Federalism and the Constitution of Canada

David E. Smith

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In the first Speech from the Throne (1868) of the new Dominion Parliament, the Governor General, Viscount Monck, informed members that 'the Act of Union … imposes the duty and confers upon you the right of reducing to practice the system of Government which it has called into existence, of consolidating its institutions, harmonizing its administrative details, and of making such legislative provisions as will secure to a constitution, in some respects novel, a full, fair, and unprejudiced trial.' Here was understatement, indeed; for the constitution now on trial was full of novelty, beginning with its provisions for creating the world's first parliamentary federation. In fact, almost all of the 147 sections of the 1867 Act deal with the structure of the federation. Very few deal with those practices that Canadians usually think of when they talk about government – for instance, the privileges and responsibilities of the government and of the opposition, the rules that determine who forms a government and when, the role of political parties, and the 'right' relationship between the Crown, as represented by the Governor General, and the political executive (the government).

There is one exception to that generalization, to be found in the Pre-amble of the Constitution Act, 1867. The first of four'whereas' clauses reads as follows:'Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom.' The meaning of the phrase'Constitution similar in Principle' is open to dispute. A persuasive case may be made that it encompasses the principle of responsible government, though it must be acknowledged that in the Quebec Secession Reference (1998), the Supreme Court of Canada perceived 'an internal architecture' to the 'Constitution' comprising 'four foundational principles': constitutionalism and the rule of law, federalism, democracy, and protection of minorities. The absence of responsible government in that list is surprising. While lawyers and political scientists might dispute its exact meaning, responsible government was, as James Mallory once observed, 'one of the few concepts about Canadian politics that stuck in the minds of generations of Canadian school children. It became a central part of the mythology of Canadian history, an outstanding example of the use of the past to create a sense of national identity.'

A constitutional principle should not be confused with a constitutional provision, and in any case, foundational is not necessarily a synonym for exhaustive. Therefore, it is reasonable to assume that the principle of responsible government still finds shelter in the Constitution Act, along with the principle of federalism. That said, the federal principle in the Canadian constitution is hardly more exact than the principle of responsible government. It is now a truism that 'the system of Government called into existence' in 1867 was not a federation like that of the United States, and for that reason was not really federal. That was the inference to be drawn from K.C. Wheare's epigrammatic comment: 'The federal principle has come to mean what it does because the United States has come to be what it is.' Powers in Canada may have been divided between federal and provincial legislatures, but here, as opposed to the United States, the residual power rested at the centre. To that alignment must be added Parliament's unlimited taxing power, the Crown's enormous appointment power (for example, of lieutenant governors, senators, and senior judges) exercised on advice of the prime minister, and the power of lieutenant governors to reserve – and the federal cabinet to disallow – any provincial legislation, along with Parliament's capacity to declare 'Works' within a province to 'the general Advantage of Canada' and to submit the same to federal legislation.

This concentrated power led delegates to Australia's constitutional conventions of the 1890s to opine that ' Canada is a Federation upon the centralising principle, just as the United States is a Federation on the decentralisation principle,' and to opt for the American example. These adjectives echo Canadian usage in 1867: 'Our Constitution of the Dominion of Canada … is Federal as well as Central, while that of the United Kingdom, and to which it is made “similar,” as far as may be, is wholly central.' As it turned out, the Australian delegates were wrong on both counts: Canadian federalism in the 1890s had begun to deviate radically from that set down by Fathers of Confederation thirty years before, while the decentralizing thrust of American federalism was already weakening. For Canada, the significance of the Australian rejection in favour of institutions and mechanisms that elevated the states and the people lay in its making the British North American federal experiment unique among major federations. It was parliamentary.

Few events in Canada's political history have received so much attention or been committed so thoroughly to memory as the transformation through judicial review of the country's original federal arrangement. The broad outline of the story is simple: the Fathers of Confederation intended to create a highly centralized federation; but the courts, particularly the Judicial Committee of the Privy Council (J.C.P.C) in London, undid their handiwork, with the result that, say some scholars, Canada is among 'the world's most decentralized federations.' The reasons for this reversal of fortune are best left for analysis in chapter 6, 'Courts and Charter: Constitution and Federalism.' In the context of the present discussion, the point to emphasize is that the 1867 Act did not create a Canadian court of appeal (one of the 'instrumentalities' that scholars, like Livingston, deem essential in the taxonomy of federations ^{9} ), though Section 101 said that Parliament might at a later date provide for one. Parliament did this in 1875, though appeals to the J.C.P.C continued until they were abolished in 1949.

In addition to omitting a process for domestic judicial review, the Constitution Act, 1867, said nothing about a local procedure for its amendment. The explanation usually offered is that Parliament at Westminster had enacted the 1867 statute, and it was 'natural' for any amendment to be made by the same legislative body. This is no doubt true, as far as it goes. As well, it indicates a parliamentary alignment, or cast of mind, between Canada and the United Kingdom that partly explains the failure of Canadian politicians to agree on a domestic amending formula until 1982. The Westminster model has exerted a strong hold on Canadian politics – perhaps because of the preambular statement about a 'Constitution similar in Principle to that of the United Kingdom' – one that both frustrates and complicates behaviour.

As long ago as 1930, Frank Underhill expostulated that'we in Canada are suffering from a literary theory of our constitution. It prevents us from realizing how British institutions when transplanted to America actually work.'

