” movement. Conversely, in Quebec in 1979, the pcs formed a minority government with only two mps from Quebec, in a caucus of 136. Conservative weakness in Quebec was also apparent in 2011, when Stephen Harper formed his only majority government with a mere five mps from that province in a caucus of 166. Weaver notes that this sort of regional underrepresentation in the governing party caucus is likely to be less severe in countries that employ proportional or semi-proportional electoral systems – he cites Germany and Spain as examples – than it is under smp or even the Alternative Vote (av; ranked ballot).44 It should be acknowledged that there are, however, two important ways in which regional underrepresentation can be mitigated in an smp system. First, despite the fact that Canada’s national parties are highly centralized, leader-dominated, and subject to party discipline, regional caucuses of varying size can occasionally serve as effective channels for exerting regional pressure on the centre. Two illustrations of this process can be briefly mentioned. In 2006, “the Chair of the Saskatchewan party caucus publicly warned his leader, Prime Minister Stephen Harper, that the federal Conservative party would face significant damage if the government” broke its promise to “‘to exclude non-renewable resources such as oil and gas from the equalization formula.’” Similarly, in 2010, thirteen Conservative mps from Saskatchewan added their voices to Premier Brad Wall’s entreaties to disallow bhp Billiton’s proposed takeover of Potash Corporation, an effort that was ultimately successful.45 In both instances, a federal party organization proved flexible enough to exert pressure on the government in Ottawa and head off decisions that would likely have impacted Saskatchewan’s economy in a negative way.

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237

Secondly, judicious Cabinet formation can partially offset the regional underrepresentation spawned by smp, as the data in table 8.3 confirm: “When a governing party’s regional representation in Parliament is uneven, it will tend to be much more balanced in cabinet … In the Canadian context, cabinet government also means party government, and the political parties are still the primary source of recruits for the cabinet.”46 It is true, however, that this process was especially effective during the period of so-called ministerialist government in the 1940s and 1950s, when strong regional “chieftains” served in Cabinet and circumscribed the prime minister’s power. In terms of its contribution to the regionalization of the Canadian polity, then, the record of smp has been mixed. Yes, it has distorted the regional caucuses of both major parties. It has affected some minor parties quite negatively as well: the ccf, for instance, was unable to translate votes into seats in Ontario, and over time became identified in the eyes of many voters as an agrarian party.47 A similar process occurred in the case of the Reform and Canadian Alliance parties, as we noted above. This has in some cases had a profound impact on national unity, as we have argued in the case of the National Energy Program of the early 1980s and more recently, with the agitation over Wexit. On the other hand, there are institutional mechanisms available to party leaders – such as the formation of Cabinets that are much more balanced and regionally representative than party caucuses – that can counteract the effects of smp. In the next section of the chapter, we reflect on the impact of smp in a linguistically fragmented country like Canada. Does our electoral system exacerbate tensions between the dominant language groups and thereby undermine national unity, sometimes to the point of fueling secessionist movements? Would a more proportional electoral system be a more effective method of keeping the country together?

smp and the question of quebec Cairns and others argue that smp can undermine national unity in two ways. The first is simply through the mechanics of the electoral system, a corollary of the rule that smp favours minor parties with a strong regional base. R. Kent Weaver, for instance, uses the Bloc Québécois’s meteoric rise to prominence after its creation in 1990 to illustrate his claim that “smp electoral rules may discourage secessionist parties in their early stages, but they may provide such parties

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a major boost once they attain sufficient size to start winning a substantial number of victories in individual constituencies.”48 What was true of the bq at the federal level also applied, a fortiori, to the Parti Québécois within Quebec, which was punished severely by smp during its infancy in the 1970 and 1973 provincial elections but benefited from the system’s bias in most elections thereafter. It is therefore true that Canada’s smp electoral system made an independent contribution to the constitutional crises that racked the country between 1970 and 2000 by exaggerating the legislative strength of both the bq and the pq. Just how significant this institutional factor was among many other variables, however, is open to debate. smp also has an important psychological effect on party strategists and voters. As Cairns argues, because of the “sectional pay-offs” inherent in an smp system, the two main parties have on more than one occasion stoked ethnic and linguistic tensions in Quebec at election time: “The evidence suggests that elections have fed on racial fears and insecurities, rather than reduced them.”49 He cites the example of the 1925 election campaign, when “paid organizers [for the Liberal Party] went from house to house advising voters, particularly the women, that if Meighen were elected Prime Minister a war with Turkey would be declared and that the entrails of their sons would be scattered on the streets of Constantinople.”50 There is not that much distance from the Liberals invoking blood in the streets of Constantinople in 1925 to the Reform Party’s infamous television advertisement, aired during the 1997 election, featuring photos of several Quebec politicians – Jean Chrétien, Jean Charest, Gilles Duceppe, Lucien Bouchard – set in red circles with bars drawn through them, crudely suggesting that there would be “No More Politicians from Quebec” dominating the rest of Canada if Preston Manning were to win power. According to journalist Hugh Winsor, “Mr. Manning claimed at the time, and is still trying to maintain, that the ad’s message was not anti-Quebec. Either he should have known better or he did know better and winked.”51 And according to the Washington Post, Reform’s anti-Quebec rhetoric during the 1997 election was so virulent that “the leader of the left-leaning New Democratic Party said it could lead Canada to ‘civil war.’”52 This sort of vicious sectionalism, in Cairns’s understanding, is the product of the mechanical operation of smp – the fact that it consistently penalizes some parties in certain regions, like the Conservatives in Quebec, by depriving them of the share of seats to which their voting support rightfully entitles them – in combination with the psy-

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chological by-products of this process. Cairns’s thesis, essentially, is that the Conservatives would have been less inclined to adopt anti-Quebec election strategies if there were more Quebec mps working alongside their English-Canadian counterparts in the party caucus. Only then would the latter be likely to “shed their parochial perspectives through intra-party contacts with French co-workers in Parliament.”53 In 1995, Bakvis and Macpherson took issue with Cairns’s assertion that pr systems are necessarily better for national unity than smp. In certain circumstances, they argue, smp provides minorities like the Québécois with “opportunities for representation superior to those found under proportional representation electoral systems and thereby contribute to stability rather than instability.”54 Block voting by Quebecers consists in their tendency to give disproportionate support to one party, which until the 1993 election was most often the party that formed the government, “relative to support by groups or regions for the largest party elsewhere.” This behaviour has allowed the province to send to Ottawa a disciplined group of representatives, conscious of Quebec’s “unique identity” and its demands for cultural preservation.55 Once in Ottawa, this contingent of francophone legislators has proven singularly skilled at navigating the institutions of the central government and exerting influence over policy formation.56 From this, the authors conclude that “what Cairns finds divisive – institutional mechanisms encouraging sectionalism, such as smp – we see as constituting an important integrative mechanism.”57 Bakvis and Macpherson shed light on the various ways in which Quebec’s voters have been able, historically, to exploit smp to their own advantage. Other scholars have confirmed the tendency of Quebecers to support en masse parties that are “able to present themselves as potential game changers and to speak on behalf of the province’s distinct voice as a minority nation.”58 It is, however, more than a little jarring to read Bakvis and Macpherson extolling the stabilizing and integrative virtues of smp in Canada only months before the second referendum on Quebec sovereignty was held, which very nearly resulted in the breakup of the country. In sum, Canada’s electoral system has had contradictory effects on national unity. On the one hand, as Bakvis and Macpherson argued, smp provided les Québécois with an institutional mechanism to defend their collective interests. Until 1993, this was often accomplished by voting disproportionately for the Liberal Party of Canada, the so-called natural party of government, and one of the most electorally success-

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ful parties in all the advanced democracies.59 One of the keys to the Liberals’ astonishing electoral success, as Johnston puts it, is that outside Quebec, they have been “the party of accommodating Quebec. Inside Quebec, they are the party of accommodating Canada.”60 On the other hand, smp greatly exaggerated the electoral strength of the Bloc Québécois federally and the Parti Québécois provincially, in the latter case allowing a secessionist party to form a majority government at the subnational level. It also encouraged some parties – like the Western-based Reform Party in 1997, as noted above – to play up ethnic and linguistic tensions during federal election campaigns, a process that sometimes damaged relations between Quebec and the rest of Canada. It nonetheless appears that Cairns magnified the independent effects of smp on national unity: no matter what electoral system had been in place in the 1960s, the projet de société articulated first by a variety of parties and social movements in Quebec during the Quiet Revolution would almost certainly have placed the province on a collision course with the rest of Canada.61 On this issue we do not share Cairns’s confidence that pr would necessarily be a more appropriate electoral system for a country like Canada, with “strong underlying tendencies to sectionalism.”62 Subsequent research has also raised serious questions about this claim. Reilly and Reynolds, for instance, observe that electoral system design in the postwar era has been anything but “a panacea” for conflict in ethnically divided societies, thus casting doubt on “the primacy that electoral systems are given as ‘tools of conflict management.’”63

cairns, smp, and the canadian polity at the sesquicentennial As Roger Gibbins has pointed out, Alan Cairns’s article on the impact of the electoral system on Canada’s party system was seminal both for its theoretical contributions to the evolution of the neo-institutional approach within Canadian political science and for its role in sparking a “vigorous” debate on the merits of electoral reform.64 The preceding analysis suggests that some of Cairns’s critiques of smp have retained their cogency, while others need to be nuanced. In the first place, smp in Canada has failed to live up to the textbook image of it, as multiparty competition has continued to flourish since the mid-1960s when Cairns published his article. Minority governments, while not as frequent as they were during the 1921–65 peri-

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od, are nevertheless still fairly common, occurring in four out of the fifteen elections held since 1968 (27 per cent). More importantly, these minority governments have been every bit as productive legislatively as the majority governments that are the holy grail of party leaders in Canada, suggesting that a more proportional electoral system could work, if mps from all parties in a coalition government accepted the rules of the new game. The recent experience of the Special Committee on Electoral Reform (erre), however, confirms that this will not happen soon. Members of the two major parties are overwhelmingly opposed to substantive electoral reform, and since those two parties have been the greatest beneficiaries – aside from the Bloc Québécois, curiously enough – of smp’s formula for translating votes into seats, this is not about to change. This despite the fact that, as Peter Russell and others have suggested, there can be too much of a “good thing” when it comes to majority government. Excessive consolidation of executive power in a Westminster-style system that imposes few real constraints on the prime minister remains a pathology of the present system. Secondly, we have seen that while smp has made an important contribution, both mechanically and psychologically, to the regionalization of the country and to the French-English divide, it is probably the case that Cairns overestimated the independent role played by the electoral system in exacerbating these cleavages. He tended to ignore or downplay countertendencies within the Canadian political system that limited or offset the damage done by smp,65 especially the role played by the federal Cabinet compensating for regionally or linguistically unbalanced party caucuses. Research conducted since the publication of Cairns’s article has cast doubt on the strong claims made by Duverger, Lijphart,66 Cairns, and others on behalf of pr as a tool of conflict management. In effect, too much weight has been given to the impact of the smp electoral system, both by its defenders and its critics, especially when it comes to the crucial business of “saving the nation.” There are still compelling reasons to adopt a more proportional electoral system in Canada, especially because of its potential to elect a more diverse range of representatives and to expand the scope of political debates. A number of the contributors to Should We Change How We Vote? recognize that smp does not do a very effective job of electing a diverse legislature. Women, minorities, and Indigenous communities are all underrepresented in the House of Commons. While these contributors also point out that pr is not the only

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way to secure a more diverse set of representatives – one might look to campaign finance legislation as a less drastic alternative – there is extensive comparative research to suggest that this is, precisely, one of the greatest strengths of pr in the current era.67 However, these potential advantages clearly need to be weighed against the possibility that some form of pr might blur the lines of accountability between voters and decision-makers – a recurrent criticism of proportional systems, since voters are not easily able to identify which political party in a coalition to punish when things go wrong. A pr system might also usher in a regime in which the Liberals, the quintessential centrist party, form a permanent part of any future government, a point made by numerous opponents of electoral reform in Canada. Some observers confess to being puzzled that the issue of electoral reform ever made it to the political agenda as a serious possibility in 2015. It is not really surprising that the Liberals would become the champions of a new electoral system (which they strategically never identified), however. In the elections of 2006, 2008, and 2011, when the party was led successively by three different leaders, the Liberals won 30, 26, and 19 per cent of the popular vote. They were facing the prospect of a rapid decline into irrelevance, at the same time that a leadership race propelled the issue of electoral reform to the top of the party agenda. Once the Liberals were able yet again to work the magic of smp for their own benefit in 2015, the idea that a sitting government elected by means of one electoral system would willingly switch to another became fanciful. It was mainly Justin Trudeau’s inexperience that compelled him to hand the democratic reform portfolio to a political neophyte and to grant the opposition parties a majority on the Special Committee on Electoral Reform. These errors in judgment in turn allowed the issue of electoral reform to fester during the first year of the Liberals’ mandate. It is worth remembering that the most recent wave of electoral reform efforts was spawned in large part by the political malaise that attended the breakdown of the “national” party system in the early 1990s. Richard Johnston has shown that each breakdown, or “shock,” in Canadian electoral history is ultimately followed by a phase of “reconsolidation.”68 If the 2015 and 2019 elections constituted the end process of the latest reconsolidation, with a once-again-dominant centrist party in the Liberals and smaller, more regionally centred competitors on the left (ndp) and right (Conservative Party of Canada), then the old questions of Quebec’s place in the Confederation and

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the relations between centre and periphery could return to the fore. And if electoral reform is off the table, as the recent failure of the erre suggests it might be, then the only other possible way to resolve these issues is through the route of interstate federalism. A reformed Senate would be an ideal place to start (see the contribution by Ian Peach in this volume), but sadly, that option appears to be even more fanciful in the current political climate than a move toward proportional representation.

notes 1 For a more detailed discussion of this thesis, see Herman Bakvis and A. Brian Tanguay, “Federalism, Political Parties, and the Burden of National Unity: Still Making Federalism Do the Heavy Lifting,” in Canadian Federalism, 3rd ed., edited by Herman Bakvis and Grace Skogstad (Toronto: Oxford University Press, 2012), 96–115. The insights into the important role played by cabinet in forging national unity owe a great deal to Herman Bakvis’s research on cabinet government. See in particular his book, Regional Ministers: Power and Influence in the Canadian Cabinet (Toronto: University of Toronto Press, 1991). 2 Alan C. Cairns, “The Electoral System and the Party System in Canada, 1921–1965,” Canadian Journal of Political Science 1, no. 1 (March 1968): 64. 3 Brokerage parties have long been considered by political scientists to be a distinctive and defining feature of Canada’s party system. A brokerage party is not to be equated with one that simply softens or moderates its ideological principles in the pursuit of power. If that were the case, almost all voteseeking parties in the Westminster democracies could be labelled as such and the concept would be robbed of much of its theoretical utility. Instead, as R. Kenneth Carty has made clear in his important work on the Canadian party system, a brokerage party aims to capture the votes of all relevant classes and sectional groups – linguistic, religious, and regional – in a divided country like Canada, thereby preserving and reinforcing national unity. Canada’s brokerage parties have thus historically played a crucial nationbuilding role. See Carty, “Has Brokerage Politics Ended? Canadian Parties in the New Century,” in Parties, Elections, and the Future of Canadian Politics, edited by Amanda Bittner and Royce Koop (Vancouver: University of British Columbia Press, 2013), 10–21; A. Brian Tanguay, “Canada’s Political Parties in the 1990s: The Fraying of the Ties That Bind,” in Canada: The State of the Federation 1998/99; How Canadians Connect, edited by Harvey Lazar and Tom

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McIntosh (Montreal and Kingston: McGill-Queen’s University Press, 1999), 217–44. Cairns, “Electoral System and Party System,” 63. Ibid., 64–5. Roger Gibbins, “Early Warning, No Response: Alan Cairns and Electoral Reform,” in Insiders and Outsiders: Alan Cairns and the Reshaping of Canadian Citizenship, edited by Gerald Kernerman and Philip Resnick (Vancouver: University of British Columbia Press, 2005), 39–50. Richard Johnston, “The Electoral System and the Party System Revisited,” in Insiders and Outsiders: Alan Cairns and the Reshaping of Canadian Citizenship, edited by Gerald Kernerman and Philip Resnick (Vancouver: University of British Columbia Press, 2005), 51–64. The Special Committee on Electoral Reform was established on 7 June 2016, in order to “identify and conduct a study of viable alternate voting systems to replace the first-past-the-post system, as well as to examine mandatory voting and online voting.” Parliament of Canada, House of Commons, Special Committee on Electoral Reform, Mandate, 1st sess., 42nd Parliament (2016), http://www.ourcommons.ca/Committees/en/erre/About. This represented the Liberal government’s attempt to fulfil one of its key promises, namely that the general election of October 2015 would be the last campaign “conducted under the first-past-the-post voting system.” Liberal Party of Canada, “Real Change – Electoral Reform,” https://www.liberal.ca/real change/electoral-reform/. David Butler, “Electoral Systems,” in Democracy at the Polls: A Comparative Study of Competitive National Elections, edited by David Butler, Howard R. Penniman, and Austin Ranney (Washington: American Enterprise Institute for Public Policy Research, 1981), 18 (emphasis added). Cairns, “Electoral System and Party System,” 56. In the elections of 1940 and 1958, the winning party – Liberals and Conservatives respectively – obtained a majority of votes, and thus smp was not called upon to transform a plurality of votes into a majority of seats. The 1984 election is excluded from these calculations, for the same reason that the 1940 and 1958 elections were removed from the period studied by Cairns (see previous footnote): it was one of the rare instances when a party – in this case the Progressive Conservatives under Brian Mulroney – won an absolute majority of the votes (50.03 per cent), and hence an overwhelming percentage (almost 75 per cent) of the seats. Maurice Duverger, Political Parties, trans. Barbara and Robert North (London: Methuen, 1954), 217: “Of all the hypotheses that have been defined in this book, this approaches most nearly perhaps to a true sociological law.” Ben Reilly and Andrew Reynolds, “Electoral Systems and Conflict in Divid-

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ed Societies,” in International Conflict Resolution after the Cold War, edited by Paul C. Stern and Daniel Druckman (Washington: National Academy Press, 2000), 435–6. Cairns, “Electoral System and Party System,” 57. Ibid. J.A.A. Lovink, “On Analysing the Impact of the Electoral System on the Party System in Canada,” Canadian Journal of Political Science 3, no. 4 (December 1970), 511. Alan C. Cairns, “A Reply to J.A.A. Lovink, ‘On Analysing the Impact of the Electoral System on the Party System in Canada,’” Canadian Journal of Political Science 3, no. 4 (December 1970): 520. Cairns, “Reply to J.A.A. Lovink,” 517. Tom Kent, “When Minority Government Worked: The Pearson Legacy,” Policy Options (October 2009), http://policyoptions.irpp.org/magazines/minoritygovernment/when-minority-government-worked-the-pearson-legacy/. Paul E.J. Thomas, “Measuring the Effectiveness of a Minority Parliament,” Canadian Parliamentary Review 3, no. 1 (2007), http://www.revparl.ca/english /issue.asp?param=180&art=1229. Peter H. Russell, Two Cheers for Minority Government (Toronto: Emond Montgomery, 2008), 4. A point also made by Gibbins, “Early Warning, No Response,” 41. This argument was advanced by Senator Linda Frum, among others. For a critique of this and other provisions of the bill, see the open letter signed by several hundred academics, Melissa Williams et al., “An Open Letter on the Fair Elections Act,” Globe and Mail, 23 April 2014, https://www.theglobe andmail.com/opinion/an-open-letter-from-academics-on-bill-c-23/article 18114166/?page=2. Peter Loewen, “Making Elections Fair in the Context of a Political Feud,” Ottawa Citizen, 20 May 2014, http://ottawacitizen.com/news/national /column-making-elections-fair-in-the-context-of-a-political-feud. Gibbins, “Early Warning, No Response,” 41. R. Kent Weaver, “Electoral Rules and Governability,” Journal of Democracy 13, no. 2 (April 2002): 112. The Cooperative Commonwealth Federation, or ccf, was founded in Calgary in 1932. In 1961, the party merged with the Canadian Labour Congress to create the New Democratic Party (ndp). Alain-G. Gagnon and A. Brian Tanguay, “Minor Parties in the Canadian Political System: Origins, Functions, Impact,” in Canadian Parties in Transition, 2nd ed., edited by A. Brian Tanguay and Alain-G. Gagnon (Toronto: Nelson Canada: 1996), 114. See J.M. Beck, Pendulum of Power (Scarborough: Prentice-Hall: 2012), 220;

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Cairns, “Electoral System and Party System,” 59; Alain-G. Gagnon and A. Brian Tanguay, eds., Canadian Parties in Transition, 4th ed. (Toronto: University of Toronto Press, 2017), Appendix A1, 465. Lovink, “On Analysing the Impact of the Electoral System,” 514. Elections Canada, “October 21, 2019 Federal Election: Election Results,” https://enr.elections.ca/National.aspx?lang=e. Abacus Data, Canadian Electoral Reform: Public Opinion on Possible Alternatives (Ottawa: Broadbent Institute, December 2015), 5. Total sample size was 2,986, with a margin of error of +/- 1.8 per cent, 19 times out of 20. Laura Stephenson, “How Does Changing the Voting System Impact Voter Preferences?” Policy Options (June 2016): para 9: “there is some quasi-experimental evidence that Canadian voters would change their vote behaviour if the rules were more proportional, and that this would benefit smaller parties.” See also André Blais, Maxime Héroux-Legault, Laura Stephenson, William Cross, and Elisabeth Gidengil, “Assessing the Psychological and Mechanical Impact of Electoral Rules: A Quasi-Experiment,” Electoral Studies 31 (2012): 829–37. Peter Loewen, “Democratic Stability, Representation, and Accountability: A Case for Single-Member Plurality Elections in Canada,” in Should We Change How We Vote?, edited by Andrew Potter, Daniel Weinstock, and Peter Loewen (Montreal and Kingston: McGill-Queen’s University Press, 2017), 25–6. See the data in table 2 in Cairns, “Electoral System and Party System,” 58. Gibbins, “Early Warning, No Response,” 43. Cairns, “Electoral System and Party System,” 61–2. Ibid., 66. Cited in Cairns, “Electoral System and Party System,” 66n. Tanguay, “Canada’s Political Parties in the 1990s,” 223. All election figures in this paragraph are drawn from the statistical appendices in Alain-G. Gagnon and A. Brian Tanguay, eds., Canadian Parties in Transition, 3rd ed. (Peterborough: Broadview Press, 2007), Table B.18, 539. Charles Doran, Forgotten Partnership (Toronto: Fitzhenry and Whiteside, 1984), 221. Weaver, “Electoral Rules and Governability,” 112. Ibid. The Alternative Vote, like smp, is used to elect one representative in a single riding. The ballot is similar to the one employed in Canadian elections, except that voters rank order their preferences from least favourite to most favourite. If no candidate receives more than 50 per cent of the votes in the first round of counting, then the last-placed candidate is eliminated and his or her second preferences are redistributed to the remaining candi-

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dates. This process is repeated until a candidate wins a majority (50 per cent plus 1) of the votes in the riding. As with smp, the results of this electoral system are usually not very proportional. See the discussion in the Law Commission of Canada, Voting Counts: Electoral Reform for Canada (Ottawa: 2004), 21, 79–80. Bakvis and Tanguay, “Heavy Lifting,” 104. I am indebted to Herman Bakvis for these two examples. Ibid., 104, 106. Cairns, “Electoral System and Party System,” 61. Weaver, “Electoral Rules and Governability,” 123. Cf. R. Kent Weaver, “Electoral Rules and Party Systems in Federations,” in Federalism and Territorial Cleavages, edited by Ugo Amoretti and Nancy Bermeo (Baltimore: Johns Hopkins University Press, 2004), 227–58. Cairns, “Electoral System and Party System,” 65. Cairns, like André Siegfried in his classic work, The Race Question in Canada (Toronto: McClelland and Stewart, 1966 [1906]), uses the term “race” when a contemporary scholar would refer to a linguistic (or perhaps ethnic) group. Cairns, “Electoral System and Party System,” 65. Cairns draws this example from volume 2 of Roger Graham’s biography, Arthur Meighen: And Fortune Fled (Toronto: Clarke, Irwin and Co., 1963). “Manning Blew Chance to Admit Big Mistake.” Globe and Mail, 14 June 2000, http://www.theglobeandmail.com/news/national/manning-blewchance-to-admit-big-mistake/article768257/. Howard Schneider, “Quebec Unsettles Canadian Race,” Washington Post, 27 May 1997, https://www.washingtonpost.com/archive/politics/1997/05/27 /quebec-unsettles-canadian-race/9917446d-f179-4e19-8721-16c77304e72c/ ?utm_term=.583ef5e07f81. Cairns, “Electoral System and Party System,” 70. Herman Bakvis and Laura G. Macpherson, “Quebec Block Voting and the Canadian Electoral System,” Canadian Journal of Political Science 28, no. 4 (December 1995): 660 (emphasis added). Bakvis and Macpherson, “Quebec Block Voting,” 664. Ibid., 684–6. Ibid., 687. Alain-G. Gagnon and François Boucher, “Party Politics in a Distinct Society: Two Eras of Block Voting in Quebec,” in Canadian Parties in Transition, 4th ed., edited by Alain-G. Gagnon and A. Brian Tanguay (Toronto: University of Toronto Press, 2017), 278. Richard Johnston, “The Structural Bases of Canadian Party Preference: Evolution and Cross-National Comparison,” in The Canadian Election Studies:

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Assessing Four Decades of Influence, edited by Mebs Kanji, Antoine Bilodeau, and Thomas J. Scotto (Vancouver: University of British Columbia Press, 2012). See also R. Kenneth Carty, Big Tent Politics: The Liberal Party’s Long Mastery of Canada’s Public Life (Vancouver: University of British Columbia Press, 2015). Johnston, “Structural Bases of Canadian Party Preference,” 175. A very insightful exploration of this collision of alternative national political projects in Quebec and the roc (“Rest of Canada”) can be found in Alain-G. Gagnon and Raffaele Iacovino, Federalism, Citizenship, and Quebec: Debating Multinationalism (Toronto: University of Toronto Press, 2007). Cairns, “Electoral System and Party System,” 80. Cairns cites Belgium as an example of a country where pr “has softened the conflict between the Flemish and Walloons” – a claim that was quickly disproved by subsequent events. Reilly and Reynolds, “Electoral Systems and Conflict in Divided Societies,” 425. Gibbins, “Early Warning, No Response,” 39. A point made by Richard Johnston in “The Electoral System and the Party System Revisited,” 51. Arend Lijphart, one of the most influential comparative researchers on the relation between electoral systems and party systems, claimed that proportional representation does a better job of “accommodating ethnic differences” than do majoritarian systems. See his article, “Constitutional Choices for New Democracies,” Journal of Democracy 2, no. 1 (December 1991): 83. See, for example, Mona Lena Krook, “Electoral Systems and Women’s Representation,” in The Oxford Handbook of Electoral Systems, edited by Erik S. Herron, Robert J. Pekkanen, and Matthew S. Shugart (Oxford: Oxford University Press, 2017), 175–92. Krook’s arguments about the impact of electoral rules on the representation of women can also be applied to other underrepresented groups, such as visible minorities and Indigenous Peoples. Johnston, “The Electoral System and the Party System Revisited,” 59–60.

The Backstory

part four Intergovernmental Relations

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9 Heading Together: Intergovernmental Relations and Horizontal Law-Making by Swiss Cantons Eva Maria Belser

introduction: the elephant in the room Federalism is typically characterized by the constitutional separation of powers between national and subnational governments (power dividing) and the constitutional guarantee for subnational governments to participate in national decision-making (power sharing). The power-dividing-and-sharing arrangement preserves or establishes multiple centres of influence within a state and inevitably produces and sustains relations between them: national and subnational governments exchange information and cooperate vertically in order to jointly produce shared rules and decisions. They more clearly define the constitutional division of functions and funds in daily life and coordinate the norms and policies that affect the same people on the same territory. Additionally, subnational governments either collaborate horizontally to delimit the powers between them, or to stand together in order to sustain self-rule, or even to impact on shared rule. Intergovernmental relations are therefore huge and powerful in all states in which numerous centres of legal and political influence operate effectively. Most books on federalism are elaborate and loquacious when it comes to describing and explaining a federal country’s power-dividing and power-sharing arrangement and its evolution, but are rather curt and airy on intergovernmental relations. Just like “The Inquisitive

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Man” in Ivan Krylov’s fable,1 experts and amateurs of federalism visiting museums – or analyzing federal states – tend to judiciously examine the overall architectural structure and carefully inspect different exhibits but fail to take note of the elephant in the room: the actors and institutions of intergovernmental relations. That is as surprising as it can be risky. Just like elephants in rooms, intergovernmental relations in federal states are, in fact, too monumental to be ignored. But for some reasons, federalists are inclined to overlook them. According to experience, animals as massive as elephants can still slip out of view. In Marc Twain’s short story “The Stolen White Elephant,”2 the Siamese white elephant bearing the impressive name “Hassan Ben Ali Ben Selim Abdallah Mohammed Moise Alhammal Jamsetjejeebhoy Dhuleep Sultan Ebu Bhudpoor” – and the more convenient nickname “Jumbo” – was on his way from Siam to Britain. As a gift to the Queen, Jumbo was meant to scribble the intergovernmental relations between Siam and Britain. But the elephant was stolen in New Jersey! One would presume that Chief Inspector Blunt in charge of finding the enormous royal gift had an easy job. But even though he and the local police department went into high gear to solve the mysterious crime, the search cost a lot of money and ended tragically. The gloomy events in New Jersey can be seen as a reminder that even entities that are momentous by nature and crucial for the functioning of inter- and intrastate relations – in our case, intergovernmental relations in federal states – need our full and permanent attention. If we lose track of them, or shoot them like the population in New Jersey regrettably did, things risk going utterly wrong. Fortunately, federal scholars have begun to take intergovernmental relations more seriously and to investigate and appreciate their critical role in competitive and cooperative federalism.3 They are confronted with numerous challenges, though: the considerable difficulties in accessing and analyzing the abundant and often opaque interactions of government actors, the straining to grasp fluid and evolving relations, the tenacious efforts needed for scholars to open the doors and curtains of administrations and meeting rooms, the unaccustomed modesty required to recognize that phone calls and talks over coffee breaks can be more decisive then constitutional provisions and court cases. New scholarship on intergovernmental relations pays tribute to the fact that interactions between governments and government units

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take many different forms, serve a variety of purposes, and use confusingly numerous formal and informal channels, but are – in federal states and in all other states based on power dividing and power sharing – most vital.4 Without them, federal engines do not operate properly, but stutter or stand still. By investigating interactions between governments, they have been able to show that the way intergovernmental relations are organized and lived often tells us more about the reality of decision-making in a country than the constitutional norms on power sharing and power division do. By putting intergovernmental relations and their actors on the agenda of an international and interdisciplinary conference and of a volume dedicated to the future of federalism, the elephant in the room therefore gets more of the attention and laurels it merits. In contrast to Canada, where most of the relations between governments are vertical and relate to negotiations and bargains between the federal government in Ottawa and the provinces in general and Aboriginal Peoples and Quebec in particular,5 in Switzerland, horizontal intergovernmental relations between the twenty-six cantons are just as, if not more, important. Inter-cantonal government relations have given rise to new and powerful intergovernmental actors and mechanisms which simultaneously are complementing, questioning, and reducing the role of other actors. Most importantly, horizontal intergovernmental relations have become crucial but largely extra-constitutional instruments of law-making and inter-cantonal law harmonization. On the one hand, this evolution is seen as the only available mechanism to overcome small-scale problems of Swiss federalism and to prevent further centralization. On the other hand, horizontal law-harmonization resides mainly in the hand of executives and government officials, which reduces cantonal parliaments and peoples to the role of nodding at what has been decided behind closed doors. As such, it is often considered as going against the (direct) democratic tradition of the country. This chapter raises the critical question of whether the dominant role of intergovernmental relations in horizontal law harmonization, as advantageous or unavoidable it may be from a federal point of view, is desirable or acceptable from a democratic point of view. The aim of the chapter is to analyze the role of intergovernmental relations and their actors in law-making and to evaluate the trade-off between cantonal autonomy, cantonal participation, and democracy. But I will first explain the increasingly important role of intergovernmental relations for horizontal law-making by Swiss cantons and assess the

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relations between government-centred law harmonization and democratic participation. Before doing so, I will briefly comment on the usefulness or not of comparing Canadian and Swiss federalism, and on the indissoluble links between power dividing and sharing and intergovernmental relations. I will then draw a few conclusions.

comparing canada and switzerland: moose meets mouse (a) Size Matters What sense does it make to compare intergovernmental relations in Canadian federalism to the ones in Switzerland? Do not fundamental differences between the two states stand in the way of any meaningful conclusion? First, in terms of geographic size, one country really is a moose while the other is a mouse. Switzerland is 242 times smaller than Canada and 37 times smaller than Quebec.6 These geographic differences powerfully impact on intergovernmental relations as they affect, among others, the convenience, frequency, and the cost of meetings. Swiss federal actors can easily and inexpensively meet in Bern. They do not need planes or hotels; they just board a train in the morning, use it as a mobile office room, meet, and leave by train in the afternoon. From numerous cantonal capitals, government officials can reach Bern in less than an hour. Those who have the longest journey, people from Italian-speaking Ticino, or trilingual Grisons, need between two and three hours to reach the capital. Because of the geographic features of Switzerland and its dense (public) transport system, intergovernmental relations in Switzerland rely on regular meetings and personal relationships. People working in the same policy fields usually have regular face-to-face contacts and tend to know each other personally. When a question arises on who does what, why, how, and when, people pick up the handset with little hesitation or reluctance – because they are most likely to know the person who will answer at the other end. But there are also similarities: both federal states deal with extremely different subnational units and organize intergovernmental relations in situations where no equality of bargaining powers exists between the partners involved. While in Switzerland the populations of cantons stretch from 15,000 in Appenzell Inner-Rhodes to over 1.44 million residents in Zurich,7 demographic differences between

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Ontario and Prince Edward Island are comparably accentuated. We also notice similarly distinctive inequalities in terms of the actors’ economic strengths. While these enormous inequalities, in Canada, seem to favour vertical intergovernmental relations through which Ottawa negotiates specific deals with each of the ten provinces, the inequality of the twenty-six Swiss cantons has not prevented the development of very deep and narrow horizontal cooperation. Cantons tend to agree first amongst themselves before they knock at the door of the federal government. Patent differences in the number of subnational units might partly explain this difference in the evolution of intergovernmental relations in the two countries. Dividing and sharing power between ten provinces and three territories and the federal order on the one hand, and between twenty-six cantons and a national government on the other, requires different mechanisms. It also creates distinct opportunities. A smaller group of subnational units more easily allows for bilateral vertical cooperation: Ottawa can reasonably tie up a separate deal for each of the ten provinces. A more substantial number of units, however, typically requires a standardization of procedures and outcomes and a combination of vertical and horizontal coordination: Bern prefers harmonized solutions for all its twenty-six counterparts, which often horizontally agree on joint positions before they bargain vertically. At least, such is the case in Switzerland where the centurylong history of confederalism is still effective and subnational units continue to strongly insist on symmetrical rights and responsibilities for all members; separate deals between cantons are therefore looked upon with a fair amount of skepticism. (b) History Looms Large But there are more fascinating similarities between Canada and Switzerland. These do not only relate to the fact that both countries are old federal states which came into being in the middle of the nineteenth century, mostly through aggregation, but also to the fact that the two processes of negotiating the new state and its constitution, at some stage, looked very similar. The Diet in Bern of 1847 and the Conference in Quebec of 1864,8 both pictured here, bear a disconcerting resemblance: thirty to forty elderly and well-off men sat together in a room and negotiated a bargain. Both groups of men set the framework for a power-sharing

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Figure 9.1 The Diet in Bern of 1847. Artist unknown, Letzte Sitzung der schweizerischen Tagsatzung am 20. Oktober 1847. Präsidiert von Ulrich Ochsenbein

regime between a new national tier and the subnational units which would determine the evolution of their countries for many years to come.9 While in the Quebec Conference large open windows seem to shed some light on the state-building process taking place in a noble salon, the curtains are drawn in the more rustic room in Bern. But otherwise, the image of the Quebec Conference that was the starting point of federal Canada, and the one of the Bern Diet that produced the first federal constitution of Switzerland, show such clear parallels that it almost looks as if the same group of men was doing the same thing. The coming-together process, in both countries, was visibly also one of exclusion. Numerous important actors, such as representatives of First Nations or other minority groups, were not present. Their interests, as a consequence, were not taken into consideration when the constitutional deals were made. The first federal constitution of Switzerland, for example, restricted human rights, such as the right to equality, freedom of religion, and freedom of residence to Christian men.10 The story of the exclusion of women is even more depressing. While Canadian women relatively soon acquired the right to vote in some provinces and, with the help of the Privy Council of England,

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Figure 9.2 The Conference in Quebec of 1864. Robert Harris, The Fathers of Confederation, 1884

cracked the bastion of the Senate in 1929, Swiss women had to wait until 1971 until female voting was introduced on the federal level.11 (c) Reform Is Just around the Corner Like the size of the country and the making of the constitution (usually serving best the political interests of those who have negotiated it), the rigidity or flexibility of a constitution has a decisive impact on the functioning of intergovernmental relations. The adoption of the Constitution Act in 1982, the ultimate step to full sovereignty, was the only major constitutional amendment in Canada’s long constitutional history.12 What an admirable stability – the constitution celebrated in 2017, although slightly dusty, really still exists. In such a context, alternative means of allowing for constitutional evolution, including through intergovernmental relations, play a major role.13 This is not the case in Switzerland. The constitution of 1848 was replaced by a new constitution in 1874 and then went through more than 150 partial amendments until it was replaced by the third constitution in 2000. Since the new millennium, the people and the can-

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tons have accepted several major reforms (including a federalism reform) and numerous other amendments in mandatory referenda. Since 2000, more than half of the provisions have already been altered or recently added.14 In general, the constitutional amendments have a centralizing effect and limit the residual competences of the cantons. Ever since 1848, the country has been going through a process of centralization, a fact that is deplored by many but stopped by no one. The main objective of the federalism reform adopted in 2004 and implemented in 2008 was to entangle federal and cantonal competencies and to implement the principle of fiscal equivalence – thereby reducing the need for vertical intergovernmental relations and the lack of transparency for which it is often blamed. The reform was also designed to bring “creeping” centralization to a halt and to better respect the principle of subsidiarity.15 The reform was profound but did not fully reach its aims.16 Switzerland appears to have one of the most flexible constitutions and changes it, on average, more than once a year. Because of extensive constitutional flexibility and in contrast to the Canadian situation, constitutional engineering and reengineering follows the formal amendment procedures and there is little need to rely on informal or extra-constitutional mechanisms. (d) Language Speaks for Itself The linguistic and cultural diversity is another obvious commonality between the two countries, but important differences have to be kept in mind. Both countries have powerful federal neighbours, the United States and Germany, which use federal power sharing mostly to constrain the power of central government. Canada and Switzerland, in addition, employ the mechanism to share power between different nations, to protect cultural diversity, and to accommodate linguistic communities. While Canada is a multinational federation operating with two official languages, Switzerland, often perceived as a federation without a nation, recognizes four national languages17 and officially speaks three and half – German, French, and Italian, as well as Romansch when communicating with people speaking Romansch.18 These common and distinctive elements have a major impact on how Switzerland and Canada are imagined and governed and decisively impact on federal dynamics and intergovernmental relations.19

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The three official languages of the Swiss Confederation are of equal standing. As a consequence of this, all federal laws and official documents must be provided in these three languages and all linguistic versions have equal authority. Nowadays, 63 per cent of the population primarily speak (Swiss-) German, 23 per cent French, 8 per cent Italian, and 0.5 per cent Romansh. While the federal level takes into account this linguistic diversity, not all cantons do so. According to the constitution,20 the cantons chose the official language of their territory – and most have opted to be monolingual. Seventeen cantons are German-speaking, four are French-speaking, one is Italian-speaking (Ticino), three are officially bilingual (Bern/Berne, Fribourg/Freiburg, Valais/Wallis), and one is trilingual (Graubünden/Grischun/Grigioni). The internal borders of Switzerland are historic (and religious) and – with the exception of the Canton of Jura – much older than the language divide. As a consequence of historic developments, there is no canton “Romandie,” comparable to Quebec, and numerous and overlapping divides and alliances exist. Switzerland probably also differs from Canada in the sense that linguistic cleavages are less salient then the ones between urban and rural parts of the country. Historically, federalism was adopted to accommodate the small, conservative, and dominantly catholic cantons of central Switzerland which had lost the Sonderbund war of 1847; all of them were German-speaking and feared to be dominated by large, liberal, and dominantly Protestant cantons of the same linguistic community. Despite the linguistic divide or Röstigraben receiving a lot of attention from all side, the deeper divides are still to be found elsewhere. The two nations and the four linguistic communities in both Canada and Switzerland traditionally live in geographically concentrated areas and can be accommodated effectively by territorial autonomy. But linguistic diversity is not limited to one or several units, and additional mechanisms to protect and promote dispersed groups and minorities within minorities are therefore required. Just like Canadian provinces, Swiss cantons can, within the framework of the federal constitution, decide on their language policy. They can choose to be monolingual (and most cantons have done so), but have to “respect the traditional territorial distribution of languages, and take into account indigenous linguistic minorities … in order to preserve harmony between linguistic communities.”21 Some federal evolutions, both in Canada and Switzerland, can best be understood as the bargaining outcomes between the main linguistic nations and communities. It comes as no surprise that these bargains do not necessarily

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take into consideration the interests of other linguistic groups such as those that had come to the country through (more recent) immigration. While Italian and Romansch speakers can rely on rather elaborate mechanisms and the necessary funds to protect and promote their linguistic identity, Portuguese or Albanese speakers (although important in number) cannot.22 Linguistic diversity poses a particular challenge for horizontal cooperation between cantons. While the federal tier operates in all the four national languages and the cantons dominantly function in one language only, inter-cantonal cooperation is confronted with linguistic questions. Is it acceptable that the language of the majority prevails in intergovernmental relations? Is it conceivable to operate without simultaneous translations in inter-cantonal meetings and to not systematically translate all official and other important documents? While publications and official communiqués suggest that inter-cantonal conferences do make considerable efforts to operate as multilingual bodies, it is nevertheless quite obvious that, on the inter-cantonal level, German and French are the dominant languages and translations are not as systematically made as on the federal level.23 In Canada, while multilateral high-level meetings may be conducted in both French and English, in practice, a major part of intergovernmental relations uses the language of the majority. Despite linguistic and cultural similarities, the federal dynamics more generally evolve differently in Canada and Switzerland. French-speaking Quebec seeks and – to a certain extent receives – special recognition and treatment and adds asymmetric touches to the federal system of Canada. By contrast, the Swiss French-speaking cantons do not follow a non-centralist political agenda. In fact, it is mostly the small rural and German-speaking cantons, which are part of the linguistic majority, who take the role of unrelenting defenders of cantonal authorities. While the linguistic features of Switzerland are important for the federal setup, they are not as decisive as they are in Canada. Just like in the nineteenth century, the deepest political and cultural cleavages divide the urban parts of the country, which advocate for a liberal and internationalized Switzerland, and the rural cantons, which defend a more conservative and identity-based political program. Because of these overlapping divides, the Swiss federal system has also remained quite strictly symmetrical. It does not grant special regimes for cantons or minority language communities and leaves little space for bilateral vertical agreements.

