The conventional, hierarchical structure of government has prevented governments from collaborating with each other or with the private and voluntary sectors. Efforts to change that structure challenge long-standing practices of accountability and the protection of privacy. In effect, these practices evolved together with government and are deeply intertwined with its structure. Efforts to change it therefore inevitably affect them.
There is yet a third area where the structure of govern- ment is deeply intertwined with cherished institutional prac- tices: federalism. Given the commitment in our Constitution to the separation of federal and provincial spheres of activi- ty, the ideas of integrating services across jurisdictional boundaries, of allowing personal and generic information to flow more freely, and of promoting a more collaborative, partnership model of government and governance all raise a particularly sensitive issue. There is often very strong resist- ance, especially from provinces, to the idea of integrating programs and services in ways that require the alignment of policies across jurisdictional boundaries or the creation of new mechanisms for joint or shared governance.
These jurisdictional walls ”” and the political culture that supports them ”” are one of the most serious obstacles to the transformation of government. While we recognize that the commitment to federalism is an essential part of our system of government that must be respected, we argue that the practice of federalism has evolved and changed over the years and that it needs to be revisited again in light of the rise of digital technologies.
In 1867 the Fathers of Confederation decided that the new country would be a federation. It was not a foregone conclusion. Some, including Sir John A. Macdonald, want- ed a unitary state. In the end, however, the parties agreed that because the new country included diverse linguistic, cultural and regional communities, federalism was a good compromise between full integration and independent colonies. The com- mitment to respect this diversity has thus been with us since the beginning. The strategy behind it was simple enough. The federal government would attend to ”œnational” matters, while the provincial governments would occupy themselves with ”œlocal” ones. The 1867 Constitution divided federal and provincial responsibilities into two mutually exclusive sets of powers. The two orders of gov- ernment would operate freely within their respective spheres with little or no conflict.
It was a fine idea. But we should note that the role of government in 1867 was far less ambitious than it is today. Governments focused on a few core tasks such as building roads, railways and ports; maintaining an army; managing trade relationships with other countries; regulating businesses; and keeping the peace. Moreover, bureaucracies were a fraction of the size they are now. Even governments that were large by the standards of the day, such as the Government of Canada, could still house a major department in a single two- or three-story building. In addition, the officials who ran them often spent their entire career in the same department. As a result, they came to know its business very well. Their long-term presence helped ensure sta- bility within the policy areas and con- tinuity among the various roles.
Finally, Canadian society, too, was a simpler place. Most people lived in the countryside and worked on farms. Few had a high school education. Radio and television had not yet been invented.
If the idea of a federal state organized around a basic distinction between national and local tasks made a lot of sense in the Canada of 1867, it was because these circumstances prevailed; because the world was a simpler place. As a result, the British North America Act met Canada’s needs quite well for a time.
During the first half of the 20th century, however, things changed. Canadians flocked to the cities, exchanging farming for manufacturing jobs. Living in cities and working in factories raised new issues. Canadians needed new tools and machines, new knowledge and skills to build and oper- ate them, and new private and public services for urban life, from automobile insurance to streetcars and sewers.
Governments responded by assuming new roles. They expanded into new areas of law-making, regula- tion and services, many of which could hardly have been glimpsed by the Constitution’s authors. As Canadian society became more com- plex and differentiated, so did govern- ment programs and regulations. But these changes had an unexpected con- sequence. They began to expose ”” or perhaps create ”” links between what until then had seemed to be separate spheres. As a result, constitutional responsibilities that seemed black and white in 1867 became progressively grey. It was getting harder to say what was local and what was national.
As the interdependence of the two spheres grew, the courts were called on to play the role of ”œumpire” of the federation, defining where the boundaries lay. In contrast to Macdonald’s vision, however, it steered a pretty clear course toward decentralization, gradually chipping away at centralizing elements in the Constitution.
Now, with almost a century and a half of experience behind us, a clear lesson has emerged about our federation. The dis- tinction between local and national roles is a relative one. Whether something is local or national often depends on how we look at it. And that can change over time. Not so long ago, clear-cutting a forest looked like a local matter. Now we know that it can have all kinds of effects on other parts of the ecosystem, from migrating birds to the levels of CO2 in the air. The lesson is that the more knowledgeable and differentiat- ed our society becomes, the more new connections we find between these two levels.
At the end of the Second World War, another wave of change washed over the country. For governments, it was the start of a huge expansion as they got to work building the welfare state. Major new programs were launched, such as the Canada Pension Plan, family allowance andmedicare.
