National
Federal debt interest will consume nearly one quarter of income tax revenue in 2024
From the Fraser Institute
By Grady Munro and Jake Fuss
The Trudeau government will table its next budget on April 16. In recent years, the government has overseen a substantial rise in the amount of interest it must pay to service federal debt, reversing a long-standing trend of interest costs declining relative to personal income tax revenues. By 2024/25, according to projections, nearly one in four dollars of personal income tax revenue will go towards debt interest.
Just like how individuals must pay interest when they take out a mortgage, the government must also pay interest when it borrows money. These interest payments represent taxpayer dollars that don’t go towards programs or services for Canadians.
When interest costs rise faster than the government’s ability to pay—i.e. the revenues it brings in—the government will face pressure to take on more debt to maintain funding for programs and services. And by taking on more debt, this places additional upward pressure on interest costs (all else equal) and the cycle repeats.
A useful way to track this is to measure debt interest costs as a share of federal personal income tax (PIT) revenues, which represent Ottawa’s single-most important revenue source. In 2024/25, they’re expected to comprise just under half (46.4 per cent) of total revenues and therefore provide a useful gauge of the government’s ability to pay interest on its debt. As such, the chart below includes projections for federal debt interest costs as a share of PIT revenues for the two decades from 2004/05 to 2024/25.
As we can see from the chart, for many years federal debt interest costs had been declining as a share of Personal Income Tax revenues. In 2004/05, 34.6 per cent of PIT revenues went towards servicing federal debt, but by 2015/16 that share had fallen to 15.1 per cent. In other words, during the Trudeau government’s first year in office, federal interest costs consumed less than one in six dollars of personal income tax revenue paid by Canadians. Interest costs as a share of PIT revenues continued to fall for the next several years, down to a low of 11.7 per cent in 2020/21. However, this marked the end of the decline, and the years since have seen rapid growth in debt interest costs that far exceeds growth in PIT revenues.
In the two years from 2020/21 to 2022/23, federal interest payments rose from 11.7 per cent of PIT revenues to 16.8 per cent. And by the end of the upcoming fiscal year in 2024/25, debt interest payments will reach a projected 23.4 per cent of PIT revenues. In four years, debt interest payments are expected to have gone from consuming about one in nine dollars of PIT revenue to nearly one in four dollars. Put differently, nearly one quarter of the money taxpayers send to Ottawa in the form of personal income taxes will not go towards any programs or services in 2024/25.
The causes of this sudden rise in interest costs as a share of PIT revenues are the combined effects of a substantial accumulation of debt under the Trudeau government, and a recent rise in interest rates. From 2015/16 to 2022/23, the Trudeau government added $820.7 billion in gross federal debt, and by 2024/25 total debt will reach a projected $2.1 trillion—roughly double the amount inherited by the current government. Meanwhile, from 2022 to 2023, the Bank of Canada increased its policy interest rate from a low of 0.25 per cent to the current rate of 5.00 per cent.
Simply put, federal debt interest costs have risen and are expected to eat up almost one quarter of federal PIT revenues by 2024/25. To help prevent taxpayers from devoting an even larger share of their tax dollars towards debt interest, the Trudeau government should cease its heavy reliance on borrowing in this year’s federal budget.
Authors:
Crime
The US Canadian border: Greatest number of terrorist watch list individuals being apprehended at northern border
A Border Patrol agent standing watch at the Montana-Canada border in the CBP Spokane Sector. The Spokane Sector covers the U.S.-Canada border along the northwestern section of Montana, part of Idaho, and the eastern part of Washington.
From The Center Square
Lack of operational control at northern border poses national security threats
The northern border largely has been unmanned and understaffed for decades as federal reports issue conflicting conclusions about how much, or how little, operational control exists.
Some officials have suggested the U.S. Department of Homeland Security has just 1% operational control over the northern border after a 2019 General Accounting Office audit of U.S. Customs and Border northern border operations. But a December 2022 DHS report claimed, “The Border Patrol is better staffed today than at any time in its 87-year history,” noting no surveillance of extensive parts of the northern border existed prior to 9/11.
After 9/11, several federal agencies were combined to fall under the newly created Department of Homeland Security. Within 20 years, roughly 950 miles along the U.S.-Canada border from Washington to Minnesota, and roughly 200 miles along the northern border in New York and Lake Ontario, were under unmanned aircraft surveillance. None of these areas “were covered prior to the creation of DHS,” DHS says, meaning the northern border was largely unprotected since Border Patrol’s founding in 1924.
