"Federal Spending Power"
Report - Supporting document 2
of contents and the Introduction are presented here. The entire
document is only available in PDF format (405 ko).
THE "FEDERAL SPENDING POWER" IN CANADA
1. The division of powers
1.2 Growing centralization
1.2.1 Interpretative theories
1.2.2 Government practices
2.2 Its scope
2.2.1 A divided legal doctrine
2.2.2 Inconclusive judicial discourse
POWER" IN OTHER FEDERATIONS AND QUASI-FEDERATIONS
2. "Spending power" in classical federations
A constitutionalized 'spending power' in Australia and the United
2.1.2 United States
2.2 "Spending power" absent from or controlled in European
power" in quasi-federations
3.3 The United Kingdom
3.4 European Union
4. A comparative
Three groups of countries
4.1.1 Classical federations issuing from the former British Empire
4.1.2 European classical federations
4.2 Two revealing classifications
4.2.1 The penetration of formal "spending power"
4.2.2 The presence of conditional transfers
4.3 Factors likely to explain these differences
4.3.1 Historical and cultural factors
4.3.2 Structural factors
4.3.3 Institutional factors
presents an analysis of the federal spending power, a power often
invoked by the federal authorities in Canada when they spend in
fields of legislative jurisdiction attributed to the provinces under
the Constitution, thereby giving rise, directly or indirectly, to
a normative effect.
1 of this document examines whether there is some basis in law for
the existence of such a power in Canada, either in the Constitution
Act, 1867 and its subsequent amendments or in the precedents established
by the Privy Council, the Supreme Court and even lower courts having
jurisdiction in the field. This analysis will show that not only
does the federal spending power in the fields of jurisdiction of
the provinces not appear in the Constitution Act, 1867 and its subsequent
amendments, it is not recognized in the precedents in this field.
Moreover, the fact that the Constitution Act, 1867 makes no mention
of the spending power while it is constitutionalized in most federations
that make use of it, strengthens the contention that it was intentionally
left out of our constitutional context.
2 of this document examines the spending power of central authorities
in nine other federations or quasi-federations, chosen by reason
of the characteristics that they share with Canada, namely Germany,
Australia, Belgium, Spain, the United States, Italy, the United
Kingdom, Switzerland and the European Union.
one hand, this exercise will make it possible to show that in the
classic federations formed within the context of British colonialism
and in the quasi-federations that are the result of administrative
decentralization, the "spending power" or its counterpart
is subject to little or no control by judicial mechanisms, which
cannot attribute any decision-making power whatsoever to the authorities
of federative or regional entities. On the other hand, it will be
noted that in the other federations, a series of political mechanisms
seeking to grant real powers to the constituent units of the federation
permit a certain control over the use of this spending power by
the central authorities.
although some of these mechanisms enable the constituent authorities
of certain federations to control the collection of tax revenues,
none of the mechanisms grants these authorities an individual veto
right with respect to federal expenditures in their fields of jurisdiction.
Consequently, these mechanisms do not resolve the problem that arises
from the exercise of the "federal spending power", as
it manifests itself in Canada. This observation is in no way surprising,
given the fact that the various federal constitutions and the provisions
therein governing fiscal issues reflect different contexts and address
problems that have arisen differently. Hence, it is on the basis
of the particular constitutional context in Canada, and notably
Québec's specific situation, that the Canadian federation
must find solutions to its own problems.