One need only take a look at the Liberal Party of Canada’s platform made public in the last federal election – and confirmed, if not reinforced in some respects in the Speech from the Throne of November 23 – to see how point the real ambitions of the Trudeau government are likely to interfere with provincial jurisdictions. The title of this document is Let’s move forward together, but it is easy to understand from its reading that it is a question of moving forward together in the fields of provincial jurisdiction. Whether in matters of health, housing, municipal affairs or childcare services, the federal designs are well asserted and do not allow themselves to be hampered by the sharing of legislative powers. At the very basis of this interventionism is the federal spending power, which is coming back in force these days.
The federal spending power is nowhere recognized in the Constitution, but it is largely endorsed by the Supreme Court of Canada, even when it is exercised in areas of provincial jurisdiction. The only limit that this court seems to want to place on the exercise of this power at this time is that it must not amount to an attempt to legislate in an area of provincial jurisdiction or to an attempt to govern or otherwise regulate an area of provincial jurisdiction. such field. It is not much as a requirement, let’s admit it.
When it comes with conditions, the federal spending power gradually undermines the constitutional autonomy of the provinces. In this sense, the Canadian government’s desire to impose new national health standards is something the provinces should oppose at all costs.
A power to be marked out
At various times in our history, political actors have felt the need to set guidelines for the exercise of the federal spending power. Thus, in the Meech Lake Accord, it was provided that fair financial compensation would be granted to any province that did not participate in a new shared-cost national program in an area of exclusive provincial jurisdiction, if that province implemented on its own initiative or program compatible with national objectives. The same measure was repeated in the Charlottetown Accord, subject to the addition that the federal and provincial governments would undertake to develop a framework – which might have been constitutionalized – to guide the exercise of power. federal spending in areas of exclusive provincial jurisdiction.
The 1999 social union framework agreement sought, among other things, to limit the exercise of the federal spending power so that it could no longer be used to develop new health initiatives. , post-secondary education, social assistance or social services – whether federal funding or shared-cost programs – without a majority of provinces consenting to it.
Finally, the attempt to limit the federal spending power that was contained in a draft agreement proposed to Quebec by the Harper government in 2014 would have allowed the Quebec government to withdraw from the new co-financed programs that would have been implemented by the Canadian government in areas of exclusively provincial jurisdiction and to receive full financial compensation in return.
In all the cases mentioned above, the limitation of the federal spending power was a trap from a Quebec (and provincial) perspective, since the federal government no longer really uses shared-cost or co-funded programs to occupy it. – partially the areas of provincial jurisdiction (Meech, Charlottetown and the 2014 draft agreement) and since the criterion of “the majority of provinces” (framework agreement on the social union) did not necessarily include Quebec ( nor indeed any other Canadian province).
Be careful
Federal spending power allows the Canadian government to take a firm seat in provincial legislative spheres. Quebec, which has never recognized the existence of this power and which even denies its constitutional basis, must be very careful in this matter. Once the existence of this power is admitted and the dyke or the sluice gate is opened, there will be nothing left to prevent the flow or the flow of federal spending!
Moreover, let us not forget, there is a clear link between the federal spending power and the issue of fiscal imbalance in Canada. The latter is in fact linked to the fact that the Canadian government annually monopolizes a larger share of the tax base than it really needs to fulfill its constitutional responsibilities, while the opposite is true for the provinces. The result is an inequity, which is also based on a structural flaw in Canadian federalism. This flaw in turn only fuels the federal spending power.
Unfortunately, among the Canadian provinces, there is little more than Quebec – and perhaps Alberta, at the limit – to really worry about the use of the federal spending power. In this sense, Quebeckers are probably the most fervent federalists in Canada. They defend tooth and nail the constitutional autonomy of Quebec, insist that the very essence of the Constitution be respected and demonstrate a true federative spirit.
In other words, if the federal spending power is the wolf in the fold, Quebec is the watchdog of Canadian federalism. The decline in its demographic weight and perhaps even in its political weight in Canada as a whole can only herald auspicious days for the sometimes centralizing and integrating aims of the Government of Canada.