Although the Canadian political community has endured for over 130 years, it has been subject to persistent internal strains that threaten its cohesion. These strains reflect the fundamental difficulty of creating a political community within a vast territory encompassing several regions with distinctive interests and distinctive identities. In this and the following chapters, we will explore the nature of the strains that have imperilled Canadian unity and the methods that have been adopted to try to alleviate them. This chapter will set the context for the others by providing an overview of the evolution of the institutions and processes of the Canadian federal system.
The Federal System:
Distribution of Powers
The founders of confederation settled on a federal system for two reasons. First, assigning jurisdiction over language and religion to the provinces was a means to insulate national politics from the divisive conflicts over these issues which had impaired the effectiveness of the union of Canada East and Canada West, established in 1840. Second, a federal system would accommodate the strong sense of regional community attachment and help allay the mistrust of the government of Canada that existed in the Maritime colonies. The founders envisaged a new state in which the two levels of government would have distinctive spheres of authority that would enable them to function in relative independence of one another.
The distribution of powers in the British North America Act incorporated objectives that were not easily reconciled. The founders wanted to ensure that the central government had sufficient power and resources to undertake their ambitious plans for building a new trans-continental political community. At the same time they tried to reserve to the provinces the means to protect their distinctive regional communities.
The federal parliament was accorded those powers necessary to the development and maintenance of a national community and national conditions of citizenship: defence, external relations, relations with the Aboriginal peoples, citizenship, and the content of the criminal law and rules of criminal procedure.
It was also given the authority needed to create a strong, independent national economy: trade and commerce, banking, credit, the issue of currency, copyright, patents, weights and measures, inter-provincial transportation, shipping and the postal service.
The provinces were accorded powers which conferred a large measure of autonomy to preserve distinctive regional communitiespowers which related to the central social institutions of family, church and school; to the protection of both the French and English languages; and to the conduct of day-to-day life. These included education (subject only to the provision that the federal government could take remedial action if guarantees of the educational rights of religious minorities were not fulfilled); the solemnization of marriage; health and social policy; property and civil rights within the province (S92(13)); and the administration of the criminal justice system. In addition, the provincial governments were given the role of legislating in respect to local government, local public works, the regulation and licencing of businesses operating within the province and "generally all matters of a local or private nature in the province" (S92(16)).
Control over natural resources was divided. The federal government was given fisheries, the provinces were given public lands, forest resources, and mining, while concurrent jurisdiction was granted over agriculture.
Concurrent jurisdiction was also granted over immigration.
A Question of Balance
While striving to preserve a sphere of autonomous jurisdiction for the provinces, the framers of the BNA Act clearly intended to create a federal...