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To sum up, comparing federalism and intergovernmental relations in Canada and Switzerland is a highly inspiring but very challenging task. The fact that Canada is using federalism mostly to share power between two nations living together in a very vast country, governed by a federal constitution which is getting on in the years, leads to very specific challenges for intergovernmental relations. Various elements of Canada’s federal system favour extra-constitutional relations and arrangements that are often bilateral and vertical. Such is not the case in Switzerland. The twenty-six cantons enjoy equal rights and obligations but are of almost unreasonable small size. As they are confronted with strong centralizing tendencies and high levels of constitutional flexibility, they are forced to cooperate with each other intensively. By harmonizing laws and policies they reduce the hunger for federal (central) solutions and preserve their autonomy within a dynamically evolving constitutional framework. In addition, as will be shown in the next section of the paper, other conceptual and practical differences impact on the evolution and dynamic of intergovernmental relations in the two countries.

intergovernmental relations and the distribution of powers and resources (a) Contextualizing Cooperation In all federal countries, ways and forms of intergovernmental relations are determined by the extent of self-rule and the constitutional (and extra-constitutional) distribution of powers and resources, on the one hand, and by mechanisms put in place to produce and implement shared rules, on the other. In Canada, the federal compromise has essentially been based on a dualist model combining a clear-cut separation of powers between the two tiers of government with the responsibility of each tier to legislate and to implement its respective laws.24 Over time, the scope of exclusive powers has been reduced and zones of overlap between the two tiers have increased. This has led to a multiplication of contacts between Ottawa and the provinces and has strengthened the role of the centre. In addition, fiscal relations have strongly contributed to a departure from the original dualist model, and federal financial interventions in areas of provincial competence have added to the development of vertical intergovernmental relations in Canada and impacted on their dynamics.25

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By contrast, the Swiss federal system has been based on cooperation and integration from the beginning. Even though the principle of subsidiarity was not formally codified in the constitution before 2004, the underlying concept had always served as a guiding principle. First, the confederation can only unify law if and insofar as uniformity proves necessary. Second, the cantons are entitled (and sometimes obliged by law) to implement federal laws; the federal tier’s competences being limited to law-making unless otherwise provided. Third, the confederation must allow the cantons “all possible discretion to organize their own affairs” and to “take account of cantonal particularities.”26 The Swiss constitution recognizes very few exclusive federal competencies; most are concurrent. More importantly, federal laws are not only implemented by the cantons, but federal law implementation is typically also funded by the cantons.27 To implement federal laws (in addition to cantonal laws) obviously burdens the cantons and uses a non-negligible part of their human and financial resources. However, it also gives them significant political and economic leverage and strengthens their impact on federal law and policy-making. If cantons strongly oppose a federal act (e.g., because of its cost implications), federal institutions are not in a position to ignore such concern. In contrast to most other federal states, the federal tier of Switzerland does not dispose of the bulk of public income and cannot use financial transfers and conditions to impose its priorities. The important cantonal tax income and the principle of fiscal equivalence therefore increase the bargaining power of cantons and make it more difficult for the federal tier to overstretch its competences. Hence, if (some) cantons have serious concerns regarding a federal legislative initiative, request flexibility and stricter adherence to the principle of subsidiarity, or express reluctance to implement such an initiative, the confederation tends to take these concerns seriously. Cantons can take a number of measures to resist federal action affecting their autonomy. First, eight cantons can ask for an optional referendum and attempt to veto a federal law they dislike through a public vote.28 Second, since the confederation will later depend on the cantons for timely and effective implementation, it has a crucial interest in having the cantons on board. For these reasons, the confederation is under a constitutional obligation to allow the cantons (and not only their delegates in the Council of States) to participate in federal decision-making processes, to fully inform the cantons in a timely fashion of its intention and to consult them.29 It is also in its

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interest to do so. As a result, federal law harmonizes more than it unifies. Consequently, there often exist twenty-six cantonal varieties of implementing of federal law, as each canton uses its autonomy to adapt it to local circumstances and priorities. Another relevant difference stems from the fact that the Swiss federal order has no spending power, if it does not have the corresponding competence to legislate.30 The federal tier therefore has no possibility of intruding into cantonal spheres by using grants and subsidies: it is only in the field of joint responsibilities that vertical negotiations on financial arrangements are decisive. In the limited policy fields where the confederation funds the implementation of federal laws – such as in the field of asylum – cantons often demonstrate a surprising willingness to give in to federal rules and to only tamely parry federal interferences when these have no deleterious effects on their finances. Last but not least, natural resources and their management, as well as fiscal arrangements, affect intergovernmental relations. While the Canadian economy can strongly rely on natural resources such as minerals and metals, Switzerland is a resource-poor country and has industrialized in a very decentralized way. In addition, most taxes are raised on the cantonal level – and even the federal taxes are collected by the cantons and then transferred to the federal government. This, in addition to constitutional rules, further prevents overspending by the federal government. While most federal systems, including Canada, are characterized by vertical imbalances (and a financially dominant centre), this is not the case in Switzerland where horizontal imbalances between urban centres and rural or mountainous places are the dominant features. In 2014, only 32.9 per cent of public expenditures passed through the federal administration, while the remaining 67.1 per cent were administrated by cantons and municipalities.31 The cantons only to a very limited degree depend on federal funding and, hence, are not tempted by it. Typically, it is rather the other way around. The federal government relies on resources coming from the wealthy urban cantons like Geneva, Basel, or Zurich, which are the economic hubs of the country and levy the taxes on which the federal tier and the less wealthy cantons depend. These cantons are not inclined to accept federal interferences into their spheres of autonomy, which, in addition, carry financial burdens. The strong economic position of cantons and the rather strict observation of the principle “whoever pays, commands” thus provides the background music of intergovernmental relations in Switzerland.32

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(b) Constitutionalizing Cooperation While Canadian intergovernmental relations are mostly vertical and informal, in Switzerland, they are dominantly horizontal and formal. While they are mostly extra-constitutional in Canada, they have been partially constitutionalized in Switzerland. The Swiss federal constitution expressly obliges the confederation and the cantons to cooperate with each other and to support each other.33 When stating that the confederation and the cantons “owe each other a duty of consideration and support,” this so-called “federal partnership norm” uses the very same terminology as Swiss marriage law does to describe the duties of the spouses. These duties requiring all federal actors to behave respectfully and in good faith and to support other actors in the fulfilment of their duties apply vertically as well as horizontally. The constitutional obligation to pay respect and to offer support are often considered to be the oil that makes the highly complex wheelwork of Swiss federalism operate smoothly.34 As conflicts are solved by dialogue and mediation, courts only rarely interfere in federal disputes. If they do, they can hardly be seen as neutral umpires: while they are free to review the constitutionality of cantonal acts and statutes, they are constitutionally bound to apply federal statutes – even if they consider them to be in violation of the federal constitution.35 The fact that federal statutes (as well as international treaties) are immune from constitutional review impacts on intergovernmental relations. As cantons cannot rely on the judiciary to invalidate unconstitutional acts, they have strong incentives to preventively avoid them, and, in case of need, jointly oppose their making. The constitution is more explicit when it comes to the most important instrument of inter-cantonal cooperation: inter-cantonal agreements.36 It first states the obvious fact that cantons are allowed to enter into agreements with each other, to establish common organizations and institutions and to jointly undertake tasks of regional importance together.37 Even without the norm, the cantons would autonomously decide on how to fulfil their tasks, whether on their own or in cooperation with others. Inter-cantonal agreements or treaties (so-called concordats) are binding and have always been used to settle cross-border issues. Over time, they have become more and more important for the establishment of joint institutions, in particular inter-cantonal conferences, and for treaty-based law harmonization. In recent years, concordats and inter-cantonal conferences are

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also increasingly used to organize the equalization of financial resources and responsibilities, to coordinate the implementation of federal law and to jointly impact on federal decision-making. While horizontal agreements sprout, vertical ones remain rare. They first exist in policy areas where the two tiers of governments have concurrent competencies that can only jointly be used effectively. In such situations, most and foremost in the field of higher education, the constitution allows the confederation to participate in inter-cantonal organizations or institutions but only within the scope of its own competences. A second area of vertical cooperation is to be found in the field of federal law implementation by cantons. According to a relatively recent constitutional provision, the confederation and the cantons “may together agree that the Cantons should achieve specific goals in the implementation of federal law and may to this end conduct programmes that receive financial support from the Confederation.”38 Treaties relating to such programs mainly exist in the field of environment protection, asylum, and integration law and related policy fields, and serve the purpose of regulating federal subsidies. Inter-cantonal agreements can be of an administrative nature and establish the rights and duties of the contracting cantons (e.g., boundary adjustment or purchasing of administrative services). They can also have a legislative character and make directly applicable uniform laws or oblige cantons to adapt harmonized norms. Their making is very similar to international treaty-making: legislative concordats are negotiated by members of the cantonal governments and government officials, often under the auspices of an inter-cantonal conference. When an agreement is reached, all the parties according to the provision of domestic law (i.e., cantonal law) must ratify the treaty. Cantonal constitutions and laws thus determine whether the government has the power to autonomously ratify a concordat, whether an approval of the cantonal parliament is necessary, or whether the concordat is subjected to a mandatory or optional cantonal referendum. Legislative concordats must be published like any other law-making norm; administrative concordats are governed by the cantonal laws on the publicity of administration.39 Concordats can be made in any field of cantonal competence and be as far-reaching as the cantons want them to be. The constitution limits itself to stating that agreements between cantons must not be contrary to the law, to the interests of the confederation, or to the rights of other cantons.40 In order to implement this limitation and for the sake of transparency, cantons

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are bound to inform the federal government about the making of concordats. The Federal Council or any canton can object to a concordat if it considers it to have a negative impact on the good relations between the confederation and the cantons, or to unduly disadvantage one or several cantons. Where the Federal Council or a canton raises such an objection to an inter-cantonal treaty, it is up to the Federal Assembly to decide on its validity.41 The constitutional status of concordats and the clear rules regulating their adoption and implementation seems to be among the major differences between intergovernmental relations in Switzerland and Canada. While in Canada numerous intergovernmental agreements exist and are undeniably effective on the ground, their legal status and the rules regulating their making and unmaking remains surprisingly opaque.42

impacting on shared rule (a) Members of Parliament Go Their Own Way The multiplication of overlapping competencies witnessed in all federal states has the tendency to strengthen the position of the federal government, the laws (and financial assets) of which prevail in cases of conflict. This leads to subnational units’ increased interest in being involved in federal decision-making, and, while still defending selfrule, to a more direct impact on shared rule (“Mitwirkungsföderalismus”).43 Neither the Canadian nor the Swiss bicameral parliament responds to this need in a satisfactory way. While the Senate of Canada by design does not guarantee adequate representation of the provinces, the Swiss Council of States, in practice, does not necessarily do so. In contrast to Canada, the Swiss bicameral parliament is based on the US model. The National Council and its 200 members represent the people, while in the Council of States two delegates per canton (but only one for the six former half-cantons) raise the concerns of the cantons and defend their interests.44 Due to large populations and proportionate elections, urban centres are represented by an impressive diversity of parties in the first chamber, the National Council. As there are no legal thresholds, even small and polarizing parties and politicians have chances to be elected. In contrast, candidates of small cantons, sending just one or two repre-

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sentatives, must attract voters from different parties in order to be elected, and typically raise opinions that are more moderate.45 The large number of members representing the populous cantons, however, often drown out their voices. This is not the case in the second chamber, the Council of States, in which the smaller and more rural cantons have more weight than their size would suggest.46 The rapid urbanization and the increased demographic inequality coming in its towline have further impacted on the federal compromise of granting equal representation to all cantons. However, despite the role originally ascribed to the second chamber, the members of the Council of States do not necessarily represent cantonal interests. They are not even bound to vote in line with cantonal concerns: once elected, they act and vote without instruction.47 An analysis of their voting behaviour shows that, most of the time, they vote according to party affiliation.48 When the delegates of the cantons go their own way and tend to only stand up for cantonal concerns when these are in line with their political priorities, cantons cannot participate effectively in the making of the shared rule by relying on them. That said, the Council of States still makes sense: parties that are more moderate and politicians that are more experienced can have the effect of improving and slowing down law-making processes which, in times of hectic and emotion-driven law-making, can be advantageous.49 Cantons, however, need to refer to other formal and informal mechanisms, namely intergovernmental ones, to make their voices heard in Bern. They can, for instance, use cantonal initiatives to put an issue they consider important on the agenda of the Federal Assembly. Just like any council member or parliamentary group, cantons have the right to submit initiatives to the federal parliament.50 Such cantonal initiatives, relating to the amendment of the federal constitution, the making or remaking of a federal act, or any other decision within the competence of the federal parliament, are treated in the same way as parliamentary initiatives taken by members. Cantonal initiatives are thus interesting instruments of formal communication that cantonal parliaments can use to initiate or prevent federal law-making. They are used up to twenty times per year and allow cantons, often the first to be confronted with new legislative needs, to impact on legislation outside their sphere of competence.51 Cantons also have a constitutionally guaranteed right to be informed of all federal activities and to be heard.52 Consequently, whenever a federal law is prepared or the ratification of an interna-

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Figure 9.3 Chamber of the Canadian Senate

tional treaty is planned, formal and transparent consultations take place. Moreover, under the influence of deepened cooperation with the European Union, cantonal participation has been extended to international relations. In the beginning, the cantons were so concerned about the impact of bilateral treaties with the eu on their spheres of competence that they opened a sort of embassy in Brussels in order to have first-hand information and defend their interests. Bern was initially irritated by this move. But things have been institutionalized in the meantime. Cantons have the constitutional right to take part in international and eu relations and a federal law clarifies procedures for so doing. Many negotiating teams are now mixed, not only in Brussels but also in Geneva and New York.53 Last but not least, various informal processes exist. One of them is the “federal dialogue” introduced in 1997 (although regular talks had already taken place since 1978). These dialogues are biannual meetings between the federal executives and their cantonal counterparts, which serve to exchange ideas and concerns relating to federal relations and their evolutions. The dialogues – which are not open to the public – allow federal councillors to informally meet with represen-

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Figure 9.4 Chamber of the Swiss Council of States

tatives of the cantonal government. The platform is used as a vehicle for intergovernmental communication and can serve as an early warning system in case difficulties or misunderstandings arise. (b) Veto Threats When comparing the parliamentary chambers of Canada and Switzerland, governmental and architectural differences are striking: while the Canadian Parliament is based on a Westminster system with a governing party on the one side and the opposition on the other, the members of Swiss National Council (but also of the Council of States) sit in circles.54 Swiss parliamentarians from all walks of life (they are not fulltime politicians) sit together and must find agreements that are acceptable to most representatives and to the people. It is all about comprising and establishing consensus: in a system that is strongly based on direct-democratic rights, sheer majoritarianism is not a recipe for success. If permanent vetoing of laws is to be prevented, all groups and communities powerful enough to launch a referen-

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dum (or a popular initiative) must be heard and included in the lawmaking process. Direct democracy, in particular the threat of a referendum, affects the constitutional regime and all governmental relations linked to it in many ways. Constitutional amendments are automatically subject to a referendum and all federal laws can be challenged through an optional referendum when 50,000 people or eight cantons ask for it.55 The importance of referenda for parliamentary work and intergovernmental relations in Switzerland cannot be underestimated. Any group of cantons or any other group (including very small but effectively organized minorities or even informal interest groups) who can credibly threaten to use direct-democratic rights to block a federal law can be certain that they will be listened to. The looming risk of a referendum has an enormous influence on federal law-making. If political parties, linguistic or religious communities, women, or environmental groups raise serious concerns during the consultation processes, the federal law will normally be adjusted accordingly and much effort will go into finding consensus in order to prevent a referendum. If several cantons criticize a federal act, their concern will usually be heard, as eight of them can ask for a referendum, delay legislation, and possibly defeat it at the ballot box. Formal consultation processes take place when the Federal Council has decided to propose a federal act; the so-called pre-drafts of the act are sent into consultation before the final draft, which considers concerns raised, goes to parliament. As concerted responses of cantons to federal proposals have more weight, the inter-cantonal conferences play an ever-increasing role in preparing joint cantonal comments. Because of this powerful mechanism to interfere with federal lawmaking, the cantons are increasingly included in law-making processes at even earlier stages. Hence, it has become quite common that cantonal representatives participate in working groups of the federal administration and have an important voice when federal legislation is planned. The increased participation of cantons in federal law-making is considered as an important evolution of Swiss federalism and as a crucial way for cantons to defend their interests and to compensate for diminishing exclusive and concurrent competences. The reinforced and multi-channelled influence of the cantons at the centre strengthens the role of horizontal cooperation. It also bolsters the role of the executives in law-making – at the expense of cantonal parliaments and the Federal Assembly, which is increasingly confronted

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with carefully negotiated deals which can only be amended at the price of a referendum risk. This is one of the reasons why the strong increase of horizontal intergovernmental relations is blamed for limiting (direct) democracy and for defending cantonal autonomy at the price of limiting popular participation.

harmonizing self-rule (a) Adopting Inter-cantonal Conventions The distribution of powers, the evolutions in the field of vertical cooperation, and the sharp increase in demands for harmonization have contributed to a multiplication and intensification of horizontal intergovernmental relations. The main instruments of horizontal intergovernmental relations are inter-cantonal agreements. These inter-cantonal conventions or concordats have always been a cornerstone of cooperative federalism in Switzerland. They are often seen as the continuation of the pre-federal (confederal) period, when Swiss cantons cooperated based on a dense network of bilateral and multilateral agreements and alliances. Horizontal cooperation intensified after the Second World War and a number of inter-cantonal institutions were established and endowed with power to govern. The current constitutional norm on “Inter-cantonal Agreements” explicitly allows cantons to enter into agreements with each other, to establish common organizations and institutions, and to jointly undertake tasks of regional importance together.56 The norm makes it clear that regional cooperation between cantons – where comparable social, economic, and cultural (in particular linguistic) conditions prevail – is encouraged by the constitution and not seen as a threat to the unity of the country. While the norm refers to tasks of regional importance, inter-cantonal agreements can also be used to jointly undertake tasks of national importance. While bilateral and regional agreements are in sharp increase, a growth of concordats to which all twenty-six cantons adhere can thus also be observed. The constitutional norm allowing the cantons to enter into agreements with each other and establish common organizations and institutions is of purely declaratory value. If it did not exist, the same regime would apply. When cantons are competent in a field, they are also competent to freely choose how to fulfil their tasks – whether on their own or in cooperation with others. Any federal directive on how

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cantons go about their duties and responsibilities would rightly be considered an undue interference with cantonal autonomy. Hence, even without the constitutional norm on inter-cantonal agreements, federal authorities would have to respect the cantons’ decision on whether they govern on their own or in collaboration with one, several, or all cantons. Similarly, they would have to accept the aurtonomous decision of cantons regarding the depth of collaboration, as well as their decision to limit this cooperation to administration and execution or to also include legislation or adjudication. Today, the most central role of Swiss intergovernmental relations is legislative harmonization between cantons. More and more often and more and more broadly, cantons use joint legislative processes to overcome difficulties of size and respond to the need of harmonization. Horizontal legislative harmonization is therefore largely seen as a mechanism to prevent centralization or to slow it down. Its main purpose is to respond to demands for less diversity, which is increasingly seen as an illegitimate complication for cross-border business practices and daily lives that frequently spread across cantonal borders. This process has the advantage of leaving cantonal competences intact, as well as of preventing constitutional amendments transferring cantonal competencies to the federal order. Inter-cantonal law harmonization is therefore often portrayed as the lesser evil, as its alternative is not cantonal diversity but federal unification. Some constitutional norms, especially in the field of education, explicitly threaten centralization if horizontal legislative harmonization were to fail. In these fields, cantons must cooperate horizontally and harmonize legislation in enumerated fields; if they are unsuccessful in achieving this goal, the federal tier acquires the right to act in the place of the cantons.57 As we saw earlier, Canadian intergovernmental relations compensate the relative rigidity of the constitutional framework and provide for flexible informal solutions. By contrast, intergovernmental relations in Switzerland are not used to amend the formal distribution of competences or to accommodate a constitutive unit but to avert centralizing amendments to the constitution.58 Crucial constitutional questions remain, however. Does inter-cantonal law-making, while preventing federal unification, create a democratic deficit and weaken cantonal parliaments established to express and protect regional priorities? Is there a risk that large and powerful cantons dominate horizontal relations between cantons and intergovernmental cooperation, thereby increasing de facto power differences between subna-

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tional actors? Does inter-cantonal harmonization question the Swiss “federal enterprise” it is meant to preserve? The number of inter-cantonal agreements exploded over the last two decades. Currently, more than 760 inter-cantonal agreements exist. Some of them regulate details of cross-cultural cooperation; many of them, however, harmonize broad policy areas, establish binding rules for all signatories, or create inter-cantonal organizations and institutions mandated with the planning, overseeing, or monitoring of coordinated activities. There are also an increasing number of intercantonal bodies that are able to issue inter-cantonal norms binding on parties. As this inter-cantonal law-making, typically made by nonelected officials, can pose a threat to democratic participation and the overall legitimacy of harmonized law, the federal constitution has limited its use. Cantons may, by inter-cantonal agreement, authorize inter-cantonal bodies to issue legislative provisions implementing the agreement if two conditions are met. First, the agreement must be approved following the same procedure that applies to other legislation (i.e., parliamentary approval, mandatory or optional referendum). Second, the agreement itself must determine the basic content of the provision.59 The numerous inter-cantonal agreements, the influential bodies they establish, and the abundant norms adopted by these bodies create a network of cooperation that is so dense that some have announced the creation of a new inter- or supra-cantonal tier of government.60 Concordats have become a characteristic feature of Swiss federalism and probably constitute its most far-reaching evolution.61 Concordats deal with any issues of cantonal competence (including the implementation of federal laws), and can settle administrative, financial, or legislative matters. They exist in all fields: from tax and police, to infrastructure and transport, to health and education. They can be drafted in very broad or specific terms and directly harmonize cantonal law, or require cantons to amend their legislation. In addition, concordats are also used to regulate cantonal participation in federal decision-making and in international relations with the aim of increasing cantonal impact. While the federal constitution is rather fragmentary and vague when it comes to determining the hierarchical relationship between national and international law, it makes it clear that inter-cantonal law takes precedence over cantonal law. According to the constitution, the cantons must comply with intercantonal law, be it primary treaty law or secondary law issued by inter-

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cantonal bodies.62 Similar rules apply to the few vertical agreements existing in the field of parallel or concurrent competencies: these agreements may not violate international and national law and take precedence over contradicting cantonal law. Even though the constitution focuses on bilateral and regional inter-cantonal cooperation, it does not preclude a countrywide cooperation among cantons. In recent years, omni-cantonal agreements have become very common and produced a new body of legislative acts adopted by the various cantons, but with the geographic scope of a federal law.63 Such agreements have also established omni-cantonal organizations and institutions, some of them with far-reaching mandates to coordinate, supervise, and implement inter-cantonal agreements. Their range and significance as law-making bodies in their own right have evolved just as dramatically as their number. Concordats harmonizing cantonal law for all Switzerland cover a broad spectrum of legal, political, economic, political, and cultural issues, and, in fact, leave no field of cantonal competency untouched. Why have cantons decided to make law jointly and to delegate part of their autonomy to treaties and supra-cantonal bodies? It seems obvious that most Swiss cantons are too small to effectively serve a more mobile population. In fact, the historic units, the cantons, no longer correspond to real life and business situations. An increasing number of people live, work, and socialize in different cantons; easily cross a few cantonal borders between breakfast, office, school, outings, and sleep; and experience diversity, even though it is fundamental to the federal idea, as a complication. In such a small and highly fragmented country, the demands for inter-cantonal harmonization tend to be very high and the needs to cooperate horizontally particularly palpable. But similarly tangible is the resistance to the mere “federalization” of action. Inter-cantonal cooperation hence appears as the best compromise. It eliminates cantonal differences that are perplexing to citizens and enterprises while still preserving cantonal autonomy. It cannot, however, be ignored that inter-cantonal law-making comes at the price of strengthening the executive at the expense of cantonal parliaments and popular rights. (b) Establishing Oneself In Switzerland, as in Canada, the desire of provinces and cantons to play a more assertive role in Bern and Ottawa has encouraged the develop-

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ment of more strategic horizontal cooperation – inter-cantonalism and inter-provincialism. The influential Swiss Conference of Cantonal Governments was officially established in 1993. It is built on an intercantonal agreement ratified by the twenty-six cantons and serves as a political platform for horizontal intergovernmental relations and for the coordination of vertical intergovernmental relations.64 Its role seems similar to that of the Council of the Federation in Canada, created in 2003: that is, bringing together provincial and territorial premiers and providing a united front when interacting with the federal government.65 The Swiss system is far more “institutionalized,” however. In 2008, the inauguration of the House of Cantons in Bern underscored the fact that inter-cantonal cooperation had been taken to a new level in the Swiss federal system. The new House of Cantons is now home to over a dozen very powerful actors.66 In addition to the Conference of Cantonal Governments, fifteen policy-specific conferences of cantonal directors use the House of Cantons to bring cantonal voices together, agree on strategies and concordats, and lobby in the halls of the federal government. The Swiss Conference of Cantonal Ministers of Education, Cantonal Ministers of Finance, Cantonal Ministers of Health, Cantonal Ministers of Justice and Police, et cetera have become unavoidable actors when policies and laws in their field of competence are planned, made, or implemented. Along the same lines, six regional government conferences of cantonal executives unify the cantons, which are located in the west, the northwest, the east, central Switzerland, the Alpine cantons, and the metropolitan area of Zurich.67 These “regional” bodies all come and meet in Bern where they have found a home in the House of the Cantons. The creation of these cantonal institutions and conferences under a common roof – to use synergies and increase their influence in the capital – created a turmoil. The House of Cantons, located in a prestigious building expressing cantonal self-confidence, was looked at with a skeptical or disapproving eye by the federal government and by members of the Council of States. The first believed cantonal executives had no reasons to interfere in the exercise of federal competences, while the latter considered themselves to be the proper representatives of cantonal interests in Bern. Today, the users of the House of Cantons are highly reputed actors, and, ironically, members of the federal government often hope to be invited to their meetings. The House of Cantons also caused a psychological shift: cantons do not have to knock at the door of the federal palace when they have a con-

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cern; they invite federal actors to their own place. The effect really is similar to crowdfunding – it is crowd participation. Increasingly, in federal matters, the cantons speak with one voice: a most influential one sure to be heard. In some regards, the House of the Cantons seems to be slowly transforming into a third chamber of parliament in which representatives of cantons (similar to the German Bundesrat) powerfully defend their interests. According to the constitution, federal acts have to be approved by both chambers of parliament. In practice, the (implicit) approval of the House of Cantons is often necessary, too: if cantons jointly oppose a federal plan, draft law, or international treaty, their opposition almost amounts to an extraconstitutional veto right. While it is true that cantonal positions are not formally binding and do not always prevail, their practical weight is considerable. (c) Suffering from a Democracy Deficit Most actors quite favourably receive the coordinated interference of cantons in federal decision-making. Joint intergovernmental actions are widely seen as appropriate reactions to ongoing centralization and as compensation for reduced autonomy. While individual cantons lose fields of autonomous action, they jointly and more strongly participate in federal decision-making. The situation is differently assessed when it comes to inter-cantonal law-making touching all fields of cantonal competencies and reaching (often very deeply) into cantonal governance spheres. Numerous concordats read like international treaties – or federal laws – and leave only limited space for individual cantons to use their constitutionally guaranteed autonomy independently. Furthermore, as has been mentioned above, these concordats also allow inter-cantonal conferences to produce binding inter-cantonal law. By strengthening the executive, such inter-cantonal law-making not only affects the balance of institutional powers within cantons; it also impacts on the power relations between the cantons. While unanimity is required for the making of an agreement, inequalities of bargaining power are obvious and have an influence on the outcome. The larger and more powerful cantons are likely to have a greater say in inter-cantonal cooperation. Clearly, not all cantons are as present in Bern as others. Small cantons find it difficult to compete with the bigger players and claim that negotiated law-making negatively affects

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them as their bargaining power is lower than that of large and economically powerful cantons. Consequently, smaller cantons find it more difficult to impact on inter-cantonal rules and to preserve their differences, even in the areas were these are guaranteed by the federal constitution. In a number of cases, small cantons have even started to claim that, on some issues, they would prefer centralization to horizontal harmonization – as they would rather obey Bern than Zurich. It is undisputed that inter-cantonal law harmonization has negative impacts on cantonal democratic rights. The traditional subnational law-makers – cantonal parliaments and cantonal peoples – see their autonomy limited by what their executives have agreed upon. It is equally acknowledged that inter-cantonal law unification reduces legal diversity between cantons and limits the autonomy cantons would otherwise enjoy. Why is it, then, that inter-cantonal legislative harmonization is still seen by many as the best way forward and the most promising mechanism to preserve and further develop Swiss federalism? First, cantonal cooperation prevents centralization of competences and further harmonization by the federal tier of government. Second, it respects cantonal competencies and does not affect formal constitutional power-sharing arrangements. By harmonizing law, concordats reduce the (negative) effects of legal diversity, and thereby also diminish the pressure to amalgamate cantons. In short, inter-cantonal law-making allows for the preservation of a situation of “unreasonably small” subnational units with far-reaching autonomy to persist. Horizontal cooperation also permits the flexible establishment of functional, overlapping, and competing regulations and jurisdictions, and solutions to governance failures related to small-scale diversity. There are also apparent disadvantages, though. While bilateral agreements are relatively easy to negotiate,68 omni-cantonal ones leading to countrywide legal harmonization are hard to achieve. Only the latter are apt to prevent centralization but require the consent of all twentysix cantons. Depending on the issue at stake, government approval may be sufficient. But concordats that have “legislative” status (that is, that can bind third parties) typically need the approval of cantonal parliaments and sometimes even require cantonal referenda. That gives each and every canton a de facto veto power.69 To prevent spoilers from threatening horizontal legislative-harmonization, the constitution provides for a new instrument: forced cooperation. In enumerated fields – for example, universities, cutting-edge medicine, management of refuse disposal, et cetera – the federal par-

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liament may declare inter-cantonal agreements to be generally binding or require cantons to participate.70 The obligation to participate in concordats can be used to force cantons to share the burden carried by the institutions and to prevent freeriding (e.g., forced contribution to cultural institutions of supra-regional importance). The declaration of general applicability, meant to contribute to legal harmonization, is even more drastic: at the request of eighteen cantons, the federal parliament can decree that an inter-cantonal treaty ratified by some cantons is also binding on the others, even those opposing to it. Fortunately, this rather unusual process has so far never been used.71 Another problem – the most crucial for many – is the democratic deficit of horizontal law-making. Inter-cantonal law making, just like international law-making, is executive-based. The ministers and directors, not the members of parliament, meet in Bern, negotiate, and agree.72 Important concordats need parliamentary approval, but parliaments often feel under a duty to approve, especially in fields where there is a strong pressure or even an obligation to harmonize. Instead of making laws in a field of cantonal competence, the role of cantonal parliaments is reduced to saying “yes” or “no” to law-making concordats negotiated by the cantonal executives, and, more often then not, non-elected officials. As a “no” often comes at a high political price, cantonal parliaments see themselves as victims of the tina principle (“there is no alternative”) and grindingly give in to inter-cantonal legal developments outside of their control. Some agreements have gone to public votes in order to increase democratic legitimacy.73 However, this has not solved the issue, but rather has complicated it. What if the parliament or population of one or several cantons do not approve? Can the others then request forced cooperation? Or has law harmonization failed and is the respective competence transferred to the federal government? This is exactly what happened in the field of school harmonization. Seventeen cantons ratified the agreement; others refused it, some of them in popular votes. What next? No one seems to know.74 But there is a relatively high level of frustration among cantonal parliamentarians. They complain about the more and more frequent reference to the tina principle by the executives. Many feel robbed of their role of law-makers and reduced to rubber-stamping agreements made by various executives acting jointly. The democratic deficit of inter-cantonal law-making is even more strongly felt when inter-cantonal conferences are mandated to devel-

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op legal norms to implement concordats. As mentioned above, the federal constitution limits such legislative mandates: they are only valid when explicitly provided for in the concordat, when confined to the implementation of rules agreed upon in the concordat, and when the concordat has been approved by each canton according to the rule applicable to cantonal legislation. Yet even when, technically speaking, law-making processes by inter-cantonal bodies comply with the federal constitution and cantonal rules on law-making, the process is still regarded as weakening democratic legitimacy. The highly controversial debate relates to the length of the so-called democratic legitimacy chain. This chain, linking government action to popular will, is short when the population directly decides in a referendum. In the Swiss context, such a process enjoys the highest democratic legitimacy. When the people elect members of parliament, which then takes decisions in its name, the democratic legitimacy chain is longer; the representation of the people can lead to distortions of popular will. The legitimacy chain is even longer – and the risk of distortion of the popular will be even greater – when members of cantonal executive or unelected cantonal directors and officials negotiate treaties with other cantons’ executives and bring home bargains which parliaments and the people cannot amend. Many actors view the chain that links cantonal populations to the law applicable to them as overstretched, when a concordat provides inter-cantonal bodies with law-making competences. It is therefore not surprising that cantonal parliamentarians are skeptical about supra-cantonal law and cannot easily accept these norms as being binding. For example, school curricula produced by the Swiss Conference of Cantonal Ministers of Education and expert bodies mandated by them have lately met with strong resistance from cantonal parliaments and populations. There is a controversy as to whether the safeguards provided by the federal constitution are sufficient. The experiences of school harmonization have amply illustrated the fact that inter-cantonal and cantonal actors do not necessarily agree on what is meant by the implementation of a concordat. Are the legislative competences of inter-cantonal bodies limited to the regulation of details, or can they harmonize or unify other policy fields that are linked to the concordat and consistent with its aim? As inter-cantonal conferences tend to develop dynamics that individual cantonal parliaments and cantonal populations cannot easily control, reconciling efficient horizontal law-making with cantonal autonomy and democ-

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ratic rights continues to create challenges. The future could lie in a more flexible system of harmonization allowing cantons to choose partial harmonization and to opt in or out of supra-cantonal norms. Such softer forms of harmonization would also ensure that bottomup innovations remain possible and that the laboratory function of cantons must not give way to (short-term) efficiency considerations.

conclusions: swan, pike, and crab pull together Considering the very small and unequal size of cantons, their amalgamation would be a reasonable strategy to adapt Swiss federalism to mobility and interconnectedness. Amalgamation is discussed every now and then, but strong cantonal identities prevent it. Further centralization therefore seems to be almost unavoidable. In order to uphold the significance of cantons, new delegations of competencies to the central level must be compensated by increased participation of the cantons at the federal level – and it is. When all the cantons have similar concerns, they are usually heard. But this very fact puts the cantons under a strong pressure to agree among themselves in spite of important differences of interests and priorities. Horizontal governmental relations therefore remind observers of another writing of Ivan Krylov’s: the fable of the swan, the pike, and the crab.75 At first sight, effective harmonization and cooperation between cantons prevents them from behaving like the three fellows in the fable and allows them to successfully undertake tasks which each would struggle to fulfil acting on its own. But it soon becomes clear that cooperation seriously challenges the companions. In addition, whenever they fail to agree, the story goes, they produce nothing despite of all of their respective hard work: One day a swan, a pike, a crab, Resolved a load to haul; All three were harnessed to the cart, And pulled together all. But though they pulled with all their might, The cart-load on the bank stuck tight. The swan pulled upward to the skies; The crab did backward crawl; The pike made for the water straight – It proved no use at all!

