Preston Manning is the former leader of the Reform Party of Canada and a former leader of the Opposition.
Under Justin Trudeau, federal-provincial relations are at an all-time low. This is mainly because of the constant and ever-expanding intrusion of the federal government in areas of provincial jurisdiction.
Take health services, for example, which Canadians value highly and are greatly concerned about. Healthcare is primarily a provincial responsibility, yet the federal government intrudes via the Canada Health Act, offering funding via Canada Health Transfer payments only to provincial health care insurance systems operated by public authorities. If any province were to adopt the type of health care systems operated in Europe – most of which outperform Canada’s, but are organized as mixed public and private systems – the federal government would penalize that province by reducing its CHT payment.
Consider natural-resource development. The development of Canada’s agriculture, energy, mining, forestry and fisheries sectors is foundational to the Canadian economy and is primarily under provincial jurisdiction. Yet the Trudeau government not only denigrates these sectors as relics from the past and environmental liabilities, but endeavours to intrude massively in their operations through its Impact Assessment Act and recent amendments to the Competition Act.
In the 2023 book Trade and Commerce: Canada’s Economic Constitution, Malcolm Lavoie – a University of Alberta law professor currently serving as Alberta’s Deputy Minister of Justice – argues that the original economic vision of the Fathers of Confederation, which needs to be recovered, included a strong commitment to property rights, domestic free trade and subsidiarity. Subsidiarity is defined as the principle that the federal government, as the centralizing authority in the Canadian federation, should have a “subsidiary” function, performing primarily those functions that cannot effectively be performed at the provincial or local levels.
This principle is embodied in our Constitution, which clearly defines the primary responsibilities of both the federal and provincial governments, including their responsibilities for natural resources and municipal institutions. But when either level of government “intrudes” upon the responsibilities assigned to the other, federal-provincial relations can become strained to the point where both the efficiency and unity of the federation is threatened.
To further illustrate, municipalities and municipal governments are first and foremost a provincial responsibility. Yet the federal government intrudes in this area through the National Housing Act and the lending practices of the Canada Infrastructure Bank when it bypasses the provincial governments to deal directly with municipalities without provincial consultation.
Likewise, property and civil rights are primarily a provincial responsibility. Yet during the COVID-19 crisis and in reaction to the truckers’ convoy, the federal government intervened in this area by invoking the Emergencies Act, employing measures which the Federal Court later found to infringe unconstitutionally on both freedom of expression and the right to be secure against unreasonable search and seizure.
If a new federal government is elected in the next election, it could immediately improve federal-provincial relations, and thereby strengthen Canadian unity, by passing an Act Respecting Provincial Jurisdiction. The purpose of this act, which would be most strongly welcomed in Quebec and the West, would be to repeal those federal statutes that authorize unnecessary and unwanted federal intrusion in areas of provincial jurisdiction, or to at least amend those statutes to substantially reduce their intrusiveness.
Of course the provinces may pass legislation to protect themselves from unconstitutional incursions by the federal government in areas of provincial jurisdiction, but they too need to heed the advice to “stay in your lane.” The Constitution gives the federal government primary jurisdiction over trade and commerce, the intent of the Fathers of Confederation being to ensure domestic free trade within Canada. Yet the provinces have erected numerous barriers to interprovincial trade – a constant and pervasive provincial intrusion in an area of federal jurisdiction.
None of this is to say that there is no room for joint action by the federal and provincial government across jurisdictional lines. But that joint action should be with the mutual consent of both parties.
Perhaps with the election of a new federal government, and given the horse-trading nature of federal-provincial relations, a deal will be struck at the next federal-provincial conference. The federal government could wholly or partially withdraw from such areas of provincial jurisdiction such as health care, natural resources, municipal government, and property/civil rights if the provinces would agree to a major initiative to strike down interprovincial barriers to trade.
In the meantime, and in the future, both the federal and provincial governments are well-advised to stay in their lanes.