Pols Final Exam

Tripe E: equal, elected, effective

1. distinct society

2. immigration role strengthened

3. role in selecting 3 SCC judges

4. opt-out of federal spending power

5. veto on constitutional amendments affecting QC

they provincialized all of the conditions other than the distinct society because they could not state that all provinces were a distinct society

the question was posed to the SCC "Does Quebec's french only sign law violate s2(b) of the Canadian Charter of Rights and Freedom?

- Bill 101

- SCC ruled that it does

- the french were mad and pressed Bourassa into enacting s33 which he did

- English Canada was mad that he used the notwithstanding clause

Elijah Harper- MB aboriginal refuses to support

Clyde Wells - NL leader (hero of English Canada)

Pierre Trudeau

MB (never did because of Elijah Harper), NL (originally agreed but then rescinded when Wells came into power and never agreed), NB (ended up agreeing but wanted a companion accord)

- Canada rejected its premise

- Elite-driven

- seamless web

- ford v quebec

- personalities

Public Consultation

- Citizen forum

- Royal Commission on Aboriginal Peopls

- Shaping out Future Together (Unity Committee)

First Ministers

- negotiations began 1992

- Charlottetown Accord signed on August 28

Referendum

- Do you agree that the Constitution of Canada should be renewed on the basis of the agreement reached on August 28, 1992?

- Yes: ON, NL, NB, PEI

- No: BC, MB, AB, SK, QC

- Quebec wanted more, Canada said it was too much

Quebec posed the question, do you agree that Quebec should become sovereign after having made a formal offer to Canada for an new economic and political partnership within the scope of the bill respecting the future of Quebec and the agreement

Quebec sovereignty determined unilaterally

no second referendum required

sovereignty-association

The yes side all of a sudden near the end started to pull ahead, and Chretien started to get nervous. He started to freak out and promised Quebec constitutional veto and distinct society recognition.

He held a speech asking Quebec to stay and offering these benefits which made the separating Quebec more happy since he looked panicked and stressed

- ended up being a close vote but the no side won

The federal government wanted to prepare for if something similar were to happen again, where a province wanted to separate from Canada.

They took their questions to the SCC, and asked 3 questions

1. Under the Constitution, can the National Legislature of Quebec effect secession unilaterally?

2. Does international law give Quebec the right to effect secession unilaterally?

3. If conflict between 1 and 2, who wins?

SCC ruled in favour of the federal government (9-0)

1. Quebec was bound by the constitution so they could not unilaterally remove themselves from Canada

2. Quebec was not experiencing subjugation; they haven't been mistreated

3. No need to answer

BUT, they ruled in the future there had to be a clear majority on a clear question

Federalism

Democracy

Constitution and the rule of law

Respect for Minorities

In regards to secession from Canada, the government would have to negotiate with Quebec if they expressed a clear will to secede.

If confirmed by the House of Commons that there was a clear majority to negotiate, the constitution would remain until the terms had been agreed to by all parties, through an amendment to the constitution, which requires consent of the federal government and every province

- change the term limits to 8-9 years; non renewable

- 'consultative' elections for 'nominees' for Senate: the winners of elections given to PM who would consider them but if he wants he does not have to appoint the people on the list that are given to him; this is how he got around the constitution

s38 (term limits): general procedure 7/50

s42(1)(b) (elections): 7/50

s41 (abolish): unanimous consent

s44: parliament only

1. Can Parliament use s44 to amend the Constitution and create term limits?

- NO - s38 (7/50)

2. Can Parliament use s44 to amend the Constitution & create consultative election?

- NO - s38 (7/50)

3. Can Parliament use s44 to repeal the property qualifications (own $4000) for Senators?

- YES - unilateral

4. How to abolish the Senate - 7/50 or unanimity?

- unanimity

- elections would affect 'method of selecting senators'

- Federals argument: PM would still have ultimate discretion on who they wish to choose since it is just 'consultative'

- SCC rejects: cannot assume the PM will ignore costly and hard fought consultative elections

- provinces have interest in changes affecting the Senate's fundamental nature and role which term limits does

- excessively short or renewable terms would alter the FNR

- the problem here is that the SCC just let Harper change the retirement age unilaterally but not how long they could be senator for... how is this any different?

- abolishment would affect Part V (amending formula)

created a committee that would request new candidates

goal: non-partisan, merit based

parliament may 'spend or lend to any government, institution or individual' for any purpose it chooses, and may attach any conditions it chooses, including conditions it could not directly legislate (not under its jurisdiction)

the provinces revenues are not sufficient enough to meet their needs

- the areas that the provinces have jurisdiction over have expanded and become high growth spending areas

Conditional: specific purposes - "here is $, spend on X"

Unconditional: no strings attached - "here is $, do what you want"

- for more are unconditional today

CHT: Canada Health Transfer

- 50% of transfers

- conditional (technically)

CST: Canada Social Transfer

- conditional (technically)

- very broad

Equalization payments

Block Grants (unconditional)

Wholly unconditional transfers that are given from the federal government to certain provinces in order to ensure they have sufficient revenues to meet expectations

- basically want all provinces to be equal

- rich provinces paying the poor? ; technically no, but indirectly yes

AB, NL, SK, BC

- even though oil prices are decreasing Alberta still has the fiscal capacity; they can have high taxes because they have rich people who can pay them

- it is likely that ON will soon switch with NL

Fiscal Capacity: ability for the provinces to raise revenues

3 year average GDP

1950s-1970s: Co-operative Federalism

- shared cost programs: spend money on X and we will match it

- wanted to induce provincial spending

1970s-1990s: Competitive Federalism

- deficits created reduction in inducements

1990s-2006: Collaborative Federalism

- Social Union Framework Agreement

2006-2015: Harper Federalism

- limited intergovernmental relations

- no new national programs

-limited use of federal spending

- focus on economic union

- more emphasis on federal leadership

- for more intergovernmental meetings

- shift back to collaborative federalism?