The period was one of especially intense growth and building for the provinces. They found themselves designing and delivering huge new programs in education, health and community services. That led to a major expansion of their bureaucra- cies, got them involved in new policy areas and precipitated new forms of taxation and spending. The result was enhanced visibility, profile and influ- ence among citizens. It also purged the political culture of any remaining ves- tiges of the old centralized vision of the country. The new constitutional vision of the relationship between fed- eral and provincial powers was cap- tured in the metaphor of a balance.
From the perspective of federalism, this second wave of change was accom- panied by a profound deepening of the interdependence between the two orders of government. The federal gov- ernment assumed an important new role as a funding partner and a champi- on of the principle that basic social programs should be available to all Canadians in all parts of the country. For the most part, Canadians respond- ed enthusiastically. They liked the vision of Canada as a sharing commu- nity, committed to promoting equality of opportunity for all its citizens. They also liked that they were free to move about the country, while enjoying sim- ilar levels of protection and security anywhere. For an increasingly mobile population, it was an attractive benefit of being Canadian.
At the same time, other new policy fields were emerging, such as telecom- munications. As the framers of the Constitution could not have foreseen such developments, they were nowhere to be found in the division of powers. Governments therefore turned to the courts to clarify which level owned them. The courts, in turn, based their decisions on earlier precedents around the division of powers. They explained this way of elaborating the Constitution by picturing it as a living tree, whose branches grew and multi- plied over the years but which were supposedly all joined in a single trunk.
While the metaphor is a sugges- tive and powerful one, the actual result of this interpretive work has been confusing and often contro- versial. Indeed, far from displaying the symmetry and elegance of a stately old tree, case law around the division of powers is a labyrinth of Byzantine legal reasoning that can leave scholars baffled and the two levels of govern- ment deeply entangled. It is more like a thicket of brambles than a tree. For example, while the federal govern- ment is responsible for regulating the airwaves and so for issuing broadcast- ing licenses, in the 1970s the Government of Ontario created TV Ontario, a public broadcaster, to achieve certain policy goals. As a result, its cultural policy is now entan- gled with the federal responsibility to regulate broadcasting.
However profound the impact of the social union may have been on federalism, an even more far-reaching set of changes came to light in the debate over the Meech Lake Accord. In 1987 Prime Minister Brian Mulroney assembled the 10 premiers to discuss Quebec’s place in Confederation. They emerged from their meeting to announce that they would be propos- ing an amendment to the Constitution to their respective legislatures.
At first, public reaction was upbeat, even celebratory. Within a few months the mood had changed. Three years later, as the time limit on ratification of the agreement was expiring, the debate around the Accord had become the political equivalent of a hurricane. Many citizens and civil-socie- ty organizations fiercely attacked the agreement. Some feared that it would lead to the unravelling of the country. Others thought it bestowed a special status on Quebec. But perhaps the most stinging ”” and in some ways surprising ”” criticism was reserved for the first ministers themselves. Canadians demanded to know why ”œ11 men in suits” thought they could simply go behind closed doors and change the country. It mattered little that, in fact, that was how it had always been done. The clear message from Canadians ”” and especially from the organizations of civil society ”” was that they felt a new sense of ownership of the Constitution and the processes around amending it.
This sense of public ownership of what were traditionally elite-driv- en processes marks a fundamental change in our political culture. While it had been incubating for some time, with the debate over the Meech Lake Accord it finally burst onto the political scene. Since then it has spread through our political institutions. There are clear signs of it in Canadians’ willing- ness to challenge the legitimacy of the courts, especially regarding decisions that effect social policy, and in the pub- lic’s insistence that governments should consult with ”œstakeholders” before changing laws, regulations, programs and services that affect them.
At the same time, citizens and advocacy groups have shown a new willingness to use the courts to achieve their own policy goals by challenging laws they oppose or getting new rules imposed on governments. The equality rights in section 15 of the Charter of Rights and Freedoms have been an especially powerful tool for this.
The effort of Paul Martin’s short- lived Liberal government to launch a national child care program showed yet another way that the policy process has changed over the last two decades. As the Liberals pursued their vision of a new national child care strategy with the provinces, they unexpectedly found themselves running afoul of organizations that were already deliver- ing child care services. Many worried that the federal approach might con- flict with their own and that they would be forced to adjust their pro- grams to align them with the new one.
These organizations insisted that fed- eral and provincial governments should work with them to find ways to accommodate different approaches. When it comes to providing community services, they expect to be treated as part- ners, not the hired help. A few decades ago they would have had neither the self- confidence nor the moral authority to stand up to governments this way.
