INTRODUCTION

Canadian provinces are commonly regarded as some of the most powerful subunits among contemporary federations. Much of what governments do in Canada takes place at the subunit rather than at the state level, primarily as a consequence of the considerable scope of permissible legislative activities accorded to the provinces by the constitution.

Part of the answer for the reticence of the provinces may be an overall constitutional conservatism in the country. Canada has blissfully spent most of its history with a grossly incomplete constitution and now works with one that is only just partly incomplete. Canadians somehow managed more than one hundred years as a federation without a codified amending formula for the national constitution and even succeeded in amending that document.

As a result of this latent provincial constitutionalism, provincial political traditions and innovations have arguably had less of an opportunity to inform and shape the national constitutional culture. Provincial differences and issues have nearly monopolized national constitution making, but provincial ways of governing and structuring constitutional functions have had less obvious impact on the Canadian state. While provincial constitutions exist, they are hard to find. A couple of important limitations notwithstanding, provinces have considerable scope to alter the machinery of government, including the opportunity to place limits on the generally expansive executive authority that is typical of the Westminster-style governments in place in all the Canadian provinces. In short, the provinces certainly have broad opportunities to assert their particular identities through constitutional rules and practices, but they simply do not.

Arrangements that can be called subnational constitutions do exist even if they do rest on “airy foundations.”² I use the term “arrangements” because there is little that is singular about provincial constitutions in Canada. The scraps that make them up are found in multiple sources, including portions of the written state constitution, ordinary provincial legislation, and the unwritten constitutional conventions typical of Westminster style governing. In that regard, Canada’s provincial constitutions are more reminiscent of the unwritten constitutions of the British model than of the more formalized and democratic or popular American state constitutional tradition. Perhaps most importantly, the bulk of what makes up a provincial constitution is not entrenched and is thus harder to recognize as constitutional. Because of that failing, many might argue that there are no provincial constitutions at all. If the rules are not entrenched, they do very little to actually limit governments, and limiting government seems to be the whole point of constitutionalism. Courts may be less willing to apply the standards of one unentrenched law against another, and so the judicial review function is less likely to occur. Additionally, without this “higher law” status, provincial constitutions tend to have very little popular currency or recognition.

Provincial constitutions are a vivid diagnostic of the Canadian constitutional condition. They embody the general failure to clarify sovereign authority, but they serve a constitutional purpose nonetheless. Important choices have been made either by commission or omission at the subnational level, and they are reflected in imperfect constitutional instruments. But it would be inaccurate to say that provinces do not have constitutions. It is exactly the kind of constitutions the provinces have that makes them so revealing of the democratic disconnects that plague Canadian federalism. Those disconnects are not always all bad. Perhaps ironically, provincial constitutions are also demonstrative of the kinds of compromises and self-restraint that make the stability and relative peace of Canadian federalism possible.