Canadian federalism: a possible model for Europe

October 11, 2019
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Canadian constitutionalism, in its various forms, has been in force since the birth of the Confederation, more than 150 years ago. In your opinion, why is this federal model exerting a strong influence and becoming increasingly popular even for many European countries?

The Canadian federal model has mostly acquired its peculiar features since 1982, when the Canadian state succeeded, to some extent, in repatriating its Constitution, which was previously a dominion of the United Kingdom. The main trait of the model is, perhaps, the ability to hold together cultures, minorities, laws that are so different from each other. Such a model enables the state to take into account the diversity in the representation processes without disregarding the existence of different systems and of strong minorities which are territorially localized, while also seeking to incorporate them into decision-making processes. This happens not only at political level, or at the intergovernmental level of the relations between the federal government and the provincial governments, but also at judicial level: indeed, we must not forget that Québec has a legal order that belongs to a different legal family, that of Civil Law (which means, for example, that Québec is the only province that provides three judges within the Canadian Supreme Court, so it has a specific representation guarantee). To some extent, year after year, despite appeals regarding federal government policies that have arisen from the 1970s onwards from Québec, the question of the autonomy of this province has been very seriously considered, even by attempting to meet the stringent demands that the Parti Québécois has made over the years. The influence of the Canadian model on the European context can be seen from the fact that even the European federal and regional states are becoming increasingly asymmetric and pluralistic, with the presence of strong, geographically localized minorities: therefore, the challenges that Canada has sought to manage since the 1970s, implementing multicultural policies that leveraged the federal nature of the system, are now arising also for the European states. Numerous states, such as Belgium and Spain, look to Canada with some interest, precisely given its ability to peacefully manage the claims made by minorities, which exist not only in Québec. For example, in Canada there is the issue of the natives, who, after years of persecution, are now officially recognized and protected by the Constitution. In conclusion, we can say that the Canadian system has succeeded where many fail, in that it has created a model of peaceful coexistence.

Why was the Quebec’s attempt to secession a risk for the federal system?

The Québec case perfectly explains the resilience of the federal system. Secessions can not only perturbate, but can also potentially disintegrate federal and non-federal entities. Normally there is a precondition in Constitutions against secessions: in general, they are not recognized at all, or, if the right of secession is guaranteed, they are at least channeled into specific procedures which are extremely complex to follow. In the case of Canada, the Constitution – both the British North America Act of 1867 and the most recent Constitution of 1982 – says nothing about this point. But the fact that it is silent on the risk of secession does not mean that there is no solution that can be enucleated in this regard. There were two very significant attempts by Québec to secede from the rest of the federation, one in 1980 and a more recent one in 1995. The referendums that were held in Québec failed in both cases, but the Canadian Supreme Court gave a very important answer to the question asked by the central government, that is, whether proceeding unilaterally with secession was constitutionally possible. The Canadian Supreme Court, which was consequently taken as a model by many other Courts in this reference judgment, stated that unilateral secession is not constitutionally possible, but that the possibility of secession cannot be entirely excluded, although it must be proceduralized. This means that there must be a clear majority that expresses itself on a clear and unambiguous question: if this majority is in favor of secession, the other parts of the Federation (not only the central government, but also the other provinces) have the constitutional duty to negotiate with the entity that wishes to secede, or, perhaps more acurately, to try to meet it politically, to recognize it, to ensure that the other parties do not deny that there is an issue regarding secession in progress.

Of course, this greatly depends on the type of Constitution in force: the Canadian Constitution is rather short, it does not go into details, but it has certain overriding principles that must be respected, such as federalism and the protection of minorities (and the Canadian Supreme Court has leveraged precisely on the fact that there are minorities which have claims that must be taken into consideration). In European legal systems, on the other hand, Constitutions are considerably more articulated and stricter: for example, there are often central principles that prevent the Constitution from being modified, which means that the State can no longer be made indivisible and unitary. Nonetheless, we will propose to investigate this question in Luiss, because we have recently won a PRIN (Research Project of Relevant National Interest) on the theme of the constitutional applications of European separatisms, and therefore we will seek to study European separatisms,  and not only to understand what constitutional response can be given to these problems.

Considering the composition and powers of the Senate in the Canadian federal system, why do you consider this institution a problematic element for the functioning of a confederation?