The complicating factor is that the model proposed for emulation is not federal. Even before the entrenchment of a higher law, in the form of the Canadian Charter of Rights and Freedoms, that limits legislative autonomy, it was 'a central fallacy of Canadian constitutional law' to assume that, taken together, the Canadian Parliament and the legislatures are 'replicas of the Parliament of the United Kingdom.' The latter is 'truly a continuing functioning constitutional convention,' whereas Canada's legislatures, even within their respective jurisdictions, do not 'enjoy a supremacy of the same quality.' ^{} The question that the Westminster inheritance posed – how to make parliamentary government work in a federation? – has been answered sequentially in Canada in two ways: first, through federalized national political parties, and, when these faltered after the two world wars as provinces grew more aggressive in pursuing policy and as protest parties ended the monopoly of the parties of Confederation (Liberal and Conservative), and later, through the development of extraparliamentary and extraconstitutional negotiating processes under the rubric of executive federalism.

John A. Macdonald chose his first cabinet with the federal principle, generously interpreted to embrace considerations of religion and language as well as territory, in mind and with the non-federal United Kingdom as its model:'In the Cabinet of Great Britain there had always been representatives of England, Ireland, and Scotland. The reason was that the people of each section could not expect their interests to be sufficiently attended to unless they had representatives in Government as well as in Parliament.' All subsequent prime ministers have so followed his example that a large and federalized cabinet is a convention of the constitution. Political parties that were de facto or de jure federations made this practice possible, while a Senate that spoke for minority rather than provincial interests made it necessary. The further one examines Canada's constitution, the more'novel' it becomes and the less similar to that of the United Kingdom.

The exceptionalism of Canada's federal constitution originates in the act of its creation – more specifically, in the actions of its creators. Few statements made during the debate in the Legislative Assembly of the Parliament of United Canada on the Quebec Resolutions are better known than the following by John A. Macdonald:

Now, as regards the comparative advantages of a Legislative or a Federal union ... I have again and again stated in the House that, if practicable, I thought a Legislative union would be preferable. I have always contended that if we could agree to have one government and one parliament, legis- lating for the whole of these peoples, it would be the best, the cheapest, the most vigorous, and the strongest system of government we could adopt.

But, he noted, opposition in Lower Canada to 'the absorption of its legal and cultural individuality,' and opposition in the Maritime provinces to any attempt to standardize the property law, for instance, meant that legislative union would not succeed. In sum, federation was Macdonald's second choice.

If federation it must be, then the exemplar had to be the United States. Here Macdonald's comments are also memorable but at the outset also puzzling:'The United States was in the main formed on the model of the Constitution of Great Britain, adapted to the circumstances of a new country.' Presumably, this is a reference to the balanced constitution, with its separation of powers, flowing from the Glorious Revolution of 1688. That is a presumption, since he says nothing further on this matter but proceeds to assess the federation created by the Founding Fathers at Philadelphia:'They commenced, in fact, at the wrong end. They declared by their Constitution that each state was a sovereignty in itself, and that all the powers incident to a sovereignty belonged to each state, except those powers which, by the Constitution, were conferred upon the general government and Congress. Here we have adopted a different system. We have strengthened the General Government.' In this passage Macdonald is prophesizing that'we have avoided all conflict of jurisdiction and authority,' and predicts that'if this Constitution is carried out... we will have... all the advantages of a legislative union... with... the guarantees for local institutions and for local law.'

This is a Canadian's view of American federalism, for nowhere does Macdonald mention the primacy that the Constitution of the United States grants the people. The concept of the people as the constituent power is foreign to his sense of a constitution, nor – which is more important to this study – does he see it as having any relevance for federalism. Yet it is the people in their different localities – not the division of powers – that authorize the United States document. In No. 22 of The Federalist, Alexander Hamilton stated that the 'foundations of our national government are deeper than in the mere sanctions of delegated authority. The fabric of the American empire ought to rest on the solid basis of the Consent of the People.' Rephrased in comparative terms, the consequence of popular sovereignty in Canada's neighbour is this: in the English or Canadian constitution, 'the nation and the government is considered as one …; whereas, by ours, the nation and the government are considered as distinct. Gordon Wood, the American historian, puts it this way: American governments 'were never full embodiments of the society'; rather, 'all governments are limited agencies of the people.'

The implications of this distinction are immense when comparing the constitutions of the two North American federations. The contrast is evident from the start. In the United States the events of 1787 were intended to be regenerative – to build virtue and to improve human nature: 'We, the people of the United States, in order to form a more perfect union … do ordain.' In Canada, the intent of federation was to eradicate old problems. The United States Constitution speaks with one voice: 'In all its parts, the representative part is the whole of it.' In Canada, the guiding principle of Confederation was as much protection as it was representation.

In fact, the two objects were combined when it came to the House of Commons (the only representative institution of government), where, until 1946, Quebec's sixty-five members of the House (divided into that province's population) determined the allocation of all other provinces' representation. Purposive federalism above the forty-ninth parallel – in the form of Section 145 (now repealed) providing for 'Construction of the Intercolonial Railway by the Government of Canada' (the Speech from the Throne in 1868 described it as the 'practical and physical connection' parallel to the 'legislative bond'), and Term 46 of the Terms of Union of Newfoundland with Canada (1949): 'Margarine may be manufactured or sold in the province of Newfoundland and Labrador after the date of the Union' – and representational federalism below.

