2.11 The Provincial Rights Movement

The last place one might expect to find dissent within the new federation is Ontario. After all, Ontarian politicians had done the lion’s share of crafting the federal constitution: they had successfully annexed the West, the capital was located in Ontario (which is to say, not in Montreal — the largest city in the country — and thus three provinces away from Nova Scotia), and the first two Prime Ministers (Macdonald and Mackenzie) were Ontarians. Of the first three Premiers of Ontario after 1867, two were Macdonald stalwarts and one — Oliver Mowat (1820-1903) — was himself a father of Confederation. Despite all of this, or perhaps because of it, Ontario emerged as the leading force in favour of limiting federal strength and empowering the provinces.

The Genesis of Confederation

In order to understand how Canadian federalism adjusted in these years, it is necessary to understand what was at its heart. Five British North American colonies considered uniting in a federal form, two walked away from the table leaving Canada (one colony that would soon become two), Nova Scotia, and New Brunswick. All three signed on and then the largest underwent the constitutional equivalent of cellular fission, creating Ontario and Quebec. Keep in mind that neither Canada West (Ontario) nor Canada East (Quebec) had their own legislatures, let alone their own governments. What they did have was separate votes. Half of the Canadian assembly (the Anglo-Protestant half) then voted overwhelmingly for federation; the other half (the largely Franco-Catholic half) voted for it but with less enthusiasm. What they were implicitly voting for was the creation of the two central Canadian provinces. Ontarians were delighted to be freed of what they called the “millstone” of Canada East; popular opinion regarded the old Province of Canada as a parasitical relationship in which the down-river Canadians “fleeced” the majority who lived up-river.^[1] For Quebec, federation meant relief from the threat of interference with culture, language, and religion from the Orangemen of Ontario.

This is clearly complicated: two distinct colonies were united with two others that voted themselves into existence. Soon after, they were joined by another two volunteers (PEI and BC) and one that bargained its way into existence through a federal act of legislation (Manitoba). In other words, the provinces were not created equally. The question that arises here, then, is this: were the provinces signatories to a pact, or were they the product of a legislative act (that is, the BNA Act)?

What John A. Macdonald wanted at the outset was a legislative union and unitary state. The federal model was based in no small measure on the American system, in which the states were semi-autonomous bodies with an over-arching central government in Washington, DC. The unitary model to which Macdonald was drawn was, of course, that of the United Kingdom. His logic was, moreover, very sound. In the face of American aggression what was needed was a strong central state to defend the Dominion; in an uncertain economic world a single government would be more efficient and less expensive than a crop of provinces. Any hope of expanding across the Northwest would be better realized by one administration with a unified vision than a consortium seeking something like consensus.^[2] One of Macdonald’s biographers maintains that the Conservative leader aimed for a genuine federal system, warts and all, which is what he got.^[3] Nevertheless, there were times when one could argue that Macdonald’s behaviour as prime minister suggests that he was carrying on as though he were at the head of a unitary state.

The compromise in 1867 was a federal union with a strong central government. Each province was to have exclusive control over local affairs and Ottawa would deal with issues of national consequence. The remaining question, of course, was this: where to draw the line between the two?

POGG

The BNA Act includes a clause regarding “residual” or “residuary powers.” That is, it covers everything either not itemized or as yet not imagined in the constitutional division of authority. Sections 91 to 95 deal with the division of powers and they begin with this passage in Section 91:

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces….^[4]

Everything not allocated to the provinces would be the jurisdiction of Ottawa. And “Peace, Order, and good Government” (referred to by scholars, politicians and commentators as POGG) could cover anything and everything. The division of powers, moreover, was not absolutely clear: there were overlaps and things were a bit messy with regard to immigration. In short, there remained questions as to which level of government had a superior claim in grey areas, and the extent of federal residual powers in general. None of this addressed the relative sovereignty of the provinces — the consenting participants in the constitutional relationship. Who would decide and how would they do so?

