The Cancon comes home to roost

Malcolm X on Front Page Challenge (From Yglesias again.)

Don't Feel Bad, Colby

Colby Cosh thinks federalism jurisprudence ought to be clearer than it is.

You would think that Canadian jurisprudence had developed a clear objective rule for settling even the trickiest “double aspect” issues, wherein both federal and provincial governments can claim that some crumb falls within their respective spheres of constitutional power.

You would, apparently, be wrong.

Actually, though, no one has ever been able to predict how the Supreme Court of Canada would determine federalism cases. It's a mess, and it's been that way since Duplessis was unable to stop St. Laurent from abolishing appeals to the Judicial Committee. Since that time, the Court has been split between the terminally confused and those who never wanted to strike down any legislation, provincial or federal, on division-of-powers grounds -- a position more-or-less adopted by the SCOTUS after the 1930s and defended for Canada by Paul Weiler.

What Should Harper Do?

Clearly, the NDP/Liberals are taking a perilous step. It is justified, if at all, by a sense that the Government has not taken the economic crisis seriously. The merits of taxpayer-subsidized political parties or bans on public sector strikes aside, no one thinks these are sensible responses to what ought to be the government's biggest priority. Harper should not have reappointed Flaherty as Finance Minister, but should have chosen someone broadly respected, like Prentice.

Harper's only chance now is to make his case about the appropriate response to the crisis. He needs to wonk out. If he swings public opinion in his direction, a few opposition MPs may get cold feet at the last minute, and he may survive. But even if the government goes down, it would be better to go down over something substantive than over process criticisms about legitimacy.

The heart of the analysis is traditional Keynesianism. We face a massive shock to aggregate demand. Normally, the Bank of Canada could address this shock just by reducing interest rates. That's better than dealing with it through fiscal measures because it doesn't leave a legacy of debt for future generations.

However, right now, governments can borrow unusually cheaply and monetary policy cannot do any more good. So we need to use fiscal policy. If the money is used for investments that pay off at better than the rate at which the government can borrow, then future generations will be better off as well.

The trouble is that emergency injections of public money tend to be spent badly. Here is where the Tories have an advantage. The public will be skeptical that a coalition between Dion's Liberals and the NDP will spend money well.

The agenda set out by the Coalition hardly sets those fears to rest. Do we want the CAW dictating how "strategic investments" in the automotive, manufacturing and forestry sectors are going to be spent? The Coalition program states aid will be "contingent on a plan to transform these industries and return them to profitability and sustainability." That is the most remarkable expression of hope in government planning I have seen in a long time. The League for Social Reconstruction lives.

The Coalition program is fundamentally incoherent, since it blames the federal government's deficit position on "the policy choices of the Conservative government", but also embraces "stimulus" -- which necessarily means increased deficit financing. I agree that bigger deficits are necessary, but it doesn't make sense to simultaneously criticize the Tories for too small and too large a deficit.

Increasing the supply of housing is got to be the craziest proposal for dealing with a popped housing bubble I have ever seen. The Coalition also makes as one of its dozen point a purely ideological insistence on ramming the Canadian Wheat Board and Supply Management down the throats of unwilling farmers.

Note the Preamble reference to "Canadians and Quebeckers". Presumably the plan is to develop a clean energy source from PET rolling in his grave.

Infrastructure investments are a good idea in principle, but there are practical limits to how quickly they can be "accelerated." Government tendering rules, made more complex by the Accountability Act, mean that new infrastructure takes a long time.

*The first priority should be ensuring that the provinces have enough money to maintain their spending programs. Provinces spend better than the federal government does. The last thing we want is pro-cyclic spending cuts by cash-strapped provincial governments. The Tories should propose a short-term boost in transfers to make sure this doesn't happen. If the feds have to borrow the money, that's fine, since they can borrow cheaply.

*The Tories should also propose more generous matching-fund programs for municipal and provincial infrastructure spending. That injects money without going through the sclerotic federal process. The Coalition appears to want federal control over municipal infrastructure.

*We should get money into the hands of the citizens. Make all federal tax credits refundable, and temporarily increase them.

We don't know how long the global downturn will last or how hard Canada will be hit. It makes sense to think through longer-run federal infrastructure programs, like a high-speed rail link between Toronto and Montreal. God forbid, we may have to partially nationalize the financial institutions -- the Tories have set up the legislative authority to do this.

Panicking now may reduce our scope for maneuver later.

Canadian Originalism

Via Larry Solum, I see Adam Dodek has written aneo-originalist defence of Bertha Wilson.