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If cantons as different as swans, pikes, and crabs have to pull a loaded cart together, the cart will likely refuse to budge. As long as all drag the cart in different directions, all strength is lost and “the load is there unto this very day.” When partners do not agree, concludes Krylov, “their dealings come to naught and trouble is their labours’ only fruit.” The story perfectly illustrates the difficulties of horizontal intergovernmental relations. It is obvious that they are needed to move the cart, to tackle tasks together, and to stand up jointly to resist the pressure of centralization. But who should set the tone and decide on the direction? Do we force the swan to slowly toddle on earth with the others; must the pike live on earth and the crab move forwards? In many regards, horizontal cooperation between cantons seems just as harmful to diversity as central actions – and as we saw, it is less democratic. Like international law-making, inter-cantonal law-making lies dominantly in the hands of members of the executive and weakens the role of parliaments elected to adopt the rules governments are meant to apply. Inter-cantonal law – which is increasingly important in all fields of cantonal competencies – significantly affects the separation of powers within cantons. Parliamentarians and cantonal populations, even though well equipped with direct democratic instruments, seem robbed of their possibility to determine the rules they live by. Despite this, the current system puts enormous pressure on cantons to negotiate concordats. If they fail to harmonize horizontally, they risk losing their competence to the federal tier. This pressure to agree affects cantons differently. Large cantons, equal in law but not in fact, are likely to influence smaller ones. In the future, cantonal parliaments probably will have to find a new role. It can no longer be the one of making laws, not in their field of competence and not in the field of implementation. They will have to adapt to new tasks of planning, mandating, monitoring, and supervising. Some cantonal parliaments have innovated in this regard, have provided their ministers and directors with negotiating mandates and ask for regular updates; other cantons have established new norms obliging the government to inform and consult parliament or have established special parliamentary commissions participating in early stages of inter-cantonal negotiations.76 This, however, still leaves open the question of who determines the direction of the cart and how this direction can be changed. The fact that inter-cantonal law trumps cantonal law makes it difficult for all the swans, pikes, and crabs of a canton acting jointly to impact on the

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direction of the cart. Hence, even an amendment of the cantonal constitution based on a popular vote would not prevail over an inter-cantonal act (whether made by governments or by inter-cantonal institutions). And who can decide that the cartload should be abandoned and the labour invested in some other more important task? Just like international law, inter-cantonal law, once adopted, often deploys a top-down dynamic that is difficult to influence from the bottom up. In the long run it therefore seems necessary to improve the democratic accountability – and flexibility – of inter-cantonal law. This will require transforming inter-cantonal cooperation into supra-cantonal cooperation: the direct election of supra-cantonal bodies, supra-cantonal resources, and supra-cantonal responsibility. As it is, the system tends to blur the separation of power and to make it more difficult for citizens to understand what entity has taken what decision, how, and why. This general diffusion of powers and responsibilities negatively effects democratic participation and control and can infuse frustration and alienation. It can also tempt politicians to rely on strategies of burden and blame shifting. Who is really responsible when intercantonal law does not fulfil its promises and mismatches cantonal priorities? Opaque inter-cantonal cooperation allows politicians to rely on scapegoats and to blame inter-cantonal actors or other cantons for governance failures and the incapacity to respond to popular will. Another strategy under consideration is to render inter-cantonal law harmonization more flexible and allow cantons to opt in or out of agreements. This would make the system more federal and more democratic – but also more complex. It is striking to see that the difficulties and challenges Swiss federalism is confronted with are very similar to the ones of the eu. Multilevel federalism seems to be the only answer to composite and overlapping jurisdictions, but the mechanisms for it to function in an equal, transparent, and democratic way are not yet in place. Given their size, cantons cannot reasonably expect to be “sovereign” within the limits of the federal constitution, as the constitution promises. They have to adapt to all sorts of legal constraints and socioeconomic pressures. The failure of amalgamations can be seen as a proof that cantonal identities still matter and cannot be neglected by efficiency consideration. But while people want to identify with their cantons and see them as unique, their tolerance for inequalities, at the same time, seems to be diminishing. Therefore, federalism and multilevel governance have to depart even more from the idea of watertight

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compartments and find new ways to protect unity in diversity in situations of deep vertical and horizontal interconnectedness. However, this transformation of compartments into dense networks and the blurring of competences and responsibilities comes at a price. Interconnected networks question the carefully designed separation of horizontal and vertical powers, established to guarantee autonomy, to protect diversity, and to prevent power concentration and abuse. Networks tend to lack transparency and to make it more difficult to hold individual state actors responsible for actions or omissions. Dense intergovernmental relations can thus reduce state accountability. In addition, the diffusion of political responsibility also opens new doors for abuses of power. The fact that decisions are prepared and sometimes taken in informal settings and through opaque processes creates new and unregulated opportunities for lobbying, and allows powerful economic and political interest groups to impact on decisions in ways that are not easily traceable. State networking therefore deeply challenges traditional checks and balances and creates the need to find new ways to strengthen legal and political accountabilities.77 The fact that the role of international and internal borders is rapidly diminishing affects state power and the way it is divided and shared. Today, almost all competencies stretch to all sorts of jurisdictions including supra- and international ones. General objectives, strategies, and targets, as well as standards for human rights and environment protection, are increasingly negotiated and agreed upon at the international level and are binding on all orders in a federal state. Within this framework, federal authorities – in cooperation with constituent units – use the available space to apply these objectives, targets, and standards to the country’s context, its needs and priorities. In doing so, the constitutional separation of powers and the principle of subsidiarity must be respected and excessive harmonization avoided. Such respect for diversity allows subnational units to autonomously implement international and national laws, to adapt them to regional contexts, and to add their own priorities. Finally, the local level has its say and also complements the system with another layer of selfrule. Federalism thereby transforms into a multilevel system in which all levels depend on the other but follow their own dynamics.78 In such a system, however, the principle of shared rule should also apply to all levels and ensure transparent feedback loops in both directions. Given that in Switzerland – in contrast to Canada or Belgium – local and regional order are subordinate to national and inter-

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national legal orders, the cantons’ participation in the making and shaping of overriding rules is not sufficiently guaranteed. Multilevel governance systems of the future should therefore evolve in ways that better ensure that regional and local actors impact on decision making-processes at all levels in order to protect their identity and to ensure that regional and local needs, priorities, and experiences feed into new legislative projects. Top-down processes solely focusing on harmonization threaten innovation from the bottom and question the very ideas that federalism stands for. It goes without saying that such an evolution making higher tiers of government more responsive to citizens and communities would revolutionize intergovernmental relations. In sum, it seems obvious that intergovernmental relations in federal states are still in need of further reflection. The way they operate deeply affects the autonomy of regional and local actors and their potential to act as organs of self-rule. Similarly, intergovernmental relations are decisive for participation, consultation, and information, and for the possibilities of lower tiers of government to impact on the making of shared rule. If regional and local actors have no say on legal harmonization and unification at the national and international levels, diversity is lost to unity, and innovation in governance and policymaking is severely hindered. While in Switzerland, the weakening of democratic participation is the dominant critical feature of the sharp increase in intergovernmental relations, in Canada, the lack of transparency is equally worrying. Allowing for effective governance instruments that are not fully open to public scrutiny might seem tempting for government actors as it offers flexibility to solve issues of common concern. However, this “flexibility” prevents citizens from fully assessing the responsibility of the different actors involved and from expressing their appreciation or their criticism of policy decisions at election time. Opaque intergovernmental relations thus not only affect federalism but also the rule of law and democracy. It therefore seems crucial, in Switzerland as well as in Canada, that the elephant in the room comes to light. It must be prevented from carelessly trampling on constitutional rights and the rules of the game made by the most powerful tamer. Intergovernmental relations are legitimate as far as they strengthen constitutional principles such as transparency, accountability, and subsidiarity, and are rightly considered harmful if they do the opposite.

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acknowledgments I am very grateful to my research assistant, Liliane Denise Minder, MLaw, Esq., for her valuable help in the drafting and editing of this chapter.

notes 1 William Ralston Shedden-Ralston, Krilof and his Fables (London: Hanse, 1869), 43–4. 2 Mark Twain, The Stolen White Elephant (Frankfurt am Main: Penguin Classics, 2018), 3. 3 E.g., in Switzerland: Nicole Bolleyer, “Federal Dynamics in Canada, the United States, and Switzerland: How Substates’ Internal Organization Affects Intergovernmental Relations,” Publius: The Journal of Federalism 36, no. 4 (2006): 471–502; Daniel Bochsler, “Neighbours or Friends? When Swiss Cantonal Governments Cooperate with Each Other,” Regional and Federal Studies 19, no. 3 (2009): 349–70; Daniel Kübler, Walter Schenkel, and Jean-Philippe Leresche, “Bright Lights, Big Cities? Metropolisation, Intergovernmental Relations, and the New Federal Urban Policy in Switzerland,” Swiss Political Science Review 9, no. 1 (2003): 261–82. 4 John Kincaid, “Preface” in Intergovernmental Relations in Federal Systems, Comparative Structures and Dynamics, edited by Johanne Poirier, Cheryl Saunders, John Kincaid (Toronto: Oxford University Press, 2015), xiii. 5 Marc-Antoine Adam, Josée Bergeron, and Marianne Bonnard, “Intergovernmental Relations in Canada: Competing Visions and Diverse Dynamics,” in Intergovernmental Relations in Federal Systems, Comparative Structures and Dynamics, edited by Johanne Poirier, Cheryl Saunders, John Kincaid (Toronto: Oxford University Press, 2015), 135. 6 Jeffrey Parker, Comparative Federalism and Intergovernmental Agreements: Analyzing Australia, Canada, Germany, South Africa, Switzerland and the United States (Abingdon, Oxon: Routledge, 2015), 134. 7 See Kantonsporträts 2016, “Aktuelle regionalstatistische Kennzahlen der 26 Kantone” / “Canton Portraits 2016, Current Regional Statistics for the 26 Cantons,” 12–78, https://www.bfs.admin.ch/bfs/de/home/statistiken/regional statistik/regionale-portraets-kennzahlen/kantone.assetdetail.560515.html, accessed 7 August 2017. The Canton of Appenzell Inner Rhodes is the canton with the smallest population; the most populous one is the Canton of Zurich.

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8 Parker, Comparative Federalism, 66–135. 9 See Eugénie Brouillet, Alain-G. Gagnon, and Guy Laforest, La conférence de Québec de 1864, 150 ans plus tard: Comprendre l’émergence de la fédération canadienne (Quebec: Presses de l’Université Laval, 2016). 10 Eva Maria Belser, Bernhard Waldmann, and Eva Molinari, Grundrechte I, Allgemeine Grundrechtslehren / Constitutional Rights I, General Doctrines (Zürich, Basel, Genf: Schulthess 2012), 46–54. 11 The Federal Supreme Court had dismissed a number of cases brought to it by women activists and refused to reinterpret the constitutional term “Swiss” as including men and women. It was only in 1990 that the court obliged the Canton of Appenzell Inner Rhodes to introduce female voting on the cantonal level (see Federal Court decision bge 116 Ia 359). 12 Parker, Comparative Federalism, 65–9. 13 Marc-Antoine Adam, Josée Bergeron, and Marianne Bonnard, “Intergovernmental Relations in Canada: Competing Visions and Diverse Dynamics,” in Intergovernmental Relations in Federal Systems, Comparative Structures and Dynamics, edited by Johanne Poirier, Cheryl Saunders, John Kincaid (Toronto: Oxford University Press, 2015), 135ff.; Johanne Poirier and Cheryl Saunders, “Conclusions,” in ibid., 481ff. 14 Wolf Linder, Schweizerische Demokratie, Institutionen, Prozesse, Perspektiven / Institutions, Processes, Perspectives (Bern: Haupt Verlag, 2005), 247–51; Eva Maria Belser, “Einleitung,” in Kommentar zur Bundesverfassung / “Introduction,” in Commentary of the Constitution (Basel: Helbing Lichtenhahn Verlag, 2015), 14ff., 24ff. 15 Linder, Schweizerische Demokratie, Institutionen, Prozesse, Perspektiven / Institutions, Processes, Perspectives, 353–60. 16 Andreas Ladner, “Switzerland,” in From Localism to Intergovernmentalism, Changing Government Relations in Europe, edited by Michael J. Goldsmith and Edward C. Page (New York: Routledge, 2010), 210–27. 17 Federal Constitution of the Swiss Confederation of 18 April 1999, art. 4 [constitution], https://www.admin.ch/opc/en/classified-compilation/19995395 /index.html, accessed 7 August 2017. 18 Constitution, art. 70, para 1. 19 For Canada see Alain-G. Gagnon, The Case for Multinational Federalism, Beyond the All-Encompassing Nation, 1st ed. (Oxon: Routledge: 2009). 20 Constitution, art. 70, para 2. 21 Ibid. 22 Eva Maria Belser, “Accommodating National Minorities in Federal Switzerland,” in Revisiting Unity and Diversity in Federal Countries: Changing Concepts, Reform Proposals and New Institutional Realities, edited by Alain-G.

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Gagnon and Michael Burgess (Leiden: Brill-Nijhoff, 2018), 79–111, 88 and 100. See, for example, “Willkommen,” Haus der Kantone, / “Welcome,” House of Cantons, accessed 25 September 2017, http://www.haus-der-kantone.ch/de. Adam et al., “Intergovernmental Relations in Canada,” 138. Jean-François Gaudreault-Desbiens and Johanne Poirier, “From Dualism to Cooperative Federalism and Back? Evolving and Competing Conceptions of Canadian Federalism” in The Oxford Handbook of the Canadian Constitution, edited by Peter Oliver, Patrick Macklem, and Nathalie Des Rosiers (Oxford: Oxford University Press, 2017), 391–413; Bolleyer, “Federal Dynamics in Canada,” 476; David Cameron and Richard Simeon, “Intergovernmental Relations in Canada: The Emergence of Collaborative Federalism,” Publius: The Journal of Federalism 32, no. 2 (2002), 49–71. See constitution, arts. 5a, 43a, 46. Ibid., art. 47. Ibid., art. 141. The Cantons have only once made use of this right, in 2003, and successfully challenged new federal tax norms they considered as being harmful to cantonal interests. In most earlier and later cases, cantonal resistance against a federal law was more voluntarily taken into account by the Federal Council and the Federal Assembly. Ibid., arts. 45, 55, 147. Parker, Comparative Federalism, 142. See Finanzstatistik der Schweiz 2014, Jahresbericht: Eidgenössische Finanzverwaltung, efv, Finanzstatistik der Schweiz 2015, Jahresbericht / Federal Finance Administration, Finance Statistic Switzerland 2015, Annual Report (Neuchâtel, 2017), https://www.bfs.admin.ch/bfs/de/home/statistiken /oeffentliche-verwaltung-finanzen.html, accessed 7 August 2017. Wolf Linder and Isabelle Steffen, “Swiss Confederation,” in A Global Dialogue on Federalism Legislative, Executive, and Judicial Governance in Federal Countries, edited by Katy Le Roy and Cheryl Saunders (Montreal and Kingston: McGill-Queen’s University Press, 2006), 289–315. Constitution, art. 44; see Jean-François Aubert and Pascal Mahon, Petit commentaire de la Constitution fédérale de la Confédération suisse du 18 avril 1999 (Zürich, Basel, Geneva: Schulthess, 2003), art. 44 n. 1ff.; Bernhard Waldmann and Raphael Kraemer, Basler Kommentar zur Bundesverfassung / Commentary of the Constitution (Basel: Helbling Lichtenhahn Verlag, 2015), art. 44 n. 1ff. Giovanni Biaggini, Bundesverfassung der Schweizerischen Eidgenossenschaft / Constitution of the Swiss Confederation, 2nd edition (Zürich: Orell Füssli, 2017); Constitution, art. 44 n. 7 and 8.

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35 Constitution, art. 190; see Aubert and Mahon, Petit commentaire de la Constitution fédérale, art. 190 n. 1ff.; Waldmann and Kraemer, Basler Kommentar zur Bundesverfassung, art. 190 n. 1ff. 36 See Luzius Mader, “Intergovernmental Relations in Switzerland,” in The Ways of Federalism in Western Countries and the Horizons of Territorial Autonomy in Spain, edited by Alberto López-Basaguren and Leire Escajedo San Epifanio (Berlin, Heidelberg: Springer-Verlag, 2013), 2–57; Parker, Comparative Federalism, 147–9. 37 Constitution, art. 48. 38 Ibid., art. 46, para 2. 39 Bernhard Waldmann and Zeno Schnyder von Wartsee, Basler Kommentar zur Bundesverfassung / Commentary of the Constitution (Basel: Helbling Lichtenhahn Verlag, 2015), art. 48 n. 18ff. 40 Constitution, art. 48, para 3. 41 Ibid., art. 172. 42 See Johanne Poirier and Cheryl Saunders, “Conclusions,” in Intergovernmental Relations in Federal Systems, Comparative Structures and Dynamics, edited by Johanne Poirier, Cheryl Saunders, and John Kincaid (Toronto: Oxford University Press, 2015), 451ff. 43 For the degree of overlap in Canada and Switzerland, see Parker, Comparative Federalism, 138–9, 70–1. 44 Constitution, art. 149 and 150; see Linder, Schweizerische Demokratie, Institutionen, Prozesse, Perspektiven / Institutions, Processes, Perspectives, 201–3. 45 While the inhabitants of Appenzell Inner Rhodes (with about 16,000 residents) are able to elect only one parliamentarian, the Canton of Zurich (with almost one and a half million inhabitants) elects thirty-three representatives to the National Council. 46 See Linder, Schweizerische Demokratie, Institutionen, Prozesse, Perspektiven / Institutions, Processes, Perspectives, 184. 47 Constitution, art. 161, para 1; see Aubert and Mahon, Petit commentaire, art. 161 n. 1ff. 48 See “Database of Parliamentary Votes,” The Federal Assembly – The Swiss Parliament, accessed 25 September 2017, https://www.parlament.ch/en/rats betrieb/abstimmungen/abstimmungs-datenbank-nr. 49 Eva Maria Belser, The Swiss Ständerat: A Model of Perfect Bicameralism (forthcoming). 50 Constitution, art. 160, para 1. 51 Pierre Tschannen, Staatsrecht, § 24 n. 14ff.; Pierre Tschannen, Constitutional Law, § 24 n. 14ff. 52 Constitution, art. 45; Pierre Tschannen, Staatsrecht, § 24 n. 1 and 23ff.; Pierre Tschannen, Constitutional Law, § 24 n. 14ff.

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53 Eva Maria Belser and Simon Mazidi, Das Zusammenwirken von Bund und Kantonen bei der Einhaltung völkerrechtlicher Menschenrechtsverpflichtungen der Schweiz / The Cooperation of the Confederation and the Cantons in Complying with Switzerland’s Human Rights Obligations under International Law, in Jahrbuch des Föderalismus 2018, edited by Europäisches Zentrum für Föderalismus Forschung Tübingen (ezff). 54 Parker, Comparative Federalism, 67–9. 55 Constitution art. 141; Linder, Schweizerische Demokratie, Institutionen, Prozesse, Perspektiven / Institutions, Processes, Perspectives, 247–51. 56 Constitution, art. 48. 57 Constitution, art. 62, para 4; Eva Maria Belser, “Concurrent Powers as Doors to Legislative Innovation, Conditional Power as Gates to the Blind Alley: Some Swiss Illustrations,” in Concurrent Powers in Federal Systems, edited by Nico Steytler (Leiden and Boston: Brill Nijhoff, 2017), 49–69. 58 Referring to the multi-level-government in Switzerland, see Hannah Kauz, Multi-Level-Government Schweiz, Aspekte der Zusammenarbeit im Bundesstaat, in Föderalismus 2.0: Denkanstösse und Ausblicke / Multi-Level-Government Switzerland, Aspects of Cooperation in the Federal State, in Federalism 2.0: Thought-Provoking Ideas and Outlooks (Bern: Stämpfli Verlag ag, 2011), 30–46. 59 Constitution, art. 48, para 4. 60 Mader, Intergovernmental Relations, 57, speaks even from 800 inter-cantonal and inter-communal contracts. According to Mader, more than 800 intercantonal agreements are currently in force. 61 Bochsler, Neighbours or Friends?, 6. 62 See Constitution, art. 48, para 5: “The Cantons shall comply with intercantonal law.” 63 Thomas Pfisterer, “Intergovernmental Relations in Switzerland: An Unfamiliar Term for a Necessary Concept,” in Intergovernmental Relations in Federal Systems, Comparative Structures and Dynamics, edited by Johanne Poirier, Cheryl Saunders, and John Kincaid (Toronto: Oxford University Press, 2015), 393–5. 64 Ibid., 147. 65 See http://www.canadaspremiers.ca/, accessed 8 May 2018. 66 Mader, Intergovernmental Relations, 58. 67 See “Übersicht Direktorenkonferenzen,” Konferenz der Kantonsregierungen, accessed 22 August 2017, http://www.kdk.ch/de/kooperation/direktorenkonferenzen/uebersichtdirektorenkonferenzen/. 68 Armin Schöni, “Le contrôle parlementaire des conventions intercantonales à l’exemple des conventions créant la he arc et la hes-so,” Working paper, Swiss Graduate School of Public Administration, 2004, https://edudoc.ch

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72 73 74 75

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/record/29551/files/98.pdf; Thomas D. Zweifel, Democratic Deficit? Institutions and Regulation in the European Union, Switzerland, and the United States (Lanham: Lexington Books, 2002); Martin Schuler and Michel Rey, “Les grandes régions suisses: simple outil statistique ou mise en cause du fédéralisme?” in Grossregionen: Wunschvorstellungen oder Lösungsansatz?, edited by Alain Thierstein, Martin Schuler, and Daniel Wachter (Bern, Stuttgart, Vienna: Haupt, 2000); Peter Hänni, “Vor einer Renaissance des Konkordates? Möglichkeiten und Grenzen interkantonaler Vereinbarungen” / “Before a Renaissance of the Concordat? Possibilities and Limits of Intercantonal Agreements,” in Der Verfassungsstaat vor neuen Herausforderungen: Festschrift für Yvo Hangartner / The Constitutional State Faces New Challenges, Commemorative Publication for Prof. Yvo Hangartner, edited by Bernhard Ehrenzeller and Philippe Mastronardi (Lachen, St Gallen: Dike Verlag ag, 1998), 659–74. Kübler et al., “Bright Lights, Big Cities,” 273–6. Constitution, art. 48a. See Bernhard Waldmann, Föderalismus unter Druck: Eine Skizze von Problemfeldern und Herausforderungen für den Föderalismus in der Schweiz, in Festschrift für Peter Hänni zum 60. Geburtstag / Federalism under Pressure: A Sketch of Problem Fields and Challenges for Federalism in Switzerland, Commemorative Publication for the 60th Birthday of Prof. Peter Hänni (Bern, 2010), 3–23. Pfisterer, “Intergovernmental Relations in Switzerland,” 399–400. See also Mader, Intergovernmental Relations, 57. Belser, “Concurrent Powers,” 49–69. Borowky Kay, Russische Lyrik, von den Anfängen bis zur Gegenwart / Russian Poetry, from its Beginnings to the Present Day (Stuttgart: Reclam, 2006), 98–100. See for an overview of all cantonal mechanisms: http://www.kantonsparla mente.ch/stadlin_tables/14?lang=de, accessed 25 September 2017. Alain-G. Gagnon, “Multilevel Governance and the Reconfiguration of Political Space: Theoretical Considerations from a Multinational Perspective,” in Federalism as Decision-Making: Changes in Structures, Procedures and Policies, 1st ed., edited by Francesco Palermo and Elisabeth Alber (Leiden: Brill/Nijhoff, 2015), 7–19. Thomas Cottier, “Towards a Five Storey House” in Constitutionalism, Multilevel Trade Governance and International Economic Law, 2nd ed., edited by Joerges Christian and Ernst-Ulrich Petersmann (Oxford: Hart Publishing, 2011), 495–532.

10 Cooperative Federalism vs Parliamentary Sovereignty: Revisiting the Role of Courts, Parliaments, and Governments Noura Karazivan

introduction Intergovernmental relations (igrs) in Canada are flourishing. While they were not “designed” in the Canadian constitution, they have “grown organically from it.”1 They often result in the signing of intergovernmental agreements (igas), which in Canada are numerous.2 In recent years, asymmetrical arrangements between federal and provincial partners have multiplied. Local intergovernmental arrangements with Indigenous Peoples have also increased.3 According to Simeon and Nugent, igrs are the fourth pillar of the Canadian institutional architecture, along with Westminster-style parliamentary government, federalism, and the Canadian Charter of Rights and Freedoms.4 An inquiry into the cause of their expansion is beyond the scope of the present chapter. Some authors have argued that igrs are a product of the federative deficit inherently present within Canadian parliamentary institutions. According to Jean Leclair, for instance, “le fédéralisme ayant, à toutes fins utiles, déserté le Sénat, la Chambre des communes et le Cabinet, il a fait son nid dans les relations intergouvernementales.”5 In this regard, igrs may be considered as a factor that serves to counterbalance Westminster-style parliamentary government.

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In this chapter, I will focus not on the causes, but rather on the consequences of igrs on Canadian federalism, in both its dualist and cooperative conceptions. As relations between federal partners are translated into igas, these instruments, in turn, become an essential part of the practice of cooperative federalism, which is often opposed to classical dualist federalism. Cooperative federalism is regularly referred to as a more flexible, less hermetic way to conceive the frontier between federal and provincial jurisdictions, whereas classical dualist federalism is grounded in the respect of exclusivity of jurisdiction.6 The reality of cooperation (the many facets of which are well explained in Gauvin and Papillon’s contribution to this volume) has prompted several authors to say that the Canadian federation is dualist only in theory – in practice, it is much more cooperative and collaborative. However, legally speaking, attachment to dualism is alive and well. And so is the principle that parliaments, being sovereign, are capable of adopting any intra vires legislation, even a piece of legislation that destroys cooperative regimes negotiated and agreed upon by intergovernmental actors. The question this paper seeks to answer is whether the persisting attachment to dualism and parliamentary sovereignty, on the one hand, and the growing practice of cooperation, on the other, can be reconciled. In particular, I wish to inquire into the respective roles of Parliament, government, and courts in solving the tension between parliamentary sovereignty and cooperative federalism. Parliamentary sovereignty has cohabited for 150 years with Canadian dualist federalism in a relatively harmonious fashion. The principle of parliamentary sovereignty allows for parliaments to exercise their jurisdiction as they see fit. Canadian dualist federalism, on the other hand, is centred on a division of powers based on the idea of exclusivity of jurisdictions, and the belief that certain legislative objectives can only be pursued by Parliament, while others can only be pursued by provincial legislatures. But what about the new cooperative federalism paradigm and the old parliamentary sovereignty? Are they compatible? What happens when agreements entered into by intergovernmental actors such as provinces, the federal government, Aboriginal governments, or municipalities, fail? Should they bind their signatories? Should courts create an obligation to act in good faith? Should courts enforce such obligations, and limit parliamentary sovereignty to protect the legitimate expectations of federal partners, or is the vulnerability of intergovernmental cooperation inherent to our parliamentary federal system?

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Any attempt to answer these questions starts with an examination of the principles of parliamentary sovereignty and federalism, both anchored in the preamble of the 1867 Constitution, which declares that the Canadian Constitution will be “similar in principle” to the British Constitution, and that provinces are to be “federally united” into one Dominion. Before going further, a bit of terminological precision. The expression “cooperative federalism” is polysemic. The concept is hard to define: it has been described, alternatively, as a principle “allowing for interplay and overlap between federal and provincial legislation,”7 a guiding principle,8 an underlying (constitutional) principle,9 an interpretive presumption,10 an executive practice,11 and a modality of the federal principle.12 In a past contribution, I have found it useful to distinguish between two different meanings of the term “cooperative federalism.”13 The first meaning of “cooperative federalism” is an interpretive principle developed by courts when deciding division of powers cases, and which impacts the way in which division of powers doctrines, such as intergovernmental immunity and paramountcy, are applied by judges. In particular, the principle operates in order to make it more onerous to (1) declare provincial or federal legislation invalid; (2) immunize federal legislation from provincial law; and (3) declare provincial laws inoperative as a result of federal paramountcy.14 The use of cooperative federalism, under this scenario, is detached from actual cooperation among federal partners. The result, however, may very well be an enticement to cooperate in the future.15 The second meaning of cooperative federalism is the description of an actual practice of intergovernmental cooperation, also called executive cooperative federalism. This refers to the practice whereby governments will cooperate with one another in order to achieve satisfactory regulatory results through delegation schemes, the signing of intergovernmental agreements (igas), and, often, the creation of administrative agencies capable of administering federal and provincial legislation.16 In this chapter, I focus mainly on this type of executive cooperative federalism, by examining the role that courts, parliaments, and governments play, or ought to play, in resolving the tensions between cooperation and parliamentary sovereignty. The practice of executive cooperative federalism allows governments to overcome the constitutional dead end caused by the impossibility for a single legislative entity to effectively regulate certain activities falling within the two legislative orders.17 However, such

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arrangements are temporary, unenforceable, vulnerable to change and may pose problems of accountability. The problems of accountability have been addressed by several authors and will not be the focus of the present chapter.18 Suffice it to say that the potential democratic deficit is caused by (1) the fact that those agreements are often negotiated without Parliament’s involvement and with little input from the population, thus consecrating the domination of the executive in the conclusion of igas; and (2) the fact that accountability to Parliament is more difficult to achieve when transfer payments are made from the federal government to the provincial ones, especially when the programs these payments sponsor are within provincial fields of jurisdiction.19 My focus in this chapter will rather be the vulnerability of intergovernmental agreements and the possibility that they may end abruptly when legislation is enacted. In recent years, some long-term arrangements have been unilaterally cancelled, thus rendering the cooperating partner, who relied on the prospect of cooperation and the expected benefits of it, powerless. One such example is the longgun registry, which the federal government decided to abolish in 2012. In that case, Parliament adopted legislation that not only ended the registry, but also provided for the destruction of the registration data. When the Quebec government asked for a transfer of the registration data relating to Quebec, the federal government refused, thus triggering a legal battle which culminated in a divided 5:4 Supreme Court of Canada decision.20 Another example of unilateral change, which will also be examined below, was the decision of the federal government to limit the growth of payments it made to wealthier provinces, including British Columbia, following a modification to the then Canada Assistance Plan in 1991. British Columbia challenged this decision by arguing that the agreement obliged the federal government to pay to British Columbia the contributions that were agreed upon when the agreement was signed, which led to the Reference re Canada Assistance Plan.21 In each of these cases, the court invoked parliamentary sovereignty to justify legislative changes which, in effect, unilaterally altered, if not terminated, prior agreements. A third example, though not involving parliamentary sovereignty per se, is the Social Union Framework Agreement (sufa)22 that was negotiated at length by all provinces except Quebec, only to be ignored by the federal government shortly after its signature.23

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The fact that cooperation could so easily be erased by the stroke of Parliament’s pen has led to scholarly concern about the instability of intergovernmental agreements and cooperative regimes, which are susceptible to unexpected changes by either party. Authors have advocated, as a remedy to this instability, that courts recognize some normative obligations derived from the cooperative federalism principle. After exploring these solutions, I will question whether it is the role of courts to make these intergovernmental agreements more binding by limiting Parliament’s freedom to enact any type of legislation it sees fit, or by imposing a duty to act in good faith on governments. I will argue that the challenges posed by the normative weakness of cooperative federalism should be tackled first by the cooperating parties, that is, the governments and parliaments, and not initially by courts. Thus, the two solutions I explore in the present chapter do not involve the a priori judicial recognition of a normative duty deriving from the principle of cooperative federalism.24 On the other hand, they do not exclude judicial intervention at a later stage.

part 1: principles Two constitutional law principles are at play when considering the vulnerability of intergovernmental cooperation: parliamentary sovereignty and federalism. Parliamentary Sovereignty Parliamentary sovereignty is inherent in British constitutional law, and its development is associated with, among other events, the Glorious Revolution of 1688 and the enactment by the English Parliament of the Bill of Rights 1689,25 which imposed the sovereignty of parliament over monarchical power, thus creating a “new constitutional order.”26 Parliamentary sovereignty (“What the Queen in Parliament enacts is law”) and some of its essential components (the freedom of parliament and its privileges) have been recognized in Canadian law as arising from the Preamble of the Constitution Act, 1867.27 Of course, the idea that no authority has the power to declare null a law voted by Parliament is foreign to Canadian constitutional law: judicial review of legislation on division of powers grounds has existed since the

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British North America Act, 1867 was adopted;28 and in 1982, through the enactment of s. 52 Constitution Act, 1982, judicial review on Charter grounds was added.29 Thus, Justice Dickson speaks of parliamentary sovereignty as occupying a “residual”30 space, one left open once constitutional requirements are accounted for. Canadian legislatures can, therefore, adopt any intra vires piece of legislation they see fit, even draconian ones;31 enjoy privileges, even if it involves restricting fundamental freedoms;32 adopt privative clauses to limit judicial review;33 and exercise the power granted by section 33 of the Charter to derogate from the most fundamental of rights. Parliamentary sovereignty in the Canadian context is vested not only in the central parliament, but also in provincial legislatures. As early as 1892, in The Liquidators of the Maritime Bank of the Dominion of Canada v. The Receiver-General of the Province of New Brunswick, the Judicial Committee of the Privy Council determined that the lieutenant governors of the provinces are as much the Queen’s representatives as the governor general is. Provincial legislatures are sovereign and hold plenary powers, the same powers that the Imperial Parliament exercised before it transferred them to the Dominion and the provinces in 1867.34 In other words, sovereignty, both legislative and executive, is not entirely within the scope of a single entity in Canada.35 Parliamentary sovereignty is limited by two general propositions. First, Parliament cannot bind itself for the future, except on questions of manner and form. I will explain this doctrine in the last part of this chapter, but for now, it is sufficient to mention that Parliament can bind itself for the future on matters pertaining to the “formal conditions for legislation to be passed”36, but not on substantive content. Second, Parliament cannot abdicate its powers. The Parliament and the legislatures are sovereign, but “none of them has the unlimited capacity of an individual”;37 thus, they cannot abdicate their legislative responsibilities.38 They can, however, delegate administrative or regulatory powers to a subordinate entity, as long as the legislature “ultimately retains the complete authority to revoke any such delegated power.”39 According to Chevrette and Marx, a delegation “in an indefinite mode and with an unlimited purpose” constitutes an abdication of legislative responsibilities. 40 That being said, in Canada, the cases where a delegation of powers has been considered to be an abdication are rare.41

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Canadian Federalism, Dualism, and Cooperation Canadian federalism is officially dualist. It is based on the notion of coordinated but not subordinate government entities, each possessing its own exclusive powers. Thus, in 1930, Lord Sankey of the Judicial Committee of the Privy Council pointed out that the Dominion of Canada, to a great extent but within certain fixed limits, may be mistress in her own house, as the provinces, also to a great extent but within certain fixed limits, are mistresses in theirs.42 The Supreme Court of Canada has stated that federalism was the legal response to the political and cultural realities that existed at Confederation.43 But it was also an institutional response to the factual and historical reality that followed British conquest. Federalism was the product of the socio-historical context conditioned by the coexistence, in the province of Quebec, of 65,000 French colonists who did not speak English, and a minority of English settlers.44 Canada was a federal society45 before being politically sovereign, its institutions and society operating under the principle of federalism long before any legislative sovereignty was achieved.46 Federalism presupposes, according to the classic definition of K.C. Wheare, a division of powers between two levels of government “so that the general and regional governments are each, within a sphere, co-ordinate and independent.”47 These governments are coordinated but not subordinate to one another,48 and they often each “operate directly on the people.”49 Federalism also presupposes an independent tribunal to arbitrate disputes,50 and a constitution both supreme and written, discouraging unilateral attempts to modify the original pact.51 While Wheare famously referred to Canada as “quasi-federal in law,” he also found that it was “predominantly federal in practice.”52 The federal structure of Canada has never been denied by the courts, although their attachment to the principle of federalism has fluctuated over the years.53 In the Reference re Securities Act, 54 the court traces the evolution of federalism in general, and of cooperative federalism in particular, into three jurisprudential stages which I would like to reiterate here.55 During the first period, according to the court, the Judicial Committee of the Privy Council (the final appeal jurisdiction for Canada until 1949) conceived of the division of powers as “watertight com-

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partments,”56 favouring a dualist vision of this division and privileging the exclusivity of competences.57 During the second period, which started after the abolition of appeals to the Privy Council, the Supreme Court – which in 1949 had become the court of final appeal – favoured a “more flexible”58 understanding of the distribution of powers, allowing for some overlap. The court gives some examples, such as the decision upholding an intergovernmental potato marketing scheme,59 to which I shall return later. Third, in recent years, the court dissipated all remaining doubts regarding the rejection of watertight compartments by endorsing cooperative schemes and “reject[ing] rigid formalism in favour of accommodating cooperative intergovernmental efforts.”60 The court cited its decision upholding a poultry marketing regime, in which “Canadian federalism’s constitutional creativity and cooperative flexibility”61 were praised. Under this narrative, cooperative federalism appears to be the efficiency-driven, pragmatic successor of dualistic federalism. Several authors have endorsed this narrative, or similar ones, regarding the “impracticability” of dualist federalism, the fading out of the watertight compartment metaphor, or the decline of the exclusivity of jurisdiction underlying the division of powers.62 Yet cooperative federalism has coexisted with dualistic federalism for a long time. It is not a new trend in Canada, even though it has enjoyed considerable doctrinal popularity recently.63 Some would argue that it goes as far back as the development of the Constitution Act, 1867, at least as it relates to the division of powers over criminal law.64 The Privy Council was not at all opposed to it. In 1937, after noting that the provinces and the Dominion could combine their legislation so that they could jointly achieve the “complete power of regulation which is desired,” Lord Atkin wrote: “Unless and until a change is made in the respective legislative functions of Dominion and Province it may well be that satisfactory results for both can only be obtained by co-operation.”65 In 1952, when the Supreme Court endorsed the integrated potato marketing regime66 and confirmed the constitutionality of the oblique delegation between the federal legislator and a provincial (regulatory) board, Justice Rinfret pointed out that in doing so, Parliament “was following the advice of the Judicial Committee in the several judgments which it rendered on similar Acts and, more particularly, on the Reference concerning the Natural Products Marketing Act,

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adopted by Parliament in 1934 (S. of C. 24 and 25 George V, c. 57), (1937), that the proper way to carry out legislation of that character in Canada, in view of the distribution of legislative powers under the British North America Act, was for Parliament and the Legislatures to act by co-operation.”67 At that time, as is the case today, neither the doctrine of watertight compartments, nor that of cooperative federalism, could be said to exercise a monopoly over division of powers cases. In reality, cooperative federalism has always coexisted with dualist federalism. It could not then, and cannot now, shift the constitutional boundary between sections 91 and 92 Constitution Act, 1867. This does not mean that administrative agreements cannot temporarily alter the constitutional “landscape,” as Poirier argued.68 However, they do not do so permanently. Take for example maternal and parental benefits, which the Supreme Court of Canada found to be within federal jurisdiction in its October 2005 ruling.69 Seven months before the court issued its ruling, the federal and provincial governments reached an agreement by which Quebec would administer its own regime.70 If the federal government decided to repeal the Canada-Québec Final Agreement on the Québec Parental Insurance Plan, and reclaim jurisdiction, it is not clear what arguments Quebec could make. Indeed, the court explicitly recognized that the federal Parliament has jurisdiction over these programs, under its unemployment insurance jurisdiction (s. 91[2A] Constitution Act, 1867), and rejected the attorney general of Quebec’s claims that in pith and substance, maternity benefits are a social measure protecting families that fall within provincial jurisdiction.71 Two recent cases from the Supreme Court of Canada clearly illustrate that cooperative federalism does not have the ability to displace the division of powers. According to the Supreme Court in the 2011 Securities Reference, cooperative federalism cannot alter the division of powers in our dualist federal system: While flexibility and cooperation are important to federalism, they cannot override or modify the separation of powers. The Secession Reference affirmed federalism as an underlying constitutional principle that demands respect for the constitutional division of powers and the maintenance of a constitutional balance between federal and provincial powers.72 In summary, notwithstanding the Court’s promotion of cooperative and flexible federalism, the constitutional boundaries

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that underlie the division of powers must be respected. The “dominant tide” of flexible federalism, however strong its pull may be, cannot sweep designated powers out to sea, nor erode the constitutional balance inherent in the Canadian federal state.73 And in the 2015 long-gun registry decision, to which I will return below, the majority stated: [18] However, we must also recognize the limits of the principle of cooperative federalism. The primacy of our written Constitution remains one of the fundamental tenets of our constitutional framework: Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 53. This is especially the case with regard to the division of powers … The principle of cooperative federalism, therefore, cannot be seen as imposing limits on the otherwise valid exercise of legislative competence: Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373, at p. 421.74 So, what, then, is the role of cooperative federalism? As the Supreme Court of Canada explains, cooperative federalism “describes situations where different levels of government work together on the ground to leverage their unique constitutional powers in tandem to establish a regulatory scheme that may be ultra vires the jurisdiction of one legislature on its own.”75 Cooperative, administrative, executive,76 or “power-sharing”77 federalism can take many forms. In a previous article, I identified elements that seem to accompany the recognition of a practice of cooperative federalism in Canadian case law: an interlocking legislative regime, with statutes from each legislative order; an administrative body exercising delegated powers and which oversees and administers the laws and regulations;78 and an intergovernmental agreement, whether formal or informal.79 In Canada, these regimes are found in the major systems of delegation, allowing, among other things, the coordinated intraprovincial and interprovincial marketing of potatoes,80 eggs,81 milk,82 and poultry.83 The vertical or oblique delegation, which provides for the transfer of powers from a legislature to an administrative agency, has been found valid by a “venerable chain of judicial precedent”84 because it is not a horizontal or interparliamentary delegation. The

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latter delegation is prohibited as it would constitute a modification of the constitutional text.85 The extent of administrative delegation can be vast, almost blurring the line between legislative and administrative delegation.86 In sum, a legislature or Parliament may delegate their exclusive powers to a federal or provincial administrative entity, to the extent that the principles of the separation of powers (i.e., the executive cannot make laws nor bind Parliament) and the sovereignty of Parliament (i.e., a legislature cannot abdicate or lose control87 over its powers, nor transfer them to another legislature) are not affected. These cooperative regimes are thus of the utmost importance, as they allow federal partners to overcome the fact that no legislative branch is fully competent on a given subject, such as on the internal and external marketing of an agricultural product.88 To be valid, however, it is not sufficient that the legislative components of the cooperative scheme respect the delegation principles. In addition, each of the statutes composing the interlocking regime must be independently valid. If provisions are found not to respect the division of powers, they will be struck down.89 That being said, these regulatory schemes tend to be upheld by the courts, with a greater degree of restraint when the governmental partners themselves do not challenge them (as was the case in Pelland, Grisnich, and in the Reference re Agricultural Products Marketing). 90 In the latter case, Pigeon J. held that “when after 40 years a sincere cooperative effort has been accomplished, it would really be unfortunate if this was all brought to nought.”91 The courts also have a tendency to look favourably upon the creativity and flexibility of these arrangements, which are viewed as aids to cooperative federalism.92 Cooperation, it must be noted, does not appear to be an end in itself, but rather an instrument for better coordination between federalprovincial partners. It is seen as fostering a harmonious exercise of each legislature’s respective jurisdiction, one way to ensure that each legislature is fulfilling “its responsibility to the public in a coordinated fashion.”93 Cooperative federalism is, consequently, a mechanism to temporarily and pragmatically circumvent the principle of exclusivity, but it cannot permanently alter the division of powers. Whether or not it collides with the sacrosanct principle of parliamentary sovereignty will be addressed next.