Because there was no conception of the people as a constituent power in Canada, there was no conception of a limit to state power or, for that matter, of a constitution separate from the government. This is a statement of fact rather than a judgment upon the work of the Fathers of Confederation. Nor was the absence of the people from the Canadian constitution more than a matter of episodic concern – as in the farmers' revolt and the rise of the Progressive Party of the 1920s – until the advent of the Reform Party late in the twentieth century. At least two reasons for this attitude may be suggested, though the first is by far the more explanatory. In his biography Churchill, Roy Jenkins says what has been said before but deserves repeating in this discussion. In the last half on the nineteenth century, everyone – Tories, Liberals, Labour, even Irish Nationalists, as well as many non-British observers –'regard ed the House of Commons as the greatest legislative assembly in the world. Canadians shared this view; it was one reason why leaving amendments to the Constitution Act, 1867, in the hands of the Westminster Parliament proved uncontentious. On this particular point, it needs to be remembered that between 1804 and 1865 there had been no amendments to the United States Constitution. From the perspective of the Fathers of Confederation, there was good reason to see the U.S. Constitution as 'excessively rigid.'

Rigidity was not a value admired by Canadians – particularly those who had tried to operate the legislature and government of United Canada – in spite of statutory and conventional requirements pressing for coalition government (sometimes with dual ministries – attorney general east and attorney general west, for example), fixed and equal representation of the two Canadas, and occasional resort to double majorities. Experience made legislative union attractive; prudence made it unrealizable. Still, in a book on Canadian federalism, Macdonald's relinquished dream of legislative union deserves more attention than it often receives.

Legislative union and unitary government are frequently discussed as if they were synonymous. They are, in the sense that both are monist in principle; but a legislative union implies the conclusion of a process of aggregation, a bringing together. The distinction is worth emphasizing, if only because Macdonald himself dwells on it. In the Confederation Debates, he says that the union between England and Scotland, in matters of legislation, is of a federal character, because the Act of Union between the two countries provides that Scottish law cannot be altered... No matter... how much it may interfere with the symmetry of the general law of the United Kingdom, that law is not altered, except with the consent of the Scottish people, as expressed by their representatives in Parliament. Thus, we have, in Great Britain, to a limited extent, an example of the working and effects of a Federal Union, as we might expect to witness them in our own Confederation.

Legislative union of England and Scotland occurred in 1707 (the Crowns of the two countries had united in 1603); legislative union of England and Ireland took place in 1800. Neither of these unions had received the sanction of popular opinion, and this created precedents to be cited in 1867 by those hostile to demands from British North American colonists for public consultation on Confederation. A strong voice to this effect was Monck's, who said the demand 'betrayed a great ignorance of the principles of the British constitution.' That opinion was repeated, and carried the day, when, after a victory for the anti-Confederates in the Nova Scotia election of 1867, Joseph Howe campaigned unsuccessfully in Great Britain to repeal Confederation. The argument that Nova Scotia had lost a 'noble constitution' was met with the rebuttal that 'this constitution had been a “gift of the Crown” revocable at any time.'

Whether public approval should have preceded the move to federation, as was the case thirty-three years later prior to the creation of the Commonwealth of Australia, is not germane to this discussion. What is of signal importance is that change of immense moment – 'by one fell stroke Nova Scotians were swung out of their Constitutional orbit, and thrown into a new system' – had occurred, and at the instigation of politicians. From being a colony of an empire, Nova Scotia had become a colony of a colony of an empire. Howe maintained that 'we are to have a confederacy in name, but in reality the centre of power and influence will always be in Canada. It can be nowhere else.' Howe was invited to enter the government of John A. Macdonald in 1869. That action, following equal treatment of the Maritime provinces with Ontario and Quebec when it came to Senate membership, poured balm on the province's ire. It also provided an occasion for political expression of a distinctively Canadian view of the requirements of federalism (the speaker is George-Étienne Cartier): 'It might be thought that Nova Scotia and New Brunswick got more than their share in the originally adopted distribution, but it must be recollected that they had been independent provinces, and the count of heads must not always be permitted to out-weigh every other consideration.'

Forty-five years later in 1915, the same reasoning –'representation by population … was intended to be made subservient to the right of each colony to adequate representation in view of its surrender of a large measure of self-government' – was advanced for an amendment to the Constitution Act that no province should have fewer members in the House of Commons than it had senators.

Seventy-five years after that, the Supreme Court of Canada heard on appeal a decision of the Saskatchewan Court of Appeal on electoral redistribution. Saskatchewan's highest court spoke of 'no person's portion of sovereign power exceed[ing] that of another' and posited 'the idea of equality as inherent in the right to vote.' From these egalitarian pronouncements, and for reasons Cartier would have approved, the Supreme Court dissented: the purpose of the right to vote in Section 3 of the Charter, it said, is not equality of voting power per say, but the right to 'effective representation.'

The absence of a popular constituent power – and, more than that, the lack of concern about the absence of a popular constituent power in the constitution of Canada – whether as a legal document or an act of creation – has only become a matter of sustained debate since the failure of mega-constitutional accords, Meech Lake and Charlottetown, in the 1990s. The opinion expressed in Canadian Monthly as long ago as August 1872, about the weakness of the elective principle in Canada, proved rare but no less apt a century later:'Even the reactionary founders of dynasties in Europe find it expedient, in this age, to base their power on a plebiscite … If discontent should ever arise … we may hear more of the omission to submit the decision of the national destiny to the direct vote of the people.'

