Why Ottawa is so big
NationalPost.com – Opinion/FinancialPost.com/FPComment – Federal powers have been expanding despite the Constitution
May 19, 2011. By David Asper
Terence Corcoran’s column regarding the size of Cabinet versus the size of government is well put (“The government is too big, not the Cabinet,” May 19). Given the scale of current federal government activities, it’s quite appropriate to say that an optimal management organizational chart might actually provide for even more Cabinet ministers.
The essential problem, however is not what that chart would look like, but rather whether the federal government ought to be doing less and thereby need fewer Cabinet portfolios. This doesn’t necessarily mean that less gets done, but instead focuses on who is supposed to be doing it.
Which leads inexorably back to the deal made at the time of Confederation.
I know that any time someone mentions the word “Constitution,” it makes eyes roll. This is largely due to the fact that under previous governments that word was equated mostly to relations with Quebec, as well as the Charter of Rights. But another aspect of the Constitution might be worthy of serious review now that a functioning government is in place in Ottawa.
It has to do with the division of powers under sections 91 and 92 of the British North America Act.
Those are the two primary sections that assign exclusive jurisdiction between the provinces and federal government, although there are others to be considered.
Since the 1960s, there has been a consistent erosion of the division of powers that has not only seen an unprecedented growth in the size of the federal government, but a fuzzification of where the jurisdictional boundaries lie.
The growth of federal responsibility for health care is a good example of this, given that the establishment of hospitals is, strictly speaking, an area of exclusive provincial jurisdiction. There may be arguably valid reasons for some expansion of federal power in this regard, but one has to question whether the objective of having a national minimum standard of universal access to health care means that the federal government requires a massive bureaucracy to do it. Look at the scale of what Health Canada does “in partnership” with other stakeholders.
Another smaller example recently manifested itself as Manitoba declared it was enacting laws relating to the fine-print detail of cellphone contracts relating to termination and other fees.
Since cellphones come with a contract, the provinces have jurisdiction by virtue of their powers over property and civil rights. However, the federal government has jurisdiction to regulate trade and commerce, and it is within this power that the Department of Industry exists, which, among other things, regulates telecommunications for the country.
There is also overlapping jurisdiction with regard to criminal property forfeiture and countless similar examples, measured in the thousands if not more.
Some aspects of the division of powers lead to essentially unmanageable situations. Education is an exclusive provincial power. Yet, the federal government has enacted bilingualism laws that would undoubtedly be best implemented through bilingual education when young people are most captive and likely to absorb a new language skill.
We have a massive federal Department of Heritage that is supposed to promote Canadian culture to Canadians. Some question whether this entire function is appropriate, but, leaving that issue aside for the moment, the federal power does not allow it, for example, to provide for minimum Canadian studies programs within our schools, as Health Canada does in its portfolio. Curriculum is left entirely to the provinces. As the result, we get a disjointed and substantively ineffective outcome in terms of truly teaching Canadian students about who we are as a nation. Instead, we get things like Canadian content quotas in media, some of which work such as in the case of music, and some of which don’t, as in the case of most Canadian television dramatic programs that draw very low audiences. Elites define culture often to the exclusion of what Canadians actually do as a manifestation of their social identity. But we have a federal department for this task.
The density of the overall problem is enormous, but that doesn’t mean we should be deterred from going back and calmly taking stock of the division of powers in Canada.
Driving local things back to local governments allows for the possibility of a smaller federal government. Achieving outcomes for legitimate national purposes might need to have a better balance and role delineation between the two levels of government. Paying for programs whose impact is felt most closely at a local level might require rejigging the taxation structure so that local governments can be held more closely accountable for the money they collect and spend.
In my view, this admittedly large and often contentious subject is much more worthy of consideration than trying to figure out how to better manage the existing structure of government. Complex organizations like government cannot function unless the tasks of its constituent parts are made clear, nor can those parts ever really be accountable without such clarity. As taxpayers, we have a legitimate claim in this regard.
David Asper is a business executive and assistant professor of law at Robson Hall Law School at the University of Manitoba.
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