In 2012, DHS released its first unified department strategy for U.S.-Canada border security, prioritizing “deterring and preventing terrorism and smuggling, trafficking, and illegal immigration; safeguarding and encouraging the efficient flow of lawful trade, travel, and immigration; and, ensuring community resiliency before, during, and after terrorist attacks and other disasters.”
Within 10 years at the northern border, more than 2,200 Border Patrol agents were stationed between ports of entry; nearly 3,700 CBP officers were stationed at ports of entry; more than 35 land ports of entry were modernized; and thermal camera systems, mobile and remote video surveillance systems had been deployed.
Havre Sector Border Patrol agent patrolling northern border on an ATV. The Havre Sector covers the U.S.-Canada border along most of Montana’s northern border, and includes part of Idaho and all of Wyoming, Colorado and Utah.
Despite these improvements, “the northern border is under-resourced by far compared to the southwest border,” former Border Patrol chief Mark Morgan told The Center Square. “But at the same time, it still represents significant threats. Cartels are expanding their operations, flying people into Canada, which doesn’t require a visa, presenting an opportunity for terrorist watch-listed individuals to exploit. It’s much easier to get to Canada to come across.”
“Data from 39 months shows terrorist watch-listed individuals are coming here every day and they aren’t stopping,” Morgan added.
For years and prior to the current border crisis, there weren’t enough personnel to cover all shifts, and the infrastructure, technology and equipment afforded to them didn’t compare to those at the southwest border, he said. People can easily drive snow mobiles over frozen territory or boats across the Great Lakes in areas that are unmanned, Morgan said, with a previous policy of self-reporting to authorities.
“The northern border represents a threat,” Morgan said. Noting it only took 19 men to carry out the 9/11 terrorist attacks, Morgan has warned that a terrorist threat is already in the U.S. No one knows how many terrorist watch-listed individuals have illegally entered who weren’t caught, multiple officials have told The Center Square.
While much attention has focused on the southwest border, the greatest number of known or suspected terrorists to ever be apprehended in U.S. history were at the northern border in fiscal 2023, breaking fiscal 2022’s record, The Center Square first reported.
This fiscal year through April, the greatest number of KSTs (known or suspected terrorists) continue to be apprehended at the northern border, 143 so far, according to CBP data.
Potential terrorist threats are not new and have persisted for some time, federal reports indicate. One Border Patrol intelligence report says terrorist threats potentially come from “foreign violent extremists to exploit established alien smuggling routes and networks for the purpose of evading detection en route to the United States.”
Other threats include drug smuggling from Canada into the U.S., connected to “criminal groups with known ties to or hired by Mexican drug trafficking organizations” and human smuggling. In the last few years, human smuggling attempts and apprehensions have significantly increased, The Center Square has reported.
The Center Square first began reporting on northern border national security threats several years ago. Since then, apprehensions of illegal border crossers in the first six months of fiscal 2024 were the highest on record. In the busiest sector of Swanton, Border Patrol agents recently apprehended more people in one week than they did in all of fiscal 2021.
Last month, they apprehended more than 1,400 illegal border crossers, more than they did in fiscal years 2021 and 2022 combined, Swanton Sector Chief Border Patrol Agent Robert Garcia just announced, saying it was “another record-breaking milestone in northern border history.”
This is after they apprehended more than 6,700 in fiscal 2023, more than the apprehensions of the previous 11 years combined, The Center Square first reported.
The U.S.-Canada border is the longest international border in the world of 5,525 miles. Unlike the U.S.-Mexico border, there are no border walls or similar barriers along the U.S.-Canada border. Through DHS, CBP officers are tasked with border security at ports of entry and Border Patrol agents between ports of entry along 4,000 miles. The U.S. Coast Guard, working with CBP’s Air and Maritime Operations, covers maritime security.
From the C2C Journal
By Barry Cooper, professor of political science, University of Calgary
Canada’s western lands, wrote one prominent academic, became provinces “in the Roman sense” – acquired possessions that, once vanquished, were there to be exploited. Laurentian Canada regarded the hinterlands as existing primarily to serve the interests of the heartland. And the current holders of office in Ottawa often behave as if the Constitution’s federal-provincial distribution of powers is at best advisory, if it needs to be acknowledged at all. Reviewing this history, Barry Cooper places Alberta’s widely criticized Sovereignty Act in the context of the Prairie provinces’ long struggle for due constitutional recognition and the political equality of their citizens. Canada is a federation, notes Cooper. Provinces do have rights. Constitutions do mean something. And when they are no longer working, they can be changed.