Normally, one of the elements which identifies a composed State, federal or otherwise, is the representation of the federated entities (the Regions or the Member States) within the second Chamber, so that these entities can participate in the federal legislative process, or at least in federal decisions, including the modification of the Constitution and therefore of the federal pact. Nevertheless, we observe that in some legal systems the representation of the regions in the Second Chamber creates a series of problems, which are then resolved with further mechanisms. In the Canadian case, the Senate, so to speak, follows the model of the House of Lords: that is, instead of being representatives of the various provinces, senators are appointed by the prime minister through the General Governor (depending on certain competence requirements and on a certain level of maximum achievable age). Such a system implies that, once appointed, senators actually express the political party from which they come, rather than the province of residence. This has meant that in Canada, instead of finding representation at the federal level through the Parliament, Provinces are represented through intergovernmental conferences, thus through ministers that are competent by subject or through prime ministers from the various provinces of the federation, who cooperate together on the different policies in order to find agreed solutions, when necessary. Such is the case, because political compromise in relations between provinces and the federation is not effectively found in Parliament through the Senate. This creates some problems because, naturally, parliamentary representation is capable of also including political minorities, which cannot be guaranteed by the prime ministers of the provinces and of the federation. Therefore, from this perspective Canada is still looking for an effective solution, while in Europe there are models that seem to be more successful, including, for example, the German and the Austrian Federal Chambers. In terms of Italy, when constitutional reforms were discussed we have especially looked with interest at the German case, but in the last – failed – referendum of 2016, it a compromise solution was found between the Austrian and the German model, to be further developed upon implementing legislation. Nonetheless, in Italy we do not look much at the Canadian model, even though we have intergovernmental conferences which actually seek to do what Parliament cannot do in connections between regions and State.

What does “asymmetry” of the Canadian federal structure mean? What can be considered a “key element” of this reality?

It should be pointed out that the vast majority of composite systems have asymmetries within them, regarding both the exercise of legislative powers, thus a range of subjects on which the regions can legislate, and in terms of administrative competences, and even financial powers including the ability to impose and collect taxes and duties. In the Canadian case, considering the British North America Act in particular, but also the 1982 Constitutional Act, the system is apparently quite symmetrical in terms of powers conferred on the various provinces. However, thanks to a series of intergovernmental agreements, the case of Québec stands out again, as this province has specific competences that are distinct from what the others have, for example in the field of social policies, health protection, pension policies. More recently, this also regards immigration policies, therefore a competence that is very significant in relations with Third States, and for which the Québec Parliament has a series of legislative powers that the other provinces do not have. In addition, Québec enjoys autonomy in imposing taxes higher than the other provinces: this circumstance has generated much discontent for years in the western provinces, which were traditionally sparsely populated, but which in the past few decades have become the driving force behind the country’s productive development, compared to the central government. There is a general tension because a specific autonomy is recognized for Québec also as a Nation (for example, it also has its own Charter of fundamental rights, a thing that other Provinces do not have), but this is not seen in a positive light especially by Provinces that are economically more developed. Such dynamics can also be found both in Belgium and in Spain, where demand for new powers from the Basque Country and from Catalonia does not sit well with other autonomous communities that have instead experienced a process of upward homogenization of their skills over the years.

Internationalization is certainly fundamental for the excellence of research: in your experience as a young researcher, what is the added value of attending different Universities in different parts of the world?

Internationalization is a very important value, especially in the field such as the one in which I do research, namely comparative public law. If there is no external projection, or at least an interest in knowing foreign laws first-hand, and therefore in doing field research, it is impossible to develop your own research agenda. From this point of view, fortunately, Luiss University offers many opportunities even for young researchers through a series of programs such as the International Chair Program, which I have benefited from in recent years. For one period I was interested in Nordic constitutionalism, and I had the opportunity to go to the University of Uppsala and to the University of Copenhagen. Before that, I conducted research in New Zealand at the University of Wellington, as part of the EUOSSIC project in which Luiss was involved: this experience was highly engaging and was fundamental in order to analyze certain research themes beyond an exclusively Eurocentric point of view. For example, up to that time I had studied the principle of subsidiarity only in a purely European context: this opportunity, instead, allowed me to investigate how it is declined in other regional integration processes, and in a part of the world which was previously unknown to me.

These experiences were also essential for building long-lasting academic relationships, for building new types of research, for making new applications at international and European level, and for creating research consortia. This is a baggage that I am blessed to carry with me, one that is fundamental for developing all research activities.

Canada as an “importer” and as an “exporter” of federal arrangements: A view from Europe

interview with

Cristina Fasone is Assistant Professor of Comparative Public Law, Department of Political Science at Luiss.