Opinion: It's time for a centralization movement in Canada

Canada is the most decentralized federation in the world. In some ways, this is no historical accident. At Confederation, federalism was the only mechanism to accommodate the French, heavily concentrated in Quebec. Add an immense geography (and regional economies heavily influenced by that geography), the development of diverse regional cultures, and a constitutional division of powers that gave provinces what in 1867 seemed like relatively unimportant, local matters of jurisdiction but what in modern times have become some of the most important areas of authority (health care, education, and other core aspects of the welfare state) and you have a recipe for powerful constituent units of a federation.

But other developments have pushed Canada’s decentralization too far. Landmark rulings of the Judicial Committee of the Privy Council (an imperial body that until 1949 served as Canada’s final appellate court) broadened provincial authority at the expense of key federal powers - especially the trade and commerce power. These decisions ran contrary to the clear purpose of the Constitution, which was to ensure a powerful central government, especially on matters of economic regulation, and while the Supreme Court’s federalism jurisprudence has oscillated over time, the old precedents continue to inhibit our capacity to eliminate trade barriers that are unthinkable in most countries (as just one example).

Threats to national unity, principally from Quebec, have also led to further forms of decentralization. The provinces, and especially Quebec, have gained significant authority over matters traditionally belonging to the federal level, including immigration policy, and increasingly over foreign affairs matters like international trade.

Some of the most insidious forms of decentralization have occurred at the level of politics. Provincial governments routinely engage in buck-passing and blame avoidance, attempts to pin responsibility on the federal government for matters under their own jurisdiction. From the deteriorated state of their health care systems to the housing crisis, provinces demand federal action (and especially money) all while simultaneously decrying any attempt by the federal level to put in place conditions to ensure the money is spent on those areas.

It is an irony that the most trenchant criticism of federal power concerns the use of the federal spending power (simplistically, the idea that the feds can spend money on pretty much whatever they want, including in areas related to provincial jurisdiction). The spending power gets a bad rap for a number of reasons: 1) it creates a perception of a ‘fiscal imbalance’, the idea that the feds have all the money and the provinces have none and are thus overburdened. In truth, the provinces have all of the same revenue-generating authority (i.e. ability to raise taxes) as the feds, they simply aren’t willing to use them to properly fund the programs and services under their jurisdiction. So the first irony is that while complaining about the use of the spending power, the provinces’ number one priority in health care reform isn’t to do health care reform, it’s to demand more money from the federal government! 2) the federal spending power is basically the only major centralizing force in Canadian politics. Take it away, or limit its use, and few of the recent innovations in Canadian social policy - dental coverage, major advances in child care affordability, hell - maybe even the Canada Child Benefit - materialize. The irony here is the inverse of the first - without the federal spending power, provinces would be left to their own devices on social policy reform. And given the quality of provincial leadership in this country, most Canadians would likely be far worse off.

Meanwhile, the federal level is subject to all sorts of complaints about not providing enough money for areas of provincial responsibility, to the point that Canadians, ignorant of the division of powers, routinely blame the feds for issues that are squarely within provincial jurisdiction. But the inverse isn’t true. The federal government has been unwilling to criticize obscene breaches of the constitution by the provinces, from Quebec’s horrific attacks on minority rights in the form of Bill 21 and Bill 96, to blatantly unconstitutional attempts to unilaterally amend the national constitution by Quebec and Saskatchewan or positively anti-constitutional attacks by Alberta on the very idea of a division of powers. The moral cowardice, and virtual silence, of the federal political parties on these matters only emboldens this nonsense, weakening the rule of law and encouraging further threats.

And now we have Alberta Premier Danielle Smith actively courting a provincial referendum on secession. Alberta separation may well be a non-starter, but the lack of condemnation - indeed, the fact that she hasn’t been tossed out on her treasonous ass - is all you need to know about how badly we need to begin championing the national government in this country. In the midst of an economic attack on Canada by Trump’s America, and what is a very real existential threat to our sovereignty, that any Canadian politician is allowed to threaten national unity over petty ideological grievance politics (and to distract from a litany of her own scandals) should be unacceptable.

