Legal Brief for July, 2017

Canada 150

Canadians are celebrating the 150th anniversary this year of the founding of Canada as a political entity.  It is a great occasion to mark such a long period of stability and sovereignty.  However, our loyalties have oftentimes been pulled in different directions, as we will sometimes proclaim ourselves Albertans first and foremost, or likewise in other parts of the country.  This is quite understandable, and is a natural evolution that results from the division of powers settled upon by the Fathers of Confederation in the period leading up to 1867.  (As a side note it is certainly jarring to our modern sensibilities to think that women were totally excluded at the time from the political process, both in terms of not being able to vote and not being able to hold elected office - but that is a story for another day!)

The representatives from the four British colonies that formed Canada in 1867 - namely Nova Scotia, New Brunswick, Quebec and Ontario - realized that if they were going to form a political union larger than themselves then they were going to need to allow the "national" government to have certain exclusive powers.  This would be necessary not only in order to present a national front to the rest of the world, but also to ensure some semblance of consistency in laws among the four colonies.  As a result the new national government of Canada was given the power to make all laws in respect of criminal law, to raise and maintain armed forces, to make international treaties, to regulate inter-provincial infrastructure such as roads and railways, as well as many other areas.

The colonial representatives however were also eager to keep back a broad variety of powers for their own levels of government.  This was not unexpected, as each of the colonies had its own history and had developed economically and culturally in different ways.  A businessman in Nova Scotia would certainly not have wanted someone from Ontario having a say in regulating how he would run his business.  As a result, each of the four founding provinces reserved for provincial control such matters as property rights and laws, contract laws, governance of municipal authorities and a variety of other areas as well.

This type of governmental structure is known as a federation.  It features two levels of primary political authority - the national, or federal level, which in our country is known as the Government of Canada, and the provincial level, which for us in Alberta is the Government of Alberta.  At the time of Confederation in 1867 a federal structure was a relatively new type of political organization in the world.  Most countries that existed as national states in that time had what are known as unitary governments, meaning that one national government made the laws in all areas of policy for the entire country, without any regional level of government other than the very local municipal authorities.

The United States of America was perhaps the most prominent example of a federal system of government that had appeared on the world scene in the years preceding Confederation.  However, the Fathers of Confederation were very careful in their deliberations as to how much power the soon to be provincial governments should have, as the U.S.  was then engaged in one of the bloodiest military conflicts in human history - the Civil War, which resulted directly from a bitter dispute over the nature and extent of what rights the states of that country had versus the rights of the national government.

The beauty of a federal system of government, when it is functioning well, is that allows its citizens to in fact have dual loyalties.  Its citizens live and structure their lives in response to two different levels of government, both of which have legitimate claims to authority.  As a result we can proudly call ourselves both Albertans and Canadians.  Happy Canada 150!

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