The House: Can Canadian federalism cope with 21st century threats?
The pandemic and climate change are crises the Constitution's drafters never saw coming
The Constitution sets out the division of powers between Ottawa and provincial governments. But is it also helping to divide the country as politicians struggle with large-scale threats such as climate change, the state of long-term care and the COVID-19 pandemic?
"I think it's been a real problem," said University of British Columbia political scientist Kathryn Harrison in an interview airing Saturday on CBC's The House.
Harrison is the author of the 1996 book Passing the Buck: Federalism and Canadian Environmental Policy, which describes how both levels of government failed to take the lead on climate change — a catastrophe that wasn't on anyone's radar when the Constitution was drafted in 1867.
You can see the muddled nature of Canada's approach to climate change in its patchwork of environmental policies, and in the recent unsuccessful legal challenge of the federal carbon tax by the governments of Ontario, Alberta and Saskatchewan.
Harrison said at least part of the blame can be pinned on the complexity of Canada's form of government.
"It's a bit like a machine that has 11 steering wheels. And everybody — if they all want to go in the same direction, that's great. But if they don't want to go in the same direction, the whole thing [grinds] to a halt," she said.
"And that's what we saw for 25 years … the most carbon-intensive provincial governments didn't want to go in the same direction. They resisted action on climate change. So even when federal governments promised to meet targets, they tended to back off in the face of provincial opposition."
First cooperation, then conflict
The COVID-19 pandemic demonstrated the best and worst aspects of a federal system of government.
In the early stages of the crisis, Prime Minister Justin Trudeau held regular conference calls with the premiers to discuss shared priorities.
Intergovernmental Affairs Minister Dominic LeBlanc said the federal and provincial governments worked well as a group when responding to outbreaks in long-term care centres. At the request of both Quebec and Ontario, Ottawa sent in the armed forces to help health professionals at several long-term care facilities.
"There were very, very, very many successes where governments worked together where the national government was able to assist provinces with particular needs," LeBlanc said in an interview last month on The House.
"I don't think that our federal system necessarily has to be a barrier to an effective, robust response to protect Canadians. I think … all governments need to double down on the desire to work collaboratively together. And we've tried — perhaps not perfectly — but we've tried to avoid sort of the partisan push and pull of these conversations and focus on Canadians and those that need the help of their governments, plural."
That spirit of collaboration didn't last, and soon gave way to confrontation.
Jared Wesley is a political science professor at the University of Alberta and a former director of intergovernmental relations in the Alberta government.
He said the early part of the pandemic was a period of "emergency federalism," with the Trudeau government taking a leadership role.
"Everybody seemed to be in the same boat, rowing in the same direction," he said.
But as the pandemic progressed, the usual pattern of federal-provincial conflict re-emerged.
Ontario Premier Doug Ford, for example, complained that the Trudeau government didn't move quickly enough to close borders or provide vaccines.
"Some provinces were more eager than others to open up and protect livelihoods, not just lives, as the premier of Alberta put it. We started to see some tension across the country," Wesley said during a panel discussion on The House.
"And then as we got into, you know, the rollout of vaccines, that's when the blame game really did kick in, with some provinces saying we could vaccinate more people if the feds would just get their act together on procurement.
"And the feds pushing back by releasing data that showed that Ottawa was sending vaccines to different provinces, but they were just sitting in freezers."
Health care is a responsibility shared by the two levels of government. The federal government transfers billions of dollars to the provinces for heath services; in return, the provinces are supposed to provide similar levels of service across the country.
Dalhousie University's Katherine Fierlbeck told The House panel that the COVID-19 pandemic exposed problems the original framers of the Constitution couldn't have anticipated more than 150 years ago.
"We have to remember that Canada became a formal state at a time when health care, such as it was, really was a local and a private matter, and so quite reasonably subject to provincial jurisdiction," said Fierlbeck, who teaches political science and writes extensively on the politics of health care.
"But there have been incredible technological advances in diagnostics and treatments. And the way in which we do health care has changed beyond anything a 19th century person would ever have imagined.
"And so, the problem we now have is that modern pandemic management is both national and public rather than local and private, and so doesn't fit particularly well with the original design."
Changing the Constitution has, of course, proved to be extremely difficult in this country. And as the pandemic response showed, the prime minister and his government have been very reluctant to invoke the Emergencies Act to deal with a national crisis.
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Doing so would come with enormous political risks, Wesley said.
"If the federal government had to come out with the Emergencies Act and dictated a national approach to this pandemic response or in the future on long term care, they become accountable for that strategy," he said.
"And I'm not sure that federal governments are willing to do that. They'd rather have partners in the provinces that they can pass blame on."
But there's also a risk inherent in failing to learn the lessons from the pandemic response — or from the unprecedented heat wave now afflicting Western Canada. It's up to political leaders to decide whether these challenges of today require a new, more flexible form of federalism.