THE STATUS AND NATURE OF PROVINCIAL CONSTITUTIONS

Federal Sources of Provincial Constitutions

Elements of provincial constitutions exist in several places, the federal constitution first among them. Canada’s core national constitutional documents are the Constitution Acts of 1867 (which founded the federation) and 1982 (which patriated the constitution to Canada by adopting a domestic amending formula and adding a bill of rights).

Perhaps the more important legacy of the 1867 Constitution Act’s definition of provincial constitutions is the duplicitous spirit of a written constitution assigning power to an office that everyone knows will be ceremonial. David Smith describes this practice as “the elaborate charade” of Canadian constitutionalism. Executive power is held by the Crown, but with the associated understanding that the Queen’s representative will not actually wield any of that power.³ The acceptance of the charade of executive power is consequential for how provincial governing works, because it entails an accepted ambiguity about where governing power lies and how effectively it can be constrained or channelled by the constitution. Moreover, the continued role of the Crown as an organizing principle in provincial governing (bolstered by judicial interpretations that established the independence of the provincial Crown from the federal office) has resulted in strong executive-centred governing at the provincial level. For good and bad, provincial executives in Canada face few constraints when they have a legislative majority in their provincial assembly. Certainly there is little of a constitutional nature that limits their organization and operation and little that limits their discretion in the use of power.

More specifically, the national constitution places limits on provincial constitutional autonomy through targeted federal guarantees to minorities in many of the provinces. For example section 133 of the Constitution Act, 1867 provides for the use of French or English in the debates of the national parliament but also in the parliament of the province of Quebec.

The terms of union of other provinces dictate particular rights for minorities within the province that are, again, a constraint on provincial constitutional choices. The most prominent examples would be educational rights and language rights. So, for example, the Manitoba Act, 1870 which outlines in considerable detail the form of executive and legislative governance in the province including the form of the legislature and the initial size of the executive council (or cabinet) also precludes the province from making laws under its legislative authority for education that “prejudicially affect any right or privilege with respect to Denominational Schools.”⁵ Section 23 of the act allows French or English to be used in the debates of the provincial legislature.

The most encompassing federal limit on provincial governing is the application of the Charter of Rights and Freedoms to provincial governments and legislation.

As a final federal source of provincial constitutionalism, it is worth noting the place of the judiciary at the provincial level. Canada has what may be described as an “unfederal” judicial system, or perhaps more accurately a hybrid system.⁸ While the judiciary is largely organized by province, structure, appointments, pay, and removal of superior court judges are managed by the federal government. The courthouses themselves are administered and paid for by the provinces. The provinces also have full control over the lowest courts in the province – they appoint and manage those courts exclusively, and the structure of those systems differs considerably from province to province.

Provincial Sources of Provincial Constitutions

While the national constitution clearly creates some broad parameters limiting provincial constitutional and policy flexibility, appropriately it still leaves considerable room for the provinces to contemplate their own brands of constitutionalism. The Canadian provinces have been important sites of innovation and experimentation in public policies and public service delivery, but only a little of that energy has been targeted toward constitutional self-definition. That is especially surprising in light of the fact that some of the more radical political traditions in Canadian history have asserted themselves primarily at the provincial level. Among those traditions were movements that explicitly identified themselves with a populist or plebiscitary style of democracy and pledged themselves to the popular limitation of governments and legislatures.⁹

That such movements never translated their interests into enduring traditions of entrenched provincial constitutionalism can be blamed partly on federal government efforts to limit some of the policy creativity of the provinces.

