Andrew Petter ..................................

Federalism and the Myth of the Federal Spending Power, by
Andrew Petter

MP Intro. Introduction. 1. 2, 3, 4, 5, Conclusion, Postscript, End


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.




[1989] 4 W.W.R. 673 (S.C.C.)


Ibid., at p. 686.

82. Ibid.
83. Ibid.