Mahatma Ghandhi was once allegedly asked what he thought of Western civilization. “I think it would be a good idea,” he is said to have replied. One could answer the same about Canadian federalism: it would be a good idea.
Not too long ago I was interviewed by a CBC journalist from Toronto regarding the Alberta Sovereignty within a United Canada Act, which upon its introduction by Premier Danielle Smith’s UCP government in November 2022 was attacked as needlessly provocative, deeply unconstitutional, legally unsustainable and shamelessly populist. “What is your vision of Canada?” the CBC reporter wanted to know. I told her the following: that Canada might be a federation. The implication was obvious: Canada is not a federation at present and, arguably, never has been. Many Canadians would find such a remark not arguable but outrageous. So here is my argument. My focus is on the Prairie West, not Laurentian Canada, the Maritimes, Newfoundland or B.C., each of which retains the story of its connection to Canada.
For 200 years Rupert’s Land (its flag shown on top left) along with the Northwest and Northeast Territories were the exclusive commercial domain of the Hudson’s Bay Company (HBC), granted by the British Crown; Great Britian officially transferred these vast lands to the Crown in Right of Canada in 1870. (Source of map: Golbez, licensed under CC BY 2.5)
Before Canada became a country in 1867, the vast tracts administered by the Hudson’s Bay Company – Rupert’s Land and the Northwest and Northeast Territories, including what became Labrador – were governed from London under Imperial orders and statutes. In law, Rupert’s Land was a plantation – a cold-weather plantation, to be sure, but a plantation nevertheless. The transfer of Company lands from the Imperial Crown to the Crown in Right of Canada took place by means of an Imperial Order-in-Council (passed under appropriate statutory authority) on July 15, 1870.
This all-but-forgotten history is important for understanding our present discontents. Not only was Rupert’s Land a territory politically distinct from the colony of Canada, but the manner of its acquisition by Canada underlined its distinctiveness. In 1868, a year after Confederation, the British Parliament passed the Rupert’s Land Act, specifying that the Hudson’s Bay Company would surrender its “lands, rights, privileges, liberties, franchises, powers and authorities” under certain terms and conditions to be negotiated by the Company, the Colonial Office and the Canadian government.
The negotiations were protracted and the specification of the terms and conditions took years of haggling among all the parties, some of which erupted into lawsuits. In the background there remained the unacknowledged claims of the inhabitants of the Red River Settlement (in what later became the Province of Manitoba), who were decidedly cool about the prospect of being incorporated into Canada. Neither they – whether of British, French, Métis, “country-born” or Indian stock – nor the other natives of Rupert’s Land were consulted about their new status.
Obscure but legally important: Canada is often said to have “purchased” Rupert’s Land from the Hudson’s Bay Company, but Canada did not actually pay for the land, only for the company’s capital improvements such as Lower Fort Garry in the Rural Municipality of St. Andrews (aka the Stone Fort, top), Fort Edmonton (middle), depicted here after construction of Alberta’s Legislative Assembly building, and the Hudson’s Bay Brigade Trail (bottom). (Sources of images: (top) Gordon Goldsborough, 2014-0038; (middle) Peel’s Prairie Provinces)
Rupert’s Land was not, therefore, on the market the way Alaska had been in the 1860s, when it was purchased from Czarist Russia by the United States for US$7.2 million (or 2 cents per acre), a transaction that took place in March 1867 through a signed treaty. True, many Hudson’s Bay Company stockholders similarly wished to sell Rupert’s Land to the highest bidder and hoped to begin the auction with an offer from China. Russia and the United States were also expected to join the bidding, along with Canada.
Some Canadian politicians spoke of the subsequent Canadian “purchase” of Rupert’s Land; some Canadian historians still do. But the transfer of Company lands to Canada was not a real estate deal. The Imperial Crown simply transferred its authority to the Crown in Right of Canada. Canada “indemnified” – i.e., bought off – the Hudson’s Bay Company not for the territory of Rupert’s Land but for the several capital improvements made during the previous 230 years. These included such structures as the Stone Fort at Red River and the timber fort at Edmonton, but also far-flung portage trails and the like.
