Yes!
Even before the Throne Speech has come down, critics are lining up to take aim at Stephen Harper for giving away the store with his plans to limit federal spending in areas of provincial jurisdiction...If this pans out, this will be a truly historic Throne Speech:But speculation swirling in Ottawa suggests that this is only half the story: While the feds may retreat on social programs, they may become more assertive in areas such as interprovincial trade and commerce -- including setting up a national securities regulator...
Even before the Throne Speech has come down, critics are lining up to take aim at Stephen Harper for giving away the store with his plans to limit federal spending in areas of provincial jurisdiction...This is very exciting. (Well, to me, anyway.) It's much like the Grand Bargain I proposed in a piece last spring. It's also in keeping with the Tories' 2006 election pledge of "aggressive" action to strengthen the economic union.But speculation swirling in Ottawa suggests that this is only half the story: While the feds may retreat on social programs, they may become more assertive in areas such as interprovincial trade and commerce -- including setting up a national securities regulator...
In particular, Ottawa is keen to assume the role of traffic cop ensuring the free flow of inter-provincial trade and commerce...
One discussion currently taking place inside government is whether to refer the Trade and Commerce clause in the Constitution to the Supreme Court of Canada to get legal guidance on how far the government can act unilaterally in imposing solutions...
A trade of spending power for economic union would be a huge net win for the federation. It would also be a political master stroke for the Tories: at one bound, they would overtake the Liberals as the Canada Party, rather than the devolutionist "headwaiter to the provinces."
And as an issue to fight an election on? They'd mop the floor with the opposition. The NDP would probably oppose it, so would the Bloc: good luck to them. And the Liberals? I don't know how they could oppose it.
As for the provinces, B.C. and Alberta have already signed a free trade treaty between themselves, and Ontario has talked about coming on board. That leaves Quebec as the wild card. Perhaps Jean Charest might be tempted to oppose it -- had he not proposed exactly the same thing when he was federal Conservative leader. Look it up: it was called the Canadian Covenant. Federal transfers to be converted into tax points, on condition that provinces sign on to national standards -- and in exchange for a federal Inter-Provincial Trade Commission.
Very interesting...
10/06/2007
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18 Comments
I think this is only exciting to pundits and policy wonks and a few people who live close to the Ottawa River. I can't see it meaning a lot to the average voter.
Spending power has more immediate political consequences because it involves government money and the possibility of largesse which is encapsulated in the phrase: "what's in it for me?"
Harper is to in love with his "let Quebec do whatever it wants" cred to force the province to do anything.
Chris, what's in it for you is we finally turn into a real country. We finally have a situation where it is as easy for someone in Alberta to do business in Saskatchewan as it is for that same person to do business in Montana. We finally have a unified securities regulator, unified rules for businesses, unified capital markets, and maybe, just maybe, we finally have an economy that can help domestic companies grow big coast-to-coast here, then use that scale to expand on the world stage (and hopefully that will shut up the "hollowing out" crowd). Basically, we'll go through the reforms the Americans got around to doing sometime after the GREAT DEPRESSION. I'd say it's about damn time. And I never understood why the federal government just kept giving things away to premiers demands. There should always be a trade, you want $42 billion dollars to fix health care for a generation? Give me a securities regulator. You want to opt out of any federal programs? Give me back immigration. You want money to fix a "fiscal imbalance"? Fine, but I get to set standards for healthcare, or education, or highways, or wherever you plan on spending that money that was taxed by the national government. It's really quite simple. Recently the dynamic in this federation has been premiers demand, Ottawa gives. That needs to end, maybe this speech will signal that the give away the store to the premiers era has ended.
I will just about guarantee it doesn't pan out. Michaelle Jean will talk about it, just as ministers Mazankowski, Martin, Manley, Goodale and Flaherty did, in every budget since 1992. When Flaherty talked about it in the 2006 budget I was gulled, but that's a long time ago now. And nothing zip zero nada has changed. Again.
Paul - I would say that we shouldn't be quite so dismissive. The opposition is possibly at its weakest point ever, and if something like this is going to fly, I think now is the time.
I don't know what the circumstances were for Mazankowski, Martin, Manley or Goodale, but for Flaherty I think it looks pretty good. Not to mention, I don't think the liberals had anything to gain by making these changes.
The Liberals weren't interested in surrendering their spending pegorative in areas of provincial jurisdiction. I think the Conservatives stand a good chance of making this happen.
I could be wrong, but I remain hopeful.