As it was, and still is, even in the age of the Charter, the constitution 'ignore [s] individual Canadians, except as they qualify [y] through membership in a … group,' defined, for example, by church, language, or gender.

Macdonald's description of Scotland's place in the United Kingdom illustrates two important features relevant to his conception of Confederation: one, legislative and federal union were located on a continuum that made no provision – because there was no need – for Livingston-like 'instrumentalities'; and two, Federal Union was about legislative and not executive power. There can be no retroactive application of Whearean or Livingstonian theories of one century to Macdonaldian practices of another. Still that is the tenor of the criticism now heard about high centralization in the 1867 Act. Where, in other words, are the coordinate and independent spheres associated today with the theory of federal government? Not all, but a significant part, of the critique focuses on the extensive powers of the central executive, as in the making of appointments.

Great powers rest in the prime minister, because in a system of responsible government, such as Canada's, the prerogative powers of the Crown are exercised by the Governor General on the advice of the prime minister. If the prerogative extended from London throughout the United Kingdom, inferentially the same held true for Canada with its 'Constitution similar in Principle.' Yet how could that be in a federation? Or, for how long could that be? Within thirty years of Confederation, as a result of J.C.P.C opinions, the unitary Crown and its prerogatives had fractured and become territorially dispersed. The new framework for a compound monarchy took its place. These judgments, of which Liquidators of the Maritime Bank v. Receiver General of New A.C is the most direct in 'federalizing' the Crown, turned as much on questions of privilege and precedence as on fields of jurisdiction. In the words of Bora Laskin, they bifurcated the Crown and established the basis of the intergovernmental rivalry that would mark Canadian federalism a hundred years later.

The significance of this development for Canadian federalism lies in the familiar variations on the theme of unintended consequences accompanying judicial interpretation. Less frequently remarked is the influence this same development had for the constitution, that is, the proliferation of strong, unlimited executives. Second chambers in the provinces either never existed or, where they did, were weak.

For that matter, there are no provincial constitutions, in the sense Americans use that term. Executive-centred government, the common critique heard about politics in Ottawa today, notwithstanding the revisionism of nineteenth-century courts, is also the indictment directed at provincial governments. If the representative part is the whole of American politics, then the governing part is surely the whole of Canadian politics. Here is the backdrop against which to view demands for electoral reform and Senate reform, as well as concerns about the extent of parliamentary privilege and Crown prerogative in an age that puts a premium on rights and freedoms.

But not when applied to government. Some have described the extent of executive-centredness in Canada as colonial, but with local rather than imperially appointed elites in charge. Absent a traditional social hierarchy, an established church, or a second parliamentary chamber of influence like the Lords, electoral politics and its control were everything. As an aside, it is worth noting how often in the study of Canadian politics the adjective colonial arises, as here in the relationship of legislature to executive, but also as regards federal government relations with the regions and provinces, and all governments' relations with Aboriginal populations. Colonial and federal are not adjectives – or concepts – that work in harmony, as Canadian history attests.

Colonial is imperial as seen from the dependant's perspective. Canada may or may not exhibit a colonial mentality still, but there is no question that though the largest colonies of settlement before 1867 and later senior dominion of the Empire afterward, Canada took a long time maturing as a constitutionally independent entity. The Statute of Westminster, 1931, recognized the legislative independence of the five dominions (Canada, Australia, New Zealand, South Africa, and Newfoundland), but the completion of Canada's constitutional odyssey occurred fifty years later. Among other matters, the Constitution Act, 1982, provided for the Charter of Rights and Freedoms, set down a domestic amending formula, and reaffirmed provincial control of non-renewable natural resources. The chronicle of that evolution is oft-told; the consequences of its prolonged duration are less frequently remarked upon.

Premeditated or not, this strategy of distancing – both temporally and geographically – 'encourage [d] the view that constitutional interpretation was a matter for lawyers and judges.' That assessment was made specifically about judicial review and the long hand of the J.C.P.C, but it applies as well to the search for a made-in-Canada amending formula. While Canadian politicians (all but Quebec's) had the ultimate say in designing an amendment package, the decades-long quest that preceded agreement meant that Westminster remained the authoritative legislature. Thus the attenuating effect noted with judicial appeals was reinforced by the search for an amendment process. If in Canada there is no sense of the people as a constituent power and if at the same time there is no sense of limits in the constitution, then part of the explanation is found in the remoteness of Westminster, which for so long played a central role in the development of the Canadian constitution.

From the perspective of a book on federalism, another consequence of arrested constitutional development was the fate of the compact theory. According to this interpretation, Confederation was the agreement of 'the uniting colonies, now provinces, and … any modification of that contract would require the consent of all the provinces.' The premise that Confederation was the product of provincial agency was refuted by, among others, Norman Rogers, a refutation that quickly became orthodoxy and prevailed for some decades. The nub of Rogers's view was that 'only the Imperial Parliament was behind the 1867 Act, and … nothing in history, practice or judicial precedent had changed that.' The validity of these respective positions is not the question here. Instead, it is the vanquishing of the compact theory by the so-called 'Imperial theory' that deserves attention – and for the same reasons stated in the preceding paragraphs: the heart of Canada's constitution was separated for so long from its body that an atrophy of constitutional understanding resulted.

