Canadian Federalism Compared to American Federalism

Broadly speaking, the early history of Canada started with the competition between the British and the French colonies in the 16th century. The fur trade was one of the main economic drivers of early colonization. At that time, the English were still in control of the Thirteen Colonies. In 1707, England and Scotland merged to form Great Britain. Eventually, the British colonies defeated the French colonies in 1763 but the Thirteen Colonies declared independence in 1776. The American Constitution was ratified in 1787 and the first ten Amendments called the “Bill of Rights” were ratified in 1791. At the time, the loyalists to the British Empire retained control over what was called Lower Canada and Upper Canada (as well as what are today Atlantic provinces). In 1801, Britain merged with Ireland to form the United Kingdom. The United Kingdom and the United States fought a war in 1812. The result of the war was a clearly drawn and fortified border between British North America and the United States.

The American Civil War started in 1861 and ended in 1865. The result of the American Civil War was a much more cohesive federal-level sovereign state. The British then began a campaign to unite all their North American colonies into one federal-level sovereign state as well. The British North America Act was proclaimed by the British Empire in 1867 for this purpose. The Westward expansion took place in Canada and the United States (also known as the Wild West era) between 1860 and the turn of the 20th century. All the present-day provinces (except for Newfoundland) joined Canada by 1905. Newfoundland joined Canada as the last province in 1949. Finally, Canada became a fully sovereign country in 1982 when its Constitution was “patriated”.

The American Constitution originally envisioned strong states and a weaker federal government. The Electoral College is an expression of that concept. Under this system, even if a particular state wanted to oppose a particular presidential candidate, the most it could do was ensure that the candidate did not win that state. If there was no Electoral College, and a popular vote is taken, a state could theoretically by fraud return a result where its favored candidate wins 100% of the votes and its disfavored candidate wins 0% of the votes, which would have a more significant impact on the nationwide tally (assuming other states were faithfully counting popular votes). In Canada, there is no Electoral College, but rather the Members of Parliament candidates of each party seek to win their own “ridings”, which is a geographic area drawn based on population.

The Canadian Constitution mainly consists of the British North America Act (now called Constitution Act 1867) and the Constitution Act 1982 (which includes the Charter of Rights and Freedoms). The foundations of Canadian federalism were already laid down in the 1867 Act and its subsequent interpretations by the Privy Council of the United Kingdom. Notably, the Act was drafted in the shadow of the American Civil War, bearing in mind the lessons from that war. The Act was contemporaneous with the ratification of the “Reconstruction Amendments” (Fourteenth, Fifteenth and Sixteenth Amendments) between 1865 and 1870.

At first, Canadian federalism was very centralized compared to the United States – the provinces do not have their own constitutions, for example, suggesting that Canada is not even a truly federal state. In the United States, the federal government has enumerated powers while the residual powers remain with the states. A few federal powers are exclusive (such as conducting foreign affairs) but most powers are concurrently held with the states (such as criminal law). If the federal government has not legislated in a particular domain, states may do so unless it relates to an exclusive federal power. Once the federal government has legislated in a particular domain, then the doctrine of preemption requires that federal law preempts state law when the two conflict. On the other hand, in Canada, both the federal government and provinces have enumerated powers. Notably, criminal law is an exclusively federal domain. Aside from the enumerated powers, the residual powers (called making laws for “Peace, Order and Good Government”) belong to the federal government. Unlike the United States, concurrent powers in Canada are enumerated and very limited (old age pensions, immigration and agriculture). This means that, on the face of it, a relatively greater part of the legislative competence is allocated to the federal government (creating a more centralized federalism).

However, the judicial interpretations of both the Canadian Constitution and the American Constitution changed the trajectory of federalism in the two countries, which ended up being the opposite of one another again. In Canada, Privy Council judicial interpretations in the 19th and early 20th centuries have narrowly construed the federal enumerated powers and broadly construed the main provincial enumerated power “property and civil rights in a province”. As a result, the provincial legislatures are competent to legislate on almost any subject matter that is largely confined to its own province (but not criminal law). On the other hand, the United States went through the Lochner Era (1897 to 1937), when the Supreme Court struck down federal laws considered to encroach on state rights. Then, starting from 1937, in a dramatic reversal, the federal commerce clause was interpreted to grant Congress competence to legislate on almost any interstate matter.

In a sense, the Lochner doctrine is the present Canadian federalism doctrine. Moreover, the Canadian federal government is weaker vis-à-vis individual provinces because there are only 10 provinces instead of 50 states. The largest province is Ontario, with almost 40% of the Canadian population while the largest state, California, is only 12% of the American population. Moreover, Canada’s capital city, Ottawa, is part of Ontario while District of Columbia is not a part of any state. Therefore, in terms of legislative competence (other than criminal law), in terms of population and economy under administration and in terms of geography, Canadian federalism is less centralized than the United States.

Moreover, the Constitution Act 1982 included several rules that favored provincial autonomy. Firstly, if a provincial law is found to infringe on the Charter of Rights and Freedoms (including fundamental freedoms, legal rights and equality rights but excluding democratic rights), the provincial government can override the Charter under the “notwithstanding clause”. Moreover, the Canadian Constitution may be amended by merely the assent of the two houses of Parliament and the provincial legislature if the amendment affects only one province. Both rules were included with the interests of Quebec as a “distinct society” in mind.

Balancing out the above is that while the provinces’ “property and civil rights in a province” legislative competence is broad and states’ legislative competence runs up against the federal commerce clause and preemption doctrine easily, the implementation of provincial laws are not as autonomous as state laws and federal influence is unavoidable. Principally, provinces do not have separate legal systems, unlike the state courts of the United States. In the United States, a federal court cannot interpret a state statute in a way differently from the state supreme court (even when evaluating its constitutionality). The jurisdiction of the Supreme Court of Canada is equivalent to what would happen if the highest courts of each state were to be merged into the Supreme Court of the United States. The Supreme Court of Canada is the final arbiter of the interpretation of all provincial legislation (as well as federal legislation and the Constitution). Therefore, there is no provincial common law. Unless there are differing interpretations among the courts of different provinces not yet resolved by the Supreme Court, Canada has only one common law. This is equivalent to circuit splits in the United States Federal Courts. Similarly, Canadian provinces do not have constitutions and Canadian provinces do not enjoy sovereign immunity in federal court, unlike states of the United States. Moreover, provincial appellate judges are appointed by the federal government, thereby making the Canadian judiciary above the lowest court level a federal government concern.

When Canada was not yet a sovereign country, the powers of reservation and disallowance were important. They were the means for the Crown (acting through the Governor General or the Lieutenant Governor) to directly control the colonial / dominion affairs by overriding Parliament or provincial legislatures. Historically, these powers have been used when federal legislation was deemed unconstitutional by the Governor General or when provincial legislation, on the advice of the federal government, was deemed unconstitutional by the Governor General or Lieutenant Governor. They have not been used since 1961 and are no longer viable after the 1982 Patriation.

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