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part 2: the tension between parliamentary sovereignty and cooperative federalism In this section, I will examine case law that illustrates the tension between parliamentary sovereignty and cooperative federalism. In the Reference re Canada Assistance Plan, British Columbia challenged the federal decision to decrease the level of contributions that supported the province’s expenditures in social assistance and welfare. Two instruments were at stake: the bilateral accord, in which Canada agreed to pay the contributions that the legislation authorized; and the legislative scheme, at the time known as the Canada Assistance Plan. The accord contained no formula to calculate the contributions that the federal government was going to pay: such formula was to be found in the law. In 1991, Parliament adopted modifications to the legislation which, in effect, decreased the level of contributions that British Columbia, which by then had become a wealthier province, was receiving. The province argued that the federal government was bound by the accord, and that it had to pay the contributions that were authorized at the time of the signing of the agreement. The Supreme Court of Canada rejected these claims. It unanimously found that the federal executive had the power to introduce bills on finance and that Parliament, in its full sovereignty, was free to adopt them. The Canada Assistance Plan did not contain an explicit limitation on legislative powers. It only provided manners to modify the agreement, and the regulations. But it was silent on the manner in which the legislation should be modified. As for the accord, the court found that it could not – even if broadly interpreted – constrain parliamentary sovereignty: “It is conceded that the government could not bind Parliament from exercising its powers to legislate amendments to the Plan. To assert the contrary would be to negate the sovereignty of Parliament.”94 As a result, Parliament could, by adopting fresh legislation, unilaterally modify the level of contributions, even though British Columbia had expected these levels of contribution to be consistent, and to be modified only according to the formula set in the executive agreement. Another example of tension between cooperative federalism and parliamentary sovereignty was seen in the case of the abolition of the long-gun registry. The registry – created under the federal Firearms Act95 – was part of the Canadian firearms program. The Harper gov-

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ernment’s decision to abolish the long-gun registry approximately twelve years after its creation had significant consequences for Quebec, because the Ending the Long-Gun Registry Act (elra) not only provided for the abolition of the long-gun registry, but also for the destruction of the registration data collected therein.96 Wishing to establish its own regime, Quebec asked for the registration data pertaining to the province. Following the federal government’s refusal, Quebec asked the courts for the right to obtain the registration data, and for a declaration that section 29 elra was ultra vires the federal Parliament. In support of both of these arguments, Quebec argued that the partnership created by the federal and provincial governments around the administration of the registry was a demonstration of cooperative federalism. Thus, by adopting s. 29 elra, and refusing to communicate the data, Canada was impinging on Quebec’s ability to enact its own registry and acting in a manner contrary to cooperative federalism, one of the “structural principles” of the Canadian Constitution.97 The court summarized the province’s arguments as follows, taking them one step further: “In essence, Quebec is asking us to recognize that the principle of cooperative federalism prevents Canada and the provinces from acting or legislating in a way that would hinder cooperation between both orders of government, especially in spheres of concurrent jurisdiction.”98 A majority of five judges of the Supreme Court rejected Quebec’s argument on several grounds, thus upholding the unanimous decision of the Quebec Court of Appeal.99 First, the majority found no proof of federal-provincial cooperation because the evidence submitted – such as the Canada-Quebec financial agreement of the Firearms Act, declarations, and so forth – did not sufficiently establish the existence of a cooperative partnership. In other words, even if Quebec had access to registration data, it had not actually participated in its collection. It appears that for these judges, the absence of an interlocking legislative regime was a determining factor. The majority noted at the start of its reasons that the Canadian firearms registry “flows directly from federal legislation and is not dependent on any provincial statutes,”100 refusing to speculate on the hypothetical impact that a “truly interlocking federal-provincial legislative framework”101 would have had on their decision. Another reason for rejecting Quebec’s claim was the rule that cooperative federalism cannot be used to set “limits on the otherwise valid exercise of legislative competence”102 nor “impose a positive obliga-

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tion to facilitate cooperation,”103 because it would impinge on the principle of parliamentary sovereignty. Moreover, if courts were to impose limits on the power to legislate, or a duty to facilitate cooperation, these measures could discourage the practice of cooperation, as governments would fear that by cooperating, they could diminish their “legislative authority to act alone.”104 After undertaking a division of powers analysis, the majority judges found s. 29 to be intra vires the Parliament. According to them, if the law creating the registry was aimed at protecting public safety, the law abolishing it and stipulating what would happen to the data whose collection it permitted should have the same pith and substance, and be classified under federal criminal jurisdiction. The constitutional validity of s. 29 elra was thus affirmed. For their part, the four dissenting judges, including the three judges from Quebec, were convinced that there was a cooperative partnership. To them, this was so partly because of Quebec’s efforts in implementing the federal law, including the role of its police forces. This partnership, they argued, was in keeping with the spirit of cooperative federalism, and went beyond a mere financial arrangement.105 If cooperative federalism was the modern tide of Canadian federalism, they added, “our courts must protect those [schemes established jointly through partnership] both when they are implemented and when they are dismantled.”106 However, they quickly conceded that the scope of that (new) duty to protect could not be so wide as to allow the court to “stray from”107 the division of powers analytical framework, that is, the question of what the pith and substance of the legislation was, and whether it fell within the criminal law power. For these judges, the pith and substance of section 29 was not the protection of public safety but rather property and civil rights, which made it ultra vires Parliament, unless it could be reasonably integrated into an otherwise valid legal regime (the ancillary powers doctrine). When examining this question, they referred to the impact of the abrupt end of cooperation on Quebec’s ability to create its own registry; they considered Quebec’s reliance on the federal registry during all the years it was operating.108 They invoked cooperative federalism to conclude that there is no necessary or rational link between the destruction of the data and public safety, thus finding the provision to be ultra vires the federal Parliament.109 On the other hand, the judges did not go so far as to find that Quebec had a right to obtain the data. Rather, they held that any remedy

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should be negotiated politically, and not imposed judicially.110 It is thus possible to say that the finding of cooperative federalism did not have an impact on the question of whether Quebec can obtain the data (all nine judges agreed it could not).111 Here, parliamentary sovereignty was invoked even when it was clear that the purposes of the impugned provision and the government’s refusal to transfer data were “to cause harm to its partner,” in the dissenting judge’s opinion, 112 or, put more mildly in the majority’s opinion, “to prevent Quebec from creating its own long-gun registry.”113 More recently, tensions between parliamentary sovereignty and cooperative federalism have arisen over the Pan-Canadian Securities Regulation scheme, which the Supreme Court of Canada unanimously validated in November 2018. Following the declaration that the Draft Securities Act proposed in 2011 was ultra vires the federal parliament, and the court’s invitation to federal parties to cooperate rather than proceed unilaterally, some provincial and territorial executives and the federal government reached a memorandum of agreement over the creation of a Pan-Canadian Securities Regulation Scheme. The scheme comprised a draft federal law dealing with systemic risks and criminal law matters, a model provincial/territorial law, and a national securities regulator exercising delegated authority to administer both laws. The regulator and its board of directors would operate under the supervision of a Council of Ministers. One of the arguments raised by the attorney general of Quebec, who challenged the validity of the scheme, was that the Memorandum of Agreement (the intergovernmental protocol) provided for a voting structure according to which the Council of Ministers could fetter the parliamentary sovereignty of participating provincial legislatures. The Supreme Court of Canada rejected this argument: the protocol, it found, could not have the alleged desired effect because the executive branch is not “actually capable”114 of binding the legislative branch. Even though the participating provincial and federal executives agreed to invest the Council of Ministers with a certain power to approve modifications to the Model Law, participating legislatures remained free to reject proposed amendments to their own law, and, ultimately, to unilaterally withdraw from the regime, even if the court recognizes that to “extricate themselves” could be “impractical.”115 Do the cases of the Canada Assistance Plan, the long-gun registry, and the Pan-Canadian Securities regime demonstrate the presence of a conflict between cooperative federalism and parliamentary sover-

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eignty? Are they inversely correlated, such that the latter must diminish if the former is to grow? In my view, these cases demonstrate that while there may be no conflict between parliamentary sovereignty and cooperative federalism, there is certainly a tension between the growing practice of cooperation, and the classic doctrine of parliamentary sovereignty. As I will argue in Part 3, both the executive and the legislative branches could reduce this tension should they so wish by making cooperative federalism more predictable and less vulnerable to unilateral change. Before embarking upon that task, I think it is essential to recognize that this tension is at least partly attributable to the legal status of the main vehicle for cooperation, intergovernmental agreements. According to an empirical study conducted by Nicole Bolleyer comparing igas in Canada, the US, and Switzerland, the Canadian system “is the only system without legally binding and enforceable instruments of interprovincial or central-provincial cooperation. The strong orientation towards autonomy protection of the power-concentrating Canadian provinces has so far precluded the introduction of such a mechanism through constitutional reform. Instead, the central and lower level governments enter informal agreements, which are voluntary and ad hoc in nature.”116 In Canada, the legal status of igas is murky but can be clarified by attempting to answer the four following questions: Are they binding between parties? If binding between parties, are courts willing to enforce them? Do they create effects on/can they be invoked by third parties? And lastly, can they be brought within constitutional scrutiny?117 First, courts have recognized on several occasions that intergovernmental agreements can bind the contracting executives.118 Of course, public contracts between the government and a private party are binding, and the substance of the private law of contracts applies to these agreements.119 What makes intergovernmental agreements binding on contracting parties, or non-binding, depends on the nature of the agreement and an array of other factors.120 Each public contract has to be interpreted according to its terms, the intention of the parties, the statutory authority, and so on. An agreement ultra vires the contracting government or against public order will obviously not bind the government.121 But what about an agreement to pay a certain amount of contributions to finance a social program? Would this intergovernmental agreement be binding on signatories? There are doctrines with-

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in public, private, and international law which recognize the different roles played by the state, such as: jure imperii and jure gestionis under international immunity law; the distinction between operational actions vs policy actions in tort law;122 the contrast between dominium and imperium in constitutional law;123 and the promising distinction in contract law between the social/political contract and the legal contract.124 All these doctrines point to the fact that the state is not your usual contracting party. But as a general rule, public contracts, whether they be among governments or between governments and private parties, are binding on signatories. Second, are courts willing to enforce igas? The fact that they may be binding on signatories does not mean that courts will enforce them. Precedents are scarce, which is what may have prompted authors to conclude that courts are unlikely to “arbitrate the enforcement” of igas.125 In Canada Assistance Plan, Justice Sopinka noted that the parties decided not to include, in their agreement, provisions that would “promote the observance of ordinary contractual obligations”126 and relied on the political price of non-performance. This could mean, a contrario, that had they added contractual provisions to that effect, it would have been possible for courts to enforce them. What is more likely, however, is for these agreements to provide for non-judicial enforcement mechanisms through arbitration, one example being the panels appointed by the Committee on Internal Trade created under the (former) Internal Trade Agreement.127 Third, can third parties force the performance of igas against the will of the contracting parties? Two cases indicate that the answer to this question is negative. In Finlay, a Manitoba citizen sought to force the government of Manitoba to act upon its agreement with the federal government in the payment of certain social benefits. Pursuant to the Canada Assistance Plan, Manitoba had to enter into an agreement with the federal government, and it was the enforcement of this agreement that the appellant sought. The Supreme Court of Canada accepted the argument that whether Manitoba complied with the intergovernmental agreement was justiciable, but did not go so far as to force compliance or “directly patrol the program and its funding levels.”128 The other case is Unilever, where a company challenged a Quebec regulation prohibiting the sale of yellow margarine, arguing that it violated the Agreement on Internal Trade which Quebec had signed. The Supreme Court found that the regulation was within the province’s jurisdiction, and that the intergovernmental agreement had no effect

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on the validity of the regulation.129 As a result, it seems that a third party is unlikely to be able to force a government to act in accordance with an intergovernmental agreement to which it is a party, even less so when legislation contradicts the agreement. On the other hand, if the government does not repudiate the agreement, it may very well produce effects on third parties, sometimes drastic ones.130 Fourth, can igas be amenable to judicial review on constitutional grounds? Here, the question is whether igas could be invalidated on grounds of infringement of the Charter, division of powers, or underlying constitutional principles such as parliamentary sovereignty. According to Poirier, these agreements are subordinated to constitutional norms: they cannot violate the Charter or division of powers provisions.131 It is true that governments should not be able to “evade” their constitutional responsibilities “by implementing policy through the vehicle of private arrangements.”132 These agreements could eventually attract Charter scrutiny, as the Charter applies to all actions taken by government actors, even actions that are private or contractual in nature like a collective bargaining agreement.133 On the other hand, it may be difficult to classify these agreements as “laws” pursuant to section 52 of the Constitution Act, 1982, even broadly interpreted.134 This seems to be the conclusion reached by the Supreme Court of Canada in the Reference re Pan-Canadian Securities. As mentioned above, Quebec argued that the Memorandum of Agreement135 establishing the workings of the cooperative regulatory system was unconstitutional as it violated parliamentary sovereignty.136 The Supreme Court did not agree with Quebec. It distinguished between an ineffective agreement, and a potentially unconstitutional one. The court held that the doctrine of parliamentary sovereignty may render a term in an iga aimed at fettering provincial legislative sovereignty ineffective; however, parliamentary sovereignty may not be invoked to declare the agreement itself “constitutionally invalid.”137 It should be noted that the majority of the Quebec Court of Appeal had explicitly refused to rule on the (difficult) question of amenability of intergovernmental agreements to judicial review. In order to invalidate some provisions of the memorandum, it had first determined that the memorandum provisions under scrutiny had been incorporated by reference in the legislation,138 thus allowing it to strike them down. The Supreme Court of Canada found that the impugned provision of the agreement had not been incorporated into legislation according to the rules governing

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incorporation by reference.139 Hence, the court held, the memorandum could be declared ineffective, but not unconstitutional. That being said, even if the question of justiciability of intergovernmental agreements is not settled, the interlocking legislative regime is clearly amenable to constitutional scrutiny. When the Supreme Court of Canada examined the egg marketing scheme with relation to section 6 of the Charter, it was the federal legislation that was challenged;140 in the Reference re Agricultural Products Marketing Act, the same scheme was scrutinized in relation to the division of powers provisions of the Constitution, but again it was the implementing legislation that was examined by the court.141 In Moses, the four dissenting judges noted in passing that there was no “inappropriate delegation of jurisdiction” in the James Bay Convention, which had acquired the force of law through implementing legislation.142 However, not all igas are implemented through legislation and those that are not implemented are more difficult to scrutinize. In sum, while there is no conflict between parliamentary sovereignty and cooperative federalism, there seems to be a tension that can be attributed to the flexibility and lack of enforceability generally associated with the igas which form the backbone of cooperative federalism. In the next part, I will examine the solutions that experts have suggested in order to alleviate the risks of abrupt and unforeseen end of cooperation, in order to remedy cooperative federalism’s normative weaknesses.

part 3: solutions Several authors have identified the long-gun registry and the Canada Assistance Plan battles as detrimental to the federal balance, and have proposed various solutions to the perceived conflict between parliamentary sovereignty and cooperative federalism. It seems that parliamentary sovereignty is to blame for undermining a form of loyalty between the federal partners. The solutions that have been considered vary and include the judicial recognition of a duty of loyalty or of an obligation of good faith. These solutions will be examined first, as well as what they entail for (a) the judiciary. I will then suggest a few other solutions based not on an enhanced role for courts, but rather on actions that could be taken by (b) governments and (c) legislatures.

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Empowering Courts: Imposing a Duty to Act Loyally? Authors have suggested that an obligation of loyalty or good faith be imposed by courts, rendering cooperative arrangements more robust by protecting them from untimely changes imposed by one of the cooperating partners. For example, according to Poirier, cooperative federalism “would induce a form of good faith obligation, an injunction to consider the interests of the other levels of government. Courts would then not only determine “who does what,” but “how they may do it.”143 While Poirier recognizes that this avenue was not followed by the majority and dissenting opinions in the long-gun registry case, she adds that some form of “good conduct” obligation may be necessary in order for courts to be able to maintain federal balance.144 Kate Glover argues in the same vein that cooperative federalism should entail a “minimum positive action” obligation, whether framed as a duty of loyalty or a duty of good faith, once steps have been taken in order to enter into an intergovernmental partnership.145 This duty, it should be noted, would constrain the legislatures. It is anchored in a structural conception of the Constitution, where, Glover argues, cooperative federalism underlies both the division of powers provisions and the amending formula, thus enriching its normative basis. Paul Daly also advocates for the recognition of a positive duty to act in good faith when provinces and the federal government act in partnership; this duty would apply to “regulatory boards created cooperatively in a double aspect matter.”146 Such an obligation would be both negative (a government cannot invoke jurisdiction in order to hurt another government) and positive (a duty to consult prior to taking an action with detrimental effects on a cooperative scheme).147 In Daly’s view, it is “incumbent on the courts to sanction unilateral actions that are harmful to intergovernmental collaboration.”148 Jean-François Gaudreault-DesBiens examines federal loyalty as another possible normative justification for cooperative federalism. The problem, in his view, is the “a-normative nature of cooperative federalism.”149 Endorsing federal loyalty in Canada would provide that normative basis and justify “occasional judicial interventions targeted either at preventing that trust be unduly undermined within the federation, or at facilitating the restoration of trust between federal actors.” In the case of the long-gun registry, federal loyalty “would likely posit that the federal government has a duty to help the province

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exercise its jurisdiction over property and civil rights by not destroying and transferring data already collected.”150 The common feature of most of these solutions is that they attribute a certain normative weight to cooperative federalism, with the effect of creating some obligations incumbent upon cooperative partners and giving the courts the power to intervene in order to enforce these obligations. These solutions are in line with the direction taken by some continental federations, including Switzerland, Belgium, and Germany, where the principle of loyalty has come to be recognized by the judiciary, with or without textual support in the Constitution.151 These solutions would not be completely out of place in a Canadian context, given the Supreme Court of Canada’s judicial initiatives over the last twenty years in recognizing underlying constitutional principles and deriving legal obligations from them.152 In the Canadian context, however, I would hesitate to resort to them before other methods prove unworkable. First, uncertainty regarding the extent of what a legislature’s or government’s obligation to act in good faith would entail can lead to paradoxical results. As discussed above, the validity of a cooperative scheme depends on its reversibility. For a cooperative scheme to be valid, Parliament must retain full legislative control; and the executive must retain the ability to present bills to Parliament for its approval at any time, even draconian bills. By judicially imposing a duty to act in a certain way, whether on the legislatures or on the governments, and again, without fully knowing the degree of restraint that accompanies this duty, there may be a potential limitation on the freedom of parliaments, and an increased rigidity which is antithetical to the validity of these cooperative regimes. Second, the judicial recognition of a duty to act in order to foster “good conduct” or loyalty would provide the provinces with greater protection against sudden withdrawals, given the manner in which the spending power operates. Yet the provinces would also be bound to the same extent as the federal government. Would provincial executives be willing to enter into agreements, knowing that they, or their legislatures, would be bound to an undetermined judicial duty to act in loyalty towards the federal government? Quebec traditionally expresses reservations about cooperative federalism, which it worries will open the door to a permanent reduction of its powers.153 When one compares the attorney general of Quebec’s pleadings in the long-gun registry case (very supportive of cooperative federal-

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ism)154 and in the second Securities reference (very skeptical),155 one sees changing attitudes towards cooperative federalism that reflect the mixed advantages and disadvantages that cooperation generates. In particular, in the second Securities reference, Quebec was concerned that the scheme would provoke a total loss of control of participating provinces over matters within their jurisdiction, and that provinces would have a hard time exiting the cooperative structure once they sign on. In response, the court emphasized the real, albeit admittedly impractical, possibility that participating jurisdictions could eventually withdraw from the cooperative regime. It acknowledged that even if at present, the executives of participating jurisdictions believe uniformity is a positive outcome, in the future, “the sovereign and democratic will of their respective legislatures” entitles them to “change their mind.”156 Consequently, while in the long-gun registry case, Quebec asked the courts to infuse more stability and predictability into the cooperative agreements, in the second Securities reference it feared the cooperative agreement would make “withdrawal from the scheme very difficult”157 and would not allow for provinces to “change their mind” – a position which may signal Quebec’s reluctance to embrace a courtimposed undetermined duty to act in good faith or in accordance with federal loyalty. Third, and more importantly, should it be the courts’ role to take the lead in making cooperation more predictable? Is law even a possible response when executive cooperation fails? Consider Guy Tremblay’s analysis of the Social Union Framework Agreement dispute resolution mechanisms, which did not involve the courts: the “cooperative nature of the mechanism provided by chapter 6 involves a certain realism: true confrontation in this field could not be remedied by the law.”158 The role of the Supreme Court of Canada when disputes arise between (non-) cooperating partners raises more general issues of separation of powers and the legitimacy of apex courts’ interventions in federal contexts, which transcend the scope of the present paper.159 It may very well be argued that to counterbalance the executive predominance in intergovernmental relations, courts should play a dominant role, especially when civil society is affected by these agreements, sometimes in a prejudicial way, and most often without having a say in how they are negotiated and drafted. I agree with Sossin when he writes, regarding the Canada Health Social Transfer, that “courts are the only political institution with the practical capacity and remedial authority to allow welfare recipients to challenge the

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government’s design and implementation of social benefits.”160 However, in R v Comeau, a unanimous court suggested that the principle of federalism, not cooperative federalism, was the principle underlying the Canadian constitution as per the Secession reference; and that the principle of federalism did not dictate how governments should exercise their powers.161 This could foreshadow a refusal by the court to play the role of umpire in disputes arising from intergovernmental cooperation that has gone sour. That being said, if one source of unstable cooperative federalism lies in the murky nature of igas, as the previous section outlined, then it is submitted that the reflection on the vulnerability of cooperation should start by scrutinizing these agreements, the roles played by the signatories, and the laws that implement them. It does not mean that courts cannot play a role at a later stage; but the initiative to make cooperation more predictable and binding ought to be taken by the intergovernmental parties themselves, in their agreements, and by legislatures, rather than by the courts. In the remainder of this part, I will re-examine the role that the executives and the legislatures could play in order to make cooperative federalism less uncertain, and less vulnerable to change, if that is the goal they wish to pursue. Empowering Governments: Strengthening Agreements? In Re Canada Assistance Plan, Justice Sopinka put his finger on one of the weaknesses of the bilateral accord concluded between Canada and British Columbia: “If this appears to deprive the Agreement of binding effect or mutuality, which are both features of ordinary contracts, it must be remembered that this is not an ordinary contract but an agreement between governments. Moreover, s. 8 itself contains an amending formula that enables either party to terminate at will. In lieu of relying on mutually binding reciprocal undertakings which promote the observance of ordinary contractual obligations, these parties were content to rely on the perceived political price to be paid for non-performance.”162 In Québec v. Canada, the dissenting judges gave a similar hint, by holding that “it was up to the members of the partnership to set out the conditions that were to apply upon termination of their joint venture in their agreements.”163 In the first quote, Justice Sopinka implied that no such provisions encouraging the respect of contractual oblig-

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ations were adopted. In the second, the dissenting judges underlined the fact that none of the agreements provided for what would happen to the registration data if ever the long-gun registry was abolished. Shouldn’t parties in these two scenarios have provided for the price of non-performance, or at least foreseen the possibility of non-performance? Considering the amount of resistance surrounding the registry’s implementation, which even led to a Supreme Court reference in 2000, it should not have been completely unforeseen that a future Conservative government would abolish it. Parties can encourage performance, whether it be through “mutually binding reciprocal undertakings,” as Justice Sopinka hinted, or by other means. Moreover, they can negotiate provisions stipulating that in the event of non-compliance, parties are under an obligation to mitigate damages, such that if one party withdraws from a program, the other can use the data, material collected, et cetera, to “take it from there.” As the earlier discussion of the legal status of igas illustrated, there are doubts as to whether courts would enforce such provisions. However, recourse to the judicial arena is not the only option. Agreements can also, and probably should, create a non-judicial dispute resolution mechanism in the event of non-compliance, such as the Agreement on Internal Trade.164 As Baier concludes, courts are “probably not the best institution to perform” the oversight of intergovernmental agreements compliance. Baier recounts that provinces did not wish to have internal trade disputes settled by courts.165 They opted for a non-legal “quick and quiet” dispute settlement scheme that would allow them to retain the control over the dispute mechanism procedure.166 The Canada Health Act, and the Dispute Avoidance and Resolution Process added in 2002, provides another example of what non-legal dispute resolution mechanisms can look like.167 It thus appears that contractual stipulations providing for the end of cooperation, and establishing dispute resolution mechanisms ex ante, may be a more promising avenue than entrusting the courts with the ex post facto task of attributing a normative weight to cooperative federalism, or to an obligation to act in good faith or in loyalty to the other partners. Yet, some will argue that provinces have no negotiating power with the federal government because of their financial dependence. It is true that their constitutional responsibilities exceed their tax revenues and other sources of funding, such that there is an inherent dependence on federal transfers.168 But as Wade Wright suggests, the provinces retain

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negotiating capacity and “leverage,”169 that is, provincial tools that could tip the scales, including provincial expertise, interprovincial cooperation, and interprovincial opposition to federal initiatives.170 In short, cooperating partners can certainly insist that agreements provide for what happens when cooperation fails or when one party fails to abide by its obligations, bearing in mind that in most cases, these agreements are respected, and the withdrawal negotiated.171 Of course, parliaments can always subsequently enact legislation that explicitly counteracts these provisions, but doing so will engender a certain political price and “should not be done lightly.”172 In other words, legally binding clauses governing these various outcomes should ideally be stipulated a priori in the igas, rather than added on judicially a posteriori, after uncertainty has arisen. Empowering Parliaments: Enacting Manner and Form Provisions? The legislatures also have the means to make intergovernmental cooperation less vulnerable to change. Right now, there is no duty incumbent upon legislatures to implement intergovernmental agreements. Some are implemented; some are incorporated by reference in legislation; others are not and remain in the political arena with little potential for judicial scrutiny (see discussion above). One avenue to explore, in the future, is the possibility of adopting a framework legislation “governing the conclusion, ratification, modification, publicity and archiving of igas”173 which would increase the reliability, predictability, and transparency of these agreements. But for the time being, I would like to explore another option, on a smaller but perhaps more realistic scale: the inclusion, within the laws implementing the intergovernmental regimes, of manner and form provisions restricting the temptation for a party leaning towards non-cooperation. As mentioned in part 1, Parliament may bind itself on procedural matters for the future, provided that the clause by which it is bound is both explicit and not directed at the substance of the law-making power but rather at the form by which laws are adopted or eventually modified. The requirement of clarity is implicit in section 42 of the Interpretation Act, which allows Parliament to pass or amend any statute. The manner and form provisions must be sufficiently explicit to rebut that presumption. In the Reference re Canada Assistance Plan, Justice Sopinka found that one of the problems with the alleged man-

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ner and form provision was that it was not at all explicit.174 It was a limitation on the power of the executive to regulate in such a way as to get around the regime, but not a limit on the power of the legislature to amend the legislative provision establishing the calculation formula. The same conclusion was reached in the Reference re Pan-Canadian Securities, where the procedural limitations were not incorporated within the legislation and thus could not be considered binding on legislatures.175 The manner and form provisions, to be valid, must also regulate the law-making process and not deprive Parliament from its substantive law-making power.176 This distinction is central: Parliament cannot abdicate its powers, but it can bind itself for the future on matters of form. In the Reference re Canada Assistance Plan, another reason for Justice Sopinka’s rejection of the manner and form argument was that the voting mechanism, if interpreted as the intervener argued it ought to be, would have constituted a renunciation of legislative powers. This is because requiring that federal legislation be consented to by the affected province would place a fetter on Parliament’s law-making powers. The court came to that conclusion by applying West Lakes Ltd. v. South Australia, a decision in which a land developer argued it was given a veto over statutory amendments.177 The Australian court concluded that a provision establishing that Parliament should obtain the consent “of an entity not forming part of the legislative structure” was not a manner and form provision; it amounted to a renunciation and a fetter on Parliament’s law-making power.178 With that in mind, let me examine three potential manner and form limitations that could be added to legislation implementing intergovernmental agreements. First, Parliament (and provincial legislatures) could enact a requirement that a more onerous procedure than the one generally applicable must be followed in order for certain legislative provisions to be modified. For example, this procedure could require the approval by a specific majority in the House of Commons or the Senate, similar to the majority requirements of section 38(2) of the Constitution Act, 1982. Such a clause, if not abusive, would not fetter Parliamentary sovereignty: as the Privy Council held, Parliament does not cease to be sovereign because it cannot obtain the requisite majority of votes.179 Second, a manner and form clause could provide for mandatory consultation between the parties affected by a cooperative agreement before any material legislative change is brought to the cooperative regime. The recent case in Mikisew – in which the Supreme Court

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ruled that the judicial imposition of an obligation on Parliament to consult with Indigenous Peoples prior to enacting legislation would violate parliamentary sovereignty – may seem to rebut this proposition.180 But there are important distinctions to make. The plurality recognized that pre-legislative consultation provisions are binding on legislatures as manner and form provisions.181 In addition, Justice Rowe, with Moldaver and Côté concurring, held that Parliament could enact a duty to consult prior to enacting legislation, which would be a manner and form limitation, but that the court itself would not impose this duty on Parliament.182 In other words, the court was not prepared to impose a constitutional obligation of consultation on Parliament, even though it recognized that if Parliament voluntarily submitted to a consultation process through ordinary legislation, such a provision would be binding. It is important to note, however, that this type of provision could be repealed at any time. Indeed, when courts evaluate the validity of an alleged manner and form provision, they consider whether the provision can be repealed by Parliament, or not.183 The Mikisew decision supports the proposition that courts will not impose a constitutional duty on Parliament to consult Indigenous Peoples prior to enacting legislation that would adversely affect them. It does not rule out the possibility that Parliament may impose upon itself an obligation to consult prior to enacting legislation. The third suggested tool to increase the stability of intergovernmental agreements would be to include a provision requiring the consent of a legislature affected by a change, before Parliament or a legislature enact such a change. This would be an external or extra-parliamentary voting limitation. In Canada, these external voting limitations are found in a few statutes, such as in section 114 (4) of the Canada Pension Plan, which reads as follows: 114. Coming into force of other amendments of substance (4) Where any enactment of Parliament contains any provision that alters, or the effect of which is to alter, either directly or indirectly and either immediately or in the future, (a) the general level of benefits provided by this Act, … it shall be deemed to be a term of that enactment, whether or not it is expressly stated in the enactment, that the provision shall come into force only on a day to be fixed by order of the

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Governor in Council, which order may not be made and shall not in any case have any force or effect unless the lieutenant governor in council of each of at least two thirds of the included provinces, having in the aggregate not less than two thirds of the population of all of the included provinces, has signified the consent of that province to the enactment.184 There are two ways to see this type of clause. The first way is to view it as a valid manner and form requirement. Precedents are scarce, but the Trethowan185 decision offers an interesting analogy: in that case, a referendum was deemed a valid prerequisite for the coming into force of a law abolishing the Legislative Council. The consent of the population was not seen as an abdication of parliamentary sovereignty, but rather as a valid condition for the law to enter into force. Nothing was removed from the normal legislative process, in contrast to the Canadian precedent in Re Referendum Act, where the law interfered with the lieutenant governor’s prerogatives. An external procedural voting limitation could thus be valid, provided it does not amount to a substantive limitation in disguise.186 The other way is to view it as an impermissible abdication of legislative responsibility. In support of this opinion is West Lakes Ltd. v South Australia,187 referred to above. In that case, the court made a helpful distinction between extra-parliamentary voting conditions, which are illicit, and referendum conditions, which are licit because the electorate, the court opined, is part of the larger “legislative structure.”188 That does not hold, writes Justice King, for a body – in that particular case a corporation – “which does not form part of the representative legislative structure,” such as the “governing body of a political party,” an “organization of employers or employees,” an “officer of the armed forces,” and so on. Therefore, an alleged manner and form provision requiring the consent of another entity before a law may be enacted could be treated differently by courts, depending on whether this entity is considered a part of the “representative legislative structure.” That being said, it is very likely that the consent of a provincial legislature would be considered outside of the “legislative structure” of Parliament. Some manner and form provisions carry both consent and consultation conditions. Such was the case of the law establishing the former Canadian Wheat Board. When the Conservative government decided to abolish the Wheat Board, opponents argued that it could not pro-

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ceed unless it respected section 47.1 of the constituent act, which read as follows: 47.1 The Minister shall not cause to be introduced in Parliament a bill that would exclude any kind, type, class or grade of wheat or barley, or wheat or barley produced in any area in Canada, from the provisions of Part IV, either in whole or in part, or generally, or for any period, or that would extend the application of Part III or Part IV or both Parts III and IV to any other grain, unless (a) the Minister has consulted with the board about the exclusion or extension; and (b) the producers of the grain have voted in favour of the exclusion or extension, the voting process having been determined by the Minister.189 For the trial judge, if s. 47.1 imposed an obligation to consult prior to modifying the classes of grain to which the law applies, this section imposed, a fortiori, an obligation to consult with affected grain producers (Manitoba, Alberta, Saskatchewan, and certain bc producers) before the board itself could be abolished.190 The Federal Court of Appeal disagreed.191 The provision was interpreted as not requiring external consultations regarding fundamental changes in the structure of the board, but only regarding the modification of classes of grain. According to the court, the intention to submit fundamental changes to the consent of producers was not sufficiently explicit. But if it were explicit, could it have been enforceable? Mainville J., as he then was, expressed doubts as to the validity of such a provision, holding that “a provision requiring that legislation be introduced into Parliament only insofar as an outside corporation or small outside group agrees does not appear to [the court] to be merely a procedural requirement.”192 Requesting the consent of the grain producers prior to amending the legislation might thus have amounted to a renunciation of legislative powers, or to an abdication of legislative authority. At this stage, it is unlikely that a provision subjecting the power of the minister to propose legislation to the consent of an external body, such as a provincial legislature, would be a valid manner and form provision. On the other hand, a legislative provision imposing consultation procedures or setting different majority requirements could

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very well be valid. Parliament can always repeal these manner and form provisions, albeit at a political cost. As such, the freedom of Parliament would not be fettered.

conclusion In this chapter, I have shown that a tension exists between the classical doctrine of parliamentary sovereignty and the growing practice of cooperative federalism. I first examined the evolution of the federal dualist paradigm, and the role of cooperative federalism. I also looked at how the principle of parliamentary sovereignty has been invoked, in certain landmark cases, as an excuse for backing out unilaterally from intergovernmental arrangements. In identifying the potential for conflict between the two, I explained that while one may not speak of actual conflict, there is certainly a tension between the freedom of Parliament to enact laws and the freedom of the executive to introduce legislation on the one hand, and the resulting vulnerability of negotiated intergovernmental agreements on the other. I identified one source of tension as arising from the indeterminate nature of intergovernmental agreements in Canada. When seeking solutions, it is tempting to look to the courts for guidance. Courts have found a legal duty to negotiate amendments to the Constitution following a referendum, derived from the principle of federalism. Couldn’t they also craft a legal duty to cooperate? To act loyally? Or in good faith? In this chapter I suggest that the ball should be primarily in the hands of legislative and government actors. It is up to them to foresee the end of collaboration; to negotiate incentives; to adopt dispute resolution mechanisms; and to enact manner and form provisions. The solutions advocated in part 3 focus on intergovernmental relations, which are at the heart of cooperative federalism. They also respect the separation of powers between the courts and the legislative and executive branches. The role of courts remains important, however. Courts should continue to show deference when a truly collaborative program is being developed, to the extent that the division of powers is respected. If parties have included penalty clauses providing for the consequences of non-compliance – or unilateral repudiation of a cooperative scheme – courts should enforce them. Finally, if the parties have included manner and form clauses limiting the temptation to unilaterally legislate so as to end an existing collaborative arrangement, the courts could interpret those laws in such a way

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as to preserve their constitutionality. All of these solutions nonetheless carry with them a certain dose of uncertainty, as the discussion in part 3 demonstrated. The state of Canadian law, in this field, is still under construction.

acknowledgments I would like to thank Johanne Poirier, Alain-G. Gagnon, Alexander Pless, Jean Leclair, and Han-Ru Zhou for their comments on a previous version of this chapter (which was finalized in 2019), as well as the co-organizers of the (2017) Symposium on New Frontiers in Canadian Constitutional Law, Guy Laforest and Eugénie Brouillet, and the participants at the symposium.

notes 1 Thomas O. Hueglin and Alan Fenna, Comparative Federalism: A Systematic Inquiry, 2nd ed. (Toronto: University of Toronto Press, 2015), 37. 2 Gregory J. Inwood, Understanding Canadian Federalism: An Introduction to Theory and Practice (Toronto: Pearson), 2013, 113. According to Inwood, in 2013, there were more than 1,500 intergovernmental agreements, of which 85 per cent were bilateral. 3 Christopher Alcantara and Jen Nelles, A Quiet Evolution: The Emergence of Indigenous-Local Intergovernmental Partnerships in Canada (Toronto: University of Toronto Press, 2016). Between 2010 and 2014, the authors contacted 2,262 municipalities across Canada; with a response rate of 80 per cent, they were able to collect 332 formal agreements between municipalities and Indigenous governments, including 118 in British Columbia only (16–17). 4 Richard Simeon and Amy Nugent, “Parliamentary Canada and Intergovernmental Canada: Exploring the Tensions,” in Canadian Federalism: Performance, Effectiveness and Legitimacy, 3rd ed., edited by Herman Bakvis and Grace Skogstad (Don Mills: Oxford University Press, 2012), 59. 5 Jean Leclair, “Tolstoï et les juges Beetz et Laskin,” in Constitutionnalisme, droits et diversités: Mélanges en l’honneur de José Woehrling, edited by Alain-G. Gagnon and Pierre Noreau (Montreal: Thémis, 2017), 135. On “institutional failure” generally, see David E. Smith, Federalism and the Constitution of Canada (Toronto: University of Toronto Press, 2010), 36 (on the Senate and the House of Commons), and 108 (on the “decline of political parties as instruments of federalism” and “the rise of federal-provincial conferences”).