He's perfectly within his rights to do so. Originalism has always been a centralizing-liberal slogan in Canada. Frank Scott is our original originalist, as it were.

On this ROC we have built... (Bibilical themes in contemporary English Canadian nationalism)

I'm not sure that the rhetoric of national covenant (based on the original precedent at Sinai) played a huge role in the development of English Canadian identity. Sure, Protestants everywhere talk like that when they are being irritable, and we all know how irritable the original Canadian Protestants could be. But the over-arching original conception was of Britishness expressing itself in a non-British space. It probably owed more to Rome than to Jerusalem.

If we then look at the post-WWII need to reconceive Canadianism (provoked by the termination of the British Empire, the extreme power of the US, and the threat of Quebec nationalism), the key biblical rhetoric comes from the Babylonian captivity, not the establishment of the covenant. Grant laments for an ideal that he insists was impossible from the outset.

Our lamentation, unlike Jeremiah's, is not caused by disaster and ruin, but by uncertainty and loss of purpose. It is more comfortable, and therefore harder to take seriously. But with an ironic inflection, we arrive at a deutero-Isiahian synthesis. Our god, like Israel's in the captivity, can no longer be located in his home. But, as with Israel in the captivity, this homelessness makes our god all the more powerful. Our uncertainty becomes our weapon against the Americans and against the Quebec nationalists: they can never truly be liberals because they have identified themselves with too concrete a substantial liberalism. We can be faithful to liberal modernity because our loyalties are negative (not-American not-Quebec).

Of course, our anxiety does not solve the fact that someone (albeit someone invisible) must continue to negotiate an accommodation with all the substantial nationalisms -- American, Quebecois, aboriginal and new Canadian. Just as a corporation is a placeholder for all the contracts it negotiates with others, so too the ROC ("Rest of Canada").

Upon this ROC, though, someone built something. We will have to explore what at a future time.

Happy Independence Day, America

In the spirit of harmony and friendship, I won't revisit the merits of the whole stamp duty dispute. Suffice it to say that as a descendent of United Empire Loyalists, I agree with Matthew Yglesias.

Canadian fact: According to highest legal authority, there is no single day on which we became independent. (Anyone saying April 17, 1982 should be summarily shot.) Instead, we were in a quantum state of sovereign indeterminancy for 12 years. According to the Court in 1967:

There can be no doubt now that Canada has become a sovereign state. Its sovereignty was acquired in the period between its separate signature of the Treaty of Versailles in 1919 and the Statute of Westminster, 1931, 22 Geo. V., c. 4

Whither Red Toryism, or Does Reaction Have a Future?

Russell Arben Fox has done what the Pithlord has not, and read the Bouchard-Taylor report. Keeping up a somewhat Canadian theme, he has interesting reflections on Red Toryism in light of all the "whither the right" talk going on in the Great Republic right now.

One thought I had (and it is hardly original) is that we do live in George Grant's world as well as Francis Fukuyama's in the following sense: the only meaningful opposition to capitalism is conservative or reactionary. It is easy enough to oppose capitalism on the ground that as a result of its subversive and out-of-control dynamics, everything solid melts into air. It is absurd to oppose it on the grounds that it fetters the development of the forces of production.

We can be conservatives -- upholding some existing institution (possibly even biological humanity) against the trinity of individualism-science-markets. We can be reactionaries, deciding it is all too late anyway. Or we can be libertarians and decide the future's so bright we have to wear shades.

At the same time, it does not seem that any viable political coalition can be based on being consistently conservative or consistently libertarian. The trade union and lifelong marriage both seem doomed, but no one is really going to defend or oppose them both (except for intellectual circles as politically irrelevant as the reactionaries who refuse political engagement on principle).

The Census Results

Let's imagine two countries with equal populations of 100,000: Richistan and Pooritania. They have the same income distribution, except that at each point on the distribution, individuals in Richistan have twice the income of people in Pooritania. The 1000th richest person in Richistan makes twice as much as the 1000th richest person in Pooritania and the 90,000th richest person in Richistan makes twice as much as her counterpart in Pooritania.

Let us suppose that over the next 20 years, 20,000 people, randomly distributed across the income distribution, move from Pooritania to Richistan. As a result of their move, their incomes go up by 50%.
Everyone else in Pooritania and Richistan just gets an increase of 5%.

What would the statistical result be? Median wages in Richistan would stagnate, and the incomes of the lowest quintile would go down. Much like the census results. But everyone would be materially better off.

