FELDSTED: Canadian Constitution and the Powers of Provinces

The myth that our federal government is in charge of our economy is ludicrous, and federal interventions in business are killing our economy.

Our constitution sets out the powers and responsibilities of provinces under Sections 92, 92A, 93, 94, 94A and 95.

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

1	Repealed.
2	Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.
3	The borrowing of Money on the sole Credit of the Province.
4	The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.
5	The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.
6	The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province.
7	The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals
8	Municipal Institutions in the Province.
9	Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.
10	Local Works and Undertakings other than such as are of the following Classes:
	(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province
	(b) Lines of Steam Ships between the Province and any British or Foreign Country:
	(c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.
11	The Incorporation of Companies with Provincial Objects.
12	The Solemnization of Marriage in the Province.
13	Property and Civil Rights in the Province.
14	The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts
15	The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.
16	Generally, all Matters of a merely local or private Nature in the Province.

This commentary deals with Section 92 and some of the ramification therein. Section 92 2 gives provinces the right to collect its own taxes separate from the federal government. Provinces can collect income taxes and their portion of sales taxes directly to improve cash flows.

Section 7 is particularly thorny. The province is in charge of health care with some exceptions. The federal government remains responsible for Marine (military) hospitals, inmates of federal prisons, Indians, and quarantine (communicable diseases). 

Provincial hospital care was introduced in Saskatchewan in 1947 and in Alberta in 1950. The federal government first intruded into health care with passage of the Hospital Insurance and Diagnostic Services Act which was passed by the Liberal majority government of Louis St. Laurent in 1957. That Act reimbursed one-half of provincial and territorial costs for hospital and diagnostic services administered under provincial and territorial health insurance programs. 

By January 1, 1961 all ten provinces were enlisted in the program.

In order to receive funding, services had to be universal, comprehensive, accessible and portable. This stipulation was dropped in 1977 with the Established Programs Financing Act and then reinstated in 1984 in the Canada Health Act. Part of why we are facing a health care crisis today is that under terms of the Canada Health Act, provinces are prohibited from innovation to adapt to needs of an aging population and a nation-wide scarcity of doctors and nurses.

The Canada Health Act appears to be outside federal constitutional authority. Health care, with the exceptions noted above is a provincial subject and jurisdiction. The CHA is a vehicle of coercion as provinces that do not comply can have funding cut. Federal funding of health care has diminished, dropping from 50% of costs to approximately 25% today. Provinces carry 75% of the cost burden and must be freed to innovate to stretch budgets further.

Another contention area is section 92 14. The federal government has jurisdiction over criminal law and procedure in criminal matters while provinces are responsible for providing the courts and infrastructure required. Provinces should be able to seek reimbursement for the costs of operating criminal justice, which is substantial and includes the costs of policing and prosecuting criminal offences.

Before we leave Constitution Section 92, we have to review section 92 – 10.

10. Local Works and Undertakings other than such as are of the following Classes:

(a)  Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province

(b)  Lines of Steam Ships between the Province and any British or Foreign Country:

(c)  Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

This clause is vitally important to Canada and the provinces. Clause 10 (a) puts the responsibility for airports, ferries, highways, railroads and ships connecting provinces and connecting Canada to ports and foreign countries squarely on the federal government.

The Trans-Canada highway, and railroads, form the backbone of our interconnections. It is a federal, not a provincial responsibility to create, maintain and upgrade these vital transportation arteries. 

The rail links from our main railroads, to the Port of Churchill, and to US entry points are a federal responsibility -- as are the highways linking the Trans Canada Highway to US entry points. 

Twinning the Trans Canada highway from coast to coast is a federal responsibility. 

Twinning our rail lines from coat to coast is a federal responsibility, as is maintaining a viable rail passenger service from coast to coast is a federal responsibility. 

The federal government has created a first-class highway, rail and rail passenger service in the Toronto – Montreal - Ottawa triangle and left the rest of the nation to rust. That is unacceptable. 

We need our airports and sea ports linked to, and integrated with, rail and road transport to provide seamless transport of goods we import and export.

Clause 10 (c) puts the responsibility for development of pipelines, refineries and other works that benefit two or more provinces or Canada squarely on the federal government. 

Provincial and indigenous legal actions respecting the Trans-Mountain pipeline and expansion are superfluous nonsense. The Premier of Quebec, and Mayor of Montreal, have no voice in these matters. The federal government is ducking its constitutional responsibility to take leadership on these issues. 

It is failing Canada by not doing so. 

Federal legislation banning tanker traffic, from the northern British Columbia coast and ports, is a conflict of interest as it has a constitutional responsibility for development of the port and to expedite resource exports. The federal responsibility extends to providing rail and road access to an export port.

Federal claims that it is embroiled in legal actions, and indigenous negotiations, while it has the constitutional and legal powers to take control and act in the best interests of Canadians, is a continuation of its refusal to accept its constitutional responsibilities outside of central Canada.

The efforts to preserve the environment of whales and marine life along the west coast is similar clap-trap. We have the same problems with marine traffic and marine life on the eastern and northern coasts, and along the St. Lawrence river. Oiling squeaky wheels rather than dealing with the realities of universal problems is a hallmark of a government that has lost its way. 

Federal focus on its constitutional powers, rather then its constitutional responsibilities, must end.  The notion that the federal government can deal with issues and provinces selectively rather than ethically, equally and fairly is unacceptable. 

The outdated concept that Ontario and Quebec have a special status not shared by other provinces is useless if we wish to avoid rebellion and an end to confederation.

The myth that our federal government is in charge of our economy is ludicrous, and federal interventions in business are killing our economy. 

The government role is to create a level and fair playing field for investors and entrepreneurs who have the expertise to build a robust economy. Federal politicians and bureaucrats lack the understanding and experience to pick winners and losers.

Lastly, federal corporate cronyism has to go. The interest of the cables the government is in bed with are not the interests of Canadians. 

Governance based on friends helping friends is contrary to representative government and democratic principles. That conversation has to be a key element of the next election campaign.

John Feldsted

Political Consultant & Strategist

Winnipeg, Manitoba