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6 See, for example, Bell Canada v Quebec (csst), [1988] 1 scr 749: “If this power is exclusive, it is because the Constitution, which could have been different but is not, expressly specifies this to be the case ... The exclusivity rule is absolute” (per Beetz J., para 255). See also Rogers Communications Inc. v. Châteauguay (City), 2016 scc 23, [2016] 1 scr 467 at para 47. 7 Orphan Well Association v. Grant Thornton Ltd., 2019 scc 5 at para 66 (majority opinion). 8 Saskatchewan (Attorney General) v Lemare Lake Logging Ltd., 2015 scc 53 at para 21 (majority opinion). 9 Quebec (Attorney General) v Lacombe, 2010 scc 38 at para 119 (dissenting opinion of J. Deschamps). 10 Orphan Well at para 185 (dissenting opinion of Côté and Moldaver). 11 Quebec (Attorney General) v Canada (Attorney General), 2015 scc 14 at para 17 (majority opinion). 12 Warren J. Newman, “The Promise and Limits of Cooperative Federalism as a Constitutional Principle,” Supreme Court Law Review (2d) 67 (2016): 76. 13 Noura Karazivan, “Le fédéralisme coopératif entre territorialité et fonctionnalité: Le cas des valeurs mobilières,” Revue Générale de Droit 46, no. 2 (2016): 419. 14 I give examples of the effect of cooperative federalism on each of these doctrines in N. Karazivan, “Cooperative Federalism in Canada and Quebec’s Changing Attitudes” in The Canadian Constitution in Transition, edited by R. Albert, P. Daly, and V. MacDonnell (Toronto: University of Toronto Press, 2019), 136–66. 15 Karazivan, “Le fédéralisme coopératif,” 444. For example, in Canadian Western Bank v. Alberta, (2007) 2 scr 3, the leading case on cooperative federalism, the court ruled, in the name of cooperative federalism, that a provincial insurance legislation could be applied to federally regulated banks. But there was no cooperation among the federal and provincial governments in that case. It is possible to view the decision as an invitation for federal and provincial governments and legislatures to cooperate in the future in order to harmonize the legal framework applicable to bank-promoted insurance. See, on this hypothesis, Wade K. Wright, “The Political Safeguards of Canadian Federalism: The Intergovernmental Safeguards,” National Journal of Constitutional Law 36 (2014): 31. 16 Karazivan, “Le fédéralisme coopératif,” 447–51. 17 François Chevrette and Herbert Marx, Droit constitutionnel (Montreal: Presses de l’Université de Montréal, 1982), 234–5. 18 See Gordon DiGiacomo, “The Democratic Content of Intergovernmental Agreements in Canada,” Public Policy Paper 38, The Saskatchewan Institute

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of Public Policy (December 2005); Julie M. Simmons, “Democratizing Executive Federalism: The Role of Non-Governmental Actors in Intergovernmental Agreements,” in Canadian Federalism, 3rd ed., edited by Bakvis and Skogstad; Jennifer Smith, Federalism (Vancouver: University of British Columbia Press, 2004), 104–6. This is because in a parliamentary democracy, the government is accountable to parliament and parliament controls spending. When transfer payments are made from the federal government to the provinces, and are subjected to conditions, this control becomes more tenuous: see Simeon and Nugent, “Parliamentary Canada and Intergovernmental Canada,” 70. Quebec (Attorney General) v. Canada (Attorney General) 2015 scc 14, [2015] 1 scr 693. Reference Re Canada Assistance Plan (B.C.) [1991] 2 scr 525. The agreement can be found on the Canadian Intergovernmental Conference Secretariat website: http://www.scics.ca/en/product-produit/agreementa-framework-to-improve-the-social-union-for-canadians/ (accessed 30 April 2018). See, for example, the homelessness initiative launched in December 1999, without respecting the provisions of sufa on formal prior notice: Johanne Poirier, “Federalism, Social Policy and Competing Visions,” National Journal of Constitutional Law 13 (2002): 416. Sarah Fortin, who studied the evolution of the social union from 1990 until 2006, also noted the progressive abandonment of the sufa following some unilateral actions taken by the federal government on homelessness, education, and health. Most commentators, she concludes, agree that the sufa had only a marginal impact on intergovernmental relations. Many commentators found sufa to be a “missed opportunity,” an “empty shell,” a “stillborn agreement,” etc. (my translation): S. Fortin, “De l’union sociale canadienne à l’union sociale fédérale,” in Le fédéralisme canadien contemporain: Fondements, traditions, institutions, edited by Alain-G. Gagnon (Montreal: Les Presses de l’Université de Montréal, 2006), 359. In a forthcoming book chapter, I explore a third solution, i.e., the possibility of entrenching some igas in the Constitution, based on the model negotiated in the Meech Lake Accord and Charlottetown Accord. 1 Will. and Mar., sess. 2, c.2, particularly articles 1 and 9. A. Émond, Constitution du Royaume-Uni des origines à nos jours (Montreal: Wilson Lafleur, 2009), 59 (my translation). New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 scr 319. In that decision, the McLachlin opinion refers to the constitutionally guaranteed “continuance of Parliamentary governance.” See

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also, on the incorporation of parliamentary sovereignty through the preamble, Reference re meaning of the word “Persons” in s 24 of British North America Act, [1928] scr 276 at 291 (per Duff J.). Judicial review in 1867 was based on the Colonial Laws Validity Act, 1865, of which section 2 provided that colonial laws inconsistent with imperial laws extending to the colony were “void and inoperative,” a principle that pre-existed the adoption of the 1865 clarification act. Re B.C. Motor Vehicle Act, [1985] 2 scr. 486, at paras 12, 13, and 55. Section 52 (1) Constitution Act, 1982 declares that any law that is inconsistent with the provisions of the Constitution of Canada is of no force or effect. Canada (Auditor General) v Canada (Minister of Energy, Mines and Resources), [1989] 2 scr 49. See also, on parliamentary sovereignty in the Canadian context, Reference re Pan-Canadian Securities Regulation, 2018 scc 48 at para 58. Babcock v Canada (Attorney General), 2002 3 scr 3 at para 57. New Brunswick Broadcasting. It also involves the power to define the privileges of the executive: Singh v The Minister of Citizenship and Immigration, 2005 fca 417, [2006] 3 fcr 70. Singh v Canada (Attorney General), 2000 CanLII 100 (fca), [2000] 3 fc 185. See also, on the parliamentary privilege of legislatures, in the context of a freedom of religion infringement claim, Singh v Attorney General of Quebec, 2018 qcca 257 (CanLII). On privative clauses, see David Dyzenhaus, “Disobeying Parliament? Privative Clauses and the Rule of Law,” in Richard W. Bauman and Tsvi Kahana, eds., The Least Examined Branch: The Role of Legislatures in the Constitutional State (New York: Cambridge University Press, 2006), 499. [1892] ac 437 at 441–3. See, on the difficulty of reconciling the classical theory of undivisible sovereignty with federalism, Gil Rémillard, “Souveraineté et fédéralisme,” Les Cahiers de droit 20, no. 1–2 (1979): 238; Marc Chevrier, “La genèse de l’idée fédérale chez les pères fondateurs américains et canadiens,” in Gagnon, ed., Le fédéralisme canadien contemporain, 19 at 37–44; Akhil Reed Amar, “Of Sovereignty and Federalism,” Yale Law Journal 96, no. 1425 (1987): 1430 and ff. Han-Ru Zhou, “Revisiting the ‘Manner and Form’ Theory,” Law Q.R. 129, no. 610 (2013): 612. A.G. of Nova Scotia v. A.G. of Canada, [1951] scr at 34 (per Rinfret C.J.). Ibid., 44 (per Taschereau J.). Reference re Pan-Canadian Securities, para 74 (citations omitted). Chevrette and Marx, Droit constitutionnel, 102 (my translation). This was discussed in In Re Referendum Act [1919] ac 935 and in Outdoor Neon Displays Ltd v. City of Toronto [1959] 16 dlr 624.

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42 Edwards v Attorney-General for Canada, [1930] ac 124 (pc) at 136. 43 Reference re Secession of Quebec, [1998] 2 scr 217 at para 43. 44 Alain Gagnon and Raffaele Iacovino, Federalism, Citizenship, and Quebec: Debating Multinationalism (Toronto: University of Toronto Press, 2007), 57. 45 W.S. Livingston, “A Note on the Nature of Federalism,” Political Science Quarterly 67 (1952): 81. Federalism, according to Livingston, “is a solution of, or an attempt to solve, a certain kind of problem of political organization” (84). Federal institutions are “only the surface manifestation of the deeper federal qualities of the society that lies beneath the surface” (ibid.). 46 The federal union was officially implemented in 1867, after an earlier unsuccessful attempt in 1858 led by George-Étienne Cartier, Alexander Tilloch Galt, and John Ross: see Donald Creighton, The Road to Confederation (Don Mills: Oxford University Press, 1964/2012), 46. In fact, even prior to the adoption of the British North America Act, a form of federal practice had already started to take root through the principle of double majority established after the Act of Union, 1840. According to that principle, a bill had to be approved both by a majority of the MPs that were members of the section where the bill would apply (East or West), and by a majority of mps both sections combined (Jean Leclair, De la conquête à l’Acte d’Amérique du Nord Britannique: Le difficile cheminement vers la démocratie, 47). Going even further back, according to R. MacGregor Dawson, the political rights of French speakers in North America started to become “entrenched” as of 1791, with the Constitution Act dividing Upper and Lower Canada, and giving each province its own governor, nominated council, and elected assembly. Dawson concludes that “by 1840, when the two provinces were again united, the half-century of segregation and self-government had done its work and French Canada was too firmly entrenched to be seriously threatened.” Dawson, The Government of Canada, 5th ed. (Toronto and Buffalo: University of Toronto Press, 1970), 9. 47 K.C. Wheare, Federal Government, 4th ed. (London: Oxford University Press, 1963), 10. 48 Ibid., 12. 49 Ibid. 13, although this characteristic is not sufficient to distinguish a federation from other forms of decentralized associations. 50 Ibid., 58–60. 51 Ibid., 55. 52 Ibid., 20. 53 Eugénie Brouillet, “La dilution du principe fédératif et la jurisprudence de la Cour suprême du Canada,” Les Cahiers de Droit 45 (2004): 63–7. 54 Reference re Securities Act, 2011 scc 66, [2011] 3 scr 837. 55 I have explored this narrative in prior work: N. Karazivan, “Le fédéralisme

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coopératif,” 436 and ff, and “Cooperative Federalism in Canada and Quebec’s Changing Attitudes,” in The Canadian Constitution in Transition, edited by R. Albert, Paul Daly, and V. MacDonnell (Toronto: University of Toronto Press, 2019), 136–66. Re Securities at para 56. In Attorney-General for Canada v Attorney General for Ontario, (1937) ac 326 (pc), also known as the Labour Conventions case, the watertight compartment metaphor was developed to illustrate that the federal government could not infringe on provincial jurisdictions through its jus tractatus. Thus, international treaties whose subject matters fall within provincial jurisdiction must be implemented by provincial legislation, even if they are ratified by federal executives. Re Securities at para 54. Ibid. at para 57. P.E.I. Potato Marketing Board v Willis, [1952] 2 scr. 392. Re Securities at para 58. Fédération des producteurs de volailles du Québec v. Pelland 2005 scc 20, [2005] 1 scr 292 at para 15. This narrative is well summarized in Marc-André Turcotte, Le pouvoir fédéral de dépenser ou comment faire indirectement ce qu’on ne peut pas faire directement (Montreal: Yvon Blais, 2015), 92–100. See, among others, Jean-François Gaudreault-Desbiens and Johanne Poirier, “From Dualism to Cooperative Federalism and Back? Evolving and Competing Conceptions of Canadian Federalism,” in The Oxford Handbook of the Canadian Constitution, edited by Peter Oliver, Patrick Macklem and Nathalie Des Rosiers (Oxford: Oxford University Press, 2017), 391–413; Kate Glover, “Structural Cooperative Federalism,” Supreme Court Law Review 76, no. 2 (2016): 45; Warren J. Newman, “The Promise and Limits of Cooperative Federalism as a Constitutional Principle,” Supreme Court Law Review 76, no. 2 (2016): 67; Johanne Poirier, “Souveraineté parlementaire”; Ian Peach, “The Supreme Court of Canada Long-Gun Registry Decision: The Constitutional Question behind an Intergovernmental Failure,” Constitutional Forum 24, no. 1 (2015): 1; Eugénie Brouillet, “Canadian Federalism and the Principle of Subsidiarity: Should We Open Pandora’s Box?” Supreme Court Law Review 54 (2011): 601; Bruce Ryder, “Equal Autonomy in Canada’s Federalism: The Continuing Search for Balance in the Interpretation of the Division of Powers,” Supreme Court Law Review 54 (2011): 566; W.K. Wright, “Facilitating Intergovernmental Dialogue: Judicial Review of the Division of Powers in the Supreme Court of Canada,” Supreme Court Law Review 51 (2010): 635; M.-F. Chartier and Peter Oliver, “La Juge Charron et le fédéralisme coopératif,” in Principles and Pragmatism: Essays in the Honour of Louise Charron, edited by Graham Mayeda and

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Peter Oliver (Markham: Lexis-Nexis Canada, 2014), 189; Hugo Cyr, “Autonomy, Subsidiarity, Solidarity,” Constitutional Forum 23, no. 4 (2014): 20; Paul Daly, “L’abolition du registre des armes d’épaule: Le rôle potentiel des principes non écrits,” Constitutional Forum 23, no. 4 (2014): 41; Jean-François Gaudreault-DesBiens, “Cooperative Federalism in Search of a Normative Justification: Considering the Principle of Federal Loyalty,” Constitutional Forum 23, no. 4 (2014): 1. R v Wetmore [1983] 2 scr 284 at 307, Dickson J: “The balance struck between sections 91(27) and 92(14) of the Constitution Act is a reflection of the faith the framers of the Constitution placed in a cooperative, federalist approach to addressing an issue both of national dimension and of local concern.” A.G. (B.C.) v A.G. (Canada) [1937] ac 377 at 389. According to Jean Leclair, by endorsing and enforcing the principle of exclusivity, the Privy Council was actually “imposing on the federal government an obligation to cooperate with provinces”: Jean Leclair, “Please, Draw Me a Field of Jurisdiction,” (2010) 51 sclr 555, 578–9. P.E.I. Marketing Board. Ibid. at 396–7. J. Poirier, “Les ententes intergouvernementales et la gouvernance fédérale: Aux confins du droit et du non-droit,” in The States and Moods of Federalism: Governance, Identity and Methodology, edited by Jean-François GaudreaultDesBiens and Fabien Gélinas (Brussels/Cowansville, Bruylant/Yvon Blais, 2005), 449. Reference re Employment Insurance Act (Can.), ss. 22 and 23 , [2005] 2 scr 669, 2005 scc 56. The Canada-Québec Final Agreement on the Québec Parental Insurance Plan, or Entente Finale Canada-Québec sur le Régime québécois d’assurance parentale, was signed on 1 March 2005. http://www.rqap.gouv.qc.ca/a_propos_regime/lois-et-reglements.asp?categorie=0300201. A potential double aspect argument could be derived from para 77 of the Reference re Employment Insurance Act (Can.), where the court concludes that Parliament “also has” jurisdiction over income replacement benefits. Securities reference at para 61. Ibid. at para 62 (emphasis added). Québec v. Canada at para 20. See also Rogers Communications Inc. v. Châteauguay (City), [2016] 1 scr 467, 2016 scc 23 (CanLII), par. 39. R v Comeau, 2018 scc 15, [2018] 1 scr 342 at para 87. In Quebec v Canada, the court describes cooperative federalism as essentially “executive,” stating that it describes the relationship between the central and

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regional executives (at para 17). On executive federalism, see generally A.-G. Gagnon, “Executive Federalism and the Exercise of Democracy” in The Case for Multinational Federalism: Beyond the All-Encompassing Nation (London: Routledge, 2010), 67–87. 77 Securities reference at para 48. 78 Quebec (Attorney General) v. Moses 2010 scc 17, [2010] 1 scr 557 at para 29, a contrario, and nil/tu,o Child and Family Services Society v. B.C. Government and Service Employees’ Union 2010 scc 45, [2010] 2 scr 696 at paras 42–3 [nil/tu,o]. 79 Noura Karazivan, “Le fédéralisme coopératif,” 447–50. The intergovernmental agreement is not necessarily formalized: it may even be the result of an exchange of letters or communications signed by the representatives of the governments concerned. See, on this point, Johanne Poirier, “Une source paradoxale du droit constitutionnel canadien: les ententes intergouvernementales,” Revue québécoise de droit constitutionnel (2009), 1, https://aqdc .quebec/wp-content/uploads/2016/07/poirier-une_source_paradoxale.pdf. According to Poirier, the characterization of an intergovernmental agreement “will depend on a bundle of clues, such as their designation and method of conclusion” (ibid., 12n47) (my translation). 80 P.E.I. Marketing Board. 81 Reference re Agricultural Products Marketing [1978] 2 scr 1198. 82 British Columbia (Milk Board) v. Grisnich [1995] 2 scr 895. 83 Pelland. 84 Ibid. at para 52. 85 Nova Scotia v Canada at 34, per C.J. Rinfret. See also, on the distinction between horizontal and vertical delegation, Chevrette and Marx, Droit constitutionnel, 235. 86 In Re George Edwin Gray [1918] 57 scr 150 at 159. 87 Pelland, para 57. See also discussion above, 296. 88 Grisnich, para 26. 89 Reference re Agricultural Products Marketing. Section 2(2) (a) of the Agricultural Products Marketing Act, rsc 1970, c. A-7 was found invalid as the federal Parliament could not delegate to a provincial agency the authority to impose levies that are related to the intraprovincial market because this is an area of provincial jurisdiction. Laskin C.J., writing the concurring opinion, agreed with this finding: “If the power asserted is not found in the Constitution, it cannot be given by agreement” (ibid., 1232). 90 This attitude of restraint is qualified by an author as “benevolent constitutional scrutiny”: Jean-François Gaudreault-DesBiens, “The ‘Principle of Federalism’ and the Legacy of the Patriation and Quebec Veto References,” Supreme Court Law Review 54 (2017): 96–7. See also the discussion of judi-

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cial “tolerance” in the presence of cooperation in Poirier, “Une source paradoxale,” 29–30. In R. v. Comeau, the court confirms that cooperative federalism has often “informed” the court’s analysis of vires “where interlocking regulatory regimes have been impugned” (at para 87). Reference re Agricultural Products Marketing, 1296. nil/tu,o, para 44, and Pelland, para 55. See also British Columbia (Attorney General) v Lafarge Canada Inc. 2007 scc 23 at para 86. Securities reference at para 9. Re Canada Assistance Plan at 548. sc 1995, c. 39. The constitutional validity of the Firearms Act was affirmed in the Reference re Firearms Act (Can.), 2000 scc 31, [2000] 1 scr 783. Section 29 elra. Para 14 of the Factum of the Attorney General of Quebec: https://www.scccsc.ca/WebDocuments-DocumentsWeb/35448/FM010_Appelant_Procureurgénéral-du-Québec.pdf. Quebec v Canada at para 15. Canada (Procureur général) c. Québec (Procureur général), 2013 qcca 1138 (CanLII). Quebec v Canada at para 4. Ibid. Ibid. at para 19. Ibid. at para 20. Ibid. Ibid. at paras 134 and 149. Ibid. at para 152. Ibid. at para 156. Ibid. at para 180–1. Ibid. at para 189. Ibid. at para 199–200. For an extensive analysis of the Supreme Court ruling, see Poirier, “Souveraineté parlementaire et armes à feu: Le fédéralisme coopératif dans la ligne de mire?” Revue de droit: Université de Sherbrooke 45 (2015) 47. Quebec v Canada at para 189. Ibid. at para 38. Reference re Pan-Canadian Securities at para 61. Ibid. at para 70. Nicole Bolleyer, Intergovernmental Cooperation: Rational Choices in Federal Systems and Beyond (Oxford: Oxford University Press, 2009), 222 (emphasis added). Poirier partly addresses some of these questions in “Une source paradoxale.” See also Johanne Poirier, “Intergovernmental Agreements in Canada: At the

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Crossroads between Law and Politics,” in Canada: The State of the Federation 2002; Reconsidering the Institutions of Canadian Federalism, edited by J.P. Meekison, H. Telford, and H. Lazar (Montreal and Kingston: McGillQueen’s University Press, 2002). Canada (Attorney General) v British Columbia Investment Management Corp., 2019 scc 63 at para 102; Northrop Grunman Overseas Services Corp. v. Canada (Attorney General), [2009] 3 scr 309 at para 11; Reference re Anti-Inflation Act, [1976] 2 scr 373, at 433 and Re Canada Assistance Plan at 551. See, for example, Wells v Newfoundland, [1998] 3 scr 199. Canada (Attorney General) v British Columbia Investment Management Corp. at para 95. See also Poirier, “Une source paradoxale,” 18: “Everything depends on the context, the will of the parties, the nature of the agreements, the terms used, and the procedure followed” (my translation). For example, an implicit agreement not to change zoning regulation in the future would not bind the contracting municipality as it would be an illicit fetter on its discretionary legislative powers: Pacific National Investments Ltd. v. Victoria (City), [2000] 2 scr 919. Laurentide Motels Ltd. v. Beauport (City), [1989] 1 scr 705. François Chevrette, “Dominium et Imperium: L’État propriétaire et l’État puissance publique en droit constitutionnel canadien,” in Mélanges Jean Pineau (Montreal: Thémis, 2003), 665–82. Michelle Cumyn, “La contractualisation de l’action politique: Contrat juridique ou contrat social?” Les Cahiers de Droit 47, no. 4 (2006): 697–8. Marc-Antoine Adam, Josée Bergeron, and Marianne Bonnard, “Intergovernmental Relations in Canada: Competing Visions and Diverse Dynamics,” in Intergovernmental Relations in Federal Systems (Oxford: Oxford University Press, 2015), 158: “courts show little inclination to arbitrate the enforcement of (intergovernmental) agreements.” Re Canada Assistance Plan at 551. (“In lieu of relying on mutually binding reciprocal undertakings which promote the observance of ordinary contractual obligations, these parties were content to rely on the perceived political price to be paid for non-performance.”) These mechanisms are described below, at text accompanying footnote 165. Gerald Baier, “The Courts, the Constitution, and Dispute Resolution,” in Canadian Federalism, 3rd edition, edited by Bakvis and Skogstad (Don Mills: Oxford University Press, 2012), 87. ul Canada Inc v Quebec (Attorney General), [2005] 1 scr 143. See, for example, Boucher v. Stelco Inc., [2005] 3 scr 279, 2005 scc 64 at para 20. See also Canada (Attorney General) v British Columbia Investment Management Corp., in which the Supreme Court of Canada found that the

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Crown corporation, an agent of the provincial Crown, was bound by the intergovernmental agreement concluded by the province and the federal government (at para 110). Poirier, “Une source paradoxale.” This was an argument made regarding the Charter in Eldridge v British Columbia (ag), [1997] 3 scr 624, para 40. See also Air Canada v. B.C. (A.G.), [1986] 2 scr 539, para 12: “All executive powers, whether they derive from statute, common law or prerogative, must be adapted to conform with constitutional imperatives.” See Lavigne v. Ontario Public Service Employees Union, [1991] 2 scr 211, where a collective agreement entered into by a government-controlled body (here, a community college) was deemed amenable to Charter review. In that case, Justice Laforest rejected the argument that the Charter cannot apply to government when it engages in activities that are “private, commercial, contractual or non-public [in] nature.” According to him, in today’s world we “no longer expect government to be simply a law maker in the traditional sense; we expect government to stimulate and preserve the community’s economic and social welfare. In such circumstances, government activities which are in form ‘commercial’ or ‘private’ transactions are in reality expressions of government policy, be it the support of a particular region or industry, or the enhancement of Canada’s overall international competitiveness. In this context, one has to ask: why should our concern that government conform to the principles set out in the Charter not extend to these aspects of its contemporary mandate?” The court has given a “broad interpretation of the concept of “laws” in the context of s. 52: see Greater Vancouver Transportation Authority at para 85 and ff. The Court defines “laws” as binding policies or rules of general application. Memorandum of Agreement regarding the Cooperative Capital Markets Regulatory System (moa). Factum of the Respondent Attorney General of Quebec at para 55 and 61: https://www.scc-csc.ca/WebDocuments-DocumentsWeb/37613/FM035 _Respondent_Attorney-General-of-Québec.pdf. Quebec argued that by signing these agreements, participating jurisdictions were fettering the discretion of their own legislatures, thus violating the unwritten constitutional principle of parliamentary sovereignty. Reference re Pan-Canadian Securities, para 62 and 67. Reference of the Government of Quebec in virtue of Order in Council 642-2015 concerning the constitutionality of the implementation of pan-Canadian Securities Regulation, 2017 qcca 756 at paras 74–5. Reference re Pan-Canadian Securities, para 51.

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Canadian Egg Marketing Agency v. Richardson, [1998] 3 scr 157. [1978] 2 scr 1198 at 1291–2. Quebec (Attorney General) v. Moses, 2010 scc 17, [2010] 1 scr 557 at para 138. Poirier, “Souveraineté parlementaire et armes à feu,” 119 (my translation). Ibid., 127. Kate Glover, “Structural Cooperative Federalism,” Supreme Court Law Review (2d) 76 (2016): 63 (proposing a minimum duty to act, whether in the form of a duty of loyalty or good faith). Paul Daly, “L’abolition du registre,” 46. Ibid. This duty, according to Daly, is derived from a combination of the democratic principle, which guarantees a zone of free and public discussion, and the federal principle. A unilateral federal decision to destroy registration data would cut short on free public discussion in the legislative assemblies of the provinces and would violate these principles. Ibid., 41. Jean-François Gaudreault-DesBiens, “Cooperative Federalism in Search of a Normative Justification,” 14. Ibid., 15. See Anna Gamper, “On Loyalty and the (Federal) Constitution,” Vienna Online Journal on International Constitutional Law 4 (2010): 157. See the Provincial Judges Reference, [1997] 3 scr 3 (an obligation to create independent commissions to evaluate fluctuations of judges’ income derived from the principle of judicial independence) and the Reference re Secession of Quebec (an obligation to negotiate amendments to the Constitution should the Quebec population decide by referendum to secede from Canada derived from the federal and democratic principles). See also, for an analysis of the legitimacy of judicial review based on these principles, Jean Leclair, “Canada’s Unfathomable Unwritten Constitutional Principles,” Queen’s Law Journal 27 (2002): 389. Jean Beetz, “Les attitudes changeantes du Québec à l’endroit de la Constitution de 1867,” in The Future of Canadian Federalism: L’avenir du fédéralisme canadien, edited by Paul-André Crépeau and C.B. Macpherson (Toronto: University of Toronto Press, 1965), 137. See, on the traditional skepticism of Quebec towards cooperative federalism, Karazivan, “Le fédéralisme coopératif,” 427–30. Factum of the Appellant Attorney General of Quebec at paras 14, 32, 34, and 56. Factum of the Respondent Attorney General of Quebec at para 2, 47, and 50: https://www.scc-csc.ca/WebDocuments-DocumentsWeb/37613/FM035 _Respondent_Attorney-General-of-Québec.pdf. I explore this paradox in

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Karazivan, “Cooperative Federalism in Canada and Quebec’s Changing Attitudes,” in The Canadian Constitution in Transition, edited by Richard Albert, Paul Daly, and Vanessa MacDonnell (Toronto: University of Toronto Press, 2019), 136–66. Reference re Pan-Canadian Securities at para 69–70. Factum of the Respondent Attorney General of Quebec at para 59: https://www.scc-csc.ca/WebDocuments-DocumentsWeb/37613/FM035 _Respondent_Attorney-General-of-Québec.pdf. Guy Tremblay, “Dispute Avoidance and Resolution,” in The Canadian Social Union without Québec: 8 Critical Analyses, edited by Alain-G. Gagnon and Hugh Segal (Montreal: irpp, 2000), 199. For an excellent synthesis of the arguments for and against the intervention of apex courts in federalism disputes, see J.-F. Gaudreault-DesBiens, “The Role of Apex Courts in Federal Systems: Beyond the Law/Politics Dichotomy,” Jus Politicum 1 (2017): 171–90. L. Sossin, “Salvaging the Welfare State? The Prospects for Judicial Review of the Canada Health and Social Transfer,” Dalhousie Law Journal 21 (1988): 158. R v Comeau at para 87. Re Canada Assistance Plan at 554 (Justice Sopinka) (emphasis added). Québec v Canada at para 200. According to Baier, between 1995 and 2011, there had been forty-nine disputes submitted to the Internal Trade Secretariat, and less than 20 per cent of these had been subjected to the panel resolution procedure. The vast majority of these disputes were among governments and did not involve third parties: Baier, “The Courts, the Constitution and Dispute Resolution,” 88–9. Ibid. Ibid. Though in that case, the process seems to be heavily controlled by the federal government, which sets out the requirements that a province must meet in order to qualify for the federal transfers. Even if a third-party panel composed of provincial and federal appointees issues recommendations, it is the minister of health for Canada that takes the decision to impose penalties. See Annex C of the Canada Health Act Annual Report 2016–2017, https://www.canada.ca/en/health-canada/services/publications/health-systemservices/canada-health-act-annual-report-2016-2017.html. On the spending power, see, generally, Douglas M. Brown, “Fiscal Federalism: Maintaining a Balance?,” in Canadian Federalism, 3rd ed., edited by Bakvis and Skogstad, 118; and Marc-André Turcotte, Le pouvoir fédéral de dépenser ou comment faire indirectement ce qu’on ne peut pas faire directement. Wright, “Political Safeguards,” 31.

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170 Ibid., 38–9, and note 183. According to Wright, the prospect of mobilizing public opinion, whether through citizen voting or lobbying by interest groups, is also a source of power against the federal legislature. 171 Adam, Bergeron, and Bonnard, “Intergovernmental Relations,” 157. It bears noting that when the parties provide for a dispute settlement mechanism in their iga, courts will interpret such a provision as a strong indicator of the intention of the parties to create legal, not merely political, obligations: Canada (Attorney General) v British Columbia Investment Management Corp. at para 99. 172 Wells v. Newfoundland, [1999] 3 scr 199, para 49. 173 Poirier, “Intergovernmental Agreements in Canada: At the Crossroads between Law and Politics,” 455. 174 Section 9(2) of the regime, on which this argument is based, reads as follows: “9. (2) No regulation that has the effect of altering any of the agreements or undertakings contained in an agreement entered into under this Part with a province, or that affects the method of payment or amount of payments thereunder, is effective in respect of that province unless the province has consented to the making of such regulation.” 175 Reference re Pan-Canadian Securities, para 51. 176 Gerard Carney, “An Overview of Manner and Form in Australia,” Queensland University of Technology Law Journal 5 (1989): 82–3. 177 (1980) 25 sasr 389 [West Lakes] (King, J.).The West Lakes Development Act 1969 implemented an agreement between West Lakes Ltd. and the government of South Australia; it also incorporated a provision according to which Parliament could not legislate inconsistently with the agreement unless it had obtained the prior consent of the corporation. Parliament, however, adopted legislation amending the act of 1969 without obtaining the consent of West Lakes Ltd. 178 The South Australian Court held that if the condition had purported to bind Parliament, then it would have illicitly deprived Parliament of its lawmaking powers. Here the court argued that if a provision intends to “make the validity of legislation on a particular topic conditional upon the concurrence of an extra-parliamentary individual, group of individuals, organisation or corporation,” such a provision should not be qualified as a manner and form provision, but rather as a renunciation of the power to legislate on that matter (at 397–8). But in the case at bar, it found that the provision did not purport to bind Parliament in adopting an amendment to the legislation. The amendment provision controlled the amendment of the agreement, not of the act itself. 179 Bribery Commissioners v Ranasinghe, [1965] ac 172 (pc), [1964] 2 WLR 1301 at 1312.

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180 Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 scc 40, [2018] 2 scr 765. 181 Ibid. at para 51. 182 Ibid. at para 167. 183 Gerard Carney, “An Overview of Manner and Form in Australia,” 83n179: “Only if it is doubly entrenched, is the provision incapable of repeal and if it purports to deprive Parliament of one of its powers, then it will amount to an invalid abdication of power. If the provision is singly entrenched, then in terms of the principle [that manner and form requirements must not purport to abdicate legislative power], no abdication of power has occurred.” 184 lrc (1985), ch. C-8, art. 114(4) (emphasis added). 185 A.G. for New South Wales c. Trethowan, [1932] ac 526 (pc). 186 Chevrette and Marx, 2nd edition by Zhou, at 295 and 311. 187 (1980) 25 sasr 389 [West Lakes] (King, J.). 188 West Lakes at 398 (King, J.). 189 Canadian Wheat Board Act, [repealed, 2011, c. 25, s. 39] (emphasis added). 190 At trial, Justice Campbell denounced the proceedings as contrary to the rule of law and interpreted section 47 as providing for a valid requirement of manner and form: Friends of the Canadian Wheat Board v. Canada (Attorney General), 2011 fc 1432 (CanLII), Campbell J. 191 Canada (Attorney General) v. Friends of the Canadian Wheat Board, 2012 FCA 183 (CanLII), Mainville J. 192 Canada (Attorney General) v. Friends of the Canadian Wheat Board at para 86 (emphasis added).