Looked at from the perspective of Laurentian Canadian history, Rupert’s Land was a gift to the new Confederation from the Imperial Crown, the missing link between Canada and the colony of British Columbia that inspired the empire-builders of the Macdonald-Cartier coalition to extend the new eastern political entity to the Pacific Ocean, to build the Canadian Pacific Railway and to incorporate the province of B.C. within Canada. As for the Company lands to the east of Hudson Bay, very little commercial viability was expected. This was fur territory peopled by Indigenous trappers and barbaric traders as it had been for centuries. Canada later gave Ontario and Quebec additional territory carved from those former Company lands.
Canada expanded in a mode quite different from the United States. Unlike the generally well-planned and logical formation of new states from territories – a process meant to reflect an area’s maturation from thinly populated, intermittently governed and often lawless frontier to incipient civilization – there was nothing in Canada akin to the American Northwest Ordinance or to its successor laws. A key difference was that a newly formed U.S. state gained the same rights and privileges as other states, an important element of real federalism.
The second policy area where Canada’s expansion westward differed profoundly from America’s was the absence of consultation with the inhabitants of the newly acquired Canadian territories. In the U.S. this always entailed serious two-way discussions.
Here one should note that there are two elements essential to any federation. The first is a constitutionally defined division of responsibility between the central government and the constituent sub-national jurisdictions – provinces in Canada, states in the U.S. In a well-run federation each order of government stays in its constitutionally defined lane. The second element is that representation in the federal government combines numerical equality or “representation by population” with equal constitutional standing and privileges for all component jurisdictions.
“Enter the Union on an equal basis with existing states”: In contrast to Canada, the U.S. Northwest Ordinance of 1787 provided a formal and transparent mechanism by which newly settled territories could graduate to statehood if they met certain conditions – gaining the same rights and privileges as the original 13 states.
This second element is why the Americans combined in Congress a House of Representatives based on the principle of one person, one vote, with a Senate where each state – whatever its population – would send two senators to Washington, D.C. Because Canada does not provide equal provincial representation in the Canadian Senate (and for a few additional reasons) it has been called by political scientists a “quasi-federal state”. This particular anomaly (or defect) lay behind the attempt starting in the 1970s to establish a Senate that would have an equal number of Senators from each province, who would be elected and whose resulting legitimacy would allow the Senate to become effective in defending the rights of the provinces – the “Triple-E” Senate.
The second policy area where Canada’s expansion westward differed profoundly from America’s was the absence of consultation with the inhabitants of the newly acquired Canadian territories. In the U.S. this always entailed serious two-way discussions; ambitious pioneers would sometimes move out to a territory with the intention of taking part in its development and participating in its graduation to statehood.
In Canada, it was precisely the neglect and lack of communication that eventually led future rebel leader Louis Riel and his compatriot John Bruce to argue that the Western inhabitants of the Hudson’s Bay Company lands had been “abandoned” by the Imperial Crown. The Red River Settlement existed after the 1870 transfer, as they described it, in something akin to a Hobbesian state of nature. Consequently, they declared, the inhabitants of all the former western Company lands “refuse to recognise the authority of Canada,” which was seeking to coerce these subjects of the British Empire by imposing “a despotic form of government” on them.
“Our lives our fortunes and our sacred honour”: Métis leaders Louis Riel (top left) and John Bruce (top right) saw the 1870 transfer of Rubert’s Land to Canada as an act of “abandonment” by the British Crown; to protect the interests of the Red River Settlement (bottom), they “refus[ed] to recognise the authority of Canada.” (Sources: (top left photo) Library and Archives Canada, C-018082; (top right photo) Manitoba Historical Society Archives; (bottom map) Manitoba’s Red River Settlement, by Douglas Sprague and Ronald Frye)
Much like the British subjects a century earlier who became signatories of the then-colonial Declaration of Independence in 1776, the Red River authors declared “to the world” and to Canada in particular that they had established a Provisional Government and, closely following the final paragraph of U.S. Founding Father and future President Thomas Jefferson’s text, “mutually pledge ourselves on oath our lives our fortunes and our sacred honour to each other.” (Original non-punctuation)
Although this statement might sound hopelessly grandiloquent to modern-day ears, their claims were not without a political basis. As my friend and U of C colleague Tom Flanagan pointed out in his 1978 essay “Political Theory of the Red River Resistance: The Declaration of December 8, 1869”, the Declaration of the People of Rupert’s Land and the North West certainly rested on highly questionable legal grounds. To begin with, as noted, the land transfer was an intra-Imperial action. It was not the act of a sovereign power called the Hudson’s Bay Company abandoning the inhabitants of “its” territory and turning them over to another and alien sovereign power, Canada. The Company was not at all sovereign, and Canada was not fully sovereign.
