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Constitutional Politics and the Legacy of the Provincial Rights Movement in Canada*

Part of: CJP Canada 150 collection 0617

Published online by Cambridge University Press:  10 November 2009

Robert C. Vipond
Robert C. Vipond
Affiliation:
University of Toronto
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Abstract

The rise of the provincial rights movement in the generation after Confederation forms an important chapter in Canadian constitutionalism. In their attempts to understand the provincial rights movement, however, historians and political scientists have paid insufficient attention to the precise constitutional doctrine that was developed to thwart the centralizing designs of Sir John A. Macdonald. This article shows that the sources of this provincialist constitutional doctrine can be found in the Confederation settlement itself. It further shows how the provincial rights movement subsequently was able to use this doctrine to discredit one of the key centralizing devices of the Macdonald constitution—the veto power of disallowance. And it concludes that the legacy of the provincial rights movement continues to inform the way Canadians think about federalism.

Résumé

Le mouvement en faveur des droits provinciaux a joué un rôle important dans l'évolution de la constitution canadienne. Cependant, ceux qui ont étudié ce mouvement politique n'ont pas été suffisamment attentifs à la spécificité de la doctrine constitutionnelle qui animait le mouvement. Le présent article démontre que la doctrine constitutionnelle des droits provinciaux est basée sur l'accord de 1867. De plus, il démontre comment les défenseurs des droits provinciaux ont utilisé cette doctrine afin de discréditer le pouvoir de désaveu, une des assises constitutionnelles dans la stratégic de John A. Macdonald. L'article conclut que I'héritage du mouvement en faveur des droits provinciaux continue de modeler les conceptions que les Canadiens nourrissent à l'égard de leur système fédéral.

Type
Research Article
Information
Canadian Journal of Political Science/Revue canadienne de science politique , Volume 18 , Issue 2 , June 1985 , pp. 267 - 294
Copyright
Copyright © Canadian Political Science Association (l'Association canadienne de science politique) and/et la Société québécoise de science politique 1985

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References

1 I use the term “movement” to emphasize that the constitutional controversies after 1867 were not simply partisan disagreements. While the disputes were frequently drawn along party lines, Liberal versus Conservative, they were not always so drawn. For this reason the term “movement” seems preferable. I use it as well to stress that the advocates of the provincial rights position forthe most part lacked any formal co-ordinating organization. In 1887, five of the seven provincial premiers met in Quebec City to develop what amounted to a provincial rights platform. Until that time each had acted more or less independently, little effort being given to co-ordinate their activities. The term “provincial rights movement” thus refers here to all of those, Liberal or Conservative, federal or provincial, politician or nonpolitician, who subscribed to the constitutional doctrine of provincial rights.

2 Most of the scholarship dealing with the provincial rights movement is by historians who rarely extend their analysis much beyond the turn of the century. The classic study is Morrison, J. C., “Oliver Mowat and the Development of Provincial Rights in Ontario: A Study in Dominion-Provincial Relations, 1867–1896,” in Three History Theses (Toronto: Ontario Department of Public Records and Archives, 1961Google Scholar). See also Cook, Ramsay, Provincial Autonomy, Minority Rights and the Compact Theory 1867–1921 (Ottawa: Queen's Printer, 1969);Google Scholar and Silver, A. I., The French Canadian Idea of Confederation (Toronto: University of Toronto Press, 1982)Google Scholar. One historian who attempts to trace the Mowat heritage in modem federal-provincial relations is Christopher Armstrong, The Politics of Federalism: Ontario's Relations with the Federal Government, 1867–1942 (Toronto: University of Toronto Press, 1981)Google Scholar. Among political scientists a notable recent contribution is made by Smith, Jennifer, “The Origins of Judicial Review in Canada,” this JOURNAL 16 (1983), 115–34Google Scholar.

3 Armstrong, , Politics of Federalism, 3Google Scholar.

4 Ibid.

5 See Morton, W. L., The Critical Years, 1857–1873 (Toronto: McClelland and Stewart, 1964)Google Scholar.

6 Silver, , The French Canadian Idea, 33Google Scholar.

7 Silver, chap. 2, develops the point at greater length. Cartier also considered that representation in the Senate and especially the cabinet would protect French- Canadian interests. This argument has been developed by Waite, Peter B., The Life and Times of Confederation (Toronto: University of Toronto Press, 1962), 145–46Google Scholar.

8 See Careless, J. M. S., Brown of the Globe (2 vols.; Toronto: Macmillan, 1959), 1, chap. 4Google Scholar.

9 Globe, Toronto, November 11, 1859 (speech to the Reform Convention by MrWilkes, )Google Scholar. Also see the speech by Brown (same edition).

