CANADA’S NEW CONSTITUTION – RE-ARRANGING FEDERAL AND PROVINCIAL JURISDICTIONS

To make us one nation as to foreign concerns, &
keep us distinct in Domestic ones, gives the outline
of the proper division of powers between the
general and particular governments.

James Madison
16 December 1786

Introduction

   James Madison’s astute observation applies to nations with large geographical areas such as Canada, Australia and American. They reveal an obvious truth. The more power a Constitution gives to local authorities for resolving local issues the more loyal they are to their far away central governments.
   Canada’s 1867 Constitution in the form of a British Statute tries to divide up the legislative powers between the federal and provincial governments. With few exceptions, provinces just have the right to legislate on property and civil rights. Almost everything else falls within federal jurisdiction. It is a recipe for disintegration.
   After 1867, an English court called the Privy Council resolved constitutional disputes between the provinces and the federal government. For the most part, Privy Council decisions favoured the provinces.
Canada abandoned appeals to the Privy Council in 1949. The Supreme Court of Canada (SCC) then replaced it as the court of last resort. Since then, most experts agree that SCC constitutional decisions on intergovernmental disputes tend to favour the federal government.
   This posting argues that because of Canada’s population growth since 1867 some areas of federal constitutional authority should now be turned over in whole or in part to the provinces. They have the advantage of local circumstances that often vary from province to province. They can better craft a solution than can national legislators from ten different provinces and three different territories. None of them reside in more than one province.

2. Seacoast and Inland Fisheries – BNA Act, s.91 (12)

   The federal government should have the right to supervise Canada’s seacoast as a matter of national security. Since 1867 it had the right to legislate and supervise seacoast and inland fisheries. Should it continue to have that right? 
   In 1867 the main fisheries were off the two Atlantic provinces who joined Canada at that time; New Brunswick and Nova Scotia. Salt water fisheries also existed off the coast of Prince Edward Island. It joined Canada in 1873, British Columbia joined in 1871 and Newfoundland & Labrador joined in 1949. East Cost deep see fisheries consisted mostly of cod; west Coast fisheries mainly of migrating salmon.
   Under Ottawa’s fisheries management, the east coast lost its cod fishery. British Columbia’s west coast’s salmon fishery seems to be suffering the same fate.

      American salt water fisheries

   Over time, the American federal government's role in managing and protecting fish and wildlife grew. Occasionally its laws conflicted with State laws. The question of wildlife jurisdiction was ultimately resolved by the Supreme Court. It decided that the federal government was the ultimate authority in the area of fish and wildlife management.
   Though states must ultimately defer to federal authority, state governments still play a primary role in fish and wildlife management, determining details such as harvesting seasons, methods, and limits. The federal government plays a broader role in protecting and managing wildlife, including funding state wildlife programs, regulating the commercial harvesting of fish, managing national forests and wildlife refuges, and negotiating international treaties involving ocean fisheries.
   Finally, the federal government has played a principal role in adjudicating the fishing rights of Native American tribes, determining what rights are guaranteed by the treaties signed between the tribes and the federal government, and working to ensure that those rights are protected.
http://www.answers.com/topic/fish-and-fishing

      Australian fisheries
 
    Australian State laws allow them to manage their coastal water fisheries up to three nautical miles from the coast. Beyond that Australian federal laws apply from those waters out to the limit of the Australian fishing zone (200 nm).

   Generally, agreements between the States and the federal government allow the states to control localized fisheries adjacent to a State. The Australian federal government limits its jurisdiction to commercial fishing within state fisheries while State laws assume responsibility for recreational fishing.
Perhaps, a new Canadian Constitution could take elements of all three models and devise a scheme where the Atlantic provinces and British Columbia have a substantial say in fishing controls off their coastlines.
http://www.answers.com/topic/fish-and-fishing
   This incomplete analysis reveals many of the complications that arise when dealing with fishing rights. Probably there are thousands of books on the subject. It seems incapable of easy resolution. Nonetheless, it is a real Canadian problem that desperately needs solving.  

3. Marriage and divorce – BNA Act, s. 91 (26)

   Mainly for political and religious reasons, the subjects of marriage and divorce were given to the federal Parliament in 1867.
   Over the years, problems involving the grounds for divorce, spousal and child maintenance, division of matrimonial property, custody and access to children became issues in many spousal breakups. Some of them came within federal jurisdiction and some within provincial jurisdiction.
 Given the passage of time, and the acceptance of divorce as a means of letting the parties start a new life, this area of jurisdiction should be transferred to the provinces.

4. Criminal law- BNA Act – s. 91(27)

   As mentioned in many previous postings, Canada’s Constitution has a fatal flaw that prevents the nation for having a responsive criminal justice system.
   Our 1867 Constitution irrationally gives the federal government the power to enact criminal laws for all the provinces despite their local differences. It compounds this mistake by requiring the provinces to administer those laws at their local taxpayers’ expense. Contrary to the principles of responsible government, provincial administrators (executive branches) are not responsible to the federal Parliament.
   Provinces cannot get criminal laws that meet the needs of their local citizenry. Because the federal Parliament has little knowledge of how its criminal laws work in practice in every province, it is frozen into inactivity. No other area of federal jurisdiction has similar problems.
   Neither, the U.K., Australia or America has such an upside down system. On principle, whatever government enacts the laws should also administer them.
   Accordingly, the power to enact and administer local criminal laws should be transferred to the provinces. The federal government should have the right to attach criminal sanctions to its legislation. But those sanctions should be prosecuted and enforced in the relevant provincial criminal courts as what happens in the Australian states.

Bottom line:
1. Canada’s new Constitution should give the provinces the power to legislate and administer laws relating to marriage and divorce and general criminal laws.
2. The federal government should have the authority to enact criminal penalties for specific breaches of federal statutes, but those offences should be prosecuted in the provincial criminal justice systems.
3. Constitutional changes should be made to seacoast and inland fisheries giving the provinces rights over preserving the fish stock.
9 July 2008

Comments

[Mike Sgambelluri]

I agree completely with your proposal for constitutional reform. I would also add reducing the scope of 91(10) to give the provinces jurisdiction over the navigation aspects of recreational boating and local ferry undertakings.

In exchange for relinquishing these powers, the federal government is likely going to request that the Constitution be amended to allow it to possess greater control over interprovincial trade and commerce. To have this power expanded to the point that it is analagous to the US Constitution's "commerce clause" might be too tough of a pill for most provinces to swallow, regardless of their increase in legislative authority in the areas of criminal and family law.