The legal issue was of secondary importance, however, to the political significance of the Red River inhabitants’ response to the actions of Canada, starting with the Declaration and including not one but two open rebellions, the second of which was a serious armed conflict in which Canada’s control hung in the balance. In that second one, in 1885, Laurentian Canada mobilized and commanded Imperial military assets to impose its law on the rebellious Northwest. To the inhabitants, these actions, even if by then they themselves opposed Riel, looked like a continuation of the style of rule from London they had previously endured by way of the Company. That is, rule of the Northwest by “imperial” Canada was of a piece with British Imperial rule prior to 1870.
Between the Red River resistance and the truckers’ Freedom Convoy, over 150 years apart, came Prime Minister Macdonald’s grossly misnamed ‘National Policy’, which subordinated the economic vitality of Prairie agriculture to Laurentian industrial commerce. The National Policy amounted to simple exploitation of the West.
This was why James Mallory, a distinguished 20th century McGill University political scientist, in his 1954 book Social Credit and the Federal Power in Canada referred to the Prairie provinces as “provinces in the Roman sense”. Whatever did he mean? A Roman provincia was distinguished by two major attributes. First it was a locale where imperium, administrative rule, was exercised by Rome or an agent of Rome. Second, unlike the inhabitants of Italy, “provinces” paid tribute to the capital. Moreover, the etymology pro-vincere (Latin for something that was defeated or vanquished) suggests the provinciae were conquered territories. Aside from their military and geopolitical significance, Roman provinces were there to be taxed and to enrich their Roman rulers.
The analogies to 19th and 20th century Canada are clear. Ottawa – as pitiful a town as it was – acted as a new Rome on the Rideau. The territories (and soon-to-be second-class provinces) were acquired additions; they existed to strengthen and benefit Laurentian Canada by analogy with Roman Italy, and to enrich its leading citizens. And the provincials were expected to behave themselves. To this day, the embarrassment of 1885 has not been forgotten by Laurentian administrators. Of course, the Canadian punishment for rebellion was not Roman in its ferocity, although the result for Riel was equally final.
“Provinces in the Roman sense”: According to political scientist James Mallory, Canada’s Prairie provinces were akin to “provinciae” in ancient Rome – conquered lands whose inhabitants were not citizens and who existed to serve the interests of the Imperial Capital and the Italian heartland. Shown, the fall of Macedonia in 168 BC depicted in The Triumph of Aemilius Paulus by Carle Vernet, 1789. (Source of painting: The Metropolitan Museum of Art)
Northrop Frye once remarked that if history is a narrative of what happened, myth tells the story of what happens all the time. In that sense, myth is a major constituent of what we now call political culture. The Red River resistance, however comic and ineffectual it appeared to later Laurentian historians, became part of a Western myth, the most recent manifestation of which was the Freedom Convoy of 2022. And, incidentally, Laurentian historians were a self-described “school” centred at the University of Toronto. The most famous of them was the first modern biographer of Sir John A. Macdonald, Donald Creighton. His thesis, The Commercial Empire of the St. Lawrence, published by Yale University Press in 1937, effectively founded the Laurentian school. The second edition, published by the U of T Press, bore a franker title: The Empire of the St. Lawrence. That is the origin of the term “Laurentian Canada”.
Between the Red River resistance and the truckers’ convoy, over 150 years apart, came Prime Minister Macdonald’s grossly misnamed “National Policy”, which subordinated the economic vitality of Prairie agriculture to Laurentian industrial commerce. (To oversimplify somewhat, high import tariffs protected eastern industries while making imported goods critical to the Prairies’ economic development needlessly expensive, in turn making export-dependent Prairie farmers less economically competitive; the National Policy amounted to simple exploitation of the West.) When Alberta and Saskatchewan became Roman-style provinces in 1905, the Dominion Lands Policy saw to it that the major source of revenue from land sales and fees remained reserved “for the purposes of the Dominion”, not them.
The Western political response continued to reverberate for more than a century. Several political parties and social movements formed in opposition to Laurentian policies: the Progressives, Social Credit, the Social Gospel, the CCF, and later the Reform Party and the Canadian Alliance. The fact is, Westerners have typically wanted to make Canada work as a genuine federation. They were neither revolutionaries nor separatists. Like their cousins in the American West, they sought equal rights as citizens and equal representation for Western, especially Prairie, provinces.
