Reforming the Division of Powers in Canada : An (Un)achievable Endeavour?
Peter Lang GmbH
- Université de Montréal. Faculté de droit
Formal amendments to the division of powers provisions of Canada's 1867 federal constitution have always proved difficult to achieve. However, since 1982, this task has become hopelessly unachievable. Modifications to, and adaptation of, the division of power has consequently been left to judges called upon to interpret sections 91 to 95 of the Constitution Act, 1867, and to executives officers of the central and regional governments as they negotiate intergovernmental agreements. The end result of theses two processes has been highly favourable to the central government. Courts have given a liberal interpretation to the central government's exclusive fields of jurisdiction. Moreover, the latter's spending power, unobstructed by the fragile legal framwork imposed under interprovincial agreements, has enabled it to encroach upon the exclusive heads of power of the provinces. As we will see, one of the main reason behind the Canadian constitutional stalemate, and for the recurrent isolation of Quebec - even where informal modification are concerned - is the different conceptions of Canadian federalism respectively held by Quebecers and by English Canadian.
LECLAIR Jean, "Reforming the Division of Powers in Canada : An (Un)achievable Endeavour?" in Gerhard Robbers (ed.), Reforming Federalism - Foreign Experiences for a Reform in Germany. Reports of a Symposium held in Trier on December 2nd to 4th, 2004 hosted by the Institute for Legal Policy at the University of Trier in Cooperation with the German Bundesrat, Peter Lang: Frankfurt/M., Berlin, Bern, New York, Paris, Wien, 2005, pp. 93-134