- too hard to tell yet

Classical Federalism: unilateral

- each government acts independently within own jurisdiction

- minimal efforts to collaborate

- policy can shift dramatically depending on the government in power, interest groups and public opinion

Joint Decision-Making: Negotiations

- formal agreement between both levels of government is needed before action is possible

- intergovernmental consensus reduces the probability of change

Shared-Cost Federalism: give & take

- feds offer financial support to provinces to operate specific social programs

- must meet basic conditions

- it is an example of Classical Federalism

Harper

- Choice in Childcare

- if you want to spend the money on daycare go ahead, or if you want to stay home and raise children you can use the money towards other things

- problem: what if parents are not spending money on childcare

Trudeau

- Canada Child Benefit

- combines Universal Family Allowance and other benefits

- tied to income, not taxable

- example of classical federalism

- universal, but means-tested

- income > $74000 must pay portion of net income back

- example of classical federalism

- means tested: depends on income, marital status, age of partner

- governments have thought about taking away or replacing the OAS/GIS but abandoned idea

- tough politically to reduce senior benefits

- 2012: Harper changed it to begin at 67

- 2015: Trudeau restored it to 65

- example of joint decision-making

- it is paid by contributors/employers, depends on how much you make and mandatorily comes out of paycheques

- it use to be that 4.95% of gross earnings would go towards CPP, now 5.95%

- at 65 you use to get 25% of earnings back, now you get 33% of earnings back

- example of Shared-cost federalism

- largely provincial jurisdiction

- federal role: funding and standard-setting

- basically you have the federal government with all the money and 10 provinces and 3 territories negotiating

- federal government still has important part: health delivery for discrete groups, health Canada, CHT, Canada Health Act

Public Administration

Comprehensiveness

Universality

Portability

Accessibility

- if the province does not follow these they can receive penalties for non-compliance (receive less money)

Co-operative Federalism

- shared cost programs

Competitive Federalism

- went from shared cost to block funding (1977)

- Canada Health & Social Transfer (CHST) (1995)

- cuts to provinces; it was hated

Collaborative Federalism

- SUFA (1999)

- 10-year plan under Martin (2004)

- 6% annual CHT increases 2006-2014

- more federal leadership (more funding, more studies)

- new federal institutions

Harper

- Martins plan is expiring

- 2011: 2017-2024 growth in nominal GDP (approx 4%)

- per capita

- no consultation

Trudeau

- offer 10 year increase CHT by 3.5% a year

- provinces do not like this (same as Harpers, they want their 6% back)

- eventually, they all sign (except MB) the feds called their bluff

Economic Status

Family Status

Refugee Status

- gave Quebec control over selection of economic immigrants

- this ended up being given to all provinces

- economic integration is weaker in Quebec because they are selecting people from a smaller pool; they wanted French speaking individuals (that is their main priority)

- allows provinces to identify migrants for local needs

- put provincial applicants to front of the line BUT the feds still issue final decision

- 2008: cap removed (unlimited number of nominees)

- 2011: put cap back on

Selection and Admission

- traditionally was federally dominated but Quebec gained control and now provinces are catching up (PNP)

Settlement

- asymmetric: different for every province but the feds remain the largest funder of programming and support services except for in Quebec who do it exclusively

Socio-Economic Integration (long term)

- standards vary by province

Political Integration

- feds most pronounced: CCRF, multiculturalism, naturalization

- Quebec value loyalty (interculturalism) this makes it difficult for newcomers who are pressured into two conceptions of community

Breaking down Canadian value into a couple of words, emphasizing aspects to make certain outcome more feasible

- define problems, diagnose causes, make moral judgements, suggest remedies

describing policy as properly belonging to one level of government rather than the other

Normative: why level of government should act

Procedural: what level has constitutional/legal capacity to act or create policy

basically saying that within the language: some stuff is good and some stuff is bad

Medical-Scientific (good) and Moral (bad) = Ambivalence

Federal

- POGG: no longer want to talk about this anymore

- Criminal Law Power

- ARTs: prohibition valid

- regulatory authority unclear

1. Prohibitions: payment for sperm, eggs, surrogacy, cloning

2. Controlled activities: donor consent licensing records, data gathering, clinical practice

3. Agency: Assisted Human Production Canada

Quebec was opposed to AHRA and launched reference in Court of Appea;

disagree on characteristics of AHRA

- AG: purpose to prohibit practices that would undercut moral values, produce evil, threaten security of donor

- Quebec: regulation of reproductive medicine and research

Question: are non criminal aspects of AHRA ultra vires Parliament of Canada

Question: do non-criminal sections violate provincial jurisdiction over health care?

- SCC ruled 5-4 for provinces

Chief Justice McLachlin (4): Moral

LeBel and Deschamps (5): Good

Result: federal government prohibits the bad things, provinces are regulate the good (controlled activities)

Intrastate (within national government)

- house, senate, SCC, cabinet

Interstate (interactions between governments)

- heads of governments or ministers within each governments

- provinces and federal government

1983: INAC managed 50% of programs (feds)

2011: only 8%

- band councils now largely responsible for the administration of social services, education, training, economic development, and housing

- funding by feds, delivery by First Nations, organizations, non profits

- this does not change constitutional status; federalism

- new province: unlikely due to size, territorial dispersion, diversity

- recognition of 'third order: core jurisdiction and responsibilities (most widely discussed)

Within the house: specific aboriginal seats

within the Senate: specific aboriginal seats

Aboriginal house of representatives: tricameralism

Why are these bad?

- violates equality: treating people differently

- assimilation by other means: trying to get Aboriginal people into Canada