In 1905 the Dominion of Canada carved the new provinces of Alberta and Saskatchewan out of portions of the Northwest Territories; the newcomers were treated as distinctly second-class in comparison to the original provinces, among other things only gaining full control over their lands and natural resources in 1930. (Sources of photos (clockwise, starting top-left): Calgary Herald Archives; Provincial Archives of Saskatchewan R-A4110-2; Glenbow Archives, na-1496-2; Western Development Museum)
And while all of these movements mounted often-spirited resistance to Laurentian political and economic controls, they also seemed to accept the political institutions of imperial Canada. Remember the slogan of the Reform Party in 1987? “The West wants in.” Why? To increase the likelihood of self-government, the very desire for which was dismissed by Laurentians as unintelligible: were these pesky Westerners not already citizens of an already self-governing country? They must be alienated, poor things, and in need of the ministrations of an alienist.
David A. Smith, another distinguished political scientist, who taught for many years at the University of Saskatchewan, provided a less condescending answer than the conventional dismissal by Laurentians in his 1969 essay “A Comparison of Prairie Political Movements in Saskatchewan and Alberta”. Westerners, Smith wrote, had tried working within the dominant political parties, then through so-called “third parties” that attempted to persuade the dominant parties, then through balance-of-power strategies. “No other area of the country,” Smith said, “has experimented with so many partisan alternatives and had so little apparent satisfaction from the results.”
A third distinguished political scientist, Alan Cairns, once asked: why were the Social Credit and the NDP called “third parties?” In B.C where Cairns taught, these parties were the government, the major players in a vibrant two-party system. The “third parties” were the Liberals and Conservatives. One might say the same thing about Social Credit and the Cooperative Commonwealth Federation (the future NDP) on the Prairies. That is, the political articulation of the Western provinces is distinct from that of Laurentian Canada.
The Prairie provinces continued to be subjected to destructive Laurentian policies throughout the 20th century, such as prolongation of the Canadian Wheat Board, official bilingualism and the National Energy Program, implemented by Pierre Trudeau in 1981 (shown on bottom left, to the right of Alberta premier Peter Lougheed in the centre). Depicted on bottom right, oil sands facility at Mildred Lake. (Sources of photos: (top left) Canadian Government Motion Picture Bureau/Library and Archives Canada/C-064834; (bottom left) The Canadian Press/Dave Buston; (bottom right) The Canadian Press)
After Canada’s first half-century or so, after the Prairie provinces finally in 1930 gained control over their natural resources (as Canada’s “founding” provinces had had from the start), there followed in the post-Second World War era further nonsensical Laurentian policies: the needless prolongation of the Canadian Wheat Board (whose command-and-control methods evoked the late Roman Emperor Diocletian’s ludicrous economic decrees), the definition of Canada as a bilingual country (the major consequence of which was to ensure that most Westerners did not find a professional career in Ottawa attractive), and of course the unforgettable National Energy Program, seen by many Albertans as the 20th century successor to the National Policy.
Then, the 1982 Constitution Act gave the Supreme Court of Canada effective control of legal aspects of the Constitution. And, like the first Supreme Court of Canada, it has acted largely as a centralizing creature of Laurentian Canada. One must be remarkably naïve not to think that Prime Minister Pierre Trudeau had something like this in mind when he began campaigning to “patriate” the Constitution nearly two generations ago. In any event, a major consequence of the 1982 Act was to undermine the institutions of federalism, particularly provincial responsibility for natural resources and the environment, which had been sustained by the jurisprudence of Britain’s Judicial Committee of the Privy Council in earlier times and largely respected after 1949 when judicial appeals to the Law Lords were abolished.
For Livingston, ‘Legal answers are of value only in the solution of legal problems.’ In contrast, he argued, ‘Federalism is a function not of constitutions but of societies.’ Consequently, federalism is concerned with economic, historical, social, political and cultural realities, which is a great deal more than law.
Today almost all the malign aspects of Canada’s Constitution are encapsulated in the federal equalization program. As Rob Anderson, Derek From and I point out in the Free Alberta Strategy (there’s also good material in this C2C essay), the Government of Canada has for decades expropriated vast amounts of fungible wealth from the taxpayers of the Prairie West and especially from Albertans – amounting to literally hundreds of billions of dollars. Moreover, the latest assault by the Justin Trudeau government has combined this traditional wealth removal with a novel attack on the source of provincial prosperity, the oil and natural gas industry in general and the oil sands in particular. For many Albertans, Ottawa has definitively breached the principles of the federal Constitution.