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11 Intergovernmental Relations in Canada: Still an Exclusive Club? Jean-Philippe Gauvin and Martin Papillon

introduction The problems of intergovernmental relations lie at the heart of the crisis of the Canadian federal system. Indeed that crisis can be defined largely as one not so much of our social or economic systems, but of our intergovernmental system – of the relations between governments, of the division of power and responsibility between them, and of the ways in which they deal with each other. Richard Simeon, “Intergovernmental Relations and the Challenges to Canadian Federalism”

On the eve of the first referendum on Quebec sovereignty, Richard Simeon made a rather pessimistic assessment of the state of intergovernmental relations (igr) in Canada. Considering its inability to produce a coherent vision of the federation, or even to adapt to the challenges of the day, the Canadian intergovernmental system was, according to Simeon, in a state of crisis. Forty years later, although there may no longer be talk of a crisis, Canadian “executive federalism” is still the subject of a great deal of criticism. The system lacks transparency and is highly vulnerable to political jousting, which, according to several authors, prevents the emergence of stable relationships that promote cooperation. In the end, these critics argue, this loosely institutionalized system contributes to stirring up tensions within the federation rather than reducing them.1

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The objective of this chapter is to provide an assessment of intergovernmental relations in Canada, as they have evolved in recent decades, with a particular focus on the mechanisms that govern these relationships and the key actors involved. In years past, some, including Simeon, have heralded the emergence of a more collaborative model of intergovernmental relations.2 Others have celebrated the emergence of “open federalism” under Prime Minister Harper, only to lament its rapid demise. Behind these contingent political dynamics, however, there is continuity in the workings of Canadian igr. Willingness on the part of new governments to build collaborative relationships can rapidly evolve into zero-sum political battles as tensions and disagreements arise. Recent developments only serve to reinforce this impression. During the 2015 elections and shortly after his victory, Justin Trudeau, like his predecessor, promised that a truly collaborative approach would guide his government on igr. As soon as disagreements with provinces emerged, however, the Liberal government chose to dictate conditions to the provinces in a number of areas where collaboration would seem essential: health care, the fight against climate change, and energy policy, to name a few.3 The tensions in the Canadian intergovernmental system that Simeon noted in 1980 are arguably still present today. Fundamentally, we suggest that these tensions arise from institutional constraints derived from our constitution. They are therefore difficult to change without a major overhaul of the federation. In addition, as Simeon rightly pointed out, these institutional limitations are further accentuated in a context where the partners within the federation do not agree on the goals of the intergovernmental system. In a sense, both institutions and ideas matter when explaining the dynamics of Canada’s intergovernmental system. Whereas the federal government and certain provincial actors take the position that igr should promote greater integration across Canada and serve as mechanisms to foster more effective policy-making, others, including Quebec, believe that the objective of igr is instead be to preserve the dualistic character of the federal system, according to which each jurisdiction should be able to operate autonomously in its area of competence. We argue that this tension between an integrationist and a dualist conception of igr still persists today, thereby limiting greater institutionalization and formalization of intergovernmental mechanisms.4

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That being said, we wish to highlight some evolving aspects of the Canadian igr system that are sometimes underestimated by critiques. In doing so, we suggest that a more nuanced assessment of the system might be in order. The first element to consider is the diversity of igr dynamics, depending on the policy sector, in terms of degree of institutionalization and in the nature of relationships between actors. While conflicting dynamics and zero-sum approaches seem to prevail in some sectors, this is not the case in others where collaboration appears to come more easily. The second aspect we underscore is the consolidation of igr at the administrative level as well as a certain uncoupling of these administrative relations from the political dynamics of executive federalism. The two-level game observed at the political level, where elected officials tend to use intergovernmental forums both to manage their interdependence and to score political points in relation to their own electorate, is much less present at the administrative level. This relative depoliticization facilitates the development of trust and more open and sustained relationships, which in turn create a context that is more conducive to compromise and the establishment of a common vision and common objectives. This dynamic, already observed several decades ago by J. Stefan Dupré,5 appears to be confirmed by our analysis. It is also interesting to note that Quebec, despite its wellestablished historical reluctance to engage in multilateral political agreements, is an important player in intergovernmental cooperation at the administrative level.6 Finally, while Canadian igr are still largely an exclusive club, dominated by the executive branches of the provinces and the central government, we point to a certain opening up of these relations beyond the strict confines of federal-provincial dynamics. In addition to the emergence of more sustained relations between the provinces, notably through the Council of the Federation, we note the proliferation of bilateral and multilateral forums and negotiation mechanisms with Indigenous governments and organizations. While Indigenous participation is still limited at the highest echelons of multilateral igr, it is becoming increasingly important at the ministerial and administrative levels. The most notable change in this respect is arguably at the level of bilateral relations with provincial authorities. Despite the strong dualism and colonial foundations of Canadian federalism, such dynamics arguably strengthen the position and status of

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Indigenous authorities as a third distinct governmental component within Canadian intergovernmental relations.

executive federalism in canada Intergovernmental relations play an essential role in any federal system. Their purposes are to coordinate public action, manage conflicts, and articulate common objectives – as well as a common vision between the federated entities and the federal government.7 Regardless of the nature of the federation, whether it be more or less centralized, multinational or territorial, fragmented or highly integrated, the coordination of public policies and the articulation of common objectives are necessary.8 That being said, the nature of these relationships, their importance, and the terms under which they operate vary considerably from one federation to another, according to their particular institutional and sociological characteristics. The Canadian constitution does not explicitly provide a mechanism for managing interdependencies between orders of government. In principle, they are considered autonomous in their areas of legislative authority. In this sense, Canada is typically described as a dualistic federation, where jurisdictional overlaps are the exception rather than the rule.9 The need to establish collaborative mechanisms nonetheless emerged soon after 1867, in particular to manage the sharing of the tax base between levels of government. In the absence of a clear intergovernmental structure, the model initially used was one of imperial relations between London and its dominions – a diplomatic model where the sovereignty of colonial parliaments is recognized but in which the imperial executive sets the agenda and establishes broad policy orientations.10 Although the model has evolved since, its foundations have remained the same. The federal government still plays a prominent role in articulating the issues and priorities of the intergovernmental agenda. Above all, intergovernmental relations are still essentially the prerogative of the executive branch, which includes the first ministers and their ministers. This “executive federalism” follows an approach similar to that of international relations.11 Central-periphery power relations, alliances, internal cohesion, the capacity and resources of actors, particularly in fiscal terms, all influence the dynamics of federal-provincial diplomatic relations.12

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Although this “summit federalism” style of igr is not unique to Canada, it is particularly strong in the Canadian federation. Canadian-style intergovernmental diplomacy contrasts with the formal German model, in which the interests of the federated units are mediated by way of the Bundesrat, a federal legislative chamber composed of delegated members of the executives of the various Länder.13 In addition to being heavily dominated by the executive branch of government, Canadian intergovernmental relations are still only very loosely institutionalized. As Nicole Bolleyer explains, Canada is in fact one of the federations in which the rules surrounding these relations are the least formalized. 14 The meetings of first ministers, the peak events of Canadian igr, do not take place at regular intervals. They depend on the good will of the prime minister, who also sets the agenda. The Council of the Federation, an annual meeting of provincial premiers which has been held since its creation in 2003, does have a permanent secretariat and more defined rules.15 However, it is primarily a platform for consultation and information sharing. Few concrete policies or measures have so far emanated from this body, which does not include the federal government in any formal capacity.16 In several policy areas, there are also more or less regular “forums,” “councils,” or “meetings” at the ministerial level. There are now more than thirty such sectoral forums, and an even greater number of administrative committees headed by deputy ministers or public servants. While some of these forums or councils are highly institutionalized, and even have administrative structures and autonomous decision-making abilities, their meetings take place on an ad hoc basis in most areas. It is through these various, more or less formal, mechanisms that intergovernmental agreements are negotiated. These agreements can take several forms, from something as simple as a joint press release, to a political agreement of justiciable nature, committing signatories to taking specific measures. However, because of the principle of parliamentary sovereignty, even agreements between executives that can be considered legally binding in character can be unilaterally reneged upon by legislative assemblies.17 While many such agreements now include implementation plans and benchmarking exercises, accountability remains a key challenge, reflecting the weak institutionalization of igr in Canada.18 This particular model of igr stems, in part, from the absence of constitutional provision concerning the management of interdepen-

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dencies within the federation. However, the dominance of the executive and the lack of institutionalization are also reinforced by specific elements of the Canadian political system. The absence of a mechanism for representing the interests of the provinces in the federal parliament – a role normally played by the upper house in a federation – and the fragmented party system (federal and provincial branches of parties with similar ideologies are largely autonomous from each other) strengthen the model of executive federalism. In addition, the principle of ministerial responsibility at the heart of the Westminster system of government limits the institutional autonomy of intergovernmental mechanisms, which cannot be substituted for the will of parliamentarians. It also contributes to the concentration of decisionmaking power in the hands of the executive, which has de facto control over the legislative and political agenda. According to Bolleyer, this tendency is even stronger when the electoral system favours majority governments, which have no interest in diluting their power through more open intergovernmental mechanisms.19 To these institutional features, we must add ideational factors. Disagreements concerning the very nature of the Canadian federation and what role igr should play within such system continue to limit the possibility of institutional reform in the direction of further formalization. While some provinces, particularly Quebec, remain committed to the dualistic conception of Canadian federalism, where each level of government is sovereign in its area of legislative authority, the federal government and most provinces are likelier to adopt a more integrated approach to federalism. For them, igr tend to be less about managing interdependencies between co-ordinate levels of government than about developing a shared vision of the nation and policies that are consistent with this vision through the pooling of resources and expertise. Under such a model, the federal government logically has a predominant role, thanks in part to its spending power. With the development of the welfare state in the postwar period, there has been strong pressure to promote a more integrated model. Unsurprisingly, Quebec has resisted such pressure, as the francophone province is particularly sensitive to any dilution of its decision-making power in multilateral intergovernmental institutions, where it finds itself one out of eleven, or even fourteen if one includes the territories.20 When these two visions of federalism clash, the politicization of igr tends to increase. Richard Simeon and Gérard Veilleux have recalled the importance of the rise of Quebec nationalism in the

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1960s and 1970s to understand the strengthening of this model centered on the executive and, in particular, on the prime minister.21 The model, which focuses on negotiations between political elites, favours nested political games,22 or as Robert Putnam defines them in reference to international relations, “two-level games.”23 As the main players in intergovernmental relations are elected representatives who are primarily accountable to their respective electorates, intergovernmental negotiations sometimes serve as much to score political points as they do to manage interdependencies within the federation.24 If this two-level game appears inevitable given the predominance of political actors in igr, the discontinuous, non-routine, and conflictoriented character of these relationships does little to encourage the emergence of an intergovernmental political culture centered on routine discussions.25 In his now-classic critique of executive federalism, Donald Smiley highlighted several problems related to this more or less formalized, executive-centred igr model, particularly from a democratic standpoint.26 The emphasis on relationships between executive branches is not conducive to transparency. Intergovernmental agreements are often negotiated behind closed doors. These agreements, which can have a significant impact on the lives of Canadian citizens, are rarely the subject of parliamentary debate. Instead, any debate surrounding the appropriateness of these agreements takes place after the fact in the media. This practice tends to undermine the democratic legitimacy of these agreements and, as a result, their long-term stability. Governments do not necessarily feel bound by agreements negotiated by their predecessors. The legitimacy of igr as a space for decision-making is also put into question by several social groups who see their perspectives systematically marginalized in such forums. We are thinking here about groups that enjoy constitutional recognition, particularly linguistic minorities, but also, and especially, Indigenous Peoples who often challenge the legitimacy of Canadian sovereignty over their ancestral lands. The absence of mechanisms for the representation of social actors was highlighted during the constitutional debates of the 1980s, when governments negotiated the federation’s future alone, and, with a few exceptions, behind closed doors, which led critics to argue that the process suffered from a democratic deficit.27

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the evolution of executive federalism igr in Canada are not particularly institutionalized. Instead, they are essentially the business of the executive branch, and seemingly rely on an approach that can lead to conflict and culminate in a zero-sum game. This does not mean that these relationships have not changed over time. In their classic study, Simeon and Robinson identify five periods in the evolution of Canadian federalism since 1867: colonial federalism (1867 to 1900), classical federalism (1900 to 1945), cooperative federalism (1945 to 1960), competitive federalism (1960 to 1980), constitutional federalism (1980 to 1995), and collaborative federalism (from 1995 until 2009).28 Some would add to this historical periodization a new era of “open federalism,” or even a return to classical federalism, under the government of Stephen Harper and a renewed era of reconciliation under Trudeau.29 These dynamics, or “models of federalism,” describe how actors interact in order to resolve political conflicts.30 For example, if the competitive federalism of the 1960s is characterized by a reinforcement of the dualistic approach, in particular through the creation of specialized agencies dedicated to defending provincial interests,31 the collaborative federalism of the 1990s favoured instead an integrationist approach, according to which the various Canadian governments sought common solutions to the changing economic context of the time.32 Beyond such cycles, which are tied to the leadership style of the prime minister of the day as much as political or economic forces, there are nonetheless some relatively stable trends in Canadian igr. As Julie Simmons and Peter Graefe conclude in a 2013 review of cooperative federalism: If one were trying to draw a trend line through these data points, it would be one of continuity with the sort of competitive behaviour captured forty years ago in Richard Simeon’s Federal-Provincial Diplomacy (1972). This statement does not mean that the governments do not work together to get things done, but that the observed behaviour and interaction is more one of strategic actors in competition with each other and arriving at power-laden compromises, rather than one of actors working on the basis of cooperation and equality mapping out a joint vision and program of action to achieve it.33

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For Simmons and Graefe, beyond the circumstantial incentives that drive the federal government and the provinces to work together, executive federalism remains essentially a system based on competition between levels of governments seeking to extend their authority in a zero-sum game. In a recent analysis of federal-provincial dynamics under Stephen Harper’s Conservative government, Christopher Dunn also concludes that “open federalism,” which initially suggested a certain return to a dualistic approach (the federal government leaving the provinces free to exercise their authority in their areas of competence), soon gave way to a competitive approach driven by pressure-based negotiations.34 In the absence of structural reforms, any changes in the dynamics of igr appear mainly circumstantial. However, behind this apparent institutional stagnation, it is important to emphasize more subtle dynamics in the igr system. The overwhelming majority of research on igr in Canada focuses on the most visible aspects of these relationships: summit federalism, multilateral meetings, and high-level agreements between federal and provincial political actors. The emphasis on summit dynamics has several consequences. First, the tendency to focus on broad “trends” in igr can lead to generalizations that fail to do justice to the diversity of dynamics in play in various policy sectors.35 Even within the same policy area, the nature of igr can vary significantly.36 The machinery of igr is complex and particular to each policy sector. So are the dynamics in play. Generalizations may therefore obscure as much as they enlighten. Second, studies focusing on major summits tend to neglect the importance of bilateral relations between the federal and provincial/ territorial governments. For example, Gauvin shows that while Harper seemed to have lost interest in igr by not developing robust multilateral agreements, bilateral relations with the provinces did not disappear.37 Finally, by emphasizing the level of institutionalization of summit relations, the Canadian literature on igr in recent decades tends to underestimate less visible innovations and developments, particularly at the administrative level.38 In fact, the early literature on executive federalism recognized the importance of administrative relations. For Smiley, coordination between governments was as much a matter of concern for civil servants as it was for elected officials.39 For Gérard Veilleux, intergovernmental relations were essentially based on interactions between sectoral officials.40 Simeon’s innovative work on fed-

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eral-provincial diplomacy led to a shift in focus towards summitry and multilateral agreements.41 The constitutional negotiations of the 1980s also contributed to a consolidation of this vision of igr as a politically-oriented game. Without being entirely immune to the political dynamics of executive federalism, we suggest that administrative relations follow a logic unto themselves. By focusing on these aspects of igr, we can have a more nuanced look at their apparent dysfunction. The remainder of the chapter illustrates these characteristics by using empirical data from the Canadian Intergovernmental Conference Secretariat (cics), igr meetings press releases, as well as some twenty interviews conducted with provincial officials in 2013 and 2014.42 Intersectoral Variations Summits between first ministers, whether federal-provincial (such as the First Ministers’ Meeting) or interprovincial (such as the Council of the Federation), are relatively rare events. The vast majority of intergovernmental interactions take place at the ministerial and administrative level.43 Each year, there are between one and three meetings between first ministers, and there may be as many as forty to sixty ministerial meetings during the same period.44 It is at this level that the majority of political priorities are negotiated and that agreements are hammered out. These sector-specific meetings are themselves supported by a group of expert officials who prepare files, communiqués, or agreements, whether before, during, or after a meeting. As Johns, O’Reilly, and Inwood explain, informal relationships are plentiful and virtually impossible to measure. Points of contact can number in the thousands, whether by way of phone calls or emails.45 In short, sectoral igr are an important component of the intergovernmental machinery. From a more operational standpoint, officials in each policy sector meet through intergovernmental forums, which themselves take various shapes. As mentioned above, there are now about thirty of these sector-specific forums and an even greater number of administrative committees headed by deputy ministers or public servants. Sectoral igr include ministerial forums, standing committees, administrative subcommittees, and even interprovincial committees. This is not a new phenomenon. There were already some 125 administrative committees and ministerial forums in the 1960s.46 While the purpose of these meetings was initially to clarify the respective roles of the two

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Human resource and social services Justice Health Education Heritage Transport Natural resources Fisheries Sports and recreation Public works Environment Agriculture Emergency preparedness Status of women Housing Local government Ctiizenship and immigration Industry Finance Indigenous Affairs Trade Northern development

Figure 11.1 Average annual frequencies of meetings by sector, 2005–15

orders of governments,47 they also facilitate consultation between levels of government, contribute to bolster professionalism in certain areas, encourage the exchange of knowledge, foster the harmonization of priorities, and facilitate policy coordination and intergovernmental decision-making. Figure 11.1 shows the average frequency of annual meetings by sector for all levels (first ministers, ministers, and deputy ministers) from 2005 to 2015. Clearly, there is a huge variation in the practices of each sector. For example, some social areas, such as social services, health, and education, are among the five sectors that, on average, meet most frequently each year. The justice sector closely follows social services, with an average of eight meetings a year in the last ten years. Conversely, sectors such as northern development, trade, or Indigenous affairs usually hold only one to two meetings a year. Another interesting observation is that the results are organized in clusters, suggesting the existence of established practices. For example, three sectors meet four times a year, with little variation, while three others generally hold six meetings per year. If sectoral meetings were held as

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sporadically as summit meetings, there would be much more of a disparity between sectors and a great deal fewer clusters. Intergovernmental exchanges at the sectoral level have been the subject of a number of studies in recent years, notably in areas like the environment,48 education,49 and social services.50 Scholars have also compared the dynamics across several sectors.51 For instance, Schertzer and his colleagues compare interactions in agriculture, employment, and immigration under the Harper government, from 2006 to 2015. They show that each sector has its own standards and practices which lead to unique dynamics. Agricultural igr have, for example, led to several pan-Canadian strategies being developed multilaterally, but with an implementation scheme that has been adapted to the needs of the provinces. The employment sector features unilateral initiatives by the federal government, such as the Canada Employment Grant, which was negotiated bilaterally with each province. Finally, the immigration sector gave rise to several bilateral agreements, as well as the development of a multilateral model, notably in the establishment of common provincial standards.52 These studies allow us to emphasize the relative autonomy of sectoral igr from the political dynamics of the day. In some sectors, the actors have a strong incentive to work together, and this collaboration is often far removed from the limelight, through ministerial forums and administrative meetings. For example, as Harvey Lazar observes: “The line ministries often share similar objectives and goals and working together therefore may entail a positive sum game for them whereas, for finance ministries in particular, intergovernmental discussion will often involve zero sum games.”53 In addition to differences in approaches and dynamics, it is important to note that there are also significant structural differences between sectors, particularly with respect to the level of institutionalization of the various intergovernmental forums and councils. Several forums, such as the Canadian Council of Ministers of the Environment (ccme) or the Council of Ministers of Education (cmec), have a permanent secretariat. Figure 11.2 shows the percentage of forums in a given policy area that have such an administrative body. For example, about 35 per cent of environmental forums have a permanent secretariat, suggesting some formalization of practices. However, the level of institutionalization does not necessarily correspond to a greater degree of collaboration.54 Other factors, such as the articulation of common objectives and a common

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Figure 11.2 Average institutionalization by policy domain

vision of igr, could promote the emergence of more or less collaborative sectoral dynamics. The Consolidation of Administrative Relations Several scholars have observed the growing importance of administrative relations to managing interdependencies between federal and provincial authorities in Canada.55 In the 1970s, experts predicted the rapid growth of administrative relations.56 Figure 11.3 confirms this trend, with some nuance. Since informal relations between officials cannot be easily observed, the figure shows the frequency of meetings between deputy ministers, using data from Canadian Intergovernmental Conference Secretariat (cics). Deputy ministers, senior officials who bridge the gap between government and politics within departments, are often called upon to sit on intergovernmental committees. They also participate actively in intergovernmental meetings, whether on behalf of their departments or in the course of ministerial meetings. As a result, the frequency of their meetings provides an indication as to the increasing relative weight of administrative relations in the Canadian intergovernmental system. The frequency of administrative meetings now resembles that of ministerial meetings. Interestingly, ministerial meetings grew in frequency in the 1980s, but have remained stable since. In comparison, deputy minister meetings have progressed slowly over the years. The frequency of both ministe-

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Figure 11.3 Frequency of meetings by type, 1975–2016

rial and deputy ministerial meetings far outweigh the annual number of meetings between first ministers. However, it is important to recall that this data, which is limited in scope to official meetings, cannot be used to discern the magnitude of the numerous administrative committees observed by Veilleux in the 1970s. It is nonetheless possible to argue that informal relations between civil servants have also grown. As can be seen from Figure 11.3, the frequency of deputy minister meetings varies from year to year, and is remarkably similar to that of ministerial meetings. One reason for this is that deputy minister meetings often precede the meetings of their respective ministers. For example, the 1982 patriation of the Constitution and the 1995 Quebec referendum on sovereignty saw a certain decrease in the number of meetings, probably due to the political uncertainty associated with these events. Growth in the late 1990s until the mid-2000s coincided with the period of collaborative federalism. Similarly, the disengagement of the Harper government from high-level multilateral meetings may have led to a decrease in the number of meetings between deputy ministers between 2006 and 2015. In this sense, the sudden increase in 2016 could be linked to the Trudeau government’s announcement of renewed relations with the provinces. It is very

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interesting to note, however, that while ministerial meetings have followed a similar trend, growth in 2016 was much more pronounced for deputy ministers. Analyses beyond 2016 will of course be necessary to confirm whether this sudden increase in official meetings of deputy ministers will wane or stabilize. Administrative relations are therefore not fully immune to the vagaries of political dynamics. However, they are less likely to be influenced by the two-level game observed at summit meetings. In a study of fiscal transfers published in the 1960s, Smiley found that the ability to implement intergovernmental policies depended more on good relations between program managers than on the ideology of ruling governments.57 This is because administrators tend to share practices, objectives, and values, which limits conflict and encourages collaboration.58 It seems that this is still the case in 2018, as several officials interviewed insisted that administrative relations are not overly politicized. As one Manitoba official puts it, even political conflicts between the provinces and the federal government have very little influence on the relationship: “When that sort of negative activity is taking place, it becomes very important that the officials are working behind the scenes to say, ‘You know, that’s all happening for the show, but we’ve got to do the day-to-day business.’ And so we continue on our work.” Similar observations were made by administrators from several sectors, including environment, education, and health. In addition, public servants often stay longer in their positions than deputy ministers or ministers. This ensures an important continuity in the relations between actors, thus promoting the creation of stable relationships on which to build trust.59 Several officials interviewed explained that they had known the individual actors in their networks for many years, which facilitates their working together. The depoliticization of administrative relations is even more significant when one analyzes Quebec’s role in intergovernmental coordination. Although one might think that Quebec is on the fringes of these more routine meetings, it is in fact quite the opposite. Indeed, it would appear that even the victory of a sovereigntist party in Quebec’s 2012 election did not influence the province’s participation in multilateral sectoral forums.60 Indeed, while the official discourse in Quebec City seems, in theory, to be less open to intergovernmental collaboration under a Parti Québécois government, our data suggest that the dynamics “on the ground” actually change very little. Quebec

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does tend to march to the beat of its own drum when negotiating multilateral agreements, particularly when such agreements further seek to institutionalize the federal spending powers in areas of provincial jurisdiction.61 However, this does not prevent the province from playing an important role in a multitude of more of less depoliticized sectoral forums. In fact, whether it be under the banner of the Liberal Party or the Parti Québécois, the government of Quebec remains an important player in Canadian intergovernmental relations. It participates in all sectoral meetings, and this participation does not vary between the political parties in power in Quebec City. Between 1960 and 2002, both Liberal and pq governments signed an average of fortyfive intergovernmental agreements per year. And although the arrival of Jean Charest in 2003 and the creation of the Council of the Federation the same year led to an increase in the number of intergovernmental agreements signed by Quebec, this average was not affected by the short transfer of power to the pq government between September 2012 and April 2014. Between 2003 and 2015, the average number of agreements signed annually by Quebec was about 96, both for Liberal governments and the pq government of 2012–14.62 There is therefore a marked difference between political and administrative relations. While political relations are marked by a two-tiered game in which electoral issues often take precedence over intergovernmental collaboration, the dynamics at the administrative level are much less politicized. Interprovincial Relations The literature on collaborative federalism implies that there has been a rise in interprovincial relations in Canada.63 Similarly, Éric Montpetit suggests that the growing correlation between the political agendas of the provinces is due to a greater intensification of interprovincial relations.64 Yet, our data suggest a certain stability in the frequency of formal interprovincial meetings over time, as shown in Figure 11.4. This data, representing multilateral provincial-territorial meetings supported by the cics, provides an oddly similar picture to federal-provincial meetings. Indeed, some decreases can be observed during the constitutional events of the 1980s and 1990s. The late 1990s saw a significant increase in discussions and negotiations surrounding the Social Union Framework Agreement (sufa), a 1999 intergovernmental multilateral agreement proposing collaboration on various social programs, signed

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Figure 11.4 Frequency of interprovincial meetings, 1975–2016

by the federal government and all provinces, excluding Quebec.65 However, this observed growth in the 1990s is relative when compared to previous periods. It effectively amounts to a return to the levels of the 1970s and 1980s. Even the creation of the Council of the Federation in 2003 did not alter the frequency of these meetings. Although the council has allowed for a measure of formalization of the meetings between provincial premiers, it appears that it has not influenced the frequency or content of interprovincial igr.66 On the other hand, it is very interesting to note that interprovincial relations also decreased slightly during the Conservative government’s first two terms in office. One could have expected interprovincial relations to gain prominence in the absence of strong federal leadership in federalprovincial forums. Another reason for the limited role of the Council of the Federation is that the nature of interprovincial relations is different from that of federal-provincial relations. Specifically, some interprovincial meetings precede a federal-provincial-territorial (fpt) meeting by one or several days. These meetings can be used by the provinces to establish a unified position ahead of the meeting with the federal govern-

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Figure 11.5 Functions of interprovincial relations

ment. These meetings are necessarily more political and seek to develop strategies to better negotiate priorities and agreements with the federal government. As such, when there is a slight decrease in fpt meetings due to the political climate, there are no interprovincial meetings held to develop a common position. Interprovincial relations depend not only on the Council of the Federation and the decisions made by premiers, but also on the nature and dynamics of relations with the federal government. Figure 11.5 shows the results of an analysis of the content of intergovernmental communiqués published on the cics website between 1997 and 2015. The data collected compares fpt meetings with provincial/territorial (pt) meetings. It confirms that pt meetings are more often about sharing information and expertise than is the case with fpt meetings. Approximately 60 per cent of interprovincial press releases explicitly mentioned participating in the exchange of best practices and expertise. The data also suggests that fpt meetings often lead to concrete intergovernmental outcomes, such as requiring public servants to engage in discussions or work on a given issue, to create a working group, or to develop an intergovernmental program. While interprovincial meetings sometimes lead to these concrete results, fpt meetings do so much more frequently. Third, explicit requests to the federal government take place mostly in the context of interprovincial meetings, confirming that these meetings are more often used to develop a common position to negotiate with the federal government than

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to formulate intergovernmental policies. Finally, it is interesting to note that the Council of the Federation is more often mentioned in pt meetings than fpt meetings, which is to be expected given the interprovincial nature of the council. Interprovincial relations can therefore be said to be relatively similar to other sectoral meetings. However, it is to be recalled once more that the data presented here relates only to formal meetings and does not include the many informal contacts between governments. New Actors: Indigenous Peoples In Canada, igr remain an exclusive club. In the majority of cases, only ministers and their officials from the public service are present at intergovernmental meetings. When it comes to negotiating political priorities or even concrete agreements, discussions continue to take place behind closed doors. This situation differs from US federalism, where the fragmentation of the political system results in a greater inclusion of interest groups within the intergovernmental framework.67 In Canada, while interest groups are generally said to be involved in policy formulation,68 they are usually excluded from taking part in intergovernmental discussions. Although ministers ultimately retain decision-making authority in igr, stakeholders are consulted in most sectors. Figure 11.6 shows the results of an analysis of the content of intergovernmental communiqués published between 1997 and 2015 in different sectors. More specifically, the figure shows the percentage of published press releases mentioning stakeholders as well as Indigenous Peoples. Interestingly, the data shows that the Indigenous policy sector is the one where groups are most involved in the process. Indeed, the overwhelming majority of meetings of ministers responsible for Indigenous affairs between 1997 and 2014 also included the leaders of the five national Indigenous organizations, namely, the Assembly of First Nations (afn), the Métis National Council, the Inuit Tapiriit Kanatami, the Congress of Aboriginal Peoples, and the Native Women’s Association of Canada. The growing presence of Indigenous organizations in intergovernmental forums is undoubtedly one of the most significant changes in Canadian igr in recent years. While their presence for the moment remains issue-specific and governed by rather vague rules, it appears to be gradually becoming a standard practice. It is to be noted that

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Social

Environment

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Figure 11.6 Mentions of stakeholders and Indigenous Peoples by sector

the annual meeting of the Council of the Federation is now preceded by a day of meetings with representatives of Indigenous organizations. These meetings are used to develop common strategies on issues that affect Indigenous Peoples in particular, such as violence against women, health, school dropout rates, and economic development. Indigenous organizations now seek full inclusion as partners in the Council of the Federation, and some of them boycotted the premeeting in 2017 and 2018 as a result. In 2016, a new federal, provincial, territorial, and Indigenous forum was also established to foster ongoing trilateral relationships.69 Indigenous organizations that participate in federal-provincial or interprovincial meetings are not governments. They do not exercise authority, delegated or not, and in fact manage very few programs. They are representative organizations whose decision-making role is necessarily limited, which can lead to some frustrations and tensions.70 That being said, intergovernmental relations with Indigenous Peoples are not limited to these multilateral forums. We have witnessed in recent years a significant growth in bilateral and trilateral relations between federal, provincial and territorial, and Indigenous authorities,

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Figure 11.7 Number of agreements between provinces and Indigenous authorities, 1995–2014

be they band councils or self-governing Indigenous governments, Métis governments, regional, province-wide, or pan-Canadian organizations. These relationships translate into agreements in various forms, ranging from statements of principles aimed at improving relations to more substantive commitments, such as the financing of services, the transfer of responsibilities, or the creation of new joint structures in education or health care. Figure 11.7 provides an overview of the rapid growth in provincial-Indigenous agreements between 1995 and 2014. These agreements do not, in and of themselves, change the status of Indigenous governments within the Canadian federal system. They nevertheless constitute a de facto recognition of their essential role in the governance of the country. Such agreements, and the multiple and complex relationships that underlie them, have opened up a new space of multi-level governance in Canada.71

conclusions At the end of the 1970s, Donald Smiley identified three problems with executive federalism: it contributes to the conduct of public affairs behind closed doors, it limits the participation of citizens in public affairs, and it weakens and diminishes the accountability of governments vis-à-vis legislatures and the public.72 Forty years later, little has changed. igr in Canada are hampered by the same institutional and ideational challenges. Most meetings are still conducted behind closed doors. Intergovernmental communiqués aside, it is difficult to have a clear picture of intergovernmental meetings. The agendas themselves are secret, as are

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the nature of the discussions and disagreements. igr therefore remain largely clouded by secrecy. Despite the various calls to make the system more democratic,73 citizen participation is still limited or non-existent in many cases. Interest groups are often consulted by government officials, but they are not directly involved in the process. Government accountability also remains limited. Decisions taken at intergovernmental meetings are rarely endorsed by Parliament or provincial legislatures. Similarly, the status of intergovernmental agreements is ambiguous. Institutional constraints inherent in the system and the ambiguity that persists in the finality of igr limit the possibilities for reforming the system towards greater formalization and transparency. This being said, our analysis of the frequency and nature of the various types of intergovernmental meetings and agreements over the past number of decades has also allowed us to highlight some underestimated features of Canadian igr. In particular, there is a strong sectoral diversification, especially at the administrative level. Federal-provincial dynamics vary from sector to sector and do not necessarily follow political trends. We therefore observe a decoupling of relations between political and administrative levels. While igr at the summit tend to obey a two-level game logic that limits the potential for long-term cooperation pattern to emerge, administrative relations are largely immune to these dynamics.74 This consolidation of sectoral dynamics at the administrative level has a particularly important corollary effect for Quebec, often perceived as a reluctant participant in multilateral relations. We have highlighted the relative stability of Quebec’s participation in sectoral forums, regardless of the government in power in Quebec City. Beyond its occasional political stances, Quebec remains an important player in the everyday coordination processes within the Canadian federation. While there is still resistance to the formal participation of non-governmental actors in intergovernmental forums, Indigenous organizations are increasingly involved, as shown by the creation of the Federal-Provincial-Territorial-Indigenous Forum (fptif). For the time being, though, the place of Indigenous Peoples in multilateral forums remains contingent on the good will of federal and provincial governments, and is primarily consultative in nature. The changing role of Indigenous actors is nonetheless evident in bilateral intergovernmental relations, notably with provincial, territorial, and municipal

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governments. This broadening of Canadian federalism through the negotiation of political and administrative agreements with Indigenous authorities is significant in our view. Without questioning the strong dualism and colonial foundations of Canadian federalism, these dynamics consolidate the position and status of Indigenous authorities as a distinctive order of governments within Canadian intergovernmental relations. Despite its many limitations, the Canadian igr system remains relatively flexible in character. In the absence of strong institutions and a formal set of rules, Canadian governments navigate their interdependence through more informal means and through practices tailored to the circumstances. As Harvey Lazar explains: “Ambiguity was the midwife of Canada’s birth. And ambiguity remains central to the Canadian politics of today.”75

notes 1 Monica Gattinger, “A National Energy Strategy for Canada: Golden Age or Golden Cage of Energy Federalism?,” in Canada: State of the Federation, 2012: Regions, Resources, and Resiliency, edited by Loleen Berdahl, André Juneau, and Carolyn Tuohy (Montreal and Kingston: McGill-Queen’s University Press, 2015); Nicole Bolleyer, “Federal Dynamics in Canada, the United States, and Switzerland: How Substates’ Internal Organization Affects Intergovernmental Relations,” Publius 36, no. 4 (2006); Kathy Brock, “Executive Federalism: Beggar Thy Neighbor?,” in New Trends in Canadian Federalism, edited by François Rocher and Myriam Smith (Peterborough: Broadview Press, 2003); Réjean Pelletier, “Les relations fédérales-provinciales sous le gouvernement Harper: De l’ouverture à l’unilatéralisme,” in Le Fédéralisme selon Harper, edited by Juliàn Castro-Rea and Frédéric Boily (Québec: Presses de l’Université Laval, 2014). 2 David Cameron and Richard Simeon, “Intergovernmental Relations in Canada: The Emergence of Collaborative Federalism,” Publius 32, no. 2 (2002): 49–71. 3 After refusing to meet with provincial premiers to discuss the renewal of federal health care transfers, the Trudeau government unilaterally set the amount of transfers while adding certain conditions. While initially refractory, the provinces (including Quebec) had no choice but to agree one by one with the federal government. Some reports denounced the attitude of the federal minister of health, who celebrated her “victory” as if it were a

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game or a sports match. For more details, see Alain Dubuc, “Le ‘High Five’ de Jane Philpot,” La Presse, 14 March 2017. Tensions with Alberta and Saskatchewan over carbon taxation and the conflict with British Columbia over the Trans Mountain pipeline were still, at the time of writing, debated in front of judges. See for example David Ball, “B.C. Government in Court Claiming It Has the Right to Stop Bitumen to Prevent ‘Catastrophic’ Pipeline Spill,” Toronto Star, 19 March 2019. Jean-François Gaudreault-DesBiens and Johanne Poirier, “From Dualism to Cooperative Federalism and Back? Evolving and Competing Conceptions of Canadian Federalism,” in The Oxford Handbook of the Canadian Constitution, edited by Peter Oliver, Patrick Macklem, and Nathalie Des Rosiers (Oxford: Oxford University Press, 2017), 393–8; Nicole Bolleyer, “Federal Dynamics in Canada, the United States, and Switzerland.” Stefan Dupré, “Reflexions on the Workability of Executive Federalism,” in Perspectives on Canadian Federalism, edited by R. Olling and M.W. Westmacott (Scarborough: Prentice-Hall, 1988). Jean-Philippe Gauvin, “Les Relations intergouvernementales et la coordination des politiques publiques au Canada: Entre relations formelles et informelles” (PhD diss., Department of Political Science, Université de Montréal, 2017). Martin Papillon and Richard Simeon, “The Weakest Link? First Minister’s Conferences in Canadian Intergovernmental Relations,” in Canada: The State of the Federation, 2002: Reconsidering the Institutions of Canadian Federalism, edited by J.P. Meekison, Hamish Telford, and Harvey Lazar (Kingston: Institute of Intergovernmental Relations, 2004); Ronald Watts, Comparing Federal Systems (Montreal and Kingston: McGill-Queen’s University Press, 2008). Bolleyer, “Federal Dynamics in Canada, the United States, and Switzerland”; Watts, Comparing Federal Systems; Alain-G. Gagnon, ed., Contemporary Canadian Federalism: Foundations, Traditions, Institutions (Toronto: University of Toronto Press, 2009). Watts, Comparing Federal Systems; Johanne Poirier and Cheryl Saunders, “Comparative Experiences of Intergovernmental Relations in Federal Systems,” in Intergovernmental Relations in Federal Systems, edited by Johanne Poirier, Cheryl Saunders, and John Kincaid (Toronto: Oxford University Press, 2015). One can also see in these imperial origins one of the sources of tensions inherent to the Canadian intergovernmental system according to Guy Laforest and Alain-G. Gagnon, “Comprendre la vie politique au Canada et au Québec,” in Le Parlementarisme canadien, 5th ed., edited by Réjean

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Pelletier and Manon Tremblay (Quebec: Presses de l’Université Laval, 2013), 9–40. Donald V. Smiley, “The Structural Problem of Canadian Federalism,” Canadian Public Administration 14, no. 3 (1971): 326–43. Richard Simeon, Federal-Provincial Diplomacy: The Making of Recent Policy in Canada (Toronto: University of Toronto Press, 1972). For a more detailed comparison of the various models, see Johanne Poirier, Cheryl Saunders, and John Kincaid, eds., Intergovernmental Relations in Federal Systems (Toronto: Oxford University Press, 2015), as well as Nicole Bolleyer, Intergovernmental Cooperation: Rational Choices in Federal Systems and Beyond (Oxford: Oxford University Press, 2009). Bolleyer, Intergovernmental Cooperation: Rational Choices in Federal Systems and Beyond. “Canada’s Premiers: The Council of the Federation,” accessed 7 August 2017, http://www.canadaspremiers.ca/en/. Emmet Collins, “Alternative Routes: Intergovernmental Relations in Canada and Australia,” Canadian Public Administration 58, no. 4 (2015), 591–604. Johanne Poirier, “Intergovernmental Agreements in Canada: At the Crossroads between Law and Politics,” in State of the Federation 2002: Reconsidering the Institutions of Canadian Federalism, edited by J. Peter Meekison, Hamish Telford, and Harvey Lazar (2003), 431–8. Julie M. Simmons and Peter Graefe, “Assessing the Collaboration That Was ‘Collaborative Federalism’ 1996–2006,” Canadian Political Science Review 7, no. 1 (2013), 25–36. Bolleyer, “Federal Dynamics in Canada, the United States, and Switzerland.” Secrétariat aux Affaires intergouvernementales canadiennes du Gouvernement du Québec, Quebecers, Our Way of Being Canadian (2017), https://www .sqrc.gouv.qc.ca/documents/relations-canadiennes/politique-affirmationen.pdf. Richard Simeon, “Intergovernmental Relations and the Challenges to Canadian Federalism,” Canadian Public Administration 23, no. 1 (1980); Gérard Veilleux, “Intergovernmental Canada: Government by Conference? A Fiscal and Economic Perspective,” Canadian Public Administration 23, no. 1 (1980): 33–53. George Tsebelis, Nested Games: Rational Choice in Comparative Politics (Berkeley: University of California Press, 1990). Robert D. Putnam, “Diplomacy and Domestic Politics: The Logic of TwoLevel Games,” International Organization 42, no. 3 (1988). Richard Simeon, ed., Confrontation and Collaboration: Intergovernmental Relations in Canada Today (Toronto: Institute of Public Administration of

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Canada, 1979); Bolleyer, Intergovernmental Cooperation: Rational Choices in Federal Systems and Beyond. Papillon and Simeon, “The Weakest Link?” Donald V. Smiley, “An Outsider’s Observations of Federal-Provincial Relations among Consenting Adults,” in Confrontation and Collaboration: Intergovernmental Relations in Canada Today, edited by Richard Simeon (Toronto: Institute of Public Administration of Canada, 1979). Adam Marc-Antoine, Josée Bergeron, and Marianne Bonnard, “Intergovernmental Relations in Canada: Competing Visions and Diverse Dynamics,” in Intergovernmental Relations in Federal Systems: Comparative Structures and Dynamics, edited by Johanne Poirier, Cheryl Saunders and John Kincaid (Toronto: Oxford University Press, 2015), 135–73; Richard Simeon and David Cameron, “Intergovernmental Relations and Democracy: An Oxymoron If Ever There Was One?” in Canadian Federalism: Performance, Effectiveness and Legitimacy, 1st ed., edited by Herman Bakvis and Grace Skogstad (Don Mills: Oxford University Press, 2002), 278–95. Richard Simeon and Ian Robinson, “The Dynamics of Canadian Federalism,” in Canadian Politics, 5th ed., edited by James Bickerton and Alain-G. Gagnon (Peterborough: Broadview Press, 2009), 155–78. Éric Montpetit, Le Fédéralisme d’ouverture: La recherche d’une légitimité canadienne au Québec (Sillery, Quebec: Septentrion, 2007). Fritz Scharpf, Games Real Actors Play: Actor-Centred Institutionalism in Policy Research (Boulder, co: Westview Press, 1997). Simeon, Federal-Provincial Diplomacy: The Making of Recent Policy in Canada; Bruce G. Pollard, Managing the Interface: Intergovernmental Affair Agencies in Canada (Kingston: Institute of Intergovernmental Relations, 1986). Cameron and Simeon, “Intergovernmental Relations in Canada.” Simmons and Graefe, “Assessing the Collaboration That Was ‘Collaborative Federalism’ 1996–2006,” 33. Christopher Dunn, “Harper without Jeers, Trudeau without Cheers: Assessing 10 Years of Intergovernmental Relations,” irpp Insight No 8 (2016); Alain-G. Gagnon, “Executive Federalism and the Exercise of Democracy in Canada,” in Alain-G. Gagnon, The Case for Multinational Federalism (Milton Park: Routledge, 2010), 67–87. Robert Schertzer, Andrew McDougall, and Grace Skogstad, “Collaboration and Unilateral Action: Recent Intergovernmental Relations in Canada,” irpp Study No 62 (2016). Keith G. Banting, “The Three Federalisms Revisited: Social Policy and Intergovernmental Decision-Making,” in Canadian Federalism: Performance, Effec-

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tiveness, and Legitimacy, 3rd ed., edited by Herman Bakvis and Grace Skogstad (Oxford: Oxford University Press, 2012). Jean-Philippe Gauvin, “Les Relations intergouvernemental au Canada: Gage de succès ou d’échec?,” Options Politiques 33, no. 7 (2012). Carolyn M. Johns, Patricia L. O’Reilly, and Gregory J. Inwood, “Intergovernmental Innovation and the Administrative State in Canada,” Governance 19, no. 4 (2006). Donald V. Smiley, Canada in Question: Federalism in the Seventies (Toronto: McGraw-Hill Ryerson, 1972). Gérard Veilleux, “Federal-Provincial Administrative Relations in Canada,” in Bureaucracy in Canadian Government: Second Edition, edited by K. Kernaghan (Toronto: Methuen, 1973), 33–53. Simeon, Federal-Provincial Diplomacy. This data was collected as part of one of the authors’ doctoral thesis. For more details, see Gauvin, Les Relations intergouvernementales et la coordination des politiques publiques au Canada: Entre relations formelles et informelles. Herman Bakvis, Gerald Baier, and Douglas Brown, Contested Federalism: Certainty and Ambiguity in the Canadian Federation (Don Mills: Oxford University Press, 2009). Jean-Philippe Gauvin, Éric Montpetit, and Martial Foucault, “Intergovernmental Attention and Government Priorities in Canada,” paper presented at the Comparative Agendas Project Conference, Lisbon, Portugal, 21–3 June 2015. Carolyn M. Johns, Patricia L. O’Reilly, and Gregory J. Inwood, “Formal and Informal Dimensions of Intergovernmental Administrative Relations in Canada,” Canadian Public Administration 50, no. 1 (2007). Edgar Gallant, “The Machinery of Federal-Provincial Relations: I,” 8, no. 4 (1965): 515. Simeon, Federal-Provincial Diplomacy; Veilleux, “Federal-Provincial Administrative Relations in Canada.” Kathryn Harrison, “Intergovernmental Relations and Environmental Policy: Concepts and Context,” in Managing the Environmental Union: Intergovernmental Relations and Environmental Policy in Canada, edited by Patrick C. Fafard and Kathryn Harrison (Kingston: Institute of Intergovernmental Relations, 2000). Jennifer Wallner, Learning to School: Federalism and Public Schooling in Canada (Toronto: University of Toronto Press, 2014). Banting, “The Three Federalisms Revisited.” Gregory J. Inwood, Carolyn M. Johns, and Patricia L. O’Reilly, Intergovernmental Policy Capacity in Canada: Inside the Worlds of Finance, Environment, Trade, and Health (Montreal and Kingston: McGill-Queen’s University Press,

