The Demise and Rise of the Classical Paradigm in Canadian Federalism: Promoting Autonomy for the Provinces and First Nations Bruce Ryder* The author explores the possibility of employ- L'auteur analyse l'interprrtation jurispruden- ing Canadian consitutional doctrine to develop tielle des art. 91 et 92 de la Constitution afin de a more flexible approach that would allow for determiner si le cadre constitutionnel actuel greater provincial autonomy and First Nation peut s'accomoder d'une plus grande autono- self-government within the existing scheme of mie des provinces et des peuples autochtones. ss 91 and 92 jurisprudence. Canadian constitu- De Ia doctrine constitutionnelle canadienne se tional doctrine is first interpreted through the drgagent deux conceptions divergentes de la 1991 CanLIIDocs 69 competing models of the classical and modem distribution des pouvoirs l6gislatifs effecture paradigms. The former emphasizes a sharp par ]a Constitution. La conception classique division of powers and has traditionally been congoit les spheres respectives de compdtence used, the author argues, to invalidate legisla- comme distinctes et exclusives; un des motifs tion seen to interfere with the market economy. sous-jacents de cette interpretation tendant i The modem paradigm, on the other hand, rec- restreindre l'exercice du pouvoir 16gislatif ognizes competing jurisdictions and has been aurait &6, selon 'auteur, la protection de used to uphold legislation focusing on morals. l'6conomie de march6. La conception The author then brings this analysis to bear on modeme, par contre, reconnait le chevauche- the issue of provincial autonomy, focusing on ment inevitable des juridictions, et ne le con- the doctrinal writings of Qurbdcois scholars. goit pas comme un mal, 6tant donn6 le but Using the classical paradigm to restrict federal moral important poursuivi par les 16gislateurs. intrusion, and the modem paradigm to expand L'auteur envisage ensuite la question de l'au- provincial powers will, the author argues, tonomie provinciale, en se rdftrant Atla doc- enhance provincial autonomy within the exist- trine qufbrcoise. I1 conclut qu'invoquer la ing federal structure, pending further constitu- conception classique pour restreindre les inter- tional amendment. Finally, the author extends ventions l6gislatives frddrales tout en 61argis- the analysis to the issue of First Nations auton- sant les pouvoirs l6gislatifs provinciaux h omy, arguing that similar doctrinal analysis l'aide de ]a conception modeme permettrait could be used to promote self-government for aux provinces d'acqurrir une plus grande auto- the First Nations. nomie Ail'int~rieur de la structure constitution- nelle actuelle. Une drmarche semblable accor- derait aussi aux peuples autochtones une plus grande mesure d'auto-drtermination, en atten- dant, dans un cas comme dans l'autre, d'6ven- tuels amendements constitutionnels. *Assistant Professor, Osgoode Hall Law School, York University. I would like to thank Joel Bakan, Annie Bunting, Joon Min Cho, Richard Cullen, Reuben Hasson, Peter Hogg, Patrick Macklem, Andrew Petter and Lee Waldorf for their support and comments on an earlier version of this paper. © McGill Law Journal 1991 Revue de droit de McGill 1991] DEMISE AND RISE OF THE CLASSICAL PARADIGM Synopsis Introduction I. Doctrinal Features of the Classical and Modern Paradigms A. The Classical Paradigm B. The Modern Paradigm II. The Historical Application of the Two Paradigms 1991 CanLIIDocs 69 II. The Paradigms and Provincial Autonomy IV. The Paradigms and First Nations Autonomy Conclusion Introduction In a recent case, Chief Justice Dickson remarked that "[t]he history of Canadian constitutional law has been to allow for a fair amount of interplay and indeed overlap between federal and provincial powers."' This is an accurate description of only part of our constitutional jurisprudence. It may be that, in the post-World War II era, judicial interpretation of the constitution has gradually moved away from a "classical" view of the distribution of powers, that allowed for little overlap and interplay of provincial and federal powers, towards the more flexible "modem" federalism described by the Chief Justice. But this movement, from what I will call the classical paradigm to the modem paradigm in Canadian federalism, has been neither consistent nor steady. Indeed, both approaches have been invoked by the courts at all stages of our history of con- stitutional judicial review. Nevertheless, the larger trend does emerge from a study of the cases. One can say, at least, that the modem paradigm has replaced the classical paradigm as the dominant approach to the judicial interpretation of the division of powers. 'O.P.S.E.U. v. A.-G. Ontario, [1987] 2 S.C.R. 2 at 18, 41 D.L.R. (4th) 1 [hereinafter O.P.S.E.U. cited to S.C.R.]