Nor is this kind of activism confined to national or local issues and organiza- tions. Many citizens are deeply engaged in international issues and belong to groups that are active in national policy debates in countries around the world. Consider the role played by the Sierra Club or Greenpeace in the debate over Canada’s commitment to the Kyoto Accord.
Finally, we should take note how far Canadian governments themselves have come in rec- ognizing and accepting these changes. The 1999 Social Union Framework Agreement (SUFA) commits govern- ments to a range of measures aimed at involving citizens more fully in the poli- cy process, such as creating mechanisms for them to participate in developing social priorities and reviewing outcomes, and establishing processes for citizens to challenge unfair administration prac- tices or bring forward complaints about access and service.
We can complete this historical sketch, bringing ourselves into the present, by calling to mind the huge changes now underway as a result of the digital revolution. Suffice it to say that the impact on our socie- ty and institutions could make all the previous ones pale by comparison. From e-mail to global capital markets, new technologies are connecting citi- zens and institutions in ways that would have seemed like science fiction only a few decades ago. As for the impact on federalism, we have seen how earlier waves of change, such as industrialization or the rise of the wel- fare state, deepened the interdepend- ence between governments. The digital revolution is pushing this to levels unlike anything we have seen before. These technologies have an extraordinary ability to connect peo- ple and institutions in new ways. While we can still make many choices about the form our new levels of con- nectedness will take, that they will profoundly deepen interdependence ”” at all levels ”” is hardly open to question. It is simply a consequence of living in the information age.
In summary, this historical sketch shows how growth and change within our society have pushed us beyond the vision of federalism in the 1867 Constitution. As a sketch, the story is necessarily incomplete. Important parts of it, such as the efforts to accommodate linguistic and cultural differences, are described only indirectly through the idea of a ”œcommitment to respect diver- sity.” But filling in these parts would not change the point of the story, which is that governments responded to new cir- cumstances and expectations by taking on new roles and responsibilities and, as a result, found themselves more and more involved in one another’s jurisdic- tions. There are many lessons that could be drawn from this sketch, five of which will be discussed here.
The first lesson is that we cannot simply return to the original con- stitutional vision based on local vs. national responsibilities. It belongs to a different era. Entanglement and inter- dependence are a fact of life. They are a reflection of the complexity of our soci- ety, the values that define us and the peculiar nature of our constitution.
The real challenge is to find an effec- tive way to manage interdependence that is also respectful of our diversity. So far our governments have failed. Our political discourse careens back and forth between pan-Canadianism and the lan- guage of the British North America Act. Neither does justice to the complex rela- tionships that now exist between the three orders of government, civil society, businesses and citizens. On one hand, the commitment to respect diversity ”” regional, cultural and linguistic ”” has never been more important. It remains a fundamental principle of Canadian fed- eralism. On the other hand, interdepend- ence is a complex ”” and growing ”” reality that manifests itself in many ways. It will not be solved by trying to isolate and quarantine large policy fields, such as immigration, skills and development, education or health. Yet our political dis- course continues to suggest that it will.
This leads to the second lesson, which is that the division of powers no longer exists in splendid isolation. New principles of governance can and do appear, such as the commitment to equality of opportunity behind the social union or, more recently, to citi- zen engagement in SUFA. As govern- ments use them to shape and redefine their roles, policies and programs, ten- sions will arise between the various priorities and commitments to which they give rise. Managing those ten- sions will always be a challenge for our federation. Nevertheless, the emer- gence of new principles is an essential part of the evolution of our society and institutions. If, as the courts have said, the Constitution is a living tree, then Canada is a work in progress.
The third lesson is that we are pay- ing a high price for our refusal to con- front this reality squarely. Over the decades, the tendency of governments to act in isolation has produced a hodge-podge of policies, regulations, programs and services. This is unaccept- able ”” or at least it should be. It is a huge drain on resources; it undermines the effectiveness of many government policies and programs; and it creates a burden for citizens and businesses who must sort through the mess to get the services they need. The Seniors Canada On-line portal provides a convenient illustration. It is a bit like a phonebook in that it contains a list of services for seniors from all three orders of govern- ment. While such a list is a good and useful thing for seniors, it also serves an unintended purpose: it underlines the fragmented state of these services. A few minutes of browsing on the Web site turns up hundreds of services, with top- ics ranging from Aboriginal affairs to zoology. In fact, the portal is a lot like a junk drawer. It is full of bits and pieces, odds and ends, all loosely linked togeth- er through their connection to seniors.
The more we rummage through them, the more unsettled we become. We start wanting answers to pointed questions:
Are seniors well served by so many, often narrowly focused, initiatives?
Do they even know what’s available?
Are there better ways of helping them find the services they need?