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2011); Schertzer, McDougall, and Skogstad, “Collaboration and Unilateral Action.” Mireille Paquet, La fédéralisation de l’immigration au Canada (Montreal: Les Presses de l’Université de Montréal, 2016). Harvey Lazar, “The Intergovernmental Dimensions of the Social Union: A Sectoral Analysis,” Canadian Public Administration 49, no. 1 (2006): 42. Schertzer, McDougall, and Skogstad, “Collaboration and Unilateral Action”; Gauvin, Les Relations intergouvernementales et la coordination des politiques publiques au Canada. Kathryn Harrison, ed., Racing to the Bottom? Provincial Interdependence in the Canadian Federation (Vancouver: University of British Columbia Press, 2006); Michael M. Atkinson et al., Governance and Public Policy in Canada: A View from the Provinces (Toronto: University of Toronto Press, 2013). Veilleux, “Federal-Provincial Administrative Relations in Canada.” Donald V. Smiley, Conditional Grants and Canadian Federalism, Canadian Tax Paper no. 32 (Toronto: Canadian Tax Foundation, 1963). Ronald Watts, Administration in Federal Systems (London: Hutchinson Educational, 1970), 82. Dupré, “Reflexions on the Workability of Executive Federalism”; Gauvin, Les Relations intergouvernementales et la coordination des politiques publiques au Canada, 78. Jean-Philippe Gauvin, “The Uncooperative Cooperator: Quebec, Partisanship and Intergovernmental Relations,” paper presented at the apsa Annual Meeting, Philadelphia, 1–4 September 2016. Alain Noël, “Without Quebec: Collaborative Federalism with a Footnote?,” irpp Policy Matters 1, no. 2 (March 2000): 1–25. Gauvin, Les Relations intergouvernementales et la coordination des politiques publiques au Canada, 61–6. Cameron and Simeon, “Intergovernmental Relations in Canada”; Simeon and Robinson, “The Dynamics of Canadian Federalism.” Éric Montpetit, “Are Interprovincial Relations Becoming More Important than Federal-Provincial Ones,” Federal News 3, no. 6 (2012). For more details, see Sarah Fortin, Alain Noël, and France St-Hilaire, eds., Forging the Canadian Social Union: sufa and Beyond (Montréal: Institute of Research for Public Policy, 2003); Alain-G. Gagnon and Hugh Segal, eds., The Canadian Social Union without Quebec: 8 Critical Analyses (Montreal: Institute of Research for Public Policy, 2000). Collins, “Alternative Routes.” Robert Agranoff, “Towards an Emergent Theory of igr Governance at the Dawn of the Network Era,” in Governance and Intergovernmental Relations in

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the European Union and the United States, edited by Edoardo Ongaro et al. (Cheltenham, UK: Edward Elgar, 2010), 51–86. Éric Montpetit, “Are Interest Groups Useful or Harmful?,” in Canadian Politics, 5th ed., edited by James Bickerton and Alain-G. Gagnon (Toronto: University of Toronto Press, 2009), 265–81. Government of Canada, First Meeting of Ministers and Leaders at New Federal, Provincial, Territorial and Indigenous Forum (fptif), news release, 10 June 2016, https://www.canada.ca/en/indigenous-northern-affairs/news/2016/06 /first-meeting-of-ministers-and-leaders-at-new-federal-provincial-territorialand-indigenous-forum-fptif-.html. Jared Wesley, “Three of the Five National Aboriginal Organizations (Naos) Did Not Attend This Year’s Council of the Federation. Were They Justified in Their Boycott?” Policy Options, 16 August 2017, http://policyoptions.irpp.org/magazines/august-2017/national-indigenousgroups-and-the-premiers-meeting/. Martin Papillon and André Juneau, eds., Canada: The State of the Federation, 2013; Aboriginal Multilevel Governance (Montreal and Kingston: McGillQueen’s University Press, 2016). Smiley, “An Outsider’s Observations of Federal-Provincial Relations among Consenting Adults.” Jennifer Smith, Federalism (Vancouver: University of British Columbia Press, 2004); Julie M. Simmons, “Democratizing Executive Federalism: The Role of Non-Governmental Actors,” in Canadian Federalism: Performance, Effectiveness and Legitimacy, edited by Herman Bakvis and Grace Skogstad (Toronto: Oxford University Press, 2008). Similarly, it could be said that media coverage is often misleading. For example, a recent meeting of environment ministers suddenly ended when three provinces left the discussion table following Justin Trudeau’s announcement that his government would impose a carbon tax on the provinces that refuse to establish their own greenhouse gas reduction plan. While the ministers leaving the room suggests a strong political discontent with the federal announcement, the climate was not as tense as might be presumed. In particular, the minister from Newfoundland explained that he had left the meeting at the request of Premier Dwight Ball and that this situation had not influenced his relations with his counterparts: “I shook hands with everyone in the room. They’re all good friends there and they all respect what we’re having to deal with.” Daniel MacEachem, “N.L. Environment Minister Trimper Walks Out of Meeting over Carbon Tax,” cbc News, 3 October 2016. Harvey Lazar, Canadian Social Union: Reality and Myth (Kingston: Institute of Intergovernmental Relations, 2004), 4.

CONCLUSION

Two Canadas as a Story without an End: Institutional Choices and the State of the Federation Yasmeen Abu-Laban

introduction At universities across Canada, it is starting to become more routine to acknowledge traditional territory and in so doing to recognize its longer history, dating before 1867 and before colonization and the establishment of European colonies.1 Doing so gives recognition to the Indigenous Peoples who lived and continue to live on the land, as well as to how land figures into Indigenous identities and ontologies in ways that are typically very different than settlers.2 It is also relevant to note that this kind of acknowledgment has extended beyond the academy into popular culture. One evident example is hockey, a game that is loved across Canada, and which is closely associated with a certain masculinized nationalism – as well as with Tim Hortons’ very careful advertising, different in Quebec and the rest of Canada.3 At a Winnipeg Heritage Classic game in October 2016 between the Edmonton Oilers and the Winnipeg Jets, on an ice rink emblazoned with the Tim Hortons logo, in a message believed to be a first for an nhl team, it was announced before the national anthem that the Jets play on Treaty 1 land, a land that consists of the “original territories of Anishinaabe, Cree, Oji-Cree, Dakota, and Dene peoples, and the homeland of the Métis Nation.”4 We are therefore living in a moment when it is harder and harder to keep burying the settler-colonial foundations of the country, and even becoming hard to bury its colonial present. This only comes as

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a result of both international and internal pressures by Indigenous Peoples. Recent successes include the 2007 United Nations Declaration of the Rights of Indigenous Peoples (undrip), which makes Indigenous rights an irrevocable component of international human rights discourse. While Canada was long hostile to the adoption of an international framework for Indigenous rights and also initially voted against undrip in the United Nations,5 in 2017 Canada issued an “unqualified” endorsement of undrip, and in 2018 Prime Minister Trudeau further pledged to begin a process of implementation of Indigenous rights.6 While it remains to be seen what such a process will lead to, this evolution in discourse needs to be understood in relation to internal dynamics in Canada. In particular, the 2015 report of the Truth and Reconciliation Commission of Canada (trc) underscored the role of Indian residential schools in “cultural genocide.”7 The trc Calls to Action include implementation of undrip, and further urge Canadians, governments at all levels, and institutions from universities to museums to move into an ongoing process of reconciliation.8 When acknowledgments of the land and ideas about reconciliation become increasingly routinized in university events and even begin to seep into sport and popular culture, it is certainly the right time for political scientists to begin to ask what it means, and especially what it means beyond mere words. As political scientists themselves are grappling with what reconciliation portends for the discipline as a whole,9 I do not purport to have all the answers to what is necessarily envisioned as an ongoing collective process involving both Indigenous and non-Indigenous people. What can be observed is that the discussion of Canada in relation to cultural genocide and even genocide10 rests uneasily with dominant and state representations of Canada as a human rights leader embracing diversity.11 It can also be observed that the idea that the vast majority of people who live in Canada now may share an identity, perspective, and set of privileges as settlers is often troubling to non-Indigenous people and collectivities.12 For example, Canadian-born citizens who trace their origins in the country back several generations, as well as recently arrived immigrants and refugees fleeing civil war and conflict, may not see themselves as “settlers,” let alone as privileged. There is then need for a new and ongoing dialogue.

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To begin to cut into this, I take my starting point to be the fact that Canada was formed and still exists as a settler colony. Consequently, any discussion of federalism and its future, and specifically of the role of the electoral system and political parties in this country, must grapple with the complex and unequal relations that play out in settler colonies around race, ethnicity, Indigeneity, class, language, region, gender, and other forms of differentiation.13 While there are multiple narratives concerning history since Confederation, which in turn reflects distinct historiographies including in English and French,14 my starting point is to say that much of history has been dominated by pressures of anglo-conformity – that is, pressures for minorities to conform to the dominant group. I will argue that there is an ongoing tension between two patterns when it comes to the interface with diverse others who fall outside of this norm. The first pattern offers a vision of openness, embrace, and trust of others, and can lead to forms of recognition and coexistence. The second is one of closure, rejection, and fear of others, and can lead to assimilative pressures or outright denial. Given that there are 35 million people in Canada and 7 billion people globally, each of us, as individuals, deals with diverse others on a daily basis. But openness or closure is also a choice that is made collectively through institutions and how they operate, as well as the ethos that surrounds practice. I am interested in collective practices, and from this vantage point there are essentially two Canadas: one that is open to diverse others, and one that is closed. Although both have always been present to some extent, the tension between the two Canadas has reverberated in different ways over time. In what follows I will illustrate this argument by taking a three-fold approach. First, I will illuminate how the tension between the closed and open Canadas was rooted in Canada’s founding as a federation, and continues to play out in relation to normative debates about federalism. Second, I will show how this tension has also played out in political parties and elections, with special consideration paid to the 2015 federal election. Finally, working with the understanding that an open Canada is a more compelling normative vision of where we want to live, I conclude by considering the ways in which we have new opportunities to reimagine a more open Canada for the twentyfirst century.

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part 1. federalism: two canadas from confederation The creation of the Canadian federation in 1867 features in a growing and healthy literature on the founding fathers and federalism, including in comparative perspective with other federations like the US.15 However, there is far less written on the issue of federalism from an Indigenous perspective. This is perplexing insofar as Indigenous political scientists, such as Kiera Ladner, have drawn attention to the fact that long prior to the colonial occupation in the Americas, Indigenous Peoples had developed federal forms of governance. As an example, Ladner highlights the Haudenosaunee or Iroquois Confederacy that brought together five sovereign nations.16 From Ladner’s vantage point, the consequence of this erasure of forms of Indigenous governance is the production of a kind of “constitutional orthodoxy” about federalism in the Americas.17 In the case of English-language works in political science and related fields, this orthodoxy has a narrative that largely begins only with Confederation and ignores what happened prior to first contact, or the arrival of Europeans. Such a narrative, I would submit, is a form of denial, and to the extent that it has or continues to permeate public renditions of history and ideas, or our own writing and history, it exemplifies a closed Canada. When the groundwork for Confederation was being laid, as Martin Papillon trenchantly observes, there were no Indigenous delegates to the 1864 conferences in Charlottetown and Quebec City.18 From the perspective of Indigenous Peoples, what happened after Confederation is equally significant. In 1967, during the centennial of Confederation, Chief Dan George’s speech “Lament for Confederation” opened with the refrain: “And today, when you celebrate your hundred years, Oh Canada, I am sad for all the Indian people throughout the land.” He went on to note: “Oh Canada, how can I celebrate with you this Centenary, this hundred years? Shall I thank you for the reserves that are left to me of my beautiful forests? For the canned fish of my rivers? For the loss of my pride and authority, even among my own people? For the lack of my will to fight back? No! I must forget what’s past and gone.”19 Likewise, the 2017 sesquicentennial was presented as coming at an unacceptable cost to Indigenous Peoples by Gabrielle Slowey, because the last 150 years of Confederation were defined by theft of land, violence, and the colonial instrument known as the Indian Act which is

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still in existence today.20 Indigenous scholars and activists have underscored that the sesquicentennial is nothing to rejoice; a recent book is even tellingly entitled Surviving Canada: Indigenous Peoples Celebrate 150 Years of Betrayal.21 This perspective is also graphically represented in Cree artist Kent Monkman’s 2016 painting The Daddies,22 first displayed at the University of Toronto and which toured Canada as part of a larger exhibit entitled “Shame and Prejudice: A Story of Resilience” over 2017 and 2018. The Daddies is a riff on Robert Harris’s 1884 portrait Fathers of Confederation (the original was destroyed in 1916 in a fire; a copy commissioned for the centennial by Rex Woods is now displayed in Parliament).23 However, in The Daddies, Monkman takes the enduringly iconic image of the Fathers of Confederation and inserts the trickster drag queen “Miss Chief” amongst them as part of a larger point that the last 150 years have been negative for Indigenous Peoples. In Monkman’s words: “It was a pretty deliberate effort to have people reflect on the last 150 years in terms of the Indigenous experience … Canada’s 150 years old – what does that mean for the First People? When I thought about it, I thought it includes the worst period, because it goes all the way back to the signing of the treaties, the beginning of the reserve system, this legacy of incarceration, residential schools, sickness, the removal of children in the ’60s, missing and murdered women.”24 The case of Indigenous Peoples with respect to Confederation is stark, both in relation to the past 150 years, and to Indigenous Peoples’ absence in the leadup to Confederation. Additionally, there were other actors missing in the Confederation debates, including women25 and workers;26 correspondingly, there was no clear attention to their rights. There was also very limited attention in the Confederation debates to the rights of French speakers outside Quebec,27 accounting for the latter’s long-standing and ongoing struggles for language rights.28 The idea of democracy is hardly mentioned in these debates, except negatively.29 Not least, the settler-colonial character of Canada as a whole is in prime evidence in the admonishment in the preamble to the Constitution Act, 1867 (previously and tellingly called the British North America Act) that union was to “promote the interests of the British Empire.” Notably as well, the founding constitutional act, enacted by the British parliament, was written in the English language only. Until now, there has never been an official French language version of this pivotal document.

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Set against this vividly hierarchical and colonial context, and the facts that unitary states were favoured in much modern political thought30 and preferred by Sir John A. Macdonald, it is rather remarkable that a federal system was adopted at all. In spite of Britain’s vision, this choice may only be explained by struggles and pressures from French Canadians.31 While minority rights were only addressed in relation to French Canadians and Catholics,32 it is arguably this “compact” foundational understanding that nods to the elements and possibilities of a more open Canada (on the compact and contractual conception of federalism, see Sébastien Grammond’s chapter in this volume). Indeed, although the “ideas” associated with Canadian Confederation have been and continue to be debated,33 it is significant that Samuel LaSelva sees in George-Étienne Cartier’s vision a moral foundation for Canadian federalism that is based on what he calls “fraternity” – defined as a form of community that allows for different ways of life.34 Although in actual practice federalism has not always reflected this respect for different ways of life, it is the possibility of this kind of interpretation that has worked to help bring discussions of federalism beyond mere institutional arrangements into explicit recognition and normative debates over differing visions of federalism.35 To this end, Dimitrios Karmis’s identification of a universalist federalism (stressing common institutions), a communitarian federalism (resting on relatively bounded communities) and a “pluralist federalism” (defined below) is one useful entry into thinking about different visions.36 It is the pluralist federalism, associated with, among others, the work of James Tully, Samuel LaSelva, and Alain-G. Gagnon,37 that is of interest to me in identifying a re-entry point into an open (as opposed to closed) Canada. One of the issues identified by analysts addressing multilevel governance is that a “fossilized” view of federalism or governance may ignore a wider range of civil society actors that may have interests, or that may shape or be impacted by political/policy outcomes.38 As Asha Kaushal highlights, federalism has evolved since 1867, but increasingly, as Canada’s population has grown more diverse as a consequence of immigration, there is a need to address both rights and particularly jurisdiction in ways that are more attuned to forms of collective diversity, including visible minorities, multilingual speakers, and non-Christian religious minorities.39 The kind of pluralist federalism I would advocate, then, is about dynamism and process. Drawing on the under-

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standing of Karmis, a pluralist federalism can be defined as a form of federalism that recognizes that culture and identity are complex and evolving, and considers the widest range of key actors, not merely provinces and the federal government. Put differently, a pluralist federalism would address actors that do not control state institutions along with those that do, and be open to asymmetrical arrangements, not least because the idea of asymmetry was a defining feature of constitutionalism in Canada.40 Pluralist federalism is most inclusive of Canada’s complexity in that it can potentially deal with both national and other minorities (such as ethnic minorities, immigrants, women, etc.). It is also such a pluralist understanding that can potentially begin to respond to the calls for “treaty federalism,”41 as well as perhaps respectful ways of sharing the land with Indigenous Peoples in those areas where treaties were not concluded.42 A pluralist federalism would therefore be able to accommodate the implementation of Indigenous rights as expressed by the 2007 United Nations Declaration on the Rights of Indigenous Peoples. Such a pluralist federalism necessarily involves stepping out of the maps that have shaped and framed our political imagination, and requires re-learning Canadian federalism and the Constitution. This is because we need to go beyond cartographic representations of Canada defined only by lines of provinces and territories, to a representation that also see treaties. Such a vision would also be assisted by learning to conceptualize and speak about what was there before current-day Canada, the United States, and Mexico: namely “Turtle Island,” the term Indigenous Peoples in North America used and still use to refer to all of North America.43 In the words of Jean-François Caron and Guy Laforest, the move away from the nation-state model associated with a single identity to one that embraces forms of accommodation and recognition are part of an emerging “enlightened consensus” in much scholarly literature.44 Such a consensus also ties into conceptions of multiculturalism and human rights both in Canada45 and internationally.46 In other words, the spirit of an inclusionary and open Canada needs to be one that considers ongoing waves of immigrants and refugees as well. All of this is challenging and may never be “resolved” conclusively. This is because different normative conceptions of federalism are sometimes associated with national minorities (i.e., the communitarian brand favoured by those who see federalism as involving two or

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more nations, such as Québécois, francophone, and Indigenous Peoples), and sometimes associated with a national majority (i.e., the universalist brand centred on a pan-Canadian identity, which is favoured by anglophones and sometimes by racialized minorities who are often recent immigrants and new Canadian citizens).47 As such, pluralist federalism is not merely a legal or constitutional arrangement: it actually requires ongoing dialogue and developing understanding across multiple institutions in the state and civil society, not least of which is education at primary, secondary, and postsecondary levels. The gap between this ideal and practice becomes clear if we merely consider, for example, that primary and secondary social studies/history courses typically do not talk about treaties.48 The electoral system and parties form another critical institution that is relevant for a new conversation, but here too we can see a gap between the ideal and practice.

part 2. parties and the electoral system: the two canadas today From the vantage point of federalism (in particular of pluralist federalism) there are some very interesting assumptions regarding parties and the electoral system. The idea of “brokerage parties” has been used by Canadian political scientists to capture the idea that in striving to win electoral office, Canada’s parties have eschewed ideological purity in favour of continually shifting to appeal to the largest number of voters. Correspondingly, one long-prevailing assumption running through Canadian political science has been that brokerage parties play a nation-building/national unity role through their broad-based appeals on federal-provincial issues.49 Another long-prevailing assumption has been that Canada’s “first past the post/winner take all” electoral system has encouraged parties to concentrate their appeals in particular regions, effectively undermining their role as agents of national unity.50 Electoral reform, however much it has been discussed, has proven elusive.51 Moreover, from a cross-national perspective amongst liberal democracies, Canada stands out for having a low degree of linkage between federal and provincial party competition when it comes to party organization, voter behaviour, the timing of elections, and even issues.52 In this sense, there is a disconnect between the national and provincial levels that works against a pluralist form of federalism.

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However, what has changed over time is the nature of the federal Canadian party system, and in particular the style of politics. The most recent party system, dating from 2006, the year in which the Conservatives of Stephen Harper first came to power, marks a turning point. That year marks the start of the relative decline of regionally concentrated parties (in the form of the Reform/Alliance which drew its support primarily from Western provinces, and the Quebec-based Bloc Québécois). Political parties have been aided by new communications technologies and data analysis to find information on voters, and to deliver very finely targeted messages. This has also been characterized as a move away from brokerage politics to boutique politics.53 Just as a boutique is very specialized and targets a specific type of shopper in contrast to a large retail store that may appeal to more consumers, boutique politics involves appealing to a particular niche of voters, and thereby may fragment the electorate. Since as little as 39 per cent of the popular vote is needed to win a majority government within the electoral system given the current multi-party system, parties are effectively encouraged to seek bare minimum winning coalitions.54 As Steve Patten astutely notes, the marketing-oriented strategies pioneered by the Harper Conservatives – and now employed by all parties – “disrupts many aspects of traditional brokerage politics, including the focus on accommodating regional interests within a unified conception of the national interest, as well as the desire to appease flashpoints of political tension and avoid the ideological fringes.”55 Consequently, the recent trends carry new possibilities for divisiveness that challenge a pluralist federalism. In this new era of digital communications and politics, the permanent campaign is de rigueur. Moreover, “wedge politics” that aim at breaking down unity between citizens, often through vitriolic discourse, are always a possibility even if not inevitable.56 The tendency for such a style of politics to lean toward a closed rather than open Canada is readily apparent in the Harper Conservatives’ embrace of a nostalgic, patriotic nationalism, stressing military history and Canada’s ties to Britain and the monarchy.57 Such a vision was not only alienating for both francophone Quebecers and Indigenous Peoples,58 but it also went hand-in-hand with weakening the human rights and anti-racist elements of multiculturalism, a policy in place since 1971.59 Likewise, the 2015 election campaign rhetoric of the Harper Conservatives left much to be desired from the standpoint of an open Canada. It focused on the issue of niqabs at citizenship ceremonies,

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hotlines to report “barbaric cultural practices,” and revocation of citizenship from naturalized Canadians defined as terrorists. The rhetoric was both divisive and tapped into contemporary currents of anti-Muslim racism. It was also in effect a larger attack on human rights and immigration, which Harper’s use of terms like “old stock” Canadians further fuelled by seeming to cast a division between Canadians of European ancestry (the so-called old stock) and others.60 In the midst of the 2015 campaign, historians Karen Dubinsky and Franca Iacovetta observed that “today’s veiled Muslim woman joins a long line of immigrant women whom this country has feared and pitied, but always stereotyped, for at least a century.”61 And in this intervention they reminded voters that historically women coming from different “undesirable” groups were unfairly vilified and targeted for their dress. These included the Dukhabor women who worked ploughs on the Prairies with faces covered by babushkas, the Icelandic women who wore a distinctive skullcap with a tassel, and the Italian women who wore black kerchiefs.62 Their point in recounting this history is that while women from these groups were historically deemed to be not adjusting properly to Canada, in the contemporary context Canadians with origins in these very groups were probably who prime minister Stephen Harper imagined he was addressing when he used the (wedge) term “old stock.” The Harper Conservatives’ unwillingness to admit Syrian refugees was also an element of a closed Canada response that proved divisive – even amongst Conservatives. This was seen in former Mulroney government Cabinet member Barbara McDougall’s plea in the Globe and Mail for Harper to respond to the growing numbers of Syrian refugees. During the election campaign their plight gained resonance with the global reproduction of the image of a lifeless three-year-old Alan Kurdi, who drowned in the Mediterranean as his family desperately tried to reach safety from Syria. In speaking of Stephen Harper, McDougall observed: “He surely does not want to go into history, whenever that may be, with the heartrending picture of a tragically drowned toddler at the top of his file. And it may well dominate, no matter what his accomplishments in government have been, unless he can find a way to navigate the flood of sympathy now rightly being expressed by Canadians from all walks of life, including many Conservatives.”63 Indeed, the issue of Canada being open or closed when it comes to refugees has been variable, and the closed Canada has very deep roots.64

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However, the danger of the permanent campaign, and the pay-offs that may be perceived in divisiveness, are not just confined to the promotion of a closed Canada during elections, but also between elections. Consider here, for example, that just one day after the surprise election win of the Trudeau Liberals in 2015, the head of the Canadian Human Rights Commission, Marie-Claude Landry, issued a press release calling on the new government to begin “repairing the erosion of human rights in Canada, and to move swiftly to repeal legislation and reverse policies that promote discrimination and prejudice. No one should live in fear because of who they are or because they have a belief that is not shared by the majority.”65 This press release was accompanied by a call from Landry to Trudeau and Parliament to deal with recent policy developments and silences under Harper’s government and to do the following: •

•

•

•

• • • •

•

rewrite and rename the Zero Tolerance for Barbaric Cultural Practices Act, to remove any insinuation that certain religions are a threat to Canadian society; accelerate the process for bringing in refugees and asylum seekers fleeing war, persecution, and environmental devastation, and ensure that the selection process is not discriminatory; ensure that the arbitrary detention and imprisonment of thousands of undocumented people seeking asylum in Canada, many of whom are suffering from mental illness, is brought to an end; immediately convene a national inquiry into missing and murdered Aboriginal women and girls, and develop a national action plan; ensure that all people in Canada have access to safe drinking water and adequate housing; end the inequitable funding of child welfare services and schools on First Nations reserves; amend the Canadian Human Rights Act to explicitly protect transgender people from discrimination; stop the overuse of prolonged periods of solitary confinement to manage offenders, a practice disproportionally applied to black and Aboriginal inmates, and offenders with mental illness; and protect the rights of all women to express their religion.66

Given the salience of themes relating to anti-Muslim racism (or Islamophobia) in the 2015 election, it is not surprising that when

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leader Justin Trudeau gave his victory speech to the party faithful he generated applause for saying “a Canadian is a Canadian is a Canadian.”67 That such a completely banal and repetitive statement could take on any resonance has to do with the context of the election. This statement was about presenting an open Canada, at least symbolically with respect to Muslim Canadians and immigrants. Trudeau, and members of his Cabinet, went on to repeat that statement on numerous occasions in their first mandate (2015–19). However, it should also be noted that the tension between two Canadas, open and closed, is not strictly partisan – for example, Trudeau and the Liberals supported other legislation like the 2015 Zero Tolerance for Barbaric Cultural Practices Act which, as noted above, the Canadian Human Rights Commission has criticized for fuelling religious stereotypes, and more specially anti-Muslim racism. Moreover, revocations of citizenship from foreign-born Canadians have actually grown since the Trudeau Liberals came to power.68 Additionally, given the issues involved in multinational, treaty, or pluralist federalism, the appeals to Canadian sameness through citizenship may not hold the same allure for Indigenous Peoples, for many people in Quebec, or for francophones outside of Quebec who have distinct legal and constitutional relationships with the Canadian state. This forms a complication because the appeal to citizenship inclusion is a part of an anti-racist agenda in today’s global climate marked by anti-Muslim racism and fear of the other. This is a climate in which the Guardian carried an article declaring Canada to be the world’s last standing “immigrant nation” and possibly the first “postnational” country.69 Given this larger international context, the pluralist understanding of federalism would be much more compelling if it worked in tandem with generating a more global anti-racist conversation pertaining to immigration, Islamophobia, and diversity in the twenty-first century. Can Canada’s marketing-oriented parties do this? This is a lingering question and clearly related to the prospects of an open Canada.

part 3. reimagining an open canada Political scientists do not have crystal balls to predict the future, or even just federalism and its future. In the preceding, I looked at our past and present for patterns. It is clear that while tension between openness and closure has reverberated in different ways over time, it

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has never completely disappeared. Moreover, it may never completely disappear. As such, I can only offer some reflections on how the future might be more inclusive of citizens and potential citizens – that is, relatively more open, as opposed to categorically and completely open. In this regard, the Cabinets of Justin Trudeau during his fist mandate as a majority government (2015–19) and in his second mandate with a minority government (2019–) are interesting for their representational pluralism in relation to gender, as well as the inclusion of Indigenous Peoples and other minorities including refugees. Yet as we have seen, having Justice overseen by Jody Wilson-Raybould did not automatically mean that the calls of the trc, like the legal implementation of the United Nations Declaration on the Rights of Indigenous Peoples, are enacted.70 Moreover, Wilson-Raybould’s ouster from the Liberal caucus and re-election as an Independent mp in 2019 has raised issues about the ability of Trudeau and the Liberal Party to represent the interests of Indigenous Peoples. Likewise, having Ahmed Hussein, a Somalian refugee to Canada, as minister of immigration, did not mean that he would publicly denounce President Donald Trump’s travel ban on select Muslim countries (including Somalia) as racist.71 However, having Cabinets that begins to “look like” Canada goes some way symbolically, even if people in power may face structural constraints for action and clash with the prevailing power structure in Cabinet and Caucus. As well, symbolic representation and substantive policies should not be seen as unrelated just because sometimes individuals face constraints. It might suggest that an electoral system that is more proportional could produce a more representative-looking parliament, which is also important symbolically, although as Brian Tanguay points out it is not clear that reform of Canada’s current single-member plurality electoral system would be a panacea for issues relating to regional and linguistic representation (see his chapter in this volume). Given the uncertainties involved with electoral reform, it is relevant to consider the important role that parties and the election system play in relation to ideas and discourse, a point made a number of years ago by Janine Brodie and Jane Jenson.72 My starting point has been that Canada was formed as and remains a settler colony. Settler colonies are by definition diverse and cannot draw on myths of a common origin to unite people. At best they can draw on the idea of a common destiny.73 A pluralist form of federalism may potentially be one way in which national minorities, ethnic minorities, religious

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minorities, and Indigenous Peoples can find common ground. This is because all of these groups share in attempting to make Canada open. However, for this to flourish, there would need to be ways to nourish greater forms of solidarity. In this respect, how governments and institutions respond to the pressing calls of the Truth and Reconciliation Commission may be one important new avenue into thinking about ideas relating to history, not just since 1867 but before, as well as about treaties and land. This may be one component of enlivening pluralist federalism, both in parties and in other institutions. The larger international context, of which Canada is a part, is hardly one conducive to support for an open pluralist vision at this juncture. From the US to Europe and beyond, parallels between presentday developments and the years preceding the Second World War are giving rise to discussions of not merely populism, but authoritarianism and even (neo)fascism.74 Today’s uncertain future – characterized by Brexit, post-truth politics, and American presidential executive orders banning countries and targeting the undocumented – is challenging. In particular, such things are challenging many people’s confidence in the ability of the institutions of liberal democracy as well as the institutions of the postwar international architecture to survive. It is possible that this kind of uncertain and gloomy global future may be useful in galvanizing a different way for thinking about Canada’s future – which is to say, what would our politics look like if we do not want Trump “to happen here in Canada”?75 Avoiding Trump-style right-wing populism may have a lot to do with having social policies mitigating socioeconomic inequality, openness to immigrants and refugees, anti-racist initiatives, and ongoing dialogue based on the fact that Canada is diverse and is expected to become more so. The mass shooting in a mosque in Sainte-Foy that left six dead at the start of 2017 were followed by powerful and moving statements by Prime Minister Justin Trudeau, former Quebec premier Philippe Couillard, mayors, and also the imam of the mosque – in fact, British author J.K. Rowling of Harry Potter fame called the imam’s eulogy “extraordinary and humane.”76 Ordinary people in cities in Quebec and across Canada who participated in vigils also expressed humane sentiments. These examples form a basis for the kind of humanist discourse needed to sustain an open Canada. The forces advocating for a closed Canada have never entirely disappeared, and indeed the tension between the closed and open Canadas is rooted in Canada’s foundation as a settler colony, where

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unequal relations were the motor behind the very “making of a Northern nation.”77 Still, the nature of this polity is collective, and the process ongoing. If we see the open Canada as a more compelling vision of where we want to live then it necessitates ongoing engagement, whether that is through the political system and parties, the education system, the media, social movements, unions, on the street, or in daily conversations. In June 2017, just before marking the Canada Day celebrations of the 150th anniversary of Confederation, the government of Quebec moved to have a conversation between all Canadians on the future of Quebec in the federation in light of the fact that the province has still not signed on to the 1982 changes to the Constitution.78 This is a pertinent reminder that the quest for such engagement and for a pluralist federalism is also an ongoing part of Canadian politics that will be with us long past the 150th anniversary of Confederation. In this way, the two Canadas are an unfolding story that still does not have an end.

notes 1 Canadian Association of University Teachers, caut Guide to Acknowledging Traditional Territory (2016), https://www.caut.ca/docs/default-source /professional-advice/list—-territorial-acknowledgement-by-province.pdf ?sfvrsn=12. 2 Emma Battell Lowman and Adam J. Barker, Settler Identity and Colonialism in 21st Century Canada (Halifax: Fernwood Press, 2015), 48–68. 3 Yasmeen Abu-Laban, “Donut Nationalism: Tim Hortons and Canadian Identity,” in Nationalism and Popular Culture, edited by Tim Nieguth (Abingdon and New York: Routledge, 2020), 19–35. 4 Steve Lambert, “Jets, Oilers among Organizations Leading Way in Indigenous Tributes,” cbc News, 24 October 2016, http://www.cbc.ca/news/canada /manitoba/indigenous-unit-winnipeg-jets-treaty-1-1.3819451. Adding to the memorable nature of this moment of land recognition was the fact that after the announcement it was two popular and legendary former National Hockey League players, Wayne Gretsky and Dale Hawerchuk, who were the ones to drop the pucks for the ceremonial face-off between the Oilers and Jets hockey teams. 5 Andrew S. Thompson, “The Slow ‘Evolution of Standards’: The Working Group on Indigenous Populations and undrip,” in The Internationalization of Indigenous Rights: undrip in the Canadian Context (Special Report)

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8 9

10

11

12 13

14

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(Waterloo: Centre for International Innovation and Governance, 2014): 29–35. Justin Trudeau, Prime Minister of Canada, “Government of Canada to Create Recognition and Implementation of Rights Framework” (14 February 2018), https://pm.gc.ca/eng/news/2018/02/14/government-canada-createrecognition-and-implementation-rights-framework. Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015). Truth and Reconciliation Commission of Canada, Truth and Reconciliation Commission of Canada: Calls to Action (Winnipeg, 2015). Yasmeen Abu-Laban, “Representing a Diverse Canada in Political Science: Power, Ideas and the Emergent Challenge of Reconciliation,” European Political Science 15, no. 4 (December 2016): 493–507. David B. MacDonald, “Canada’s History Wars: Indigenous Genocide and Public Memory in the United States, Australia and Canada,” Journal of Genocide Research 17, no. 4 (2015): 411–31. Judging from the content of the Canadian Museum for Human Rights, the first national museum to be opened outside of the national capital region, the Canadian government has found it much easier to speak about genocides in other countries, not here. See Lowman and Barker, Settler Identity. Daiva Stasiulis and Radha Jhappan, “The Fractious Politics of a Settler Society: Canada,” in Unsettling Settler Societies: Articulations of Gender, Race, Ethnicity, and Class, edited by Daiva Stasiulis and Nira Yuval-Davis (London: Sage, 1995), 95–131. See for example, Alain-G. Gagnon and Xavier Dionne, “Historiographies et fédéralisme au Canada,” Revista d’Estudis Autonòmics i Federals 9 (October 2009): 10–50. Marc Chevrier, “The Idea of Federalism among Founding Fathers of the United States and Canada,” in Contemporary Canadian Federalism: Foundations, Traditions, Institutions, edited by Alain-G. Gagnon (Toronto: University of Toronto Press, 2009), 11–52. Kiera Ladner, “Treaty Federalism: An Indigenous Vision of Canadian Federalisms,” in New Trends in Canadian Federalism, 2nd ed., edited by François Rocher and Miriam Smith (Peterborough: Broadview Press, 2003), 169. See also James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995). Ladner, “Treaty Federalism”; see also Radha Jhappan, “The New World: Legacies of European Colonialism in North America,” in Politics in North

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19

20

21 22 23 24

25 26 27 28

29 30

31

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America: Redefining Continental Relations, edited by Yasmeen Abu-Laban, Radha Jhappan, and François Rocher (Peterborough: Broadview Press, 2008): 28–32. Martin Papillon, “Towards a Postcolonial Federalism? The Challenges of Aboriginal Self-Determination in the Canadian Context,” in Contemporary Canadian Federalism: Foundations, Traditions, Institutions, edited by Alain-G. Gagnon (Toronto: University of Toronto Press, 2009), 407. Dan George, “This Day in History: 1 July 1967,” The Vancouver Sun, 2 July 2015, http://www.vancouversun.com/This+history+July+1967/6876736 /story.html. Gabrielle Slowey, “Confederation Comes at a Cost: Indigenous Peoples and the Ongoing Reality of Colonialism in Canada,” Canada Watch (Spring 2016): 33–6. Kiera Ladner and Myra Tait, eds., Surviving Canada: Indigenous Peoples Celebrate 150 Years of Betrayal (Winnipeg: Arbeiter Ring Publishing, 2017). Kent Monkman’s painting may be viewed online at http://www.kentmonk man.com/painting/2017/1/9/the-daddies. See Ged Martin, “The Robert Harris Group Portrait,” Canada Watch (Spring 2016): 40–4. Quoted in Caoimhe Morgan-Feir, “Kent Monkman: History Painting for a Colonized Canada,” Canadian Art, 26 January 2017, http://canadianart.ca /features/kent-monkman-critiques-canada-150/. Kathryn McPherson, “Gender and the Confederation Debates,” Canada Watch (Spring 2016): 30–2. Craig Heron, “A Workingman Watches,” Canada Watch (Spring 2016): 27–9. Marcel Martel, “An Example for the World? Confederation and French Canadians,” Canada Watch (Spring 2016): 7–9. Yasmeen Abu-Laban and Claude Couture, “Multiple Minorities and Deceptive Dichotomies: The Theoretical and Political Implications of the Struggle for a Public French Education System in Alberta,” The Canadian Journal of Political Science 43, no. 2 (June 2010): 433–56. Dennis Pilon, “Canadian Confederation and Democracy,” Canada Watch (Spring 2016): 18–20. Dimitrios Karmis, “The Multiple Voices of the Federal Tradition and the Turmoil of Canadian Federalism,” in Contemporary Canadian Federalism: Foundations, Traditions, Institutions, edited by Alain-G. Gagnon (Toronto: University of Toronto Press, 2009), 53–79. Yasmeen Abu-Laban and Tim Nieguth, “Reconsidering the Constitution, Minorities and Politics in Canada,” The Canadian Journal of Political Science 33, no. 3 (September 2000): 465–97.