Likewise, Alberta had a strong tradition of plebiscitarian democracy during the period in which it was led by the Social Credit party. The policy goals of that party certainly provoked central government intervention. However, the populist style of the party did not translate into a heightened desire for provincial constitutionalism or entrenchment of more populist governing devices. The populist democratic rhetoric of the party was channelled instead into a generalized anti-central government feeling. The party itself made the most of the policy leverage of Westminster style governing. If there were constitutional consequences for populist governments at the provincial level in Western Canada, they took the form of pressure on the national constitution to become more decentralized. The strength of the anti-central government feeling in the West was only increased by the opposition of federal authorities to elements of Social Credit’s policy program on the grounds of constitutional jurisdiction. The federal government opposed Social Credit financial and banking legislation and was supported in the claim of unconstitutionality by Canada’s higher courts.¹¹

The lack of formalization or constitutionalization of the ambitious populist goals of Social Credit may have been the key to what C. B. Macpherson labelled the “failure of delegate democracy” in that province. While the party envisioned elaborate delegate control of members of the provincial legislature and Cabinet, the reality of administration in the province was that most public policy decisions were directed by a technocratic board of experts working under the authority of the premier.¹² Essentially, this populist movement’s true decision-making structure looked a lot like what today would be described as an executive-dominated system with little regard for the constraints of the legislature.

The Alberta example is instructive because the logic of Westminster governing seems so strong even in the face of a movement of the kind that has led to considerable sub-state constitutionalism in other jurisdictions. The sub-state constitutional goals of the Progressive movement in the comparable period in the United States often included institutional reform along parliamentary lines to make governments more efficient and reduce the checks and balances typical of a more separated system.¹³ Radical policy proposals are most easily implemented by governments unconstrained by multiple veto points. Since the Canadian provinces already had such a constitutional heritage, there was less need for them to seek institutional reforms to realize unconventional or new policy goals over the objection of old or entrenched interests, at least at the provincial level. As noted above, national political elites hostile to provincial aspirations were the ones more likely to be interested in limiting provincial authority, and hence “constitutional” efforts were usually focussed by both sides on the federal constitution, rather than provinces seeking an ideological legacy in provincial constitutional documents.

While provincial governments have not enthusiastically taken the opportunity to entrench constitutional limits and designs, they have done much to shape the running of their provinces through less exalted measures and through continued simple neglect of formalization. Keeping constitutional rules informal serves the purposes of provincial governments, and particularly the political parties in power. Even so, the truth of an unwritten constitution is that it still has multiple written parts. So while the provinces have refrained from writing prototypical constitutions, they do have all the necessary constitutional content in place, just in forms of much more varying formality and specificity. The structure of executive and legislative power not commanded by the federal constitution is accounted for in provincial statutes. Provinces tend to interpret the unwritten conventions of the responsible-government model fairly consistently, but in the statutes that specify greater detail about representation or cabinet governing there is room for more difference (or at least there has been historically). These statutes may fail a superficial constitutional test – they are easily amendable by a simple legislative majority- but their subject matter makes them effectively constitutional. The design of provincial electoral systems, the organization of executive governance and the protection of individual rights are all addressed in ordinary provincial statutes.

While British Columbia is the only province to label some of this legislation its “Constitution Act,” all the provinces have laws that help to clarify constitutional roles in the province. Under titles such as the Legislative Assembly Act or the Executive Council Act, the basic structure and operation of provincial legislatures and cabinets are specified. In many cases the legislation mimics the cognate provisions at the national level, which continues to vest executive power in the Crown, exercised on the advice (understood by convention as a command) of the political executive, which itself is drawn from the legislative assembly. For many observers this old-fashioned approach is disheartening, particularly when most of the legislation is much newer than the Constitution Act, 1867 (Newfoundland and Labrador became a province in 1949) or has frequently been amended in recent years. In other words, the grand charade of Crown-held executive power is alive and well, and the myth is continuously perpetuated. Without sounding too Marxist, it appears that myths generally continue when their doing so serves the interests of power.

The nominal argument for not changing the relevant segments of the Constitution Act, 1867 is that there is not enough agreement on other constitutional matters such as the status of the province of Quebec or the design of central institutions such as the Senate to risk inquiring into more formal alteration of the system of parliamentary responsible government. The consequences of that inaction have been significant, particularly in recent years, when Canada’s national parliament has seen a series of minority governments and more than one perceived constitutional crisis.¹⁴ When parliamentary government operates on the basis of a number of unwritten rules, their interpretation often varies considerably among actors based on their own self-interest.