If so, are they flexible enough to let seniors ”œintegrate” them into a package that responds to their particular needs?
How effectively are governments working with seniors (or the organizations that represent them) to see how this might be done?
Governments have been developing portals like this one for more than a decade. As a result, the fragmented, disorderly state of their policies, regula- tions, programs and services now stands exposed for all to see. The clear message from a long list of studies and surveys is that citizens want it fixed. They want governments to work together to ensure that these initiatives are aligned to make them work better for citizens and to achieve common goals. They want gov- ernments to take a more holistic approach to policy and program deliv- ery. They want them to focus more on outcomes and less on jurisdictions.
But ”œgetting beyond the silos” is easier said than done. It will take more than the right attitude on the part of senior officials or ministers. It will take a major change in the culture and practice of federalism ”” which brings us to the fourth lesson from our historical sketch: executive federalism is no longer ade- quate for managing the federation. It is not an effective way of motivating governments to solve such problems, and it leaves no authoritative way to resolve differences over val- ues, goals, priorities or trade-offs. Too often the result of such meetings is arcane debates, procrastination or simply a standoff. What is the alternative?
In fact, there is only one real answer to this question: citizens. All governments exist to serve them. Only citizens have the moral authority to demand that governments roll up their sleeves and work together to solve such problems; and only citizens can provide the kind of guidance that governments need to resolve differences over values, goals, priorities or trade-offs. Federalism must become more citizen-centred. Our governments must recognize that multi-sectoral, cross-boundary dialogue and collaboration is an essential part of good governance. Indeed, as we saw with the Liberals’ consultations on child care, governments ignore this at their peril. The old days when elites got together behind closed doors and sim- ply made policy are coming to an end. The public policy process is becoming just that ”” a public policy process. The fifth and final lesson from our sketch is that these new trends in governance need to be aligned with federalism. The Public Health Goals for Canada project helps us see how this can be done.
In September 2004 first ministers agreed that a good health system must be about more than curing illness. It should also focus on preventing illness and promoting health. This requires action in other areas, such as pollution control, income support, and regulation of the food supply ”” what experts call ”œdeterminants of health.” First ministers agreed to work together to coordinate their efforts in ways that would improve the health and safety of their citizens by focusing on these determinants. As a result, the Public Health Goals project was launched, beginning with a nation- al consultation involving stakeholders, experts and ordinary Canadians to define public health goals for Canada.
We see then that many of the issues raised by public health lie outside the conventional health system. Some will be federal responsibilities, such as regulating parts of the environment. For example, to meet its commitments under an eventual Health Goals agree- ment, the federal government might need to pass a law restricting the chem- icals that can be used in producing some foods. Such action certainly would be consistent with the federal role implied by the Health Goals project. Nevertheless, it does not tell the whole story; and if we stopped there, we would miss a critical point.
The Health Goals project also gives citizens and stakeholders a role in help- ing to identify new ways that the two levels of government should be work- ing together to respond to changing views around health.
Consider the 1982 Constitution. It com- mits the Government of Canada and the provinces to supporting the mobility of citizens. It also commits them to promoting equality of opportunity by, say, changing ensuring that Canadians have access to comparable levels of service, wher- ever they live. The Health Goals proj- ect would extend this vision to new areas. As awareness of public health issues grow, citizens see new links between issues outside health and the overall effectiveness of their health system. For example, they are now far more conscious that, say, the lack of exercise, pollution, bad eating habits and avoiding second-hand smoke are as important to their health as curing illness. They are starting to see govern- ments’ efforts to address such issues as an integral part of their overall health system, and therefore as linked to their right to move freely across the country and enjoy the benefits of a high-quali- ty health system. As this progresses, they will likely come to expect govern- ments to work together in new ways to ensure that they have access to the things they now believe they need to stay healthy. For example, they may expect governments to ensure that wherever they go in Canada they will have the opportunity to exercise prop- erly or to be protected from second- hand smoke. In a citizen-centred approach to federalism, governments remain responsive to such develop- ments by including citizens in discus- sions about change, and then working together to respond appropriately.
The Public Health Goals project is a step in that direction. It brings govern- ments together with stakeholders and citizens to articulate a changing vision of health. This helps governments decide how constitutional principles like mobility and equality of opportuni- ty should be applied to the new field.
At the same time, nothing here implies that the federal government is the only or even the natural champion of these principles. On the contrary, provinces can and often do work together to eliminate barriers to mobil- ity or promote equality of opportunity. One of the goals of the new Council of the Federation is to provide a forum in which such issues can be discussed.
