Frédéric Bérard, « Addressing the Elephant in the Room - Spending Power in Canada », dans National Journal of Constitutional Law, Scarborough, Ont., Carswell, Vol.36 No.2, pp.287-330.

Abstact

The federal or provincial government’s spending power – i.e. the capacity to allocate its financial resources to meet certain goals – has, for many years, been the source of several doctrinal and juridical debates. The Supreme Court of Canada and a majority of authors do not seem to delve into the origins of this power, nor do they seem interested to inquire into how it has developed; one can nevertheless often find references to it in both judicial decisions and legal writings.  Spending power, it seems, is a textbook case of an elephant in the room. Bringing the point home, there is no clearly defined constitutional basis, an argument often voiced, for the federal government’s spending power. 

In this paper, the author explores the numerous contested features and positions revolving around spending power. The essay examines how it is, as a matter of fact, not derived from any constitutional principle or legislative provision. Given this legal vacuum, the inquiry needs to go beyond a traditional legal analysis and consider political practice of the last decades. The paper will show that each grant, conditional or not, resulting from the federal spending power indeed falls under one of the jurisdictional heads of the federal government. 

Furthermore, the author will explain how the initial distribution of financial resources pursuant to the Constitution Act, 1867, along with the evolution of the responsibilities of each level of government, places important restrictions upon the federal government’s spending power. Also included in the discussion are past attempts at constitutional and administrative reforms undertaken in response to the provincial traditional complaints regarding the federal government’s spending power. However, this thesis is challenged and dismissed based on a rigorous analysis of both facts and law. In conclusion, it will become clear that spending power, derived mostly from political practice, amounts to a “fait accompli”: though not based on lawful (even legitimate) doctrine, it forms part of the Constitution of Canada.