10 Toronto, Globe, May 24, 1859, “Federation.”Google Scholar

11 Cited in Biggar, Charles R. W., Sir Oliver Mowat (2 vols.; Toronto: Warwick Bro's and Rutter, 1905), 1, 94–95Google Scholar.

12 Canada, Legislative Assembly, Parliamentary Debates on the Subject of the Confederation of the British North American Provinces (Quebec: Hunter, Rose and Co., 1865), 92Google Scholar.

13 Ibid.

14 Ibid.

15 Ibid.

16 Ibid.

17 Ibid.

18 Ibid., 29.

19 Ibid.

20 See Diamond, Martin, “The Federalist's View of Federalism,” in Benson, George C. S. (ed.), Essays in Federalism (Claremont: Institute for Studies in Federalism, 1961)Google Scholar.

21 Wheare, K. C., Federal Government (4th ed.; London: Oxford University Press, 1963), 4–5Google Scholar.

22 Cited in Wood, Gordon S., The Creation of the American Republic, 1776–1787 (New York: Norton, 1969), 529Google Scholar.

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24 Ibid., 32.

25 British North America Act, sec. 92 (Preamble); Confederation Debates, 30, 33.

26 Confederation Debates, 23.

27 Ibid.

28 Ibid., 32.

29 Ibid.

30 BNA Act, sec. 95.

31 Ibid., sec. 92:IO(c).

32 Ibid., sec. 90.

33 The views of the critics of Confederation have been assembled in White, W. L., Wagenberg, R. H., Nelson, R. C., and Soderlund, W. C., Canadian Confederation: A Decision-Making Analysis (Toronto: Macmillan, 1979), chap. 5Google Scholar.

34 Confederation Debates, 860 (J. B. E. Dorion).

35 The final vote on the Quebec resolutions was carried by a margin of 91–33, with 7 Upper Canadian members voting against the Confederation proposal. Of these, only 3 or 4 seem to have opposed it because they believed it would be too centralist. See Confederation Debates, 962.

36 Cited in Cook, , Provincial Autonomy and the Compact Theory, 12Google Scholar.

37 BNA Act, sec. 56, 90.

38 Reproduced in Hodgins, W. E. (comp.), Correspondence, Reports of the Ministers of Justice, and Orders in Council upon the Subject of Dominion and Provincial Legislation, 1867–1895 (Ottawa, 1896), 62Google Scholar.

39 Ibid.

40 Ibid.

41 Forsey, Eugene, “Disallowance of Provincial Acts, Reservation of Provincial Bills, and Refusalof Assent by Lieutenant-Governors Since 1867,” The Canadian Journal of Economics and Political Science 4 (1938), 47–59CrossRefGoogle Scholar.

42 Mallory, J. R., Social Credit and the Federal Power in Canada (Toronto: University of Toronto Press, 1954), chap. 2Google Scholar.

43 Ibid., 13.

44 Forsey, “Disallowance,” 49; Mallory, Social Credit. 13.

45 Forsey, “Disallowance,” 49–50; Mallory, Social Credit, 13.

46 Forest, Gerard La, Disallowance and Reservation of Provincial Legislation (Otlawa: Queen's Printer, 1955), 37Google Scholar.

47 Hodgins, , Dominion and Provincial Legislation, 97Google Scholar.

48 Ibid., 100–01.1 have taken the small liberty of transposing the words used in the report of one bill (ch. 48, regarding the Grand Junction Railroad Co.) to the Goodhue Case. This is unobjectionable because the Goodhue bill was allowed to stand, in the minister's words, “for the same reason as that given with respect to ch. 48." See Hodgins, , Dominion and Provincial Legislation, 101Google Scholar.

49 For background to the New Brunswick Schools Question see Toner, Peter M., “New Brunswick Schools and the Rise of Provincial Rights,” in Hodgins, Bruce, Wright, Don and Heick, W. H. (eds.), Federalism in Canada and Australia (Waterloo: Wilfrid Laurier University Press, 1978), 125–36Google Scholar. See also Silver, French Canadian Idea, chap. 5.

50 Canada, Parliament, House of Commons Sessional Papers, 1872, v. 5 no. 7, no. 36.

51 Canada, Parliament, House of Commons Debates, April 29, 1872, 198.

52 Ibid.

53 Ibid., 199–200.

54 Ibid., 200.

55 Ibid.

56 Canada, Parliament, House of Commons Debates (May 14, 1873), col. 177.

57 Ibid.

58 Ibid.

59 Ibid.

60 Ibid.

61 Ibid.

62 Ibid.

63 Ibid.

64 Ibid.

65 He also stole the thunder of several prominent Liberals. It is to be noted that Dorion, A. A., Holton, L., Laflamme, R.Google Scholar. A. Mackenzie and D. Mills—all dedicated provincial rightists—voted for the disallowance of the New Brunswick acts.