Some in Richistan might still object that it has become more unequal (or, equivalently, more diverse). These objections are not necessarily unreasonable -- there are costs as well as benefits of greater diversity. But the objections are to the presence, rather than the existence, of poor people.

Lots of Interesting News

But no time to write much about them.

*The Bouchard-Taylor report is released. (You can get an abridged English version here.)From the Globe account, it seems they have taken a firm cosmotarian stance, reminiscent of Taylor's old antagonist, Pierre Elliott Trudeau. They are about to find out how Lord Durham would have felt if he had cared about French Canadian opinion.

*The always-dangerous concept of fiduciary obligations by corporate officers to bondholders has, as Malcolm X or the Reverend Wright would put it if they were corporate law nerds, come home to roost. The Quebec Court of Appeal stopped the takeover of BCE by the Ontario Teahcers Pension Plan, a $35 billion transaction. BCE is trying to get to the Supremes before June 30, which would be virtually unprecedented. (The only example I can think of where the red nine tried to move that fast was the misguided decision to give leave in the Tremblay-Daigle dispute over whether a biological father can prevent an abortion.)

*In Khadr, the Supreme Court of Canada ruled that agents of the Canadian government operating in foreign parts are only exempt from the requirements of the Charter where they are acting in accordance with Canada's international law obligations. The SCC relied on Rasul and Hamdan to conclude that Guantanomo Bay was operated contrary to the Geneva Conventions at the relevant time. (Of course, the Bush administration was loud and proud in saying that the Geneva Conventions didn't apply.) This fits with my thinking that the SCOTUS's decision would inveitably embolden the judiciaries in other Western countries to help shut down the Bushian war on terror.

Update: I wonder if someone better informed about African-American culture than myself could explain what is so threatening about chickens.

One reason NAFTA isn't going to have real environmental or labour standards

CTV says the Obama campaign has contacted the Canadian embassy to tell them not to worry about their protectionist rhetoric for the Ohio primary. Obama and the Canadian government both deny it, although apparently there was some sort of chat.

The Pithlord is not in a position to shed light on such backroom dealings. However, I do know that serious environmental and labour standards in NAFTA are not going to fly. Among the reasons is that most environmental and labour law in Canada is within provincial jurisdiction and, unlike in the US, there is no way for the Feds to require provinces to meet international commitments. This is the result of a Privy Council decision that made all my profs at U of T gnash their teeth, but nonetheless remains the law.

George Grant on Sixties Southern Resistance: "Last Ditch Stand of a Local Culture"

It's worth noting that Canada's own favourite paleoconservative, George Grant, occasionally expressed sympathy for the South's resistance to racial integration. From Lament for a Nation:

The classes that opposed Roosevelt were spent forces by 1965. The leaders of the new capitalism supported Johnson. Goldwater's cry for limited government seemed as antediluvian to the leaders of the corporations as Diefenbaker's nationalism seemed to the same elements in Canada. Johnson was supported not only by such obvious groups as Negroes and labour but also by the new managerial bourgeoisie of the suburbs. The farmers, who were supposed to be the last bastion of individualism, were not slow in voting for the continuation of subsidies. Four of Goldwater's five states were in the South. This was the last ditch stand of a local culture. But it is doomed to disappear as much as an indigenous French Canada.

We Respond to Our Critics

I'd like to do a big post on the Ontario schools question, with citations to Rawls and Grant and so forth, but time is scarce. So I'll just reprint my response to the critics in the comment box (especially since the last response got cut off by Haloscan):

DC,

I'm not completely sure whether you are genuinely advancing an argument against public funding of education or are making a reductio to the effect that if non-breeders can't complain about their tax money going to other people's offspring, nobody can complain about any allocation of tax money at all, no matter how sectarian and discriminatory.

It doesn't matter, I suppose, since if the earnest argument doesn't work, the reductio doesn't either. If we think of the tax money as being spent on children, rather than the parents of children, there is no discrimination since everyone is a child at some point in their life-cycle. If that doesn't convince you, there is still the question of external benefits from (a) other people having children and (b) those children being educated. Finally, there are also subsidies to the childless, so maybe things work out in the end (although I wouldn't put a lot of weight on that one).

None of these things are true of funding the religious education of one confession and no others. Protestants don't become Catholics at some point in their lives. If there are external benefits to Protestants of educating Catholics, they can't really exceed those to Catholics of educating Protestants. Moreover, this is clearly a case of a subsidy that has no counter-balance anywhere else in the overall system of public expenditure.

