The constitutional basis for federal action within what have come to be seen as the health and social policy fields can be understood only in the light of three fundamental processes of change that have operated since the enactment of the British North America Act in The story of evolving judicial interpretations, and their decentralizing impact on the federation, has been widely told. Third, the provinces have "emerged," evolving from extremely rudimentary structures to become a level of government politically and administratively counterbalancing the federal government.
One aspect of this change is the dramatic increase in importance of what is now seen as the social policy sector. At the time of Confederation, this sector incorporating areas such as health, education and welfare was assumed to be a sphere of minimal governmental activity. As these areas have come to be seen as central to the role of government, the provinces have acquired heightened visibility and political legitimacy.
This development has added force to a tradition of provincial assertiveness and a gradual shift in the political centre of gravity in favour of the provinces which dates back to the very early days of Confederation. Fourth, the vast expansion of the scope of government since has generated a series of new policy fields not anticipated by the Fathers of Confederation and which have not proven to be assignable exclusively to either level of government. Examples of such fields, none of which is mentioned in the sections of the Constitution dealing with federal and provincial powers, include: the environment, culture, communications, regional development, industrial strategies, manpower and training, fitness and sports, health, tourism and science policy.
Fifth, the expansion of government did not merely involve the opening up of new areas in which to legislate, it involved a substantial broadening of government activity beyond the realm of legislation and regulation.
Thus, while the Fathers of Confederation appear to have envisioned government as primarily regulatory, supported by minimal levels of taxing and spending, governments today engage in four broad categories of activity: regulation, taxation, the provision of services, and spending. Direct federal initiatives within the social policy sectors typically involve a combination of these, each of which with the exception of regulation also has potential influence upon provincial governments. The five changes described have had profound impacts on the constitutional basis for federal influence within the social policy fields.
They have determined the practical meaning of the federal powers. More fundamentally, they have defined the jurisdictional questions in response to which these powers have been clarified, and shaped the political and intergovernmental context in which a federal role can be put into practice. The resulting federal powers, described by policy field, are as follows:. By virtue of section 93 of the Constitution Act, , provincial governments have the exclusive power to make "laws in relation to education," and are thus responsible for the establishment and administration of schools and universities.
Under section 93 4 , the federal government has a power to enact laws to implement constitutional provisions related to denominational schools, should the provinces fail to do so. This power has never been used, however.
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The federal government also has certain narrow responsibilities incidental to various heads of federal power, including responsibility for operating schools on military bases and Indian reserves. Provinces have varied in their acceptance of a stronger federal presence, however; in several cases, they claim that all training is a subspecies of education, and therefore a purely provincial matter, and have moved aggressively to establish their own training initiatives.
Thus, for example, Quebec, Ontario, and British Columbia in the early nineties created structures that either competed with or in the case of Quebec, pre-empted the Canadian Labour Force Development Board initiatives that the federal government sought to establish beginning in The spending power remains, however, a central basis for federal involvement in this field.
It enables both direct and indirect participation. Indirect participation consists of the post-secondary education cash and tax transfer to the provinces now a component of the CHST , and funds provided for minority official language education and second official language instruction through the Department of Canadian Heritage. Direct participation includes aid to students loans, grants and tax measures , and direct support for various aspects of post-secondary education, notably research through federal contracts and granting councils.
As well, the Department of Indian and Northern Affairs supports the post-secondary education of Indian and Inuit students.
Although the Constitution Act, assigned jurisdiction over hospitals to the provinces, it made no mention of the various additional components of the modern field of health policy and related programs. Reflecting this, the courts have deemed health to be an "amorphous topic," where one level of government or possibly both may act, depending on the purpose and effect of the particular health measure involved.
Provincial jurisdiction over property and civil rights as interpreted by the courts has become a major source of provincial regulatory authority within the health field. The provinces are the major players with respect to the provision of facilities and services. In addition to clear jurisdiction over hospitals and asylums, the provinces have been given extensive authority over public health on the grounds that it falls within the class of local or private matters made provincial responsibilities by the constitution.
The provinces also administer provincial medical insurance plans, reflecting their regulatory authority. In addition to the responsibility for marine hospitals and quarantine conferred in , the federal government has come to provide health services for Indian and Inuit people as a result of its general jurisdiction concerning these groups.