In 1867, Westminster gave Canada 'a Constitution similar in Prin- ciple to that of the United Kingdom,' but the content of the principle was left to be inferred. The Preamble to the Act speaks of the colonies desiring to be'federally united,' but the sections themselves provide remarkably little in the way of a recognizable federal arrangement:'The only divided institution contemplated in law was in the legislative department.' Only after 1867 was the unity of the Crown replaced by a compound monarchy that paralleled the legislative division of powers. The Act made no provision for its own amendment, nor did it establish a mechanism for judicial review. In both instances the status quo ante prevailed. Significantly, when in the 1880s judicial interpretation began to effect a movement away from the Act's highly centralized power, the Supreme Court of Canada, established by statute of the Parliament of Canada in 1875, was not caught up in the provincial rights enthusiasm.

Instead, the custom developed to make appointments to the Court (by the Governor General on recommendation of the prime minister), as with the cabinet, according to the federal principle, taking into account that not every province could be represented at one time. In the Constitution Act, 1867, federalism was secured as a principle of government achieved through cabinet representation (and later through the composition of the Supreme Court of Canada); federalism was not, as it was in the Constitution of the United States, to be a check on government. This American orientation, of course, is the object of a proposal such as a Triple E Senate in Canada, and explains the practical and conceptual difficulties that arise when seeking to integrate a cardinal feature of one federal system into the operation of another, very different federal system.

The political nature of Canadian federalism is to be seen in all its manifestations, but nowhere in more striking fashion than in the composition of the Senate of Canada. For reasons to be discussed in chapter 4, 'Parliamentary Federalism,' the Senate of Canada is not an institution universally admired. The manner of its members' selection and their allocation among the provinces are reasons customarily offered for the upper chamber's poor repute. Though comparisons may be invidious, the United States Senate is usually cited to illustrate the Canadian Senate's flaws. In what might be called an illustration of aspirational federalism, critics of Canada's second chamber point to the great compromise at Philadelphia, whereby the Founding Fathers agreed that House of Representatives would be based on representation by population and the Senate on equal representation of each state. How different, and how unfederal, the composition of the Senate of Canada!

Yet the compromise on the Senate at the Quebec City Conference in 1864 was no less central to reaching agreement on federation in this country than the compromise made at Philadelphia sixty years before was to the United States. The guarantee of equal (regional but not provincial) representation with the more populous provinces of Ontario and Quebec was responsible for the entry of the Maritime provinces (Nova Scotia and New Brunswick). According to George Brown, otherwise a strong advocate of rep-by-pop:'On no other condition could we have advanced a step. Regional equity was essential to concluding the Confederation bargain; no other issue took so long to resolve. In consequence of that agreement, it was possible for some decades after 1867 to think of the young Dominion as Christopher Dunkin, minister in charge of Canada's first census, described it in the House of Commons, that is, as'the three kingdoms. The allusion was to the United Kingdom, which encompassed England, Scotland, and Ireland, along with the Principality of Wales, and notwithstanding whose diversity appeared to the Fathers of Confederation the paradigm of a successful nation.

But the United Kingdom, unlike Canada or the United States, was not in a position where it had to adjust its political structure to accommodate the incorporation of new territory. It is a challenge to federations to expand but at the same time not upset the terms of the original accord. The 'three kingdoms' analogy – each kingdom with its twenty-four senators – made no provision for expansion.

What was to happen when the federation grew, as it was intended to grow (Section 146), since one of the purposes of Confederation was to acquire Rupert's Land and to extend westward to the Pacific Ocean? The Maritime senatorial region, with the same number of senators as Ontario and Quebec, was acceptable to the less populated Maritime provinces in 1867. And thereafter, as well, since territorial expansion was not possible and population growth unlikely. The establishment of Alberta and Saskatchewan in 1905, the addition of territory to Ontario, Quebec, and Manitoba in 1912 – rather than the formation of additional new provinces – and the creation the same year of a western senatorial region made up of the four western provinces, helped keep the Senate formula stable. The expectation was that population growth in the West would make itself felt through increased representation in the House of Commons.

In fact the representation formulae used over the years to allocate House of Commons seats among the provinces discriminated against the West. Now, in the twenty-first century, the fastest-growing prov- inces of the West are treated less generously than the slower-growing provinces of the region. More than that, the expectation that the Commons would be the West's chamber because its population would grow depended upon an assumption about political parties: the parties of Confederation would continue to be national parties. That assumption proved most questionable in the West. After the First World War and the rise of the Progressives on the prairies, followed by other protest parties, the West's voice was fragmented and, most often, an opposition voice.

Notwithstanding the population growth in western Canada, two-thirds of Canada's population lives in Ontario and Quebec. Until the appearance of the Bloc Québécois in the early 1990s, the traditional parties dominated federal politics in the two central provinces, and they still do in Ontario. The party composition of the House has had a marginalizing effect on the expression of western interests, and explains, especially in Alberta, the popularity of slogans such as'The West Wants In.' It also explains why in Alberta attention to Parliament shifted from the Commons to the Senate as an institution that might better express western views, if only as a limit on governmental power in a constitution that otherwise provides very little check on the executive. Since Confederation, through their organization and through the distribution of patronage, political parties have provided sustenance for the federal idea in Canada. Where they are in retreat, there is another reason to look to the Senate for protection.