B.

If history has a direction in a descriptive sense, it is impossible to reverse it. If you believe it has a direction in a prescriptive sense, you have a controversial (and false) theological belief. I can't see why people who disagree with this belief should have to send their children to be indoctrinated by those who think otherwise.

The distinction between a sewer system and an educational one is that it is genuinely possible to keep sewage merely technical, bracketing "comprehensive conceptions of the good." We all want our shit to flow somewhere it won't cause trouble. (Even if there are people who feel otherwise, there are non-metaphysical reasons to coerce them.)

Education is different. You can't teach kids in a purely technical way.

Andy,

Are constitutional arrangements a contract of adhesion that those coming here freely can't object to since they had notice of them? I'm probably more sympathetic to that idea than most Canadians, which doesn't make me very sympathetic.

But even on that view, I'd doubt that the original compact has really been maintained. In 1867, the regular public schools could be assumed to be generically Protestant. They'd avoid the disputes between Anglicans, Methodists and Presbyterians, but everyone would be taught the Lord's Prayer and the Whig Interpretation of History.

Neither Protestantism nor the public schools are what they used to be. A generation ago, it might have been possible to assume that they were both travelling in the same self-liquidating secularizing direction. But your future in Ontario is our present in the West: it belongs to the sects that proletyze and have kids, not the United Church. But those sects have as much right to claim descent from the Protestants of 1867 as do the lapsed secular types. So the initial deal, however fair in its time, has become unfair -- even to one of the original parties. We need to apply a cy pres solution, and Tory is approaching it.

The Lame Duck and the Northwest Passage

Bush is maintaining the US's traditional position that the Northwest passage -- should it open up as a result of all those Middle American SUVs -- is an international passageway, and therefore not under Canada's sovereignty. The Financial Times notes that former ambassador Paul Celluci is advocating a change in the American position.

You have to wonder what we get out of taking a disproportionate share of the allied burden in Afghanistan. We pay in blood and money, and in increased risk of attack at home. We get passports at the border, the softwood lumber "deal", and an unwillingness to back us on the Arctic.

It is in everyone's interest when a responsible country takes jurisdiction over a waterway. If the Northwest Passage is ours, then our laws apply. We can do something about polluters and terrorists.* Bush is weakening Harper at a time when the Afghan mission is in real doubt.


*Come on, commenters. The jokes write themselves.

North Polarization

Eric Posner has a brief primer on the Law of the Sea issues relating to ownership of the North Pole. It seems the North Pole lies above the underwater Lomonosov Ridge, which extends from the north of Russia to Greenland and Canada. On one interpretation, this amounts to a continental shelf for all 3 countries, and the Law of the Sea provides no rule for shared continental shelves.

Posner makes the plausible assertion that the Russian position will prevail by force of arms unless the NATO countries can get their act together.

More on the Confederation Debates

Actually, there's lots of great stuff in my Confederation Debates in the Province of Canada (put out in the sixties by McLelland and Stewart as part of the Carleton Library, which oldtimers will remember because all its titles had the same lamo-psychedelic cover design. You have to be careful not to confuse your Dominion Lands Policy from your Adventures and Sufferings of John R. Jewitt, Captive Among the Nootka) For instance, pretty much everyone now agrees with the opposition's substantive criticisms, although the government manages to get most of the yuks.

Those sensitive souls who dislike the compromises of principle in our recent minority Parliaments would have been struck dead with indignation if they had been around in the 1860s. The people's choice in Canada West was George Brown's Reform. Their dearest principle was "rep-by-pop": so long as English speaking Protestants received fewer seats per person than French Catholics, they were suffering under dire papist oppression, in constant danger of having their children forced to eat snails and figure out where "le stylo de ma tante" was located. Cartier's bleus, on the other hand, had swept Canada East warning that rep-by-pop was a plot by Anglos to destroy the canadien language, faith and legal system. Macdonald's Conservatives viewed Brown's Reformers as dangerous pro-Yankee radicals; the Reformers considered the Tories dissolute and corrupt. But in 1864, Brown, Cartier and Macdonald formed a coalition government together, leaving only the relatively moderate Quebec rouges on the outside.

So when the Coalition negotiated Confederation with the Maritimers, it was the rouge Antoine-Aimé Dorion and the maverick Tory Christopher Dunkin.

