Only Read this if You're a Hard-Core Politico...or Sadistic

I've had a conversation (over and over) about the original intent of the writers of our Constitution as regards the nature of power in Canada, specifically whether the authors of the Constitution Act, 1867 meant government power to be centralized in Ottawa or decentralized among the provinces. At the centre of this debate are, of course, sections 91 and 92 of the Constitution Act. Here they are (if you're interested in reading what I have to say, but aren't interested in reading Sections 91 and 92, just scroll down to where it says "Here's where the article really starts" in bold, capital letters):

POWERS OF THE PARLIAMENT
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, 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 for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

1. Repealed. (44)
1A. The Public Debt and Property. (45)
2. The Regulation of Trade and Commerce.
2A. Unemployment insurance. (46)
3. The raising of Money by any Mode or System of Taxation.
4. The borrowing of Money on the Public Credit.
5. Postal Service.
6. The Census and Statistics.
7. Militia, Military and Naval Service, and Defence.
8. The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada.
9. Beacons, Buoys, Lighthouses, and Sable Island.
10. Navigation and Shipping.
11. Quarantine and the Establishment and Maintenance of Marine Hospitals.
12. Sea Coast and Inland Fisheries.
13. Ferries between a Province and any British or Foreign Country or between Two Provinces. 14. Currency and Coinage.
15. Banking, Incorporation of Banks, and the Issue of Paper Money.
16. Savings Banks.
17. Weights and Measures.
18. Bills of Exchange and Promissory Notes.
19. Interest.
20. Legal Tender.
21. Bankruptcy and Insolvency.
22. Patents of Invention and Discovery.
23. Copyrights.
24. Indians, and Lands reserved for the Indians.
25. Naturalization and Aliens.
26. Marriage and Divorce.
27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.
28. The Establishment, Maintenance, and Management of Penitentiaries.
29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces. (47)

EXCLUSIVE POWERS OF PROVINCIAL LEGISLATURES

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

1. Repealed. (48)
2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.
3. The borrowing of Money on the sole Credit of the Province
4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.
5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.
6. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province.
7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.
8. Municipal Institutions in the Province.
9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.
10. Local Works and Undertakings other than such as are of the following Classes:
(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:
(b) Lines of Steam Ships between the Province and any British or Foreign Country:
(c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.
11. The Incorporation of Companies with Provincial Objects.
12. The Solemnization of Marriage in the Province.
13. Property and Civil Rights in the Province.
14. 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.
15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.
16. Generally all Matters of a merely local or private Nature in the Province.

(Section 92A be damned...for now...for our purposes here.)

If you don't trust my faithful reproduction of these sections, go here. I don't know why I didn't just use a link in the first place, but it's all here now, so it's staying. If you're wondering what the numbers in brackets after some of the lines are, they're links, and you can follow them if you follow the link I gave you above.

For future reference, "Parliament" = federal government, while "Legislature" (generally) = provincial government (that's just basic Canadian political knowledge if you're a nerd like me, so I'm clarifying for the vast majority of people who aren't so nerdy).

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HERE'S WHERE THE ARITCLE REALLY STARTS

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So, do these sections indicate that the authors intended Canada to be centralized or decentralized? I will argue they wanted Canada to be centralized. I'll start at the top.

1. The "POGG" Clause. "It shall be lawful for [the federal government] to make Laws for the Peace, Order, and good Government of Canada". This is the Canadian equivalent of the 'national interest' clause in the American Constitution. Washington has made extensive use of the national interest clause so much so that the US is now centralized even though it was initially conceived as a loose union of independent states not unlike the European Union. The Canadian government has not similarly taken advantage of the POGG clause largely due to pressure placed upon the legislative and judiciary branches of the state to recognize duality (English/French) and regionalism.
2. The expansive preamble of section 91. "...and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated". This clearly indicates that the ferderal government has exclusive power to legislate regarding all matters not delineated specifically in section 92. It also specifically notes that the list which follows is general and not exhaustive (i.e. "not so as to restrict the Generality...").
3. The preamble to section 92. "In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated". This preamble is highly restrictive. There is nothing to indicate that this list is not exhaustive. Even in the preamble to section 91 you see that the list in section 92 was designed to be exhaustive.
4. Section 92A(3): "Nothing in subsection (2) derogates from the authority of Parliament to enact laws in relation to the matters referred to in that subsection and, where such a law of Parliament and a law of a province conflict, the law of Parliament prevails to the extent of the conflict." Specifically the latter part, which reads "where such a law of Parliament and a law of a province conflict, the law of Parliament prevails to the extent of the conflict." This subsection only refers specifically to renewable resources, but the idea that federal laws supercede provincial laws is a clear indication that the authors intended the federal government to be superior, and therefore, Canada to be more centralized.*

You don't have to take my word for it. I tracked down my copy of the nauseatingly boring Comparing Federal Systems, Second Edition, by Ronald L. Watts.** The book was produced for the Institute of Intergovernmental Relations at Queen's University in Kingston, Ontario. It was "required" reading for one of my courses at WLU (though it looks to be in near mint condition...). According to Watts, "The original 1867 constitution was marked by strong central powers including some powers enabling the federal government to override the provinces in certain circumstances...with the major residual powers assigned to the federal government." He very clearly states that the Constitution's original form was unequivocally centralized.***

There is no denying that the Constitution Act, 1867 was designed to centralize power under the federal government. Mr. McIver, I rest my case.

Well, not quite. Mr. McIver is going to ask how the Liberal Party could possibly consider something like child care to be within federal jurisdiction. To help answer, here is Section 93(4):

"In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section."

Basically, if a province does not make a law about education, "the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section." If you're like me and you can't find anything about child care in the Constitution Act, 1867 then you cannot logically come to any other conclusion then that the federal government has the authority to enact legislation regarding child care. Thanks to section 93(4) this remains true even if you're like Mr. McIver and you don't buy in to the whole "including, but not limited to" interpretation of the preamble to section 91 (that is assuming you think child care could reasonably be considered to fall under the category of education).

Case closed.****

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* If you are interested in reading the rest of the Constitution Act, 1867, I've been told (by various professors) that you'll find other similar evidence.

** Watts is no kook, he apparently wins awards.

*** All this is on page 24 if you're interested.

**** Booooyaaaa

btw - I hope I have the right to reproduce sections of our Constitution. It's not covered under any copyright or intellectual property laws, is it?