None of this is to say that the federal government never oversteps. The Trudeau government was aggressive on environmental regulation, and it didn’t always win in court. Perhaps most problematic is the patronizing tone its communications around that issue took. As Jared Wesley has written, the feds can do a better job on intergovernmental relations with renewed forms of engagement and cooperation (I don’t agree with everything he writes here, nor the full credence he gives provincial grievances, but there are a lot of good ideas in the mix).

On the whole, however, and especially at this crucial political moment, what we need is to start championing the federal role. By a ‘centralization movement’ I do not mean we should be uploading more responsibilities to the federal level. But we should be encouraging a renewed spirit of leadership in areas of federal jurisdiction, especially as it relates to the national economy. For example, if ongoing efforts to reduce internal trade barriers in Canada prove unsuccessful, the federal government should start pushing the limits of the trade and commerce power, and regulate where doing so would result in liberalization and centralization of trade policy across provincial borders such that conflicting provincial laws fall to the paramountcy doctrine, which holds that otherwise valid federal law takes precedence.

The federal government must also be more assertive in protecting the Constitution, whether it is for the proposition that everyone in this country enjoys the same Charter rights - and especially to protect minorities within minorities - or to safeguard against the constitutional vandalism of provinces that assert, ridiculously, that they have the authority to add new provisions to the Constitution Act, 1867.

We must also reject further attempts at decentralization. This does not mean that we should avoid meaningful constitutional change where needed, or where good ideas emerge. But demands for greater provincial powers at the expense of federal ones must be eyed with caution. Quebec wants a say in Supreme Court appointments? Okay. But only in exchange for something just as meaningful, and that works in a centripetal fashion to counterbalance the centrifugal demand at stake; say, for example, we get rid of the notwithstanding clause.

Finally, it is time to start calling out a lot of provincial grievance for the rank bullshit it often is. When Quebec attacks minority rights by dictating what religious minorities cannot wear in the name of ‘state secularism’, it is incumbent on us to point out that what it is doing is in fact a perversion of state secularism, which requires state neutrality on religion, not enforced irreligion. When Alberta - the richest province with by far the highest per capita incomes in the country - dares to complain about how unfair the rest of Canada is to it, we must push back on the lies its elites put out about economic realities in this country, about how the federal equalization program actually works, and about why its (heavily subsidized, by the way) oil and gas sector must do its part to combat carbon emissions, emissions that know no border and are not a local ‘matter’ (constitutionally or otherwise).

For too long we have put up with a federalism in which provinces act like the whiny, selfish crybabies of Confederation. This is not function of the federal government always being right and provinces always being wrong. Indeed, part of the problem is that the feds are often weak and selfish in a different way, ineffective at capturing hearts and minds in the face of provincial populist appeals and capitulating far too easily in the face of illegitimate or fact-free demands. Case in point: had the Trudeau Liberals taken a different tact to some of their policies - and some of the communications around them - perhaps we would not have lost a perfectly valid carbon pricing policy to the effects of little more than raw disinformation about how it worked.

Nor is this to say that there aren’t areas where provincial authority warrants respect, and indeed where federalism as a laboratory of policy experimentation and learning shouldn’t be further cultivated. In some areas - health care reform being one example - too much ‘federal leadership’ can inhibit policy innovation and stymie effective solutions. But this requires provinces with real leaders instead of people who constantly blame the feds for the problems they themselves refuse to address.

Whatever the federal level’s ills, provincial governments far too often escape responsibility in conversations around federalism. Where is the responsibility of provincial politicians to protect national unity? When the feds increase health care funding or provide billions in extra support during the pandemic, and it turns out provinces like Ontario decrease health spending and close emergency rooms across the province, why doesn’t that resonate? I fear it is because we have become a country that prioritizes pitting regions against each other, that is prone to misinformation about how federalism actually works, and where much of the electorate has succumbed to petty, selfish provincial populist rhetoric.

And for these reasons, we need to seize this rare moment of Canadian patriotism and start championing the national role. We need to start demanding of the feds that they grow a spine, assert their authority, and show some long-term vision. And we need to start pushing back on anyone - including provincial elites - who seek to divide or attack Canada at this decisive, fragile, and historic moment in one of the too few true democracies on Earth.