Dorion's criticised "the scheme" for being an ill-thought out railway subsidy plan and for not creating a real federation. He attacked the limited jurisdiction of the provincial governments and the federal power to disallow provincial legislation. Subsequently, the Privy Council answered the first criticism through its generous reading of the "property and civil rights" power. In an admission of the validity of Dorion's criticism, the disallowance power fell into disuse a few decades after Confederation, leaving Canada today closer to what Dorion would have wanted than what Macdonald and Brown thought they were creating.

Dunkin's criticisms have not been met yet. He pointed out that the Senate would provide no represenation for the provinces, and would instead be a patronage vehicle for the federal government:

The despotism of the Grand Turk has been said to have its constitutional check in a salutary fear of the bow-string: and there may prove to be something of the same sort here. But I confess I do not like the quasi-despotism of the Legislative Council [Senate] even though so temered. Representing no public opinion or real power of any kind, it may hurt the less; but it can never tend to good, and it can never last.

Pretty good, except for the last clause.

Dunkin's point about the difficulties of affirmative-action cabinet making still rings true:

I take it that no section of the Confederatin can well have less than one representative in the Cabinet. Prince Edward Island will wnat one; Newfoundland, one. On just the same principle upon which Lower Canada wants, for Federal ends, to have a proper representation in the Executive Council, on that same principle the minority populations in Lower Canada will want, and reasonably want, the same thing. We have three populations in Lower Canada -- the French Canadians, the Irish Catholics, and the British Protestants.[...] Well, if in a government of this Federal kind the different populations of Lower Canada are to feel that justice is done then, none of them are to be there ignored.[,,,] There has never been a time, I think, when there was not an Irish Catholic in the Cabinet. There have been times when the number of French Canadians has been less than four, and there was then much complaint. Six members -- four, one and one -- are just what you must give to please each section of Lower Canada. Well, sir, if there are to be six for Lower Canada, there must be six or seven for Upper Canada, and you cannot very well leave less than three each for Nova Scotia and New Brunswick...

But the main flaw in Confederation that Dunkin spots, and remains with us to this day, is the mixing up of federal and provincial finances, "Of course, in the mere view of making the scheme palatable, it was clever to make the Federal treasury pay for provincial expenditure; but the system that had need be established should bear testimony, not to cleverness, but to wisdom..."

Oh well, things could have been worse.


*The volume is apparently now back in print, but without the funky cover.

A More Appealing Multiculturalism

Multiculturalism can mean many things. It is unappealing to think that a country must have its institutions purged of their cultural inheritance to make newcomers feel more welcome. It is pointless to hope that all subcultures will have equal status and authority.

But the idea of a political nationality distinct from an ethnic or cultural nationality is a different proposition. It is true that such a thing will inevitably involve a lot of unedifying ethnic brokerage. Communication and trust will be more difficult than in more homogenous societies -- there is a reason that efficient welfare states are ethnically homgenous And there always lurks the nightmare of violent breakdown -- one has to trust pretty firmly in habits of civilization to make it work.

On the other hand, the very fact that ethnic nationalities are different creates a potential for gains from trade, and for breaking up the kinds of political cartels Mancur Olson went on about. The very fact that one's loyalty to the state cuts against one's pre-political ethnic affinities may make it harder to romanticize it, reducing the risk of tyranny.

This kind of liberal multiculturalism isn't just a wet late twentieth century invention. Here is Cartier's speech on February 7, 1865 to the Legislative Assembly of the Province of Canada:

Now, when we were united together, if union were attained, we would form a political nationality with which neither national origin, nor the religion of any individual, would interfere. It was lamented by some that we had this diversity of races, and hopes were expressed that this distinctive feature would cease. The idea of unity of races was utopian -- it was impossible. Distinctions of this kind would always exist. Dissimilarity, in fact, appeared to be the order of the physical world and of the moral world, as well as the political world. But with regard to the objection based on this fact, to the effect that a great nation could not be formed because Lower Canada was in great part French and Catholic, and Upper Canada was British and Protestant, and the Lower Provinces were mixed, it was futile and worthless in the extreme. Look, for instance, at the United Kingdom, inhabited as it was by three great races. (Hear, hear.) Had the diversity of race impeded the glory, the progress, the wealth of England? Had they not rather each contributed their share to the greatness of the Empire? Of the glories of the senate, the field, and the ocean, of the successes of trade and commerce, how much was contributed by the combined talents, energy and courage of the three races together? (Cheers.) In our own Federation we should have Catholic and Protestant, English, French, Irish and Scotch, and each by his efforts and his success would increase the prosperity and glory of the new Confederacy. (Hear, hear) [I view] the diversity of races in British North America in this way: we were of different races, not for the purpose of warring against each other, but in order to compete and emulate for the general welfare. (Cheers) We could not do away with the distinctions of race. We could not legislate for the disappearance of the French Canadians from American soil, but British and French Canadians alike could appreciate and understand their position relative to each other.