I would find this very interesting. Something concrete that the Federal govenment can do that actually helps all of Canada. It makes us more united and less of a series of fiefdoms.
I also agree that it would be a very dangerous policy for the Liberals to oppose. If they were to oppose it, the irony of their aggressively selling national social programs but rejecting economic standardization and fairness would be remembered for a generation.
Tomm
When it's a federalism file, the opposition isn't in Ottawa, folks...
I'm reminded of the old line about the guy who stumbles out of the movie theatre after seeing Old Yeller for the 76th time, shaking his head: "I was SURE they'd let the dog live this time..."
An interesting test for the government. There is no doubt that the public doesn't care about this and that the provinces will howl, sovereigntists will fly into a rage, and maybe even natives will stick their oar in.... So, plenty of obstacles.
On the other hand over the years conservatives have won major battles on such fronts as free trade, deficit spending and inflation control in the teeth of ferocious opposition. We've come a long way since the 70s. Globally, tariffs and corporate taxes are clearly trending downward and free trade is expanding. Conservatives have good reason to be optimistic about the future of rational economic reform. In the short term we should keep pushing for change; it would be great to see the government press ahead with this.
Having worked in the securities sector for over 20 years in the administration level which involved filings, etc., one single regulator would be a great idea and Flaherty isn't the first to think about it.
When you have to do a prospectus, filings and other things related to securities - it's a total pain to have to deal with so many Stock Exchanges with their individual requirements - Quebec being the worst to deal with. Takes up so much time and paper to satisfy the requests of each and totally frustrating when there are urgent deadlines.
But, frankly, Quebec will not go for it and this could hurt Harper (which wouldn't bother me at all).
I choke having to say this, but in this instance I agree with Flaherty.
Other than that, I wish he'd go away.
"When it's a federalism file, the opposition isn't in Ottawa, folks.."
Thats a good point, although Equalization was a pretty contentious file as well that the current government took on, and changed for the good of the country. I think Harper will take on the provinces on this one as well.
". . . whether to refer the Trade and Commerce clause in the Constitution to the Supreme Court of Canada to get legal guidance on how far the government can act unilaterally in imposing solutions . . . "
Help an American-trained lawyer out. I understand that the SCC has jurisdiction over advisory matters - that it doesn't require a live controversy to hear a case. But surely it would also have jurisdiction over a live controversy involving the same legal matters, were such a controversy to arise - right?
So instead of referring the question to the SCC, why not, you know, just do it, and then let the SCC - not a particularly popular institution from a democratic perspective - sort out the aftermath?
"So instead of referring the question to the SCC, why not, you know, just do it, and then let the SCC - not a particularly popular institution from a democratic perspective - sort out the aftermath?"
Well, because it makes more sense to know ahead of time if the law is going to get struck down, and then to plan accordingly, rather then to have it all taken down after people are used to it.
Mader, nobody in Canada ever does anything without permission from some level of government....we exist to serve the state.
And why exactly is it a good idea for Harper to surrender federal spending power for something he might already have the authority to do anyway?
Ty, I guess what I'm trying to suggest - perhaps a bit subversively - is that the Supreme Court's decision may well be different depending on whether the law is actually in effect. As long as the question is abstract, there's no cost to the Court in declaring it unconstitutional - on the contrary, such a decision merely reinforces the Court's apparent role as sole authority on the interpretation of the Constitution.
But if the law has passed and is in effect, the Court is somewhat constrained, politically, in how it may act. Sure, it can still strike the law down - but if it does, it will be acting in a decidedly counter-majoritarian way - it will be contradicting and rejecting the elected majority's (or, at present, plurality's) preferred interpretation. There's no question (I think) that the Court has the jurisdiction and Constitutional power to do that, but every time it does that it may risk a certain amount of political capital - because the majority won't be happy being told that its preferred interpretation is wrong.
As I suggested before, there seems to be a considerable amount of discontent with the judiciary at present. No one questions their bona fides, but many seem to question what have come to be seen as the courts' incursions into the political realm. (Which is why we saw - was it late last year, or early this year? - a poll suggesting broad support for some sort of elected judiciary.)
I think that puts a government in a position of relative strength, by reducing the amount of political capital that the Supreme Court enjoys and with which it can strike down popular laws. By referring questions to the Court before enactment, the government waives its ability to exploit this position of strength. Whether on such a bill as this, or on some other, it would be interesting to see a government play its cards.