Provincial constitutions conceivably would have less other constitutional baggage to deal with, or certainly a more homogeneous population to reflect in their constitutional designs. But provinces have done little to codify the actual practice of parliamentary government even though they have a seemingly much clearer opportunity to do so. Routinely, the noble lies of executive power are replicated at the provincial level. For instance, no one would downplay the power of a provincial premier within the provincial constitutional framework. As the leader of the governing party, the premier essentially directs all legislating in the province not to mention being at the helm of the governing apparatus. The premium placed on intergovernmental co-ordination in Canadian federalism magnifies the premier’s power by a considerable factor. Premiers serve as the main spokespersons and chief negotiators for their province in intergovernmental relations. The processes of executive federalism in Canada mean that a great deal of policy-making is decided by premiers, their cabinet members and functionaries, with little direct input from the legislature. Given the considerable impact that intergovernmental policy-making has on the form and delivery of essential services such as health care and education, that is a far from inconsequential responsibility.¹⁵ In short, premiers matter tremendously to an understanding of power in provincial governments, but provincial constitutions are nearly mute to their existence.

The British Columbia Act, as an illustration, mentions the office only twice – once to recognize that the premier is part of the executive council that will be appointed by the Crown’s representative and once more to recognize the status of leaders of political parties other than those forming the government or the opposition. In other words, nothing in the constitution of the province specifies or even broadly outlines the enormous power wielded by this single individual. This state of affairs is the norm of Canadian parliamentary government, but the provinces seem to be in a much better position to be up front or more explicit about the nature of executive power or even to go so far as to put some constraints on it, but resolutely do not do so.

When provincial legislation has been changed or updated, it has usually only reinforced the dominant trends of parliamentary government. More centralization generally equals more power for the political executive. Again to use a British Columbia example, the provincial constitution act in 1979 removed limits on the size of the executive council, until then limited to 23 members, thereby allowing the ruling party to have larger cabinets in a legislature that then was comprised of less than 70 seats (a majority of course being possible with a minimum of 36.) At writing, the provincial cabinet was 25 members strong, drawn from a 43 member caucus. Given the prevailing norm of cabinet solidarity in legislative voting, that represents a real boost to a leader hoping to maintain party discipline.

Provincial electoral systems should also be regarded as a further element of provincial constitutions. While all Canadian provinces currently have the same single-member plurality system in place, there has been variation from this model in the past, including the use of multi-member constituencies. Presently, provinces differ substantially on some of the mechanics of their electoral system, particularly in the qualifications of voters and candidates, in spending rules for candidates and parties, and in the procedures for drawing the electoral boundaries that define each constituency. Cumulatively these variables have some effect on the quality of democracy at the provincial level, with some provinces coming out looking better than others.¹⁶ Additionally, some provinces have opted for fixed election dates, (British Columbia actually uses the Constitution Act for this purpose) setting the date of the next election, assuming the maintenance of the legislature’s confidence. Fixed dates are not the norm in parliamentary responsible government, but by setting a date, the presumed advantage the government is believed to have in choosing the time to go to the polls is eliminated.

More importantly perhaps, within the last decade, five provinces have undertaken comprehensive reviews of their electoral system with recommended changes, and two (British Columbia and Ontario) went as far as to submit those proposed changes to popular votes. In both cases the recommendations for changing the system came from citizen-led assemblies, and in both provinces, those assemblies recommended a considerable departure from the present system in the form of modified proportional representation systems. Both initiatives failed to get the necessary approvals from the electorate (twice in British Columbia!) and governments have essentially abandoned the project.

