When Stephen Harper’s former (and perhaps future?) far-right-hand man in Quebec, Maxime Bernier, denounced the federal “spending power” in a speech at Toronto’s Albany Club last October, I could almost hear my father’s caustic comments.
“So that tired old song is being sung again,” I can imagine him saying. Then he would sit down at his antiquated typewriter – once dubbed “the most trenchant typewriter in the country” – and pound out a letter to the editor detailing exactly how wrong Bernier is, and why it matters.
To judge by the arrogant nonsense that the Conservative ex-cabinet minister was dishing out to the Tory establishment, Bernier has barely a passing acquaintance with the Canadian Constitution. But if he knows enough to recognize the name Eugene Forsey, he must be glad that my Dad is no longer around. It wouldn't have taken long for Canada's most respected constitutional expert to dismantle Bernier's arguments and demolish the pseudo-history he claims to base them on.
The dispute about the federal “spending power” is not new. For decades, it has been a favourite target of "province-worshippers" in Quebec and elsewhere. For them, spending by the federal government in fields like health and education – fields mainly under provincial jurisdiction – is an outrage. They want to see the Government of Canada abandon those domains entirely, ending the current system of transfer payments to the provinces and replacing them with "tax points" so that provincial governments could raise the necessary money themselves.
That's the theory. In actual practice, though, things would look very different. As Ontario Finance Minister Dwight Duncan has astutely suggested, Bernier should take a look at the actual consequences, province by province, of substituting tax points for the federal spending power. The results would likely be less than desirable, even for Quebec.
Eugene Forsey had plenty to say about the federal spending power and the broader issue of downloading responsibilities to the provinces. As “a Newfoundlander born, and part Nova Scotian by ancestry," he was particularly aware of the risks of requiring smaller provincial governments to take on ever-greater responsibilities for the well-being of Canadians. He was convinced that the national government should continue to play a major role in shouldering the costs of health care and social programs to meet national standards, and in providing support for education, culture and heritage. To download all those tasks to the provinces would risk turning many Canadians into second-class citizens.
"The bland assumption that all the provinces are able to go in for this sort of thing flies in the face of reality," he wrote in 1979. "The big, rich provinces can do it, [but] with what consequences? The small, poor ones cannot; at any rate without massive help from that central government which [further decentralization] would enfeeble."
The context and framework for federal involvement in these fields was established at the time of Confederation. As my father regularly pointed out, the BNA Act (now the Constitution Act, 1867), gave the Dominion government broad powers "to make laws for the Peace, Order and Good Government of Canada," embracing all matters – foreseeable or otherwise – that were not "assigned exclusively to the legislatures of the provinces."
Federal jurisdiction has been chipped away since then, particularly in the years when interpretation was in the hands of the Judicial Committee of the British Privy Council, before Canada's Supreme Court assumed its full powers. Dad called the Judicial Committee "the wicked stepfathers of Confederation," and charged them with having "in many respects turned our Constitution inside out and upside down" by weakening many of the powers of the central government. But, despite those rulings, the federal government retains its powers in many fields, and shares jurisdiction with the provinces in a number of others.
To further limit or eliminate the federal spending power would severely disrupt the practical balancing mechanisms that characterize Canadian federalism. It would also go against the principles of fairness and welfare (or well-being), which are inherent in the Canadian tradition. The records of the pre-1867 discussions, where the representatives of the future provinces worked out the basis for the new country, show how fundamental those values were to the whole process. More than a hundred years later, those same principles were reaffirmed in Section 36 of our repatriated Constitution Act, 1982, which explicitly states a shared commitment to:
"(a) promoting equal opportunities for the well-being of Canadians;
(b) furthering economic development to reduce disparity in opportunities; and
(c) providing essential public services of reasonable quality to all Canadians.”
None of this, however, deters Maxime Bernier from pursuing his radically decentralist goal of “putting an end to all federal intrusion into areas of provincial jurisdiction." He proposes that, "instead of sending money to the provinces, Ottawa would cut its taxes and let them use the fiscal room that has been vacated.”
If both the tax-cutting and the downloading ideas sound familiar, no wonder. As Bernier himself proudly notes, this is the position of “two of the greatest conservative statesmen of our generation, Preston Manning and Mike Harris,” as well as of the Fraser Institute. What greater endorsement could one ask?
Nor does the shakiness of Bernier's knowledge of the Constitution prevent him from making false claims about its history and substance. According to a CBC report, Bernier tries to support his position by asserting that "the spending power isn't in the Constitution" -- as if that puts the final kaibosh on it.