Through its provisions for the Senate, the Constitution Act, 1867, gave the Maritime provinces a measure of equality with the central provinces. No comparable allowance for the West was anticipated in the original scheme of Confederation. On the contrary, policies to promote the region's adhesion to the nation followed no predetermined path, a disposition at the centre which, because of its absence of forethought more than anything else, repeatedly frustrated and angered western Canadians. The contrast between treatment of the Maritime provinces and that of the West can be pressed too far, however. Joseph Howe understood from the outset the limitations of the original agreement as they affected Nova Scotia: 'In reality the centre of power and influence will always be in Canada. It can be nowhere else.' The reason for this privileging is easily explained: 'The Confederation settlement set up fairly adequate safeguards for the vital interests of the Canadas and the Canadian minorities. These interests were cultural, that is educational, linguistic and religious. Nova Scotia being quite capable of keeping her cultural individuality, even in a centralized government, soon found that her vital interests were not cultural but economic.

Many features of the 1867 Act contributed to its distinctiveness, but none did more in this respect than the terms of the Act that made Canada a federation of cultures as well as of territory. And this in a constitution intended to be'similar in Principle to that of the United Kingdom.' Here was the meaning of such sections of the Act as 93 (protection for denominational schools existing at the Union), 133 (provision for the use of the English and French languages in Parliament, in the legislature of Quebec, in the courts established by the 1867 Act, and in all the courts of Quebec), 22 (establishment of twenty-four senatorial divisions for Quebec), and 92(13) (property and civil rights in a province as an exclusive power of a provincial legislature). These sections, along with, for instance, the later Standing Orders of the House of Commons that require alternation in the speaker's chair of persons fluent in one or the other of the two languages, along with appointment of a deputy speaker possessing a full knowledge of the language not that of the speaker, emphasize the early and continuing prominence of language in the Canadian federation. As well, the custom emerged, once Canada took command of recommending appointments to the office of Governor General, of alternating nominees between individuals fluent in the two languages (with occasional appointments of persons coming from non-English and non-French groups of Canadians). A list of illustrations to the same effect might be made – the leadership of political parties, the position of Chief Justice of the Supreme Court of Canada – but the point is clear: the Canadian nation and, thus, Canadian federalism are about more than territory – cultural forces, too, have been at work in achieving and maintaining Canada. The Act of 1867 was not just about establishing a constitution that mirrored the United Kingdom's. It was about making a country.

Indeed, the reticence of the Act in spelling out the meaning of that phrase leaves little other choice. Yet it is imperative to note that, except for the eighteen sections of the Act setting out the legislative power of the new provinces of Ontario and Quebec, and the eight sections describing the office of lieutenant governor, the only other references to provincial government are Section 64: 'The Constitution of the Executive Authority in each of the provinces of Nova Scotia and New Brunswick shall, subject to the provisions of this Act, continue as it exists at the Union until altered under the Authority of this Act'; and Section 88, which is identical in expression except for the words 'Legislature of' in place of'Executive Authority in.' In the words of the consolidated Constitution Acts, 1867 to 1982 Similar provisions were included in each of the instruments admitting British Columbia, Prince Edward Island and Newfoundland.' The legislatures and the executive authorities of Manitoba, Alberta, and Saskatchewan were established by the statutes creating those provinces.

In short, most of the provinces of Canada had a 'Constitution similar in Principle to that of the United Kingdom' when they were still colonies, and for some decades before they entered Confederation. In other words, the constitution preceded federation. While this is not an original observation, it is one that deserves more attention than it customarily receives. It helps explain not only the strength of the provinces' case when they came to confront the federal government in the courts late in the nineteenth century – they considered themselves equals; but also the confidence they exhibited in making their argument – they were as legitimate products of English constitutional evolution as was the government at Ottawa, actually more so, because of their longer lineage. The relevance of these comments lies less in historical illumination – that has already been done – than in offering a new perspective on Canadian federalism.

Constitutionally, the provinces are pre-not post-federation entities. That sequence is what explains the series of negotiations that took place between federal and colonial (soon to be provincial) politicians. An early chapter of the history of every province recounts the terms sought and the counter-offers made prior to the inclusion of a new province.

It was because there was no formula for admission, but instead bargaining, that the terms of entry were often contradictory: more members of Parliament for one province, though smaller in population, than for another province; fictitious population figures to augment the number of M.P's to be granted; special terms; extraordinary costs (the denial of their natural resources to the prairie provinces until 1930): the list is long, the result in the nature of what might be called conditional federalism. Arguably, with that genealogy, the conditions are never satisfactory, nor are they satisfied. Back in 1868 Macdonald had said that Nova Scotians were intent on feeling aggrieved; seventy years later a member of the staff of the Rowell-Sirois Commission said the same thing: the province's'official version was that it has suffered chronic hardship ever since Confederation.

A special instance of federalism through bargaining occurred after the uprising at Red River and the presentation of a Bill of Rights by the Metis leaders to the government at Ottawa. The postage-stamp province of Manitoba that resulted in 1870 looked very much like a miniature Quebec, with the same guarantees for religion, language, and law, along with institutional protections, such as a bicameral legislature. But it conformed to no blueprint past or future. In the words of David Mills, Liberal journalist and later minister in the Mackenzie government, Parliament, but more particularly the Conservatives, had in this instance failed to do what'the theory of their system required.' Mills did not expound on that theory, but taking the preceding discussion as backdrop he might have asked:'How does this new Manitoba fit with the three kingdoms?' The answer was not immediately apparent, but neither was there one to describe the very different Manitoba that appeared late in the nineteenth century after the linguistic and denominational guarantees of the Manitoba Act, 1870, had been eviscerated.

