NOTE TO USERS The original manuscript received by UMI contains pages with slanted print. Pages were microfilmed as received. This reproduction is the best copy available. UMI® The Impact of Constitutional Abeyance on the Assertiveness of the Federal Government By Gordon DiGiacomo, M.A., M.A., B.A.H. A thesis submitted to the Faculty of Graduate Studies and Research in partial fulfillment of the requirements for the degree of Doctorate of Philosophy Department of Political Science Carleton University Ottawa, Ontario Canada © Gordon DiGiacomo 2010 Library and Archives Bibliotheque et 1*1 Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A 0N4 Ottawa ON K1A 0N4 Canada Canada Your file Vote reference ISBN: 978-0-494-67875-6 Our file Notre reference ISBN: 978-0-494-67875-6 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library and permettant a la Bibliotheque et Archives Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par I'lnternet, preter, telecommunication or on the Internet, distribuer et vendre des theses partout dans le loan, distribute and sell theses monde, a des fins commerciales ou autres, sur worldwide, for commercial or non­ support microforme, papier, electronique et/ou commercial purposes, in microform, autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in this et des droits moraux qui protege cette these. Ni thesis. Neither the thesis nor la these ni des extraits substantiels de celle-ci substantial extracts from it may be ne doivent etre imprimes ou autrement printed or otherwise reproduced reproduits sans son autorisation. without the author's permission. In compliance with the Canadian Conformement a la loi canadienne sur la Privacy Act some supporting forms protection de la vie privee, quelques may have been removed from this formulaires secondaires ont ete enleves de thesis. cette these. While these forms may be included Bien que ces formulaires aient inclus dans in the document page count, their la pagination, il n'y aura aucun contenu removal does not represent any loss manquant. of content from the thesis. 1+1 Canada ABSTRACT This doctoral dissertation deals with intergovernmental relations in Canada. It seeks to explain a pattern that the author has observed in the federal government's approach to its relations with the provincial and territorial governments. The pattern is characterized by a noticeable reluctance on the part of the federal government to assert its valid constitutional powers, even when the courts uphold the constitutionality of those powers. The dissertation hypothesizes that federal reticence stems from serious omissions in the constitution of Canada. Those omissions left Canada institutionally incomplete. They were a result of a major constitutional abeyance, in Michael Foley's terminology, having to do with the founders' ambivalent feelings about Canadian sovereignty and nationhood. Because of that abeyance and the particular constitutional exclusions that flowed from it, the federal government routinely backs away from a leadership role even when the issue in question appears to fall squarely within its jurisdiction. The author's theoretical framework, integrating historical institutionalism and the theory of constitutional abeyances, is tested by an analysis of the federal government stance on internal trade barriers, environmental policy, and the federal spending power. The theory was upheld in the first two cases but is not able, with the method and approach used in this dissertation, to satisfactorily explain the federal position on its spending power. 2 ACKNOWLEDGEMENTS I would like to express my deep appreciation to the members of my Dissertation Committee, Professors Scott Bennett, Jonathan Malloy, and Francois Rocher. I am very grateful for their encouragement, for their timely and insightful interventions, for their focus on the "big picture," and, most of all, for their willingness to afford me the space to pursue my interest. They made the writing of the thesis a wonderfully stimulating experience. I wish to thank, too, Randall Germain, Chair of the Department of Political Science at Carleton University, for his encouragement, advice, and good humour; his course on thesis preparation was hugely helpful; Inger Weibust, Professor of Political Science at the Norman Paterson School of International Affairs at Carleton University, for making clear to me the meaning and use of theory; Jacqueline Krikorian, Professor of Political Science at York University, for putting me on to Michael Foley and his theory of constitutional abeyances; and Peter Oliver, Professor of Constitutional Law at the University of Ottawa Faculty of Law, for hiring me as his Research Assistant in the summer of 2009. Finally, I wish to thank Patricia Zito for her support, counsel, and enormous patience. She, as well as my two retrievers, Urban and Lee, prevented the work on the dissertation from becoming a lonely, isolating experience. 