66 Tabulated from the tables in Hodgins, Dominion and Provincial Legislation.

67 Canada, Parliament, House of Commons Debates, March 12, 1879, 327.

68 Ibid.

69 The episode is discussed at length in Morrison, “Oliver Mowat and Provincial Rights,” chap. 4.

70 Hodgins, Dominion and Provincial Legislation, 178.

71 Ibid., 183–84.

72 Ibid., 183.

73 Canada, Parliament, House of Commons Debates (April 14, 1882), 920.

74 Ibid., 921.

75 See note 38 above.

76 Ibid., 924.

77 See Forest, La, Disallowance and Resen'ation, chap. 7Google Scholar. La Forest notes that “nearly one-half of the.thirty-eight Acts disallowed during this period were vetoed on the ground that they interfered with the railway policy of Canada” even though most were within provincial jurisdiction (58).

78 See note 28.

79 David Mills, one of the leading advocates of provincial rights in Parliament, put it most clearly when he noted that Parliament “is a body ill suited to exercise judicial functions, and to undertake to say... what is the exclusive jurisdiction of the Province, and the exclusive jurisdiction of the Dominion” (Canada, Parliament, House of Commons Debates [March 28, 1889], 877). Also see the speech of Edward Blake, April 29, 1890, vol. 2, 4084–4092.

80 It is significant that this broader conception of provincial autonomy was taken up by the Judicial Committee of the-Privy Council. In one of the pivotal decisions of the era, the Local Prohibition Case, Lord Watson rejected the federal government's broad construction of the “peace, order and good government” clause of Section 91. Such a broad reading, he argued, would permit the federal government to legislate on almost any subject ostensibly within provincial jurisdiction, and this “would practically destroy the autonomy of the provinces” (A.G. [Ont.]v. A.G. [Canada] 1896 A.C. 348, at 361).

81 The first resolution adopted by the five provincial premiers who attended the Interprovincial Conference in 1887 thus called upon the Imperial Parliament to repeal the disallowance power. It did not accede to the request, however.

82 When the attempt to have disallowance repealed failed, Edward Blake successfully moved an amendment to the Supreme Court Act to strengthen the reference case procedure. See Gerald Rubin, “The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law,” in Lederman, W. R. (ed.), The Courts and the Canadian Constitution (Toronto: McClelland and Stewart, 1964), 220–48Google Scholar. See also Blake's speech, Canada, Parliament, House of Commons Debates (April 29, 1890), vol. 2, 4084–4092. For an account of an earlier debate on the same question, see Smith, “The Origins of Judicial Review in Canada,” 127–30. The reference case procedure provided a judicial alternative to disallowance that combined the expeditiousness associated with disallowance with the appearance of neutrality associated with judicial proceedings. Reference cases have since become an important feature of Canadian constitutional law whereas disallowance, which has not been exercised since 1943, has passed into virtual disuse. Under the circumstances it is difficult not to connect the waxing of reference cases to the waning of disallowance.

83 The distinction between principle and policy has been elaborated recently by Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1978), 22–28, 90–100Google Scholar.

84 Ernest Lapointe, Mackenzie King's minister of justice, noted before parliament in 1937 that “for many years the power of disallowance ha[d] not been resorted to by the government of Canada.” He explained that as long as “the provincial legislatures feel that they are still supreme and sovereign within the sphere of their jurisdiction” it would be difficult for the central government to exercise the power of disallowance (Canada, Parliament, House of Commons Debates, Vol. 3, 2294).

85 See Cook, , Provincial Autonomy, 20; Morrison, “Oliver Mowat and Provincial Rights,” 215–19, 228–31Google Scholar.

86 See Simeon, Richard, Federal-Provincial Diplomacy (Toronto: University of Toronto Press, 1972)Google Scholar, chap. 1; Smiley, Donald, Canada in Question: Federalism in the Eighties (Toronto: McGraw-Hill Ryerson, 1980), chaps. 2, 4Google Scholar.

87 See Black, Edwin R. and Cairns, Alan C., “A Different Perspective on Canadian Federalism,” Canadian Public Administration 9 (1966), 27–44;CrossRefGoogle Scholar Armstrong, Politics of Federalism, Introduction and chap. 1; Garth Stevenson, Unfulfilled Union (Toronto: Macmillan, 1979), 66Google Scholar.

88 The scholarship on the role of the JCPC is huge. It has been categorized, analyzed and criticized in Cairns, Alan C., “The Judicial Committee and its Critics,” this JOURNAL 4 (1971), 301–45Google Scholar.

89 I have dealt with these in “Federalism and the Problem of Sovereignty: Constitutional Politics and the Rise of the Provincial Rights Movement in Canada” (unpublished Ph.D. dissertation, Harvard University, 1983).