Disallowance

To the leading figures in the Confederation debates and in the provincial legislatures after 1867, the answer was clear: Confederation was a product of the provinces. Some of their peers, such as Macdonald, could reply: if Ottawa is a level of government generated by the provinces, then surely it should have oversight? The BNA Act gave substance to this argument in the form of disallowance. This was an effective veto held by Ottawa that could be used to overturn provincial legislation. It was, however, not something to be used recklessly. Macdonald was very deliberate in his efforts to define the boundaries of disallowance.^[5] Clearly anything that was outside of the constitutionally-defined powers of the provinces was fair game, but there was far more that remained unanticipated or ambiguous. From 1867-73, Macdonald’s approach was to ameliorate differences of opinion by liaising directly with provincial Premiers. Alexander Mackenzie’s position was similar. After 1878, upon Macdonald’s return, Ottawa was more willing to push back with the veto. Historians attribute this change in direction to a number of factors, including the establishment of several genuinely national institutions. The NWMP (1873) and the National Policy (1878) were two; there was also the Post Office Department (1867), the Supreme Court (1875), the national penitentiary system (effectively in place by 1875), and the emergence of a more stable and permanent national political party system that coalesced around the Conservatives and the Liberals.^[6] Commitment to building a national railway was, in this context, another string to Canada’s bow — another facet of a growing national infrastructure. The Bank of Canada would not appear until 1935 and, until then, the Treasury commissioned the commercial Bank of Montreal to print currency — an arrangement that gave the Treasury a presence of sorts on every Main Street. As Ottawa’s reach extended across provincial boundaries via these institutions and agencies, so too did its interests. The lines between provinces and Ottawa were increasingly blurred.

The mechanism for vetoing provincial legislation arose from an almost identical relationship between Ottawa and Westminster. If legislation proposed in the Canadian House of Commons passed third reading and was approved by the Senate, it was still within the authority of the governor general to refuse to sign it into law and to send it on to England for further discussion by the British Cabinet. In this way, Britain — still the imperial centre — could disallow or veto Canadian federal laws. It made some sense to mirror this relationship with the provinces: just as the governor general was an imperial appointment, the lieutenant-governor was Ottawa’s. If provincial legislation offended federal sensibilities, the province’s lieutenant-governor would refuse to sign it, and would send it on to Ottawa for consideration. The Cabinet would then decide how to proceed. One option was to simply neglect the proposed legislation for a year and allow it to die from administrative inertia.

From 1867-1873, Macdonald’s government exercised their ability to withhold assent on 16 of 24 occasions. Mackenzie’s Liberals also vetoed provincial legislation. Provinces had the option of reintroducing and passing the legislation repeatedly — it became the convention that passing a bill three times at the provincial level would force Ottawa to approve it — but that depended often on the durability of a provincial administration or on the existence of all-party support for the initiative at the provincial level. The provinces, however, maintained that the courts were the proper place to settle jurisdictional disputes, not the federal Cabinet (which, clearly, had a stake in the outcome). It was this avenue that the premiers collectively and individually opted to pursue.^[7]

The premiers could reach consensus on this subject in part because, at the time, most of them were Liberals. The first 30 years of Confederation rewarded the Conservatives with office in Ottawa for all but five years – the Mackenzie administration of 1873-78. Liberal weakness at the federal level was countered with strength in the provinces (although not in British Columbia, where — until 1903 — politicians took pains to avoid Conservative or Liberal banners so as to be more free to criticize whatever regime was in power nationally). And, of course, they had all experienced the inconvenience (not to say insult) of having their legislation disallowed.

Appealing to the Supreme Court of Canada was something of a non-starter. The provinces therefore appealed to the Judicial Committee of the Privy Council in England. This was an effective way of entrenching in law — though not in the constitution — the notion of provincial rights. By the 1890s, the principle of co-equal levels of government had been established. Under Wilfrid Laurier (an advocate of provincial rights), after 1896, the issue ceased to carry the kind of divisive power it once had.