3 CONTENTS Chapter 1: Introduction 5 Research Design 6 Dissertation Overview 8 The Meaning and Types of Federalism 9 Collaborative Federalism 44 The Meaning of Sovereignty 52 The Author's Perspective on Federalism 54 Chapter 2: Theoretical Framework 59 Historical Institutionalism 59 The Law Endures 71 Constitutional Abeyance Theory 74 Holding Canadian Sovereignty in Abeyance 88 Why the Founders Limited Their Self-Government Aims 102 The Dissertation's Theoretical Argument in Brief 113 Comparing Australia and Canada 114 Chapter 3: Literature Review 120 Chapter 4: Agreement on Internal Trade 152 Historical Context 154 Judicial Decisions 169 The Agreement 191 Applicability of the Theory 215 Appendix to Chapter 4 220 Chapter 5: Canada-Wide Accord on Environmental Harmonization 231 Historical Context 232 Judicial Decisions 254 The Accord 272 Summary 299 The Applicability of the Theory 302 Chapter 6: The Federal Spending Power 310 Historical Context 323 Judicial Decisions 358 Summary 375 Applicability of the Theory 377 Chapter 7: Conclusion 380 Summary and Findings 380 The Theory 385 Further Research 387 A Final Word 390 Bibliography 392 4 Chapter 1: Introduction The subject of this doctoral dissertation is the federal government's approach to intergovernmental policy-making. More specifically, it deals with the views of Canada's founders on Canadian sovereignty and their effects on the federal approach to intergovernmental relations and public policy-making. The precise question to be addressed is this: what explains the reluctance of the federal government to fully use its valid constitutional powers in a number of vital policy areas, sometimes even when the courts confirm the constitutionality of those powers? The thesis hypothesizes that federal government reticence stems from serious omissions in the constitution that the founders crafted, omissions that are related to a major constitutional abeyance, in Michael Foley's terminology, having to do with the very idea of Canadian sovereignty. Because of that abeyance and the particular constitutional exclusions that resulted, the federal government routinely backs away from a leadership role even when the issue in question appears to fall squarely within its jurisdiction. In recent years, those constitutional omissions have led to the development of a type of elite accommodation which political scientists have labeled, "collaborative federalism." This is not meant to imply that there have not been periods of confident federal activism. Nor does it mean that there have not been politicians who have favoured a strong central government. Rather, it suggests that the federal impulse towards deference is a constant theme in Canadian political history. 5 In brief, I have two main tasks: to demonstrate that the federal government has deferred to the provinces in a number of policy areas and to determine if this deference can be explained by the theoretical framework I have constructed. Research Design The dissertation's research design follows a format outlined by Norman Blaikie in Designing Social Research. Here, he sets out the role of theory, stating: "In the context of research design, a theory is an answer to a 'why' question; it is an explanation of a pattern or regularity that has been observed, the cause or reason for which needs to be understood."1 I will try to demonstrate that the federal government has exhibited a pattern of backing off, withdrawing, hesitating, deferring, and generally refusing to assume a leadership role in policy areas. The theoretical framework, bringing together the theory of constitutional abeyances and historical institutionalism, will offer an explanation for the observed pattern. Also following Blaikie, the dissertation employs the deductive research strategy, which is to be used "for pursuing the objective of explanation."2 This strategy "begins with an observed regularity that needs to be explained; a tentative theory is acquired or constructed...then tested by collecting appropriate data."3 1 N. Blaikie, Designing Social Research: The Logic of Anticipation, (Cambridge, UK: Polity Press, 2000), p. 143. 2 ibjol, p. 126. 3 Ibid., p. 100. 6 King, Keohane and Verba agree with Blaikie about the purpose of a theory but stress that the researcher should select theories that could be shown to be wrong; that is, theories "that are vulnerable to falsification."4 The data collected could uphold a theory, or show it to be inadequate, or show some aspect of the theory to be inaccurate. In the case of the latter, the authors write, "we may choose to retain the theory but add an exception."5 This thesis accepts that its theory could be shown to be inadequate in some way, and it takes seriously the admonition that scholars make every effort to avoid trying to make the facts fit the chosen theory. Methodologically, the thesis relies on a literature review and analysis.