We saw that until quite recently policy development happened mainly inside government. Although govern- ments consulted from time to time, they rarely felt bound by what they heard. Our argument is that govern- ments must learn to engage citizens and stakeholders in ways that are meaning- ful to them, that is, through processes in which they feel genuinely empowered to affect outcomes.
One hurdle is the public distrust in consultations that has accumulat- ed over the years. Ordinary citizens and stakeholders are skeptical of govern- ments’ willingness to listen to them. They have seen too many cases of gov- ernments just going through the motions. If these processes are to pro- vide direction and legitimacy to deci- sion making in difficult areas, citizens must be convinced of their authenticity. They need to see some real results that reflect their input.
From this perspective, the Health Goals project is an impressive effort but, in hindsight, perhaps an overly ambi- tious one. It aims at painting a picture on a very large canvas ”” in effect, a whole new policy field. Notwithstanding the good work that has been done here, there is still a very long way to go. With the change in government at the federal level, however, it appears to have lost momentum. We can learn something here. Big projects take a huge amount of time and effort, which means they are vulnerable to changing circumstances of all kinds. We see from this that scale is a risk. It is often wiser to aim low; to pick something smaller and try to move for- ward by degrees, rather than in big leaps and bounds.
Citizen-centred service could be an ideal candidate for progress on citizen- centred federalism. Consider the seniors’ portal. If governments wanted to align some of the programs within it more closely, they could turn to the stakeholders for advice and/or sugges- tions on how the services could be inte- grated to make them more effective and responsive to seniors’ needs. This is a more focused and manageable project. The stakeholders they would be engag- ing ”” seniors or groups representing them ”” would be highly motivated to participate, as it is their services that will be affected. For the same reason, they are very well placed to provide informed advice on what sorts of changes would be desirable. The changes under consideration would be small enough that governments should be able to implement many of them fairly quickly. This, in turn, means that stakeholders would quickly see real and tangible results from their participation. That would strengthen their trust in the process and their willingness to commit further time and effort to helping gov- ernments improve the services. It would also give them a sense of ownership of the programs and services. Finally, all of this would help legitimate govern- ments in the eyes of stakehold- ers. Similar opportunities exist in a wide range of other areas, including persons with disabili- ties, urban Aboriginal people, youth, the business community and single parents.
The encouraging news is that Canadians’ Internet penetration and literacy rates are reaching a level where new technologies could be used to do this kind of engagement regularly and on a large scale. Of course, much work needs to be done building skills and sorting out the methodological issues, but there is every reason to be optimistic. In the com- ing years, on-line dialogue processes will become a critical tool for governments looking for guidance and legitimacy on complex policy issues.
Having said that, let us add that such processes will not and should not aim to replace other consultation/engagement tools ”” including traditional face-to-face ones ”” but rather to complement them. In the end, there are many different strategies and mechanisms for engaging citizens and stakeholders. They range from community partnerships, conven- tional hearings, and town halls to inno- vative new mechanisms such as the BC Citizens Assembly on Proportional Representation. They can be used to establish values, set goals and priorities, make trade-offs, develop policy and improve the delivery of programs and services. Taken together, they constitute a formidable suite of highly flexible tools to engage citizens and stakeholders on a wide range of issues and topics. They could make a very significant contribution to reshaping how the federation works by giving citizens a stronger and clearer voice in helping governments find and maintain the right balance between the various principles underly- ing our federation. That is the ultimate goal behind a more citizen-centred approach to federalism.
One last topic needs comment: asymmetrical federalism. ”œAsym- metry” results when a single govern- ment has different relationships with different members of the federation. Over the last half-century, asymmetri- cal federalism has been proposed and debated many times, most often as a way to respond to Quebec’s concerns over federal intrusion into its jurisdic- tions. Other people oppose this option on the grounds that it would bestow a constitutional status on Quebec that other provinces do not enjoy. This, they say, would be unfair.
We need not comment on the merits of this argument here. It should be clear that, in so far as the proposals here imply a realignment of roles and responsibilities, it need not involve constitutional change. This could be done through administrative arrange- ments. However, we do want to point out that asymmetry in administrative arrangements not only occurs, it is very common. The recent Labour Market
Development Agreements are an example. In fact, asymmetry is a critical tool for managing a federation as big and diverse as Canada. Different provinces have different needs and we see no reason to assume that efforts to integrate services in a given area such as health or agricul- ture might not lead to quite dif- ferent arrangements between different governments, includ- ing provincial ones.
On the contrary, citizen- centred federalism assumes that each government must find its own level of comfort in working with other govern- ments, according to what its citizens want. This is a practical and realistic way of letting the federa- tion evolve and of responding to changing circumstances and the differ- ent needs and aspirations in different parts of the country.