But of course it isn't "in the Constitution." Our Constitution is not a book where you can look up "spending power" in the index, or a website where you can find it by typing it in as a keyword. Instead, it is an intricately balanced combination of written and unwritten elements, evolved and evolving through generations of practice. The resulting characteristics of appropriateness and adaptability have given us, in my father's words, "the most delicate, the most flexible, the most efficient form of government… and the one most responsive to the public will."
Admiittedly, it is hard these days to think of our wounded parliamentary system in those terms. For Dad's description to ring true, the principles embodied in our Constitution must be understood and respected. In recent years, however, responsible government has been battered into submission by a fanatically controlling Prime Minister and the crowd of self-serving acolytes that surround him. Our parliamentary framework still survives, but the Harper regime continues to abuse it. To hear Maxime Bernier, a former minister in that government, making holier-than-thou pronouncements about the Constitution really raises one’s blood pressure.
"When we tolerate violations to the Constitution," he intoned in his Albany Club speech, "the entire moral foundation of our political system is shaken to its core." It reminds me of how Dad once described Mackenzie King: "mounting his pulpit with all the sanctimoniousness of Satan in full canonicals setting out to rebuke sin."
My father would be further incensed by Bernier's solemn assertion that, back in 1867, the Fathers of Confederation themselves intended to make Canada a highly decentralized country. Like the Tea Party in the United States citing that country's "founding fathers," those who would demolish the essentials of "peace, welfare, and good government" create their own distorted versions of history to further their cause.
Bernier's portrayal of Macdonald, Cartier, and the rest as avid provincialists is thoroughly debunked in Dad's popular and authoritative handbook How Canadians Govern Themselves, now in its seventh edition and available on the Internet through the Library of Parliament.
The Fathers of Confederation, gazing with horror at the American Civil War, decided that “states' rights” were precisely what had caused it, and acted accordingly. “Here,” said Sir John A. Macdonald, “we have adopted a different system. We have expressly declared that all subjects of general interest not distinctly and exclusively conferred upon the local governments and legislatures shall be conferred upon the general government and legislature. We have thus avoided that great source of weakness that has been the disruption of the United States. We hereby strengthen the central Parliament, and make the Confederation one people and one government."
Faced with earlier versions of Bernier's claims, Dad regularly had to cite the historical record to show that our country was intended from the start to be "a real federation, a real 'union,' "une grande et puissante nation," not a league of states or of sovereign or semi-independent provinces."
This in no way denies the legitimacy of the very significant powers the provinces do possess. Dad was a pragmatist on the division of powers. Regardless of the intent more than a century ago, he believed that jurisdictional issues should be decided on the basis of what would best serve the public good in every part of the country. But for that very reason, he was wary of the indiscriminate broadening of provincial jurisdiction at the expense of the national government.
My father saw an enduring need for what he called "a real country" – a national presence strong enough to preserve and build on what Canadians had already achieved in the way of shared prosperity, social programs, and regional equality. A fragmented collection of provincial governments would be increasingly vulnerable to the growing power of global corporations. "Only a real country," he said, "with a powerful national Government and Parliament, can have any hope of controlling inflation and restoring full employment. Only a real country can maintain the unemployment insurance, the family allowances and child tax credits, the Medicare, which we now enjoy. Only a real country can give the people of the poorer provinces anything like modern educational and social services."
When national standards in these fields give way to vague phrases like "compatibility with national objectives" favoured by "province-worshippers" like Bernier, the stage is set for a deteriorating patchwork of policies and programs that weaken the system and aggravate disparities between provinces. The vision of equality for Canadians from coast to coast to coast gets more blurred, and the ability of our national government to do anything about it effectively disappears.
Over the past few decades, various provincial governments have used their growing power to wage war on federal involvement in areas like labour, health care, and the environment. In too many cases, enforceable national standards aimed at ensuring equality and fairness have fallen by the wayside. As a result, we have suffered from an inter-provincial race to the bottom, as provinces compete to curry favour with the private sector and attract big-time corporate investment.
Dad warned that this trend would end up reducing the central government and Parliament to "mere conveniences, to do for the glorious and immortal Provinces a few things they cannot easily do for themselves." Canada would risk becoming nothing more than a collection of semi-independent minor states with little power or influence in an increasingly interdependent world.
Eugene Forsey is no longer here to respond in person to the Maxime Berniers of our own time. But his warnings, and the reasoning behind them, remain as valid as ever. "Our country," he noted, is "already [a very] decentralized federation. How much farther can we go without making Canada a political Cheshire cat, of which, you may remember, nothing remained but the smile?"
(Helen Forsey is the daughter of the late Senator and constitutional expert Eugene Forsey. She is writing a book on her father’s legacy, to be published next spring by Blue Butterfly Books.)