Manitoba is the pivotal province in a discussion of Canada's double federalism. The Constitution Act, 1867, embraced two versions of federalism – cultural and territorial. After 1867, the question became whether, and if so how, the two versions were to be promulgated as the country expanded.

One interpretation of Canadian federalism – when contrasting Manitoba's early history with conditions accompanying the admission of two other provinces (British Columbia in 1871 and Prince Edward Island in 1873) – is to say that provinces would enter the Union displaying the marks of cultural or territorial federalism depending upon their historical and demographical circumstances. Whether such freedom of choice was ever intended as a policy is unlikely: the rounding out of Confederation proved to be too fact specific for such an academic exercise. In any case, by the end of the century, European, British, and American immigration and settlement in the West had swamped existing demographic patterns and made such calculations moot.

The Manitoba Act, 1870, had treated confessional schools (Roman Catholic and Protestant) and the English and French languages in the same manner as they were protected in Quebec by Section 133 of the Constitution Act, 1867 – that is, equally. As far as the province was concerned, the end of this original accord began in 1890, when Manitoba's legislature statutorily withdrew the guarantees for Roman Catholics and French-speaking residents. (Events outside the province that influenced developments within included the passage in 1888 by the legislature of Quebec of the Jesuits' Estate Act, to compensate the religious order for properties confiscated after the Conquest, and the formation the following year in Ontario of the Equal Rights Association dedicated to pressing for disallowance of the Jesuits' Estate Act, and, more generally, opposed to perceived favourable treatment of French-speaking as well as Roman Catholic Canadians. It is important to note that over a period of six years, while a series of private cases challenged the constitutionality of the provincial legislation, the federal government was never a party to the litigation, nor did it seek the advice of the courts through the mechanism of a reference opinion. Whatever theory of federalism motivated the Macdonald government at Manitoba's founding as a bicultural province, had disappeared in government (and opposition) ranks in Ottawa thirty years afterward in the face of vocal provincial rights sentiment.

A coda to these events occurred ninety years later when, in Attorney General of Manitoba v. Forest, the Supreme Court of Canada found Manitoba's Official Language Act, 1890, in conflict with Section 23 of the Manitoba Act, 1870, and therefore unconstitutional. As important as that restitution of rights was for French-speaking Manitobans and for those committed to official bilingualism as a public policy, more significant still for a study of Canadian federalism and the constitution was the sequence of events leading to that decision.

Crucial to this story is the executive-inspired Court Challenges Program. A history of the program describes its provenance:'Realizing that the costs of pursuing litigation involving matters of principle and the public interest can constitute a heavy burden on individuals and groups of limited means, the federal government [in 1978] stepped forward and offered financial assistance to a number of litigants.' Initially, the program was directed at clarifying the scope of language rights then protected under various provisions of Canada's constitution. Among the first litigants so supported was Forest. That decision led to a subsequent challenge, Bilodeau v. Attorney General of Manitoba (also supported by the program), on the status of Manitoba's unilingual laws. Ultimately that case was appealed to the Supreme Court of Canada, at which time the federal government joined it to the reference on the general question of the validity of the province's laws. In the 1980s the program was expanded to include language rights protected under new constitutional amendments and equality rights.

Thus, by the late twentieth, as compared to the late nineteenth, century, the federal government's resolve to protect official language rights had stiffened. This was true whether the party in power was Liberal or Progressive Conservative, at least until very recently. In the last year of its life (1992) the government of Brian Mulroney cancelled the Court Challenges Program. Restored by the Liberals under Jean Chrétien, the program lost its funding again in 2006 under Stephen Harper, only to have it partially revived by the Harper government in 2008. Certainly two decades ago, when the Manitoba language issue was being hotly debated, the federal government was a major participant. Quite unlike the 1890s, when no amount of pleading for assistance in retaining the original dual-language regime elicited federal support, in the 1980s Ottawa adopted an aggressive stance.

In the words of the N.D.P provincial premier of the day:'The involvement of the federal government on this issue, including its passage of two resolutions unanimously in the House of Commons, was counterproductive. It created negative rather than positive reaction throughout the province.'

Omitted from this account of the Manitoba School Question is the sole instance in Canadian history of Section 93 of the Constitution Act, 1867, being activated. Subsection 4 of Section 93 says that when necessary, Parliament, following a successful appeal to the Governor General in Council, may make 'remedial laws' in the matter of denominational education to carry out the purposes of the section. In plain words, and as regards the Manitoba case, Parliament might pass educational measures that applied to Manitoba. Here would be another example of high centralism that, in Wheare's mind, disqualified Canada from being considered a true federation – that is, the federal government's legislating in a field of jurisdiction so transparently provincial. Except, however, when the cultural perspective of Canada's double federalism is at issue – then the central government's action may augment rather than limit the realization of the federal principle.

The preceding discussion suggests one explanation for the contrast in federal government behaviour between 1890 and 1980. The advent of bilingualism and biculturalism as organizing principles of Canadian society by 1960, and – as far as language was concerned – as official federal government policy by 1970, had reconstituted the ways that Canadians thought of themselves. The most obvious expression of this change, because it was formal and legal, was the Official Languages Act, 1969, and the ensuing agencies created to monitor its application. Of these, the best known are the Office of the Commissioner of Official Languages (an officer of Parliament) and the committees of the House of Commons and the Senate that receive the commissioner's Annual Report. Less official but equally public have been nomenclature debates. over the past half-century on topics such as, How many nations comprise Canada? and Is Quebec a distinct society?