Now what?
First, recall the historical importance of federalism. In those remote days prior to the Canadian Charter of Rights and Freedoms, the focus of Canadian constitutional politics was on the balances struck over the years between responsibilities under s. 92 of what was then known as the British North America (BNA) Act that belonged chiefly to the provinces – such as transportation, regulation of businesses and professions, creation and oversight of municipalities, education, courts of law, health care and natural resources – and those given to the Dominion government under s. 91 – such as national defence, foreign relations, the criminal law, relations with Indians and international trade.
Of all the theorists of federalism to whom I was introduced as an undergraduate, William S. Livingston has remained my favourite. His Federalism and Constitutional Change was published by Oxford in 1956. It was preceded by an article, “A Note on the Nature of Federalism”, that established his main arguments. In my opinion they have not been superseded though they may have been forgotten.
“It’s not like Ottawa is a national government”: The Alberta Sovereignty within a United Canada Act, passed in late 2022 by the UCP government of Premier Danielle Smith, pictured, aims to strengthen the province’s ability to limit unconstitutional intrusions of federal policy and law into areas of provincial jurisdiction, thereby reaffirming that Canada is a federal state. (Source of photo: The Canadian Press/Jason Franson)
This is the context within which Premier Smith’s remark is to be understood when she said on third reading of Bill 1, later the Sovereignty Act, “It’s not like Ottawa is a national government.” (Emphasis added)
Social and political realities change: formerly poor jurisdictions such as Alberta grow wealthy; formerly rich jurisdictions such as the Maritimes grow poor. Political institutions eventually display the characteristic of serving purposes for which they were not initially designed. Just as federal societies change, federal institutions are required to change as well in response to new realities. If federal institutions are incapable of responding to changes in federal societies, the result is political dissolution, which is to say, independence of a former constituent jurisdiction. That was the prospect posed by Quebec in the 1970s after its “Quiet Revolution”. Quebec separatism spooked Canada sufficiently to change the effective federal Constitution to reflect the new configuration of the federal society.
This is not to say that legal federalism, which defines the primary areas of jurisdiction of Ottawa and the provinces, is unimportant. Sections 91 and 92 of the BNA Act are still in force and effect. Moreover, reasserting and defending the constitutional validity of the division of powers is the primary purpose behind Alberta’s Sovereignty Act.
Although attacked by critics, Alberta’s Sovereignty Act has received strong popular support for challenging the Justin Trudeau government’s constant intrusions into areas of provincial constitutional jurisdiction; the author points out that the Constitution does not require provinces to enforce federal laws, and that the Supreme Court of Canada has confirmed this. Shown, supporters of the Sovereignty Act outside the Alberta legislature, December 2022. (Source of photo: CityNews/Laura Krause)
Its central provision regarding federalism enables the provincial government to refuse to enforce federal laws. The decision not to do so would be based on the judgment of the legislature that the federal law in question was illegal, unconstitutional, harmful to Albertans or contrary to Alberta’s interests, based primarily on the text of ss. 91 and 92 and how those provisions were put into practice over Canada’s first century – but which recent federal governments have successively and, in the Justin Trudeau government’s case, systematically undermined or overridden as if they weren’t even there.
What is novel about this provision is that it would require Canada to take Alberta to court and there to prove its case, not the other way around as is the current practice. Nowadays when Ottawa first intrudes upon or overrides provincial jurisdiction and puts its unconstitutional policy or law into practice, it forces one or more provinces to try to stop it – even as the damage is already being done and the new policy threatens to become institutionalized through force of habit.
Equally important, there is no provision in the Constitution requiring any province to administer or enforce federal law. (Please see also this article and this article for supporting evidence of that contention.) The reason is obvious: Canada remains in law and reality a federation, not a unitary regime where provinces are simply agents of Ottawa the way Alberta municipalities are creatures of the provincial government. One reason for the political support that the Sovereignty Act has received are the objections to the arrogant default assumption of the Trudeau government that it is (except for Quebec) a “national government” – precisely what Danielle Smith denied. That is why it was originally and for a long time thereafter referred to as the Dominion government and today is called the federal government, which implies a government with limited and clearly enumerated constitutional scope and powers.
