One of the decisive steps in Canadian constitutional history took form as early as 1823, when William Warren Baldwin began arguing that the British colonial power, having delegated certain powers to elected legislatures representing the people of Upper Canada and the other British North American colonies, had no right to remove or alter those powers unilaterally. Powers once delegated could not be recovered, Baldwin insisted, and it would be tyrannous to try. Having given the colonies a constitution in 1791, the imperial parliament "could not alter this law without our consent, for if so, we had no constitution at all." A legislature once empowered to act could not be disempowered. One might say that the whole evolution of Canadian sovereignty flowed from the acceptance of Baldwin's principle.
This weekend in Ontario we saw the Ontario Minister of Transport telling an agency of the city of Toronto it could not design a payment system for Toronto transit systems if the province did not like some of the details.
In an interview, Kathleen Wynne issued a virtual stop order to TTC brass, saying their request-for-proposal for an “open payment” system — where riders pay with a tap or wave of a credit or debit card — is “a complete waste of precious taxpayer dollars.”Frankly, why should Toronto (or Vancouver or Halifax or Calgary vis a vis their provincial governments) have to give a damn what the provincial cabinet thinks is or is not a waste of the Toronto taxpayers' money?
Today, any provincial official or political scientist or constitutional lawyer will blandly explain to us that cities are "creatures" of the provincial governments. Municipal government is a provincial power under the Constitution, and since the provinces created the cities, they can meddle with them all they want, is the received orthodoxy of Canadian opinion. The fact that the Ontario government has a whole province to run and surely knows and cares less about the fine details of transit management in one city means nothing, let alone the fact that it was Toronto voters, not Ontario voters, who empowered the agencies to spend or even mis-spend the tax dollars in question. When it comes to provincial-municipal relations, we have an extraordinarily primitive black-letter interpretation of constitutional relations, one that legitimizes the most
Some urban advocate needs to recover William Baldwin's insight. Legislatures (even city councils) once they have received delegated powers which they apply on behalf of their own constituents, with taxes authorized and contributed by those constituents, must surely be entitled to exercise those powers without constant meddling from the level of government that previously conferred those powers upon them. In the final analysis, you cannot run municipal government on any serious adult basis if a different level of government (not accountable to the city's voters and taxpayers) can countermand civic decisions for any reason or no reason. Responsible government requires a division of powers, and divisions of powers once allocated cannot be cancelled unilaterally at the whim of one party.