Image of George-Étienne Cartier property of the Manitoba Archives

Really Cold War

University of Chicago Law Prof Eric Posner says the US should reverse its position opposing Canada's claim over the Northwest Passage to establish a common front against Russia's arctic ambitions.

Is Law Cool?

I wouldn't have thought so. But Omar Ha-Redeye is trying to prove otherwise with his new group blog for Canadian law students. Encourage him!

Tyler Cowen and the Anti-Parizeau Fallacy

Tyler Cowen's favourite choses québécoises include Oscar Peterson, William Shatner, Rufus Wainright, Charles Taylor,* Saul Bellow, Steven Pinker and Mack Sennett. Hmmm... Premier Charest notwithstanding, I don't think Professor Cowen quite gets what that word means.

*Half point for Taylor.

Federalism Cases

I've just had a chance to scan the headnotes, but it looks like the federalism decisions released yesterday in Canadian Western Bank and Lafarge will have major implications for federalism doctrine, if not for the actual distribution of power between the two levels of government. My early impressions are positive. I'll try to say more when I've read them.

Update: I've had a bit of a look at the majority decision in Canadian Western Bank.The upshot of Canadian Western Bank is sensible: if the feds want to immunize banks selling insurance from provincial insurance regulation, then they can, but if they don't turn their mind to the issue, the local law applies. The scope of "interjurisdictional immunity") is going to be very limited. That's a good thing for those of us worried that provincial autonomy is being crushed by the federal leviathan.

I find the rhetoric celebrating overlap of federal and provincial jurisdiction familiar-but-unsettling. The Constitution is clear that the federal and provincial spheres are exclusive (with the exception of Agriculture and Immigration). In general, federal systems are more accountable and efficient to the extent that jurisdiction is distinct. Totally separate watertight compartments may be an unrealizable ideal, but it ought to be the part of the judiciary to police the lines as best it can. Sadly, since 1949, we have delegated this taks to an institution that is appointed in the sole discretion of the federal Prime Minister and located in Ottawa, and therefore unsuited to the task. So we get statements like this from Justice Dickson, cited by the Court last week:

The history of Canadian constitutional law has been to allow for a fair amount of interplay and indeed overlap between federal and provincial powers. It is true that doctrines like interjurisdictional and Crown immunity and concepts like “watertight compartments” qualify the extent of that interplay. But it must be recognized that these doctrines and concepts have not been the dominant tide of constitutional doctrines; rather they have been an undertow against the strong pull of pith and substance, the aspect doctrine and, in recent years, a very restrained approach to concurrency and paramountcy issues.

I prefer the view of a certain notorious decentralist small government extremist, who managed to discuss these issues clearly and without resort to tree or tide metaphors:

A fundamental condition of representative democracy is a clear allocation of responsibilities: a citizen who disapproves of a policy, a law, a municipal by-law, or an educational system must know precisely whose work it is so that he can hold someone responsible for it at the next election.

[...]

In a federal state such as Canada, [t]he exercise of sovereignty is divided between a central government and ten regional governments which, taken together, constitute the Canadian state, and each of which must ensure a certain part of the general welfare. Since the same citizens vote in both federal and provincial elections, they must be able to determine readily which government is responsible for what; otherwise the democratic control of power becomes impossible.... [T]he corollary is that no government has the right to interfere with the administration of other governments in those areas not within its own jurisdiction. -- Trudeau, Pierre E. 1957. Federal Grants to Universities. In Trudeau, P.E. Federalism and the French Canadians. Toronto: MacMillan of Canada 1968. pp. 79-80.

But leaving aside the presence of the familiar "co-operative" rhetoric, the result is a good one for those of us concerned with provincial autonomy from an overweening federal leviathan. The reality is that "interjurisdictional immunity" in the technical sense used in Canadian federalism law has always been used to boost federal power at the expense of the provinces, and usually in ways that create injustices neither level of government really intended. Whatever the merits of consolidating insurance regulation across the country, there is no good reason to give the banks special privileges.

A provincial autonomist can be heartened by the references to subsidiarity at para. 45. Notwithstanding Dickson's comment, "pith and substance" means allowing "incidental" intrusions into the other government's sphere, and there is room for a latter-day autonomist to interpret "incidental" more narrowly.