The political distance dividing Alberta’s Sovereignty Act from Ottawa’s Clarity Act is huge. The one contemplates a restoration of federalism, the other an end to it. If Alberta is to remain strong and free – fortis et liber – Laurentians will have to change their attitude and their political culture.
Another way of indicating the issue of connecting the reality of a federal society to a federal constitution is found in a remark of the late U.S. conservative journalist Andrew Breitbart, who famously observed that “politics is downstream from culture.” This is a snappy version of Frye’s remark regarding myth or what Livingston meant by the primacy of society. But what is downstream from politics? The answer is simple: the law of the Constitution.
Ask yourself: where did the BNA Act come from back in 1867? Or the 1982 Constitution Act? They came from political negotiations and political deal-making in response to political ideas and demands generated by the changing realities of a federal Canadian society. In that context, the 1982 Constitution Act looks like a legal response to the social changes of the “Quiet Revolution”. That is also where Alberta’s Sovereignty Act came from. Indeed, it can be seen as the current expression of a not-so-quiet Alberta revolution initiated by Ralph Klein, premier of Alberta from 1992 to 2006.
Those who say the Constitution is set in stone and can never be re-opened are legal fundamentalists and they are wrong. All constitutional documents, so revered by lawyers, especially the ermine-clad lawyers on the bench of the Supreme Court of Canada, were all downstream from political deals that reflected changing social, economic, cultural, etc. realities. Of course the Constitution can be re-opened! That is one of the long-range purposes of the Sovereignty Act.
“Clear majority on a clear question”: Two years after the 1998 Quebec Secession Reference case before the Supreme Court of Canada, the Liberal government of Jean Chrétien (on bottom, leaning forward) introduced the Clarity Act, establishing the conditions under which Canadian provinces may be allowed to begin the process of secession. The author considers this another act violating the concept of federalism, with Ottawa unilaterally calling the shots and placing provinces in a subordinate position. (Sources of photos: (top) @Law Scribes/X; (bottom) CP Photo/Fred Chartrand)
If Laurentian Canadians and lawyers nearly everywhere say that the Sovereignty Act is unconstitutional, I agree but with the following qualification: legal unconstitutionality is simply another way of saying it’s time to change the law of the Constitution. That is what Bruce and Riel had in mind so many years ago. The law of the Constitution may work well even today for Laurentians and for Ottawa bureaucrats, but they have become what English historian and philosopher Arnold Toynbee called a “dominant” rather than a “creative” minority. More to the point, if the law of the Constitution does not work for Albertans and for others in the Prairie West, why should it be respected? All the strategies listed by David Smith have not made a dent in the adamantine attitudes of Laurentian Canada. In their collective imperial mind, in their political culture, the Prairie West remains a colony. The Sovereignty Act aims to bring an end to a very unpleasant history.
And then there is the Clarity Act to consider. In the 1998 Quebec Secession Reference case brought by the Government of Canada, the Supreme Court of Canada required that any provincial referendum on secession receive a clear majority on a clear question in order to be valid and so to trigger mandatory negotiations. The Court did not define what either a clear majority or a clear question might be.
Two years later the Jean Chrétien government (under great pressure from the Reform Party) introduced what became the Clarity Act, according to which the Parliament of Canada would determine before any provincial referendum on potential secession whether the question was clear enough and, after the vote, whether the degree of support was sufficient to require negotiation on the terms of secession. If a referendum met those two criteria (according to Parliament), then a constitutional amendment requiring the consent of Parliament and the provinces would also have to be passed.
A few years later, former Parti Quebecois leader and Premier Jacques Parizeau told CTV News that the Clarity Act “meant nothing.” One reason for his remark was not just that Parliament had stacked the deck but that Quebec had passed its own law, one which emphasized the right of Quebec citizens to self-determination. Now, if push came to shove, one might expect Alberta to do the same.
The political distance dividing Alberta’s Sovereignty Act from Ottawa’s Clarity Act is huge. The one contemplates a restoration of federalism, the other an end to it. If Alberta is to remain strong and free, fortis et liber, as indicated on its coat of arms, Laurentians will have to change their attitude and their political culture. That is the challenge of political federalism today. Acknowledging that reality is the condition for making Canada a genuine federation in law. If not, it will take the more desperate remedy outlined in the Clarity Act to induce some sobriety into Laurentian consciousness.
Barry Cooper is a professor of political science at the University of Calgary. His latest books are Paleolithic Politics (2020) and, with Marco Navarro-Génie, COVID-19: The Story of a Pandemic Moral Panic (2020).
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