Tuesday, December 06, 2022

Cities, creatures, and the history of parliamentary democracy

The basis of our political system is the principle that parliaments are sovereign. The principle has been clear and simple: it is fundamentally unjust to have a parliament accountable to the people and raising and spending the people's money, and then let some outside force or authority appropriate that policy-making authority. A hundred and seventy-five years ago next year, the Baldwin-LaFontaine Reform alliance effectively delegitimized the British view that the Canadian provinces should have parliaments that could be overruled at any time by a different government answering to a different public (the British one).  

The corollary of that was what we call "responsible government": in a parliamentary regime, the administration must be accountable ("responsible") to the people's elected representatives in a very specific way. This is not an abstract principle but constitutional text: only a legislature representing its tax-paying public can approve (or reject) an administration's taxing and spending proposals. Furthermore, only the administration, and not any ordinary member of the legislature, can propose the budget for the legislature to approve or reject.  In other words, both the crucial function of a government (call it cabinet, administration, Governor-in-Council) and the crucial accountability of government has been written into the Canadian constitution for more than a century and a half.

Then there are cities.  A century and a half ago, municipal institutions in Canada were in their infancy; it was appropriate that the development of civic governments should be left to provincial management.  But today cities are large governmental institutions in their own right. They are duly elected. They budget and spend.  And they levy taxes upon the population to which they are accountable.  The fundamentals of the Canadian system of government demand that they be able to budget, spend, and tax their citizenry regarding the matters under their purview, without their decisions being arbitrarily overruled by some outside authority not accountable to the same citizenry. 

But then there is "cities are creatures of the provincial government" It's not a phrase that appears in any constitutional text, but somehow it has become a fundamental part of how we understand relations between provincial governments and civic governments.  It is as if Section 92 of the Constitution Act, which makes provinces responsible for the establishment of municipal governments, somehow bestows on provincial government a perfectly arbitrary power not only to establish civic government but also to make them unworkable by interfering for any reason or no reason in any action undertaken by the civic governments elected by and accountable to their own citizens. The deeply principled arguments that seemed to prevail in the mid-nineteenth century seemed to have been degraded into reliance on rigid and unthinking black-letter law, in which out-of-context citation of constitutional sub-sections and clauses has replaced all constitutional thought.

Here's a lame and complacent defence of the "cities are creatures of the provincial government" black-letter doctrine by a political scientist. And a lucid explanation of why the whole idea is ludicrous and unworkable, by another political scientist. 

Just because "creatures," the government of Alberta thinks it can order Alberta cities to disobey valid federal law. The government of Ontario thinks it can remove huge chunks of money from the city of Toronto taxation plans, without the least concern for the budgeting that remains the burden of the city, just because "creatures."   

It would take decades of laborious casework by lawyers and courts to overthrown the now settled and unquestioned Supreme Court of Canada rulings that fundamental democracy does not apply when it comes to city government. And about as long to sort out all the financial implications.  But the work needs to be done.

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