Reforming the Division of Powers in Canada : An (Un)Achievable Endeavour?

Abstract

Formal amendments to the division of powers provisions of Canada's 1867 federal constitution have always proved difficult to achieve. However, since 1982, this task has become hopelessly unachievable. Modifications to, and adaptation of, the division of powers have consequently been left to judges called upon to interpret sections 91 to 95 of the Constitution Act, 1867, and to executives officers of the central and regional governments as they negotiate intergovernmental agreements. The end result of these two processes has been favorable to the central government. Courts have given a liberal interpretation to the central government's exclusive fields of jurisdiction. Moreover, the latter's spending power, loosely controlled by the fragile legal framework imposed under interprovincial agreements, has enabled it to encroach upon the exclusive heads of power of the provinces. As we will see, one of the main reason behind the Canadian constitutional stalemate, and for the recurrent isolation of Quebec - even where informal modification are concerned - is the different conceptions of Canadian federalism respectively held by a majority of Quebecers and a majority of English Canadians.