Certain services are also provided to residents of the Yukon, federal government employees, immigrants and civil aviation personnel. The federal government regulates food and drugs, inspects medical devices, administers health care insurance, and provides general health information services. As well, it can address issues of occupational health and safety in federally regulated economic sectors, through jurisdiction over labour relations and standards. The federal spending power has been used to considerable effect in the health care sector, as has been seen in Part I of this paper.
In addition to its use in launching hospital insurance and Medicare at the national level, the spending power is also the basis for diverse other federal activities in the health care sector, including the funding of medical research. The income support category is not mentioned in the Constitution, but the term has come to be employed by social policy analysts in recognition of the shared practical effect of a range of constitutionally distinct programs, all of which provide financial support based on an assumption of need.
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Two major types of such programs are: welfare-type non-contributory programs, whose eligibility tests focus on demonstrated need or membership in a designated group assumed likely to be in need, and insurance-type contributory programs which provide assistance to individuals who have contributed to them from previous income.
The capacity of provincial governments to make welfare payments to individuals has never been questioned. It is founded on the constitutional jurisdiction over "charities and eleemosynary institutions," supported by jurisdiction over "municipal institutions," "property and civil rights," and "matters of a merely local or private nature in the province. The federal government has no specific jurisdiction relating to social assistance payments or services, but the general "peace, order and good government" power has been accepted by the courts as a basis for some assistance programs, notably the Family Allowance, which was upheld on this ground in The federal spending power has proven to be the central basis for federal involvement in this field.
It has been invoked by the federal government as a basis for payments to individuals, payments to institutions, such as grants for the purpose of funding administrative improvements, experimentation and welfare research; conditional grants to provinces; and unconditional transfers such as the CHST and equalization payments.
The Constitution was interpreted by the Judicial Committee of the Privy Council as giving jurisdiction over social insurance-type programs to the provinces, as a species of insurance. After federal legislation that would have established a national social insurance program in response to the depression had been struck down by the courts in , the federal government and the provinces agreed to a constitutional amendment giving the federal government exclusive jurisdiction over unemployment insurance. When attention turned to contributory pensions in the fifties and sixties, the court decision prevented the federal government from establishing any pension program directly linked to the taxes or contributions used to finance it.
Federal jurisdiction over pensions and supplementary benefits did not confine the existing provincial jurisdiction, which was made paramount in the event of a conflict between federal and provincial laws. As well, paramountcy within the pension jurisdiction enabled the provinces to press the federal government for explicit guarantees when the Canada Pension Plan Act was being drafted.
Accordingly, this provides: 1 that any changes to the plan must be approved by two-thirds of the provincial governments representing at least two-thirds of the population, and 2 that any province may opt out with compensation and establish its own plan.
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Thus far, the government of Quebec has been the only province to do this. The federal spending power is of limited importance within the social insurance sector because federal jurisdiction enables the federal government to establish federal programs, and because of the nature of these programs as funded by contributions.
The powers just outlined can be used by the federal government in some areas to deliver social programs directly. In the provincial jurisdiction, the powers provide the basic tools with which the federal government can attempt to influence provincial programs and standards. This section provides a status report on major types of federal influence upon provincial governments. It is organized in two parts, to reflect the reality that intergovernmental relations are in virtually continuous evolution, and that at any given moment in the history of the federation some types of influence have been in stasis or decline, while others have been gaining importance.
The power of disallowance given to the federal government in allowed it unilaterally to disallow any provincial law within one year of its passage; the related power of reservation allowed the Lieutenant Governor of a province to reserve a bill for the "pleasure of the Governor General in Council" and provided that a reserved bill would have no effect unless approved at the federal level.
As the provinces have emerged as a distinct level of government, however, this high level of federal influence has become less and less acceptable politically, even though the powers remain in the Constitution.
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The power of disallowance has not been used at all since the s, and not extensively since the turn of the century, while the power of reservation has likewise fallen into disuse. Attempts to use these powers today would undoubtedly provoke enormous political controversy and could also be open to judicial rejection as violating a constitutional convention.
In short, the evolving system has left them aside. The power to tax is dealt with in general terms in the Constitution Act, The federal government is given unrestricted powers to tax, while the provincial governments are awarded the power of direct taxation within the province i. In the years since , the taxation system has come to perform a number of critical functions additional to that of revenue-raising.