For the record, it should be stated that Manitoba was the site and source of opposition to the Official Languages Act from what Senator Paul Yuzyk termed'Canadian ethnic groups of the third element.' The leaders of these groups, he said,'fear ed that they were being relegated to second-class citizenship.'

From a societal point of view, these debates probably have more influence than formal public policy on Canadians' sense of a past, and of a future. No politician is more closely identified with these topics than Pierre Trudeau, but it is a quarter-century since he was in office and only a very small number of students read the debates of his era or are familiar with the history or operations of the language policies identified with him. Yet the enhanced legacy of language is on all sides to see – for example, on federal government buildings in every community in the country, on every piece of communication a citizen receives from the federal bureaucracy, and on Radio-Canada, which offers transcontinental radio and television networks, as opposed to local or (in some instances in the past) no French broadcasting. To this might be added changes to the school curriculum, which remains the domain of provincial departments of education: every province where English has historically predominated now, as a consequence of federal funding, offers French immersion courses.

These comments should not be interpreted as implying a wholesale transformation in Canadian attitudes toward bilingualism. No shortage of illustrations can be cited to contest that claim – most obviously the acrimonious debate that took place in Manitoba as that province's government and political parties sought to tailor their laws and practices to the Supreme Court of Canada's judgment that bilingualism in Manitoba had never been constitutionally extinguished. The comments are intended to suggest something rather less utopian: in recent decades official and unofficial learning in Canada have come to share common assumptions about the legitimacy of bilingualism. Again, it must be emphasized that these assumptions are not universally held, and in some parts of the country may be disputed or even rejected.

That, too, is a legacy of official bilingualism. Nonetheless, by the 1980s, official and unofficial support for bilingualism assured a very different outcome than a century before in the contest to protect minority rights in Manitoba.

Why was there a hospitable climate then and not before? Part of the answer to that question has to do with a heightened sense of rights as an attribute of personhood, and a belief that the language one speaks is integral to definition of the self. That matter is beyond the focus of this discussion. Another that arguably goes some way to explain the change in attitudes is this: the end of Empire, Commonwealth, and Britishness itself as official categories of meaning. Of course, the Commonwealth continues, as an association of nations with British historical, cultural, and legal connections, but now there is also La Francophonie, founded in 1970 with Canada an original member and a major financial contributor.

The evanescence of British Canada at the centre, though less pronounced in some provinces or regions of provinces, is an aspect of Canada's development that remains largely unexamined. The reason for mentioning it here is that bilingualism is one characteristic of modern Canada (along perhaps with the flag, the Charter, medicare, and equalization) that has come to fill the breach left by the waning of British Canada.

The relevance of this observation to the present discussion is this: the argument, advanced by those who wished to abolish both a publicly funded Roman Catholic school system and bilingualism in Manitoba, took as its first premise that Canada was an English-speaking country whose Anglo-Saxon institutions required defending. From this perspective the provision of separate schools and use of the French language were privileges that might legally be abolished in the provinces. Similar arguments were heard in other parts of the country on behalf of authorities who sought to limit existing practices and usages. Here was one interpretation of the phrase in the 1867 Act's Preamble:'a Constitution similar in Principle to that of the United Kingdom.' In the words of the Equal Rights Association, founded in 1889, that'Principle' was as follows:'Equality to all. Privileges to none.'

In an article with the practical title 'Contrasting Unitary and Federal Systems,' American political scientist Daniel Elazar defines the 'organic unitary model as one where politics takes precedence' and the 'federal model as one where the constitution takes precedence.' As is often true in scholarly writing by non-Canadians, there are no references to Canada, even though this country possesses a constitution that borrows from both models, particularly when the subject in mind is unitary provincial government within a federal 'system,' which at the end of the nineteenth century was itself associated with a sovereign imperial authority. In the 1890s and again in the 1980s, what mixture of politics and constitution determined the outcome of those controversial}^{{in} the 1980s,{{in} the 1980s,}} what is the outcome of those controversial authorities. ties? It is a striking feature of the Manitoba School Question how often events turned on legal reasoning. There was no shortage of legal reasoning nine decades later, but this time, unlike before, there was much more politics, in the form of the Court Challenges Program, references to the Supreme Court of Canada, and resolutions of Parliament to stiffen the resolve of the provincial legislature.

Half a century after the Manitoba School Question, Hugh MacLennan published his celebrated novel of English-French relations in Quebec, Two Solitudes. But the separation MacLennan portrays between linguistic (and religious) allegiances there communicates the atmosphere that predominated in earlier debates in Manitoba. Paradoxically for Canadian unity, the distance separating cultural neighbours in Manitoba was far greater than the distance separating Anglo-Protestants in Winnipeg from the Empire's final court of appeal, the Judicial Committee of the Privy Council, at Westminster. After 1969, a linguistic line of demarcation that paid no attention to provincial boundaries appeared in Canada. Not all provinces adopted bilingualism as official public policy – in fact, only New Brunswick did; nor could the federal government force them to do so. Instead, a federal language regime was instituted, one that the Constitution Act, 1982, entrenched at the same time that it patriated (as Canadians say) the Constitution. That Act gave Canadians a domestic amending formula for the first time in the country's history and, among much else, established a law, the Charter of Rights and Freedoms, higher than Parliament, to which all legislatures and governments in Canada must conform. Here is more novelty than Viscount Monck could ever have imagined in a federal parliamentary constitution.