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32 Martel, “An Example for the World?,” 8. 33 See Peter J. Smith, “The Ideological Origins of Canadian Confederation,” Canadian Journal of Political Science 20, no. 1 (March 1987): 1–29; Janet Ajzenstat and Peter J. Smith, “Liberal-Republicanism: The Revisionist Picture of Canada’s Founding,” in Canada’s Origins: Liberal, Tory or Republican? edited by Janet Ajzenstat and Peter J. Smith (Ottawa: Carleton University Press, 1995), 1–18. 34 Samuel V. LaSelva, The Moral Foundations of Canadian Federalism: Paradoxes, Achievements, and Tragedies of Nationhood (Montreal and Kingston: McGillQueen’s University Press, 1996), 25. 35 Karmis, “The Multiple Voices,” 54. 36 Ibid. 37 For overviews see Martin Papillon, “Is the Secret to Have a Good Dentist? Canadian Contributions to the Study of Federalism in Divided Societies,” in The Comparative Turn in Canadian Politics, edited by Linda A. White, Richard Simeon, Robert Vipond, and Jennifer Wallner (Vancouver: University of British Columbia Press, 2008), 123–39; Alain-G. Gagnon and Raffaele Iacovino, Federalism, Citizenship and Quebec (Toronto: University of Toronto Press, 2007), 57–90. 38 Caroline Andrew, “Federalism and Feminism: The Canadian Challenge for Women’s Urban Safety,” in Federalism, Feminism and Multilevel Governance, edited by Melissa Haussman, Marian Sawer, and Jill Vickers (London: Ashgate 2010): 83–96. 39 Asha Kaushal, “Constitutional Jurisdictions,” First Place Paper in the Baxter Family Symposium on Federalism 2016–2017, https://www.mcgill.ca/law /research/essay-contests/baxter-competition-federalism. 40 Karmis, “The Multiple Voices,” 67–9; for more on asymmetry and constitutionalism, see Guy Laforest, “The Historical and Legal Origins of Asymmetrical Federalism in Canada’s Founding Debates: A Brief Interpretive Note,” Asymmetry Series 1, no. 8 (Institute of Intergovernmental Relations, School of Policy Studies, Queen’s University, 2005): 1–5. 41 See Ladner, “Treaty Federalism.” 42 Lowman and Barker, Settler Identity, 67. 43 For an excellent overview of Turtle Island, see Jhappan, “The New World.” 44 Jean-François Caron and Guy Laforest, “Canada and Multinational Federalism: From the Spirit of 1982 to Stephen Harper’s Open Federalism,” Nationalism and Ethnic Politics 15, no. 1 (2009): 51. 45 In response to the findings of the Royal Commission on Bilingualism and Biculturalism, Prime Minister Pierre Elliott Trudeau announced a policy of multiculturalism within a bilingual (English and French) framework in

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46 47

48 49

50

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1971, and ultimately this framework was also replicated in the Charter of Rights which gives recognition to official language minorities and multiculturalism. In many ways multiculturalism served as an inclusionary framework for ethnic minorities – that is, non-French, non-British, and non-Aboriginal Canadians – to pursue claims for state recognition and resources. This is because minorities used multiculturalism to push claims about equity, representation, and fighting racism, and because the ideal of multiculturalism meshed with changes in Canada’s immigration policy in the late 1960s, which eradicated the explicit ethnic and race-based exclusions of the past. But multiculturalism has not been static, and nor are policies closely associated with the evolution of multiculturalism – like immigration and citizenship. As such, the content and meaning of multiculturalism is shaped by state actors and by social actors with unequal power, as well as by shifting political circumstances. This is discussed in Yasmeen Abu-Laban, “Reform by Stealth: The Harper Conservatives and Canadian Multiculturalism,” in The Multiculturalism Question: Debating Identity in 21st Century Canada, edited by Jack Jedwab (Montreal and Kingston: McGill-Queen’s University Press, 2014), 149–72. Will Kymlicka, Multicultural Odysseys: Navigating the New International Politics of Diversity (Oxford: Oxford University Press, 2007). See Linda Cardinal and Marie-Joie Brady, “Citizenship and Federalism in Canada: A Difficult Relationship,” in Contemporary Canadian Federalism: Foundations, Traditions, Institutions, edited by Alain-G. Gagnon (Toronto: University of Toronto Press, 2009) 381–404; Antoine Bilodeau, Luc Turgeon, Stephen E. White, and Ailsa Henderson, “Seeing the Same Canada? Visible Minorities’ Views of the Federation,” irpp Study, 56 (Montreal: Institute for Research on Public Policy, 2015). Connie Wyatt Anderson, “Canada’s Sesquicentennial: Revisiting Confederation,” Canadian Issues (Fall 2014): 38–41. Herman Bakvis and A. Brian Tanguay, “Federalism, Political Parties, and the Burden of National Unity: Still Making Federalism Do the Heavy Lifting?” in Canadian Federalism: Performance, Effectiveness, and Legitimacy, 3rd ed., edited by Herman Bakvis and Grace Skogstad (Don Mills, on: Oxford University Press, 2012), 97–115. Alan C. Cairns, “The Electoral System and the Party System in Canada, 1921–1965,” Canadian Journal of Political Science 1, no. 1 (1968): 55–80. For the debate regarding Cairns’s classic argument see J.A.A. Lovink, “On Analyzing the Impact of the Electoral System on the Party System in Canada,” Canadian Journal of Political Science 3, no. 4 (1970): 497–516. Brian A. Tanguay, “The Promise of Direct Democracy: Is That All There Is?”

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55 56 57 58

59 60

61

62 63

64 65

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in Canadian Parties in Transition, 4th ed., edited by Alain-G. Gagnon and A. Brian Tanguay (Toronto: University of Toronto Press, 2017), 332–3. Lori Thorlakson, “Party Systems in Multilevel Contexts,” in Devolution and Electoral Politics, edited by Dan Hough and Charlie Jeffery (Manchester: Manchester University Press, 2006), 41–5. Alex Marland and Thierry Giasson, “From Brokerage to Boutique Politics: Political Marketing and the Changing Nature of Party Politics in Canada,” in Canadian Parties in Transition, 4th ed., edited by Alain-G. Gagnon and A. Brian Tanguay (Toronto: University of Toronto Press, 2017), 343–63. Steve Patten, “The Evolution of the Canadian Party System: From Brokerage to Marketing-Oriented Politics,” in Canadian Parties in Transition, 4th ed., edited by Alain-G. Gagnon and A. Brian Tanguay (Toronto: University of Toronto Press, 2017), 20. Patten, “The Evolution of the Canadian Party System,” 19. Ibid., 20. Yasmeen Abu-Laban, “The Politics of History under Harper,” Labour/Le Travail 73 (Spring 2014): 215–17; Abu-Laban, “Donut Nationalism.” Alain Noël, “History under Harper: Leaving Québec, and Much Else, Outside Canada,” Labour/Le Travail 73 (Spring 2014): 210–12; Kiera L. Ladner and Michael McCrossan, “Whose Shared History?,” Labour/Le Travail 73 (Spring 2014): 200–2. Abu-Laban, “Reform by Stealth.” Mark Gollom, “Stephen Harper’s ‘Old-Stock Canadians’: Politics of Division or Simple Slip?” cbc News, 19 September 2015, https://www.cbc.ca/news /politics/old-stock-canadians-stephen-harper-identity-politics-1.3234386. Karen Dubinsky and Franca Iacovetta, “Baba Wore a Burqa, and Nona Wore a Niqab,” Active History, 16 October 2015, http://activehistory.ca/2015/10 /baba-wore-a-burqa-and-nona-wore-a-niqab/. Dubinsky and Iacovetta, “Baba Wore a Burqa.” Barbara McDougall, “Mr. Harper: This Refugee Crisis Should Be Your Moment,” The Globe and Mail, 8 September 2015, http://www.theglobeand mail.com/opinion/mr-harper-this-refugee-crisis-should-be-your-moment /article26259650/. Irving Abella and Harold Troper, None Is Too Many: Canada and the Jews of Europe 1933–1948 (Toronto: University of Toronto Press, 2012). Marie-Claude Landry, Chief Commissioner of the Canadian Human Rights Commission, “Repair the Erosion of Human Rights in Canada: chrc,” press release, 20 October 2015. Landry, “Repair the Erosion of Human Rights.” Passed in 2015, the Zero Tolerance for Barbaric Cultural Practices Act amended Canada’s Immigration and Refugee Protection Act by barring entry to foreign nationals or perma-

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68

69

70

71

72 73 74

75

76

77 78

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nent residents for practicing polygamy, and amended the Civil Marriage Act to prevent the practice of forced marriage. As both of these practices have been stereotyped as “Muslim,” the language of “barbaric cultural practices” is widely seen to reflect on contemporary tropes of anti-Muslim racism. Justin Trudeau, “Justin Trudeau, For the Record: ‘We Beat Fear with Hope,’” Maclean’s, 20 October 2015, http://www.macleans.ca/politics/ottawa/justintrudeau-for-the-record-we-beat-fear-with-hope/. Evan Dyer, “Trudeau Government Revoking Citizenship at a Much Higher Rate than Conservatives,” cbc News, 9 October 2016, http://www.cbc.ca /news/politics/citizenship-revocation-trudeau-harper-1.3795733. Charles Doran, “The Canada Experiment: Is This the World’s First ‘Postnational’ Country?” The Guardian, 4 January 2017, https://www.theguardian .com/world/2017/jan/04/the-canada-experiment-is-this-the-worlds-first-postnational-country. Laura Kane, “Jody Wilson-Raybould Lays out Vision for UN Indigenous Rights Declaration,” cbc News, 7 September 2016, http://www.cbc.ca/news /canada/british-columbia/jody-wilson-raybould-lays-out-vision-for-unindigenous-rights-declaration-1.3752129. John Geddes, “On Trump Travel Ban New Immigration Minister Plays It Cool,” Maclean’s, 29 January 2017, http://www.macleans.ca/politics/ottawa /on-trumps-travel-ban-canadas-new-immigration-minister-plays-it-cool/. Janine Brodie and Jane Jenson, Crisis, Challenge and Change: Party and Class in Canada (Toronto: Methuen, 1980). Stasiulis and Yuval-Davis, “Introduction.” Isabel Best, “Should We Even Go There? Historians on Comparing Fascism to Trumpism,” The Guardian, 13 December 2016, https://www.theguardian .com/us-news/2016/dec/01/comparing-fascism-donald-trump-historianstrumpism. Stephanie Levitz, “Could Trump-Style Populism Happen Here in Canada?” The Star, 5 February 2017, https://www.thestar.com/news/canada/2017 /02/05/could-trump-style-populism-happen-here-in-canada.html. Rob Drinkwater, “J.K. Rowling Praises Quebec Imam’s ‘Extraordinary’ Eulogy to Mosque Shooting Victims,” The Huffington Post, 6 February 2017, http://www.huffingtonpost.ca/2017/02/05/quebec-city-imam-speechmosque-shooting_n_14630182.html. John Murray Gibbon, Canadian Mosaic: The Making of a Northern Nation (Toronto: McClelland, 1938). Quebec, Secrétariat aux relations canadiennes, Quebecers: Our Way of Being Canadians (Policy on Québec Affirmation and Canadian Relations), (Quebec, June 2017).

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Contributors

YASMEEN ABU-LABAN

is professor and Canada Research Chair in the Politics of Citizenship and Human Rights at the University of Alberta and a fellow of the Canadian Institute for Advanced Research.

EVA MARIA BELSER is co-director of the Institute of Federalism at the University of Fribourg, Switzerland, and professor of constitutional law. ARTHUR BENZ is professor of political science at the Technical University of Darmstadt, Germany.

is associate professor in the Department of Political Science at Wilfrid Laurier University, where he holds the Canada Research Chair in Comparative Federalism and Multilevel Governance.

JÖRG BROSCHEK

holds an ma from the Université de Strasbourg and graduated in 2019 with a bcl/jd from McGill University.

ABBIE BUCKMAN

LINDA CARDINAL is professor of political science at the University of Ottawa and responsible for research development at the Université de l'Ontario français. ALAIN- G. GAGNON is professor of political science and holds the Canada Research Chair in Quebec and Canadian studies at Université du Québec à Montréal.

388

Contributors

JEAN-PHILIPPE GAUVIN

is currently the Horizon Postdoctoral Fellow at the Department of Political Science at Concordia University.

is a judge of the Federal Court of Canada. Prior to his appointment in 2017, he was professor in the Civil Law Section of the University of Ottawa’s Faculty of Law.

SÉBASTIEN GRAMMOND

NOURA KARAZIVAN is associate professor of public law at the Université de Montréal’s Faculty of Law.

is associate professor of political science at the Université de Montréal.

MARTIN PAPILLON

is a negotiator and a widely published scholar on the topics of constitutional law, federalism, Aboriginal rights, Aboriginal law and policy, and the policy development process. IAN PEACH

is professor of law and holder of the Peter-MacKell Chair in Federalism at McGill University’s Faculty of Law.

JOHANNE POIRIER

is a laureate professor emeritus at the University of Melbourne Faculty of Law and is the founding director of the Centre for Comparative Constitutional Studies.

CHERYL SAUNDERS

A. BRIAN TANGUAY

is professor in the Department of Political Science at Wilfrid Laurier University. is professor of constitutional law in the Faculty of Law and Criminology at the Université catholique de Louvain, where he is also director of the Centre de recherche sur l’État et la Constitution (creco).

MARC VERDUSSEN

is a PhD candidate in the Department of Political Science at the University of Victoria.

DIDIER ZUNIGA

Index

Aberhart, William, 76 Aboriginal nations. See Indigenous Peoples Acadian community, 7, 23n16, 105, 112 A.G. for New South Wales v. Trethowan, 318 Agreement on Internal Trade, 314 Alberta, 236, 319; in the Senate, 112, 114, 115, 118 Alberta select committees, 93 allocation of competencies, 58, 61–2, 298, 308; ambiguities, 66; judicial interpretation, 146–7. See also division of powers Alternative Vote (AV; ranked ballot), 236, 246n44 American Civil War, 59, 86 Appenzell Inner-Rhodes, 254, 286n11, 288n45 April Accord of 1981, 177, 188 Assembly of First Nations (AFN), 354 asymmetrical solutions, 15, 214; in Canada, 156, 371; in second chambers, 32 Atkin, Lord, 298

Australian House of Representatives, 6, 38, 40 Australian Senate, 6; composition of, 37; deadlock-breaking procedure, 39; directly elected, 36, 38; dissolution by the federal government, 39; does not play a federal role, 41, 44; double dissolution of 2016, 40; effect on responsible government, 37–8; equal representation, 36, 38; influence of the UK House of Lords, 37; modelled loosely on the US Senate, 37; powers of, 36, 37; representations of Indigenous Australians, 37, 42–5; representation of minorities, 42, 45; significant role as a house of review, 40–1, 44; smaller parties and independents in, 40; triple E, 28; votes on party lines, 40; women in the, 42 autonomy: of diverse groups, 4; provincial, 16; regional, 6, 53, 63 Ball, Dwight, 364n74 Basel, 263

390

Index

Beckman v. Little Salmon/Carmacks First Nation, 182 Belgian Constitutional Court, 8; composition, 143; creation, 143, 145; decentralizing impulsion, 155; doctrine of “implied powers,” 154; exceptions to the principle of exclusivity of competencies, 153; formerly Court of Arbitration, 147; as a pendulum, 151; political consequentialism, 152; powers, 144; proportionality principle, 149; Special Law on the Constitutional Court, 150; watchdog of Belgian consensus democracy, 152 Belgium, 8, 135; communities and regions, 136–7; Constitution, 136, 145; distinctions with Canada, 136–9; dynamic of dissociation, 136, 158; federalism, 159n1; federalism by disaggregation, 158; judicial system, 140, 145; powers of the communities and regions, 136; residual powers, 154; special laws, 165n64; state reforms, 165, 166n74 Bern, 254, 259 bicameralism, 6; in the Australian states, 37; classical vs federal, 29; coexistence with legislative and executive branches, 29; in comparative federalism, 28; as a core attribute of federal arrangements, 27, 88; in diverse pluralist societies, 27; as a mechanism of checks and balances, 29; and shared rule, 45–6; sober second thought, 6; in Switzerland, 266–7; in the US, 29, 33, 60. See also second chamber; Senate of Canada

bilingualism, 17, 123, 138; as an obstacle to inclusion, 17; as a vector of diversity, 17 Bill of Rights of 1689, 295 bipolarization: in Belgium, 8, 135, 137, 143, 147, 158; in Canada, 8 Blake, Edward, 67, 69 Bloc Québécois, 68, 74, 209, 229, 231, 237–8, 240, 373 Bonenfant, Jean-Charles, 128n17 Bouchard, Lucien, 238 Brexit, 378 British colonial policy, 59 British Columbia, 15, 96, 235, 294, 319; bilateral accord, 302, 313; formal constitution, 136; in the Senate 112, 115, 118 British Columbia (Milk Board) v. Grisnich, 301 British House of Lords, 37, 203 Brophy v. Manitoba, 65 Brown, George, 79n21, 79n26, 86 Brussels, 137, 154, 166n85 cabinet: government by cabinet, 72; regional composition, 60; strong, 61, 86 Cairns, Alan, 68, 70, 74, 75, 223–43 Canada as multicultural, 16, 158; 1971 policy, 373 Canada Assistance Plan, 294, 302, 307, 309 Canada Health Act, 314 Canada Health Social Transfer, 312 Canada Pension Plan, 317 Canada-Québec Final Agreement on the Québec Parental Insurance Plan, 299 Canada-Quebec financial agreement of the Firearms Act, 303

Index

Canada’s 150th anniversary, 4, 27, 158, 224, 368, 379 Canadian Alliance, 231, 234, 373 Canadian Charter of Rights and Freedoms, 15, 124, 143, 150, 176, 184, 203, 291, 296, 308–9 Canadian Council of Ministers of the Environment (CCME), 347 Canadian expansion, 3 Canadian firearms program, 302–3 Canadian Human Rights Act, 375 Canadian Intergovernmental Conference Secretariat (CICS), 345, 348, 353 Canadian welfare state, 205 Canadian Western Bank v. Alberta, 155 Canadian Wheat Board, 318 Cantonal Ministers of Finance, 275 Cantonal Ministers of Health, 275 Cantonal Ministers of Justice and Police, 275 cantons (Switzerland), 254–5; language policy, 259 Caron v. Alberta, 180, 181, 184, 188 Cartier, George-Étienne, 86, 325n46, 370 centre-periphery conflicts, 6, 54, 56, 76, 243, 339 centrifugal forces: in Belgium, 8, 136, 152; in Canada, 8; constitutional interpretation in Belgium, 8 Chaput, Maria, 109 Charest, Jean, 238, 351 Charlottetown Accord, 53, 93–6, 123 Charlottetown Conference, 368 Charter of the French Language, 185 Chrétien, Jean, 238; nominations to

391

the Senate, 114, 115, 118, 121, 125 Civil Code of Quebec, 171, 174, 179, 181 coequal sovereignties in federalism, 63 colonialism, 17–19, 365 compact theory, 168–9, 171–3, 370; treaties with Indigenous Peoples, 173, 186 comparative analysis of federal experiences, 5, 135, 254 competing visions of Canada, 12; two solitudes, 20 concordats (as inter-cantonal agreements or treaties), 264–6, 271–4, 276–8 Confederation, 55–6; conferences, 87; historical events following, 6, 64; population of Canada at the time of, 106–7 Congress of Aboriginal Peoples, 354 conquest, 172, 297 Conscription Crisis of 1917, 65 Conservative Party, 68–9, 209, 223, 234, 242 Constitution Act, 1867, 3; exclusion of Indigenous Peoples, 173, 256, 369; POGG, 56, 62, 70, 87; powers of disallowance and reservation, 56, 62, 67, 70; preamble, 62, 146, 293, 295; section 91, 56, 61; section 92, 61; section 93, 176; section 96, 141, 176; section 100, 141; section 101, 140, 141 Constitution Act, 1982, 257; Part V, 178, 187; section 35, 14; section 41(d), 177, 187; section 43, 183; section 47, 94; section 52, 296 constitutional amendment, 94–7,

392

103n47, 172, 176–8, 183, 185, 192n37, 212–4 constitutional courts: in Germany, 140; in Italy, 140; in Spain, 140; vs ordinary courts, 140 constitutional justice, 143 Constitution of Canada: as a living tree, 95; as a “pact” between founding peoples, 9, 138, 168, 171; result of the superimposing of several compacts, 182 contextual interpretation, 174 contractual thinking, 169–71, 173, 182, 189–90 Co-operative Commonwealth Federation (CCF), 68, 209, 229, 237 cooperative federalism: in Canada, 11, 19, 219n25, 293–321, 343; good faith obligation, 310–12; horizontal cooperation, 12, 251, 275, 281; normative weakness, 295; vs dualist federalism, 292, 298–9. See also federal loyalty cooperative regimes, 11, 292, 295, 301, 303 Couillard, Philippe, 95, 103n51, 378 Council of Australian Governments, 97 Council of Ministers (Securities Regulation Scheme), 305 Council of Ministers of Education (CMEC), 347 Council of States (Switzerland), 266–7, 275; configuration, 269; votes according to party affiliation, 267 Council of the Federation (already in place), 97, 211, 216, 275, 338, 340, 345, 351–5 Council of the Federation (replace-

Index

ment of the Senate), 7, 97–9; as a federal/provincial/territorial institution, 97; requirement of at least one First Ministers’ Conference annually, 97 Court of Appeal (Quebec), 141, 303, 308 courts, 140; in Canada, 140; in Quebec, 141; in the US, 140 Crépeau, Paul-André, 185 critical juncture, 59, 62, 78n15 cross-cutting cleavages, 61, 209–10 cultural genocide, 366 democratic deficit, 10, 11, 204, 272, 278, 294, 342 Dickson, Justice, 296 Diet in Bern, 255–6 direct democracy: in Switzerland, 11, 253, 269–70 Dispute Avoidance and Resolution Process, 314 diversity: antipodal pull between unity and, 5, 17; bilingualism, 17; cultural, linguistic, and national, 5, 13, 15, 258; deep, 6, 17; and democracy, 18; in Switzerland, 11, 258, 260 division of powers, 16, 30, 100n11, 135, 142–4, 146–50, 153–7, 163n48, 176, 183, 205, 211, 251, 293–301, 304, 308–10, 320 Dominion-Provincial Conference of 1927, 92 Dorion, Antoine-Aimé, 85, 87 double aspect theory, 154–5, 310, 327n71 Duceppe, Gilles, 238 Duffy, Mike, 91 Dunkin, Christopher, 60–1, 89

Index

Duplessis, Maurice, 76 duty to consult Indigenous Peoples, 317 Duverger’s “Law,” 226 Edwards v. A.G. of Canada, 115 Elections Canada, 228 elections in Canada (since 1968), 225, 230, 232–3 electoral system: for the election of a second chamber, 32, 34; leading to major regional polarization, 16; and political party, 9, 201, 367; reform, 73–4, 372 Ending the Long-Gun Registry Act (ELRA), 303–4 equalization formula, 236 equalization payments, 19 Fair Elections Act, 228 Fathers of Confederation, 84, 86, 200; portrait, 257, 369 favor contractus, 185 Federal Court (Canada), 141 Federal Court of Appeal (Canada), 319 federal dialogue, 85; and the amending formula, 93; with bicameralism, 7; with IGR, 19; in the Senate of Canada, 92; in Switzerland, 268 federalism: American, 63; dualist, 9, 200, 261, 292, 341; executive, 222n65, 223, 339–58; fiscal, 58; integrated, 9, 201–2; interstate and intrastate, 53, 57–8, 87; multinational, 13, 14, 84, 108, 110, 190, 209, 222n65, 376; negotiated, 9–10, 12; open, 213, 337, 343, 344; pluralist, 13, 370–2, 376,

393

377; territorial, 3, 14, 78n15; treaty, 13, 19, 22n9, 109, 128n23, 173, 212, 371, 376 federal loyalty, 149–51, 310–12; in Belgium, 311; in Germany, 311; in Switzerland, 311 federal-provincial interactions, 16, 204; in the Senate and the Cabinet, 66 Federal-Provincial-TerritorialIndigenous Forum (FPTIF), 357 federal spending power, 70, 334n168; in Switzerland, 263 Fédération des producteurs de volailles du Québec v. Pelland, 301 Federation of Francophone and Acadian Communities, 120, 122 Finlay v. Canada, 307 Firearms Act, 302 First Ministers’ Meeting, 345 first-past-the-post (FPTP, or singlemember plurality SMP), 10, 15, 73–4, 223–43, 372; in India, 226 First World War, 68 Flanders, 137, 139, 153 French-speaking communities: as double minorities, 16; outside the province of Quebec, 64, 108, 369; self-government, 3, 15. See also minorities (linguistic) Fribourg, 259 Fulton-Favreau formula of 1964, 178 fundamental rights in Canada, 11 Gauthier, Jean-Robert, 108 Geneva, 263 George, Dan, 368 Germany: coalition governments, 202; consensus democracy, 203;

394

Index

integrated federalism, 9, 201–2; integrated partisan system, 9; parliamentary system, 202 Glorious Revolution of 1688, 295 Gosselin (Tutor of) v. Quebec, 184 governments in Canada (since 1968), 225, 232–3 governor general, 39, 87, 296 Grande Noirceur, 76 Green Party, 229, 231 Grisons, 254, 259 Harcourt, Michael, 95–6 Harper, Stephen, 53, 71, 213, 228, 236, 337, 343–4, 373–4; nominations to the Senate, 115, 118, 121, 125 Harris, Robert, 369 Haudenosaunee or Iroquois Confederacy, 368 Hodge v. the Queen, 90 House of Cantons, 275–6 House of Commons of Canada, 60, 226, 229, 241; regional blocks in the, 71; representation in 1867, 107, 118 Howe, Joseph, 86 Howland, William Pearce, 89 Hussein, Ahmed, 377 identity, 56; vectors of, 18 Imperial Parliament, 56, 172, 176, 296 Independent Advisory Board for Senate Appointments, 71, 106, 121–2 Independent Advisory Board for Supreme Court judicial appointments, 144–5 Indian Act, 368–9

Indigenous Peoples: in Canada’s constitutional history, 17; historical violation of agreements with, 9; as key actors, 5; marginalized or ignored, 14; objects of legislation, 3; participation in democratic institutions, 10, 105, 241; participation in IGR, 12, 209, 211–12, 338–9, 354–8; recognition in the Australian constitution, 43–4; reconciliation with, 19; representation in second chambers, 32; representation in the Canadian Senate, 7; self-determination, 123; self-government, 15; at the Supreme Court, 9; as a third distinct governmental component, 338–9; unceded lands, 4 integrative process, 54 intergovernmental agreements in Canada, 204, 214, 291, 293, 295; bilateral, 206, 347; binding nature, 11, 266, 306; in a comparative perspective, 306; implementation, 315; with Indigenous groups, 356, 358; legal status, 306–9. See also concordats intergovernmental relations (IGR), 58, 199–200, 202, 252; political IGR vs administrative IGR, 12, 338, 347, 351, 357 intergovernmental relations (IGR) in Canada: degree of institutionalization, 348; federal-provincialterritorial (FPT) meeting, 352–4; flexibility, 11; formal processes, 97–8; forums, 347; frequency interprovincial meetings, 352; functions of, 353; and Indigenous Peoples, 12, 209, 211–12, 338–9,

Index

354–8; lack of transparency, 12; limited institutionalization, 12; mechanism of shared rule, 46, 266; by ministers and deputy ministers, 349; opaque, in the shadow of formal law, 19, 266, 272, 284; outside of formalized legal framework, 16, 264, 291; policy sector, 338, 346; by public servants, 340, 345, 348; role of women in, 15; tendency for zerosum political conflict, 12, 337–8; vertical, 264 intergovernmental relations (IGR) in Switzerland: formal, 264; horizontal, 11, 253, 264–5, 271, 275, 278, 281; instruments of lawmaking, 253; inter-cantonal conferences, 264, 270, 279; intercantonal harmonization, 253, 264, 272, 277; negotiations, 276–7; opaque, 284; vertical, 265. See also concordats Interpretation Act, 315 interprovincial marketing of potatoes, eggs, milk, and poultry, 300 Inuit, 22n13, 105 Inuit Tapiriit Kanatami, 354 Islamophobia, 375–6 James Bay Convention, 309 joint-decision trap, 63, 75, 79n32, 208, 213, 221n55 Judicial Committee of the Privy Council (JCPC), 62, 142, 296–8; compact theory, 172; final court of appeal until 1949, 90; key rulings of the 1880s and 1890s, 67 judiciary: constitutional review vs judicial review, 140; role of the

395

judicial/constitutional arbitrator, 8, 46, 135 Jura, 259 key actors of the Canadian federation, 5–10 King, Justice, 318 Krylov, Ivan, 252, 280–1 laboratory advantages of federalism, 14 Länder (Germany), 34, 202, 205–6, 340 Laurier, Wilfrid, 65; nominations to the Senate, 112, 114 Lesage, Jean, 76 Liberal Party, 68–9, 209, 223, 234, 235, 239, 242 lieutenant governors, 87–8, 296 Lijphart, Arend, 241, 248n66 The Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, 90, 296 literal interpretation, 174 “living tree” doctrine, 189–90 Local Prohibition Reference, 90 Locke, John, 170 London Conference, 89 Macdonald, John A., 59, 62, 65, 370; centralizer, 67, 86; imperial conception of federalism, 69; nominations to the Senate, 112, 114, 115 Macdonald Royal Commission, 93 Mackenzie, Alexander, 69 Manitoba, 65, 307, 319; creation, 179; in the Senate 112, 114, 115, 118 Manitoba Act, 1870, 179–81, 188

396

Manitoba Métis Federation Inc v. Canada, 180 Manning, Preston, 71, 238 Maori, 123, 131n48 Maritime provinces: autonomy, 3; fears of central Canadian domination, 19, 86; Great Coalition, 56, 59, 63; in the Senate, 60–1, 89 Martin, Paul, 227; nominations to the Senate, 115 mass shooting in Sainte-Foy, 378 McDougall, Barbara, 374 media, 207 Meech Lake Accord, 94, 183, 188, 190 Memorandum of Agreement (Securities Regulation Scheme), 305, 308 Mercier, Honoré, 90 Métis, 105, 115; as negotiating partners, 180, 184, 188 Métis National Council, 354 Mikisew Cree First Nation v. Canada (Governor General in Council), 316–17 Mills, David, 67, 92 minorities (linguistic), 5, 9, 10, 13, 15–18, 23n16, 106, 123, 136, 169, 175, 189, 258, 259, 270, 377 minority governments, 203, 225, 235, 240–1 Molgat-Cosgrove Special Joint Committee, 93 Monkman, Kent, 369 Mowat, Oliver, 67, 90, 92 Mulroney, Brian: nominations to the Senate, 118, 121 multilevel governance, 201, 204, 211, 212, 218n11, 282, 289n58, 370

Index

National Council (Switzerland), 266–7; configuration, 269 National Energy Program (NEP), 235, 237 Native Women’s Association of Canada, 354 negotiated policy-making, 201, 206, 210–12 New Brunswick: Common Schools Act of 1871, 64–5; in Confederation Conferences, 175; recognition of French and English communities, 15, 22n1; in the Senate, 107, 114, 115, 118 New Democratic Party (NDP), 74, 209, 229, 231, 242 Newfoundland: in IGR, 364n74; in the Senate 107, 112, 118, 124 New South Wales, 38 New Zealand, 123, 124 Northwest Territories, 211; annexation, 179; in the Senate, 107, 112, 115, 118 Nova Scotia, 22n1, 107; in Confederation Conferences, 175; in the Senate, 112, 114, 118 Nunavut, 22n13, 211; in the Senate 112, 115, 118 Official Languages Act, 109 Ontario: Mowat government, 67; population in 1867, 112; in the Senate, 60, 112, 114, 118 optional referendum (in Switzerland), 262, 265, 270, 273 “Orange Wave” of 2011, 229 Pan-Canadian Securities Regulation Scheme, 305 para-constitutionality, 14

Index

parliamentary democracy, 9, 11, 199–201, 204, 323n19; vs federalism, 199–201 parliamentary sovereignty, 199; in Canada, 11, 210, 216, 292–321 Parti Québécois, 209, 238, 240, 350–1 partisan politics: in second chamber, 6 path-dependency, 69, 97 patriation, 95, 349; consequences on the compact theory, 168, 172 Pepin-Robarts task force, 93 permanent committee for official languages in the Senate, 109 Philpott, Jane, 72 pipelines, 19, 236 pith and substance, 167n86, 299, 304 POGG (Peace, Order, and Good Government), 56, 62, 70, 87 political parties: disintegrated party system, 209; integrated party system, 209; regionalization of the party system, 210; in second chambers, 36; at the time of Confederation, 60; two-party system, 209 Prime Minister’s Office (PMO), 72, 106 Prince Edward Island: in Confederation Conferences, 175; in the Senate, 107, 112, 118 Progressive Conservatives, 74, 210, 228, 235 proportional representation, 10, 16, 74, 226, 241–2; in Namibia, 226; in South Africa, 226 provincial constitutions (in Canada), 136

397

public servants, 12, 340, 345, 350 quasi-constitutional laws (in Canada), 136 quasi-federation, 99, 297 Quebec: in Canadian federalism, 175; in cooperative federalism, 311–2; as a distinct society, 188, 190; in the federal Cabinet, 234–5; French language and culture, civil law, and Roman Catholic religion, 85; impact of federalism for, 14; internal exile, 14; as a nation, 14, 17; right of veto, 183, 188, 190; selfgovernment, 16; in the Senate, 60, 115, 118; senatorial districts, 183; at the Supreme Court, 9, 23n18, 177 Quebec Charter of Rights and Freedoms, 136 Quebec Conference, 60, 86, 255–6, 368 Quebec referendum of 1980, 336 Quebec referendum of 1995, 189, 349 Quebec v. Canada (abolition of the firearms registry), 150, 294, 300, 305, 311–314 Quebec v. Moses, 309 Queensland, 37 Quiet Revolution, 14, 76, 185, 240 Rae, Bob, 95 Rawls, John, 170 Reference concerning the Natural Products Marketing Act, 298 Reference re Agricultural Products Marketing Act, 301, 309 Reference re Anti-Inflation Act, 300

398

Index

Reference re Canada Assistance Plan, 294, 302, 305, 307, 313, 315 Reference re Manitoba Language Rights, 179 Reference re Pan-Canadian Securities Regulation, 305, 308, 311–12, 316 Reference re Secession of Quebec, 84, 90, 108, 168, 174–6, 182, 299–300, 313 Reference re Securities Act, 297, 299 Reference re Senate Reform, 65, 75, 91–2, 108, 125, 156, 168, 178, 183, 188 Reference re Supreme Court Act, 144, 146, 156, 168, 176–8, 182, 187 Reformers of Canada West, 63 Reform Party, 53, 68, 71, 76, 210, 231, 234, 240, 373 regional interests, 53–4, 59–60, 232 Reid, Bill, 20 Re: Objection by Quebec to a Resolution to Amend the Constitution, 183–4 residential schools, 366 Riel, Louis, 65, 179 Rinfret, Justice, 298 Rokkan, Stein, 54 Romandie, 259 Röstigraben, 259 Rouge party, 69, 85 Rousseau, Jean-Jacques, 170 Royal Commission on Bilingualism and Biculturalism, 382n45 Rupert’s Land, 179 Russell, Peter, 227, 241 R v. Blais, 180 R v. Comeau, 313 Sankey, Lord, 297 Saskatchewan, 236, 319; in the Sen-

ate, 112, 114, 115, 118; Tommy Douglas’s CCF government, 68 second chamber, 58; in Argentina, 35; in Austria, 34, 35; composition of, 30, 32; elected or appointed, 32; equal representation of constituent units, 32, 34; federal role of, 30; function of, 30; in Germany, 34, 35, 75, 92, 202, 340; in India, 34; in Malaysia, 35; in Nepal, 34; in Pakistan, 34; power in relation to intergovernmental relations, 35; powers of, 33; power to approve public appointments, 35; power to ratify treaties, 35; representation of other groups in, 31; review role of, 31; in South Africa, 34; in Spain, 34; veto of, 35. See also bicameralism; Senate of Canada secularism, 19 Senate of Canada: in 1867, 60; abolition, 7, 66, 94, 97, 179; appointed, 47, 60, 71, 88, 91; composition in 1867, 107; “consultative” elections, 178; defending minority interests, 7, 106; failure in the task of reconciling diversity and unity, 84; federal role of, 47; as an inclusive forum, 7; and the interests of provinces, 92; Justin Trudeau and Liberal senators, 71, 104n53; limiting powers of the, 76; non-partisan appointments, 125; reform, 7, 53, 65, 73, 75, 85, 105; replacement, 85; representation of First Nations, Métis, and Inuit, 105–9, 111, 115–16, 118, 120–6; representation of francophone and Acadian minorities,

Index

105–9, 111, 112–14, 118, 120–6; representation of the anglophone minority of Quebec, 91; representation of women, 105–6, 110, 111, 115–20, 120–126; represents broader regions rather than provinces, 47, 87, 107, 124; restrained role, 34; sober second thought, 61, 124, 203; transformation into a House of the Federation, 92; Triple-E Senate, 75, 93, 96; weak, 6, 10, 91, 203. See also bicameralism; second chamber shared rule and self-rule, 3, 10, 54–5, 284; within the architecture of Canadian federalism, 6, 54–5; equilibrium between, 9 Simeon, Richard, 53–4, 336 Smiley, Donald, 53, 57, 59, 72, 342, 350, 356 SNC-Lavalin case, 72 social contract, 170 Social Credit, 68, 209, 229, 231 Social Union Framework Agreement (SUFA), 294, 312, 351 Solski (Tutor of) v. Quebec, 184 Sonderbund war of 1847, 259 Sopinka, Justice, 307, 313–16 Special Committee on Electoral Reform (ERRE), 224, 241–3, 244n8 Standing Committee on Indigenous and Northern Affairs, 109 Stanley, George, 181 Statute of Westminster, 172 St-Laurent, Louis: nominations to the Senate, 114, 115, 118 subsidiarity, principle of, 30, 258, 262, 284 Superior Court (Quebec), 141 Supreme Court of Canada: between

399

centralization and decentralization, 16; conception of federalism, 91; constitutional jurisprudence, 8, 144; contractual perspective, 9, 15, 168; creation, 142; regional representation in the, 46 Swiss Conference of Cantonal Governments, 275 Swiss Conference of Cantonal Ministers of Education, 275, 279 Swiss Constitution: amendments, 257–8, 270; federal reforms, 258 Swiss parliamentarians, 269 Switzerland: constitution of 1848, 257; constitution of 1874, 257; constitution of 1999, 257; cooperation with the European Union, 268; fiscal federalism, 262; lawmaking process, 270; national and official languages, 258–9 Syrian refugees, 374–5 tar sands, 236 Taylor, Charles, 19 territorial accommodation, 54 “there is no alternative” (TINA) principle, 278 Ticino, 254, 259 Trudeau, Justin, 71, 95, 104n53, 213, 337, 343, 366, 375–6; nominations to the Senate, 115, 118, 120, 121 Trudeau, Pierre Elliott, 235; nominations to the Senate, 112, 114, 115, 118 Trump, Donald, 377–8 Truth and Reconciliation Commission of Canada (TRC), 128n23, 366, 377

400

Tully, James, 20, 106, 127n8, 170, 370 Tupper, Charles, 69 unilateral change, 20 Unilever case, 307 Union Act, 1840, 175, 325n46 United Canada, 22n1, 63; in Confederation Conferences, 175 United Nations, 118 United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP), 366, 371, 377 Valais, 259 Victoria Charter of 1971, 178 Wall, Brad, 236 Wallin, Pamela, 91 Watts, Ronald, 29, 72 Western separatism (Wexit), 236, 237

Index

West Lakes Ltd. v. South Australia, 316, 318 Westminster-style government or democracy, 62, 64, 69, 73, 200, 203, 226, 269, 291, 341 Wheare, Kenneth Clinton, 99, 297 Wilson-Raybould, Jody, 72, 377 women: intersection between federalism jurisprudence and feminism, 15; as a marginalized group, 15; participation in democratic institutions, 10, 105, 241, 256; representation in the Australian Senate, 42; representation in the Canadian Senate, 7 Woods, Rex, 369 Yukon: in the Senate, 107, 112, 114, 118 Zero Tolerance for Barbaric Cultural Practices Act, 375, 376 Zurich, 254, 263, 275, 277, 288n45