Unity and Diversity in Canadian Federalism: Ideals and Methods of Moderation

Abstract

Canada is federal country of great extent and variety in which we respect both unity and diversity. This is difficult to do, but we have now been doing it with large measure of success for well over 100 years. The total process of governing Canada revolves about division and distribution of primary legis lative capacities or powers by two lists of subjects, one list for the federal parlia ment (primarily section 91 of the B.N.A. Act) and the other for each of the provincial legislatures (primarily section 92 of the B.N.A. Act). Instead of subjects, one might speak of categories or classes. For the most part^ sections 91 and 92 taken together comprise complete system for the distribution of primary legislative powers and responsibilities in Canada over virtually the whole range of actual and potential law-making. The courts have held the distribution is complete, with some very few exceptions that prove the rule. The exceptions are concerned with certain specific rights to use of the French or English languages, certain specific rights to denominational schools, and free trade across provincial borders. Without disparaging the importance of these exceptions, it is fair to point out that nearly all of our constitutional jurisprudence in the courts for 100 years has concentrated on issues of the distribution of powers.