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Postscript
On June 8, 1989, the Supreme Court of Canada rendered judgment
in Brown v. YMHA Jewish Community Centre of Winnipeg
Inc.80
At issue in the case was whether provincial wage laws applied
to workers participating in a federally funded job creation programme.
In the course of deciding that such workers were subject to provincial
wage laws, the court held that the power of the federal government
to establish job creation programmes "is derived from the federal
spending power."81
L'Heureux-Dubé
J., writing on behalf of a seven member bench, noted that the
"scope and extent of this power has been the subject of some speculation".82
After quoting Professor Hogg's discussion of the constitutional
basis of the power, she stated:83
There
has been some debate over the extent to which the exercise of
the federal spending power can justify incursions into what
would otherwise be areas of provincial legislative jurisdiction.
In The Allocation of Taxing Power Under the Canadian Constitution,
2nd ed. (1981), at p. 45, Dr. G.V. La Forest, now a Justice
of this court, expressed the view that the federal spending
power can be exercised so long as it is not in substance legislation
on a provincial matter. Thus, the federal government could spend
money to create jobs in the private sector, or in areas not
directly under its competence.
While
this reasoning is scanty and obscure, it provides strong support
for the view expressed in this paper that Canadian courts lack
the institutional capacity to curtail the federal spending power.
At the same time, the formal recognition now given to the spending
power by the Supreme Court of Canada will inevitably enhance the
constitutional legitimacy of that power, making the prospects
for its political reform even more remote.
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