Mader, Mike Jr.:
I think you both underestimate the Court's importance as a political player. Readers of this blog may harp on the Court's "incursions into the political realm," but they are -- ahem -- an unrepresentative sample. Broadly speaking the Court's reputation with the public has never been higher. And as such, that makes it a potent political force -- not just by dint of its formal legal authority, but its effect on public opinion.
Example: the patriation reference. I thought it went way too far, inventing a duty to negotiate that is nowhere written or even implied by the Constitution. I was virtually alone in this critique. Moreover, the full judgement, including the part the Court got right -- that Quebec has no right to secede unilaterally -- was embraced not only by Quebecers, but by Lucien Bouchard. It turned out Quebecers rather like living in a law-based state, a fact that, once confirmed, transformed the whole debate.
Example: the Chaoulli decision. The Court handed down a ruling that, although by no means "activist", was full of radical implications for medicare -- and was widely applauded for it. Here again, as with the secession (and patriation) reference, the Court didn't just rule on an arcane point of law -- they changed the debate.
I might also mention the role of lower courts in advancing the cause of gay marriage. Public support for gay marriage increased at an astonishing pace in the last 10 to 15 years, and it is plausible to think that successive court rulings had a large part in that, making mainstream what was previously a radical idea.
So the case for referring the Trade and Commerce clause first is not legal, but political -- that it would give the feds cover to do something they otherwise would not dare to do, for fear of the provinces; that public opinion would be more likely to fall in line behind "a bunch of unelected judges" than either the federal or provincial governments.
Mike's right, in a sense: Legally, the feds could enforce the economic union now, without either a Court reference or a spending power deal -- as they could have done at any time in the last 140 years. That they haven't, however, should tell you something. A Court reference would give them the stick with which to beat the provinces; the spending power would be the carrot.
Coyne commenters are an unrepresentative sample of the broader Canadian populace? Who'd have thought? ;)
From a political perspective, I'm trying to figure this one out, and don't be mistaken, EVERYTHING that happens in these minority Parliaments is done for a hyper-political/partisan reason, (the single exception that comes to mind is Income Trusts). Maybe they are trying to recast themselves as the Canada Party, to steal that damn "Tories don't have Canadian values" bile away from the Liberals once and for all. But one would think this may clash with their Quebec first strategy. Perhaps this is just more noise so they LOOK like the Canada Party, with very timid actual follow up?
Andrew,
Your point is well taken. I wonder if my point doesn't still stand, if perhaps in a limited context.
You're absolutely right about the references - I think it's clear that whenever the Court responds to a reference with an advisory decision, whether or not its decision challenges the status quo, its ruling is seen as a definitive and respected statement of the law. But that's part of my point - in such instances the Court is operating in a relative political vacuum, and in such circumstances the court's political power is at its strongest: such a ruling may contradict a social status quo, but almost by definition it does not contravene a law passed by parliament (unless the reference is with regard to an existing rather than a proposed law).
My contention is that in the other situation - when the Court rules on an existing law - its political power is relatively constrained (even if it remains absolutely significant), and its rulings risk diminishing its political capital.
Take Chaoulli. I know I certainly applauded the decision, and of course I'll take your word that it was widely applauded - it's hard for me to gauge from here. But I suspect that it was not as welcome in at least some communities - among those ideologically committed to a single-payer system, for instance. And I suspect that members of such communities disagree with, and may even resent, the Court's decision.
Obviously whenever the Court makes a decision, there will be some who disagree with and may resent that decision. My contention at its simplest is that this sort of reaction is less likely to occur in the context of a reference because such a decision has, by definition, no immediate actual consequence, but only an abstract and advisory consequence. No law is struck down; and while a planned law may be frustrated, I think it is less likely that such a frustration would inspire feelings of political disagreement or resentment.
As a result, I think there will certainly instances - perhaps especially where opinion is neatly divided on an issue - where a government would be well advised to pass a law and allow it to be challenged, rather than to refer the matter to the Court prior to passage. In such cases a decision of unconstitutionality by the Court would lay bare a political division in the country and between the elected majority and the Court which would, I think, validate the government's position and consolidate support for that position more than would be the case if the law were merely preempted by an adverse advisory opinion.
I take your point that legislation under the Trade & Commerce Clause does not present such a case, and it goes without saying that where opinion is generally opposed to the government's position, a favourable advisory opinion will be hugely beneficial. In context that renders my argument - as it so often is, alas - theoretical. I'm not yet convined that it's wrong.