. REVUE DE DROIT DE McGILL [Vol. 36 The classical and modern paradigms represent competing judicial responses to the interpretation of the federal division of powers in sections 91 to 95 of the ConstitutionAct, 1867.' Both seek to give effect to two foundational principles of the Canadian constitution, namely, responsible government and federalism. The preamble to the 1867 Act announces that the Provinces of Canada, Nova Scotia and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom. The British constitutional system of responsible government was accordingly adopted by the federating colonies in Canada. It is a system of representative democracy in which the head of state acts on the advice of the executive, which 1991 CanLIIDocs 69 is in turn accountable to a democratically elected legislature. In the United Kingdom, Parliament has supreme and absolute legislative authority. Any and all laws are within the competence of Parliament. In Canada, the principle of parliamentary sovereignty was altered to take account of the desire of the prov- inces to be "federally united." Thus, sovereign legislative power was divided between the two levels of government. But it follows from the fusion of parlia- mentary sovereignty and federalism that the totality of legislative power is dis- tributed between the federal Parliament and the provincial legislatures. This principle, that the distribution of powers is "exhaustive," means that any and all laws are competent to one level of government or the other. As the Privy Coun- cil stated, "whatever belongs to self-government in Canada belongs either to the Dominion or to the provinces, within the limits of the British North America Act."3 As all laws must be within the competence of at least one level of gov- ernment, the people of Canada are entitled to demand that the judicial interpre- tation of the division of powers not compromise the availability of a full range of options from the combined competences of their democratically elected leg- islative bodies.4 2 ConstitutionAct, 1867 (U.K.) 30 & 31 Vict., c. 3 (formerly British North America Act, 1867) [hereinafter Constitution Act, 1867]. 3 A.-G. Ontario v. A.-G. Canada(Reference Appeal), [1912] A.C. 71 at 81, 3 D.L.R. 509 (P.C.). See, generally, P. Hogg, ConstitutionalLaw of Canada,2d ed. (Toronto: Carswell, 1985) at 257-58 & 339-40. 4While the distribution of powers in ss 91-95 of the Constitution Act, 1867 is exhaustive, there are important limitations in other parts of the 1867 Act on the manner in which those powers may be exercised. For example, the powers of the federal and Quebec governments are limited by the language rights in s. 133 (see Jones v. A.-G. N.B., [1975] 2 S.C.R. 182, 45 D.L.R. (3d) 583), as the powers of the Manitoba government are limited by the language rights guaranteed by s. 23 of the ManitobaAct, 1870, R.S.C. 1985, App. II, No. 8 (see the Reference re Language Rights under the ManitobaAct, 1870, [1985] 1 S.C.R. 72, 19 D.L.R. (4th) 1). In addition, the provincial powers over education cannot be exercised so as to interfere with denominational school rights (s. 93 and s. 22 of the Manitoba Act, 1870; see Reference re An Act to Amend the EducationAct (Ontario), [1987] 1 S.C.R. 1148, 40 D.L.R. (4th) 18), and neither level of government can tax Crown lands 1991] DEMISE AND RISE OF THE CLASSICAL PARADIGM 311 At the same time, the federal principle embodied in the preamble requires that provincial and federal governments be coordinate and autonomous within their respective spheres of competence.5 This principle is reflected in the con- stitutional division of powers in ss 91-95 that is unalterable by the unilateral action of either level of government.6 The provinces' "desire to be federally united" was a product of their insistence on the preservation of the institutions, laws and customs of regional majorities.7 The autonomy inherent in a federal system would prevent national majorities from establishing priorities and poli- cies in areas of jurisdiction allocated to the provincial governments (and vice- versa). Hence, the emphasis placed on the notion of "exclusive" spheres of com- petence in the constitutional division of powers. Reference to "exclusivity" of (s. 125) or establish inter-provincial tariffs (s. 122). And, of course, the constitutional entrenchment 1991 CanLIIDocs 69 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the CanadaAct 1982 (U.K.), 1982, c. 11 [hereinafter Charter], and of aboriginal and treaty rights by the enactment of s. 35 of the ConstitutionAct, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Constitution Act, 1982], has placed significant new constraints on the exercise of federal and provincial legislative and executive powers. Thus, the principle of parliamentary sovereignty has never been absolute in the Canadian con- stitution, and it is less so since 1982.