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This article examines the power asserted by the federal government to spend funds on programs within provincial legislative jurisdiction, and the influence of that power upon federalism and responsible government. The author maintains that the existence of a "federal spending power" is inconsistent with Canadian constitutional doctrine and values, and that the political justifications commonly offered in its support do not withstand close scrutiny. At the same time, he contends that the extent of governmental reliance upon the spending power precludes the courts from curtailing its use. He therefore urges a program of political reform going beyond the modest limitations on the spending power proposed in the Meech Lake Constitutional Accord.

Dans cet article l'auteur examine le pouvoir que revendique le gouvernement fédéral de mettre des fonds dans des programmes qui relèvent de la compétence de la législature provinciale ainsi que l'influence qu'a ce pouvoir sur la nature du fédéralisme et de ce qu'on appelle le gouvernement responsable. Il affirme que 1'existence de ce pouvoir fédéral est incompatible avec la doctrine et les valeurs constitutionnelles et que les justifications généralement avancées à son appui s'avèrent après examen n'avoir aucun fondement. Il soutient en même temps que ce pouvoir est si important pour le gouvernement que les tribunaux ne peuvent en limiter l'utilisation. Il préconise donc un programme de réformes politiques qui iraient plus loin que les limites modestes proposées dans l'accord constitutionnel du lac Meech.

Introduction

The past forty years have seen a fundamental change in the practice of Canadian federalism. The political commitment to what Edwin R. Black describes as "coordinate" federalism has been supplanted by an "administrative" vision of federal arrangements.¹ This chance has been characterized by a breakdown of jurisdictional boundaries between the federal and provincial orders of government and, particularly, by increased federal involvement in matters of provincial legislative responsibility.

What is remarkable about this change is that it has been achieved without constitutional amendment and without the blessing of the Supreme Court of Canada, the institution charged with legal guardianship of Canadian federalism in the post-war period. Moreover, except in Quebec, it has generated little controversy within political and academic communities. Most politicians and constitutional scholars outside Quebec seem to have accepted the shift from co-ordinate to administrative federalism as an innocuous development - an inevitable step forward in the evolution of the Canadian state.

The purpose of this article is to challenge this view. Administrative federalism, I shall argue, has been built upon a precarious constitutional foundation. Far from being innocuous, it threatens to weaken provincial autonomy and to undermine political accountability. If left unchecked, it could impair seriously both the federal and the democratic character of the Canadian state. My focus throughout will be on the federal spending power, the power claimed by Ottawa to spend funds on matters falling outside its legislative jurisdiction. It is this power that has made the "new federalism" possible; it is the mortar with which the new constitutional order has been built.

The inquiry will begin with an examination of the forces that have given rise to administrative federalism. It will then consider its constitutional basis and explore its political implications. Finally, consideration will be given to proposals for reform contained in the Meech Lake Constitutional Accord. The Accord marks the first concerted effort by Canadian Governments to place explicit constitutional limitations on the federal spending power; it therefore merits special attention.

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*Andrew Petter, of the Faculty of Law, University of Victoria, Victoria, British Columbia. This paper was delivered to the Legal Theory Workshop, Faculty of Law, University of Toronto, on December 2, 1988. Excerpts from an earlier version were published in Meech Ado About Nothing? Federalism, Democracy and the Spending Power, in K.E. Swinton and C.J. Rogerson (eds.), Competing Constitutional Visions: The Meech Lake Accord (1988), pp. 187-201. 1 would like to thank the many friends and colleagues who provided me with helpful comments and suggestions throughout this project. I also wish to acknowledge the British Columbia Ministry of the Attorney General for providing research funds.