At the very least, the reform exercises suggest that some displeasure exists with the majority parliamentary model that dominates present practice particularly strongly at the provincial level. The provinces have smaller legislatures and most have only two truly contending political parties. The first-past-the-post electoral system routinely results in very large majorities for provincial governments. It is not uncommon for a provincial government to face an elected opposition of two to five members in an assembly of fifty to a hundred legislators. There appears to be a general dislike among provincial publics of those extreme system results, but efforts at electoral change might be proxies for something more. Altering the electoral system would undoubtedly influence the dynamic of executive-legislative relations, a project that the provinces have been much slower to consider. Indeed, public opinion polling done during the 2005 and 2009 British Columbia referendums suggest that voters liked the idea of greater proportionality between voting and results (an unlikely scenario in a first-past-the-post system) and that a majority of voters favoured the idea of coalition rather than majority governments – a recipe sure to undermine the current executive-legislative relationship.¹⁷

Another hallmark of constitutions is the placement of limits on government through either the protection of human rights or minority rights or through other limits on future legislatures. The provinces, as a result of their assigned legislative jurisdiction over “property and civil rights,” were relatively early adopters of human rights codes or bills of rights. In many cases these are rather comprehensive, even more so than the nationally entrenched bill that most of them predate. The provincial bills protect against discrimination in the private sphere as well as place limits on provincial governments themselves. The provincial bills are not always enforceable through courts, but often through specialized human rights tribunals set up by the legislation. Tribunal rulings are ultimately appealable to courts, and the bills themselves have been made subject to the standards of the national Charter – though they may offer a higher standard or wider range of protections than the Canadian constitution.¹⁸

Quebec’s Charter of Human Rights and Freedoms is perhaps the prototypical example of this kind of provision. Sometimes described as quasi-constitutional, I would describe it as constitutional simply because while it is still replaceable by ordinary statute, it acts as a superstatute denying other legislation of the Quebec National Assembly the ability to contradict its provisions without that legislation expressly invoking the wish to operate “notwithstanding” the Charter. Along with the Charter of the French Language, which seeks to preserve the francophone character of the province in a number of public policy fields under provincial control, it may be the closest thing to an attempt by a Canadian province to actually try and distinguish itself in a constitutional manner by declaring adherence to certain principles or values (notably the Charter includes social and economic rights as well as the standard human rights found in many codes). The Quebec Charter itemizes a number of human rights, provides for a commission to promote those rights in the province (including the power to initiate litigation), and sets up a tribunal to adjudicate violations of the Charter. The Charter has figured prominently in recent struggles over the nature of the province’s public health care system and the limitations that system places on private clinics and hospitals.¹⁹ In short the Charter is operating very much like a constitutional limitation on the choices of private citizens and the legislature.

Provincial governments have been more willing to place tentative limits on themselves in the financial realm. Following some draconian fiscal adjustments in the 1990s, several provinces passed so-called balanced budget legislation that restricts the legislature’s ability to finance public spending with debt. Six or more provinces have deficit financing or spending control acts that theoretically restrict the options of future cabinets and the legislature in their fiscal decisions.²⁰ Occasionally these laws are enforceable against specific ministers. They may seem restrictive in ways that other provincial constitutional experiments have not been, but their status as ordinary statutes does restrict some of their authority.

The present poor economic situation has revealed some of the toothlessness of the limits. British Columbia, one of the eager adopters of such legislation, has been forced by the economic decline to resort to deficit financing. In order to pass the budget enacting such a shift, the government had to first introduce repealing legislation to its balanced budget act. In the end, the original restraint was not much of a limitation at all, though the government did have to go shame-faced to the legislature and amend its legislation.²¹ When the limit is not entrenched, the restriction on government behaviour is fairly meaningless, though the government did have to make the public admission that it would not be able to abide by its own restrictive legislation. The exercise suffers particularly by comparison. Californian law-makers would no doubt welcome the opportunity to remove restrictions on their financial movements with such ease, but of course are constrained by the Proposition 13 rules limiting the growth of property taxes in the state. The “constitutional” character of the provisions is superficially alike, but entrenchment does make a considerable difference in the different contexts.