It is a major means of economic management, and also "an important vehicle for delivering social benefits to Canadians. They provide a major potential means for federal income support, up to and including a national guaranteed income. Federal tax credits can contribute directly to the meeting of national standards for income support, and can also contribute indirectly by altering the provincial tax base and triggering involuntary provincial tax benefits. In addition, the tax credit mechanism has potential uses as a means of maintaining standards widely outside the area of income support.
Limits : The use of the tax system to ensure adherence to national standards is, however, limited in four important ways:.
Federal assistance through this mechanism goes to individuals rather than governments. It would encourage provincial governments to lower to the greatest possible extent the benefits a federal tax credit was designed to supplement or increase to the maximum extent charges to be compensated , thus freeing up provincial funds. Non-cost-shared federal financing is required, through forgone federal tax revenues, making tax credits difficult to increase in an era of fiscal restraint.
Provincial counter-actions are broadly available. First, the Constitution gives provinces as well as the federal government the power to levy direct taxes. Indeed, federal unilateralism in this area could fracture the harmonization of federal and provincial taxation sales taxes being the exception achieved during the s, and provoke a regression to the "tax jungle" of earlier times. The Constitution does not explicitly define a "spending power," either of the federal government or the provinces.
Both levels of government have therefore felt free to spend revenues outside their areas of substantive jurisdiction. In the case of the federal government, a spending power can be inferred from the powers granted to levy taxes implying the raising of revenue , to legislate in relation to public property, and to appropriate federal funds. The array of federal-provincial cost-shared programs created during the post-war period, implies an extremely wide potential scope for the federal spending power. The Hon. The central advantage of the spending power is precisely that the absence of constitutional definition enables an extremely wide application.
Reflecting this, the spending power has provided the constitutional basis not only for a multitude of federal-provincial transfers over the years, but also for grants and loans to private firms or individuals, the tax expenditure provisions of the Income Tax Act , and the commercial activities of the federal government. Limits : While use of the spending power does not appear to be seriously constrained by the Constitution, it remains subject to important fiscal and political limits.
Use of the spending power to initiate new programs relies on the availability of new federal money, following the pattern of the cost-shared programs of the fifties and sixties. Fiscal constraints now applying to both the federal and provincial governments limit the likelihood of major new programs. Use of the spending power to induce provincial compliance with federal program standards or objectives requires the existence of cash transfers which can be made subject to conditions. It is thus in tension with long-standing pressures from some provinces for increasing provincial revenue-raising capacities to match spending needs disentanglement.
Federal use of the spending power has long provoked political resistance from Quebec and, in varying degrees, from other provinces, on the grounds that it represents an intrusion into provincial jurisdictions. In the Speech for the Throne, it was announced that the federal government would not use its spending power to create new shared-cost programs in areas of exclusive provincial jurisdiction without the consent of a majority of the provinces.
Furthermore, all new programs would incorporate provisions for individual provinces to opt out with compensation, provided they established "equivalent or comparable" initiatives. Where provinces have sufficient fiscal capacity and political support, they can counter federal spending power initiatives by:. Thus, each level of government has a range of possible opportunities to influence the other level, depending on their respective jurisdictions, activities involved, existing intergovernmental arrangements, and prevailing political imperatives. The development of the Canada and Quebec pension plans illustrates some of the dynamics that can apply within a shared policy field.
Old age pensions are a concurrent jurisdiction with provincial paramountcy, which enabled Quebec to opt out of the Canada Pension Plan CPP at its inception. Mobility and equity considerations created a strong incentive, however, for the harmonization of the national and Quebec plans.
The government of Quebec outlined a pension regime at a federal-provincial conference that offered broader coverage, higher benefit levels, and stronger redistributive impacts than the scheme being proposed by Ottawa. This created pressure on the federal government to enhance its own proposals, in order to reassert policy leadership and demonstrate that the federal system could deliver pensions as attractive as the one proposed by Quebec. Limits : Four general limitations apply to federal action within shared policy fields as a means of influencing standards:.
Federal leverage is not consistently available across the full range of policy fields, being highly dependent on the unique particulars of each situation.