90 Compare Smiley, Donald V., “Federal-Provincial Conflict in Canada,” in Meekison, J. Peter (ed.), Canadian Federalism: Myth or Reality (Toronto: Methuen, 1977), 2–18Google Scholar, with Beer, Samuel H., “The Future of the States in the Federal System,” in Woll, Peter H. (ed.), American Government—Readings and Cases (8th ed.; Boston: Little Brown, 1984), 93–111Google Scholar. Smiley notes that “the story of Canadian federalism from the late 1950s onward is that of the relative weakening of the power of the national government and the strengthening of that of the provinces” (3). Analyzing the American federation during the same period, Beer discovers the opposite trend. “Looking back on the New Federalist reaction against the centralism of the 1960s, one must admit that at the beginning of the 1980s federal dominance, if measured by the relative autonomy of state and local governments, is more pronounced than ever” (100).

91 See Beer, Samual H., “Federalism, Nationalism and Democracy in America,” American Political Science Review 72 (1978), 9–21;CrossRefGoogle ScholarReagan, Michael D. and Sanzone, John G., The New Federalism (2nd ed.; New York: Oxford University Press, 1981);Google ScholarWalker, David B., Toward a Functioning Federalism (New York, Mass.: Winthrop, 1981), chaps. 1–4Google Scholar.

92 Beer, Samuel H., “The Modernization of American Federalism,” Publiiis 3 (1973), 63–68 and 74–79Google Scholar.

93 Ibid., 53–57.

94 Corwin, Edward S., “The Passing of Dual Federalism,” Virginia Law Review 36 (1950), 1–24CrossRefGoogle Scholar.

95 Sanzone, Reagan make the point most bluntly (The New Federalism, chap. I)Google Scholar.

96 Simeon, Richard, “Constitutional Development and Reform” in Whittington, Michael S. and Williams, Glen (eds.), Canadian Politics in the 1980's (Toronto: Methuen, 1981), 246Google Scholar.

97 Ibid.

98 General, Attorney of Manitoba et al. v. Attorney General of Canada et al. (1981) 1 S.C.R. 753Google Scholar.

99 On this point see Russell, Peter H., Leading Constitutional Decisions (3rd ed.; Ottawa: Carleton University Press, 1982), 20–22Google Scholar.

100 The states’ rights movement was weakened, of course, by its association with slavery and racial discrimination. This is precisely the sort of moral-political controversy the provincial rights movement in Canada was largely able to avoid.

101 Russell, , Leading Constitutional Decisions, 8Google Scholar.

102 See Wood, , Creation of the American RepublicGoogle Scholar, and Storing, Herbert J., What the Anti-Federalists Were For (Chicago: University of Chicago Press, 1981)CrossRefGoogle Scholar.

103 See Blake, Edward, A National Sentiment (Ottawa, 1874)Google Scholar and Laurier, Wilfrid, “Political Liberalism” (1877) in Ulrich Barthe (ed.), Wilfrid Laurier on the Platform (Quebec: Turcotte and Menard, 1890), 51–80Google Scholar.

104 It is not difficult to see why the Ontario branch of the provincial rights movement would have wanted to dissociate the constitutional from the political reasons supporting provincial autonomy. Mowat's government depended on the support of Catholic voters in eastern Ontario. It would have been imprudent to have reminded them of the original political motivation, that is, freedom from Lower Canadian domination, behind the constitutional principle of political autonomy. On the question of Mowat's electoral politics, see Hodgins, Bruce W. and Edwards, Robert C., “Federalism and the Politics of Ontario, 1867,” in Hodgins, Heick, Wright (eds.), Federalism in Canada and Australia, 61–96Google Scholar.

105 Several examples of the political use of provincial autonomy are provided by Christopher Armstrong, “The Mowat Heritage in Federal-Provincial Relations,” in Swainson, Donald (ed.), Oliver Mowat's Ontario (Toronto: Macmillan, 1972), 93–118Google Scholar.

106 Simeon, “Constitutional Development and Reform,” 256.

107 An excellent example is Keith Banting and Simeon, Richard (eds.), And No One Cheered (Toronto: Methuen, 1983)Google Scholar.

108 Whitaker, Reginald, “Democracy and the Canadian Constitution,” in Banting and Simeon (eds.), And No One Cheered, 241. Emphasis in the originalGoogle Scholar.

109 Whitaker, for instance, suggests that the narrowness of the constitutional debate in Canada can be attributed to the fact that Canadians have never accepted the principle of popular sovereignty. The assumption that one cannot think seriously about democracy without explicitly endorsing popular sovereignty seems unwarranted. Under this assumption it would be difficult to explain the contributions of Burke, Mill, Bentham and others to democratic theory. See Banting and Simeon, And No One Cheered, 240–60; also note the editors’ summary of Whitaker's argument, 19.