It seems to come as a surprise to many people that Canada is a highly decentralized federation, with a constitutionally entrenched division of powers that prevents the federal government from blundering its way into the affairs of the provinces. Sure, there are a few areas of shared jurisdiction that come with some push and pull between different levels of government, and there are places where the federal government plays a role that largely involves the transfer of funds to provinces for specific outcomes, or to ensure equal levels of access from province to province. And yet, listening to politicians at both the federal and provincial levels of government, particularly lately, there seems to be no shortage of confusion as to just how much power and authority the federal government possesses in a myriad of portfolios.
The last federal election saw a myriad of debates over pharmacare and the NDP's insistence on the creation of dental care, with nary a concern that these were areas of provincial jurisdiction. The Liberals, cognisant of this fact, predicated all of their pharmacare promises on negotiation with the provinces, which is why they only budgeted for seed money, with more to come contingent on the outcome of those talks. News media largely ignored these conditions and complained that their budgeting numbers were too low. What was particularly curious was the way in which the NDP leader, Jagmeet Singh, was making specific local healthcare promises, around building hospitals or emergency services at existing ones, as though there were federal levers to ensure that when there aren't and no, the Canada Health Act is not a federal lever to dictate how provinces deliver healthcare at the local level. At the time, I was unsure whether this was deliberate or a result of ignorance, but in the time since the election, I am leaning toward the former.
Since the onset of the pandemic, jurisdictional confusion seems to have exploded. Everyone has demanded that the federal government do something about rent (when landlord/tenant legislation is provincial), long-term care (again, provincial jurisdiction that the federal government provided military and Canadian Red Cross support with upon the request of the provinces), paid sick leave (about 90 percent provincial jurisdiction federally regulated sectors include banking, telecom and transportation), and public health measures (which they provided lab capacity and contract tracers to provinces upon demand). And the federal government got creative about how it could leverage its spending power to help provinces, but it wasn't always successful (the commercial rent subsidy or disability support top-ups) because they don't have the appropriate levers or databases that can provide that kind of direct support. But that hasn't stopped either opposition parties or even some provinces from complaining, when those provincial governments haven't stepped up to solve things that are clearly in their jurisdiction. Some provinces, like Alberta, decided to lay off school workers in their own jurisdiction and put them onto federal support payments, in a bout of spectacularly cynical buck-passing, and got away with it because of this deliberate confusion in the public sphere.
The current dispute over the Mi'kmaq lobster fishery in Nova Scotia is seeing more of this cynical buck-passing by that province's premier, who says that the federal government needs to define what a "modest income" is for the First Nation, when he knows very well that the actual issue at hand is the violence of an angry mob, and that policing is a provincial responsibility. That it took the province weeks to request additional RCMP support from the federal government is indicative of the fact that they had little intention of doing their work in enforcing law and order, or preventing said mob from destroying Mi'kmaq property and threatening their lives until the images of police just standing there as it happened flooded social media.
While this was going on, both Erin O'Toole and Singh has been making loud noises about how this is the federal government's fault, that they didn't send in negotiators soon enough (they did), and that they didn't properly resource the RCMP in the area which, once again, is an area of provincial jurisdiction and the RCMP are contracted to that province. There is no federal role for policing that dispute, and the federal government could not unilaterally send additional resources to the province until asked by the provincial government which did happen over this past weekend, after things escalated to suspected arson. And for everyone who has suggested that the federal government send in the military to keep peace, they couldn't do so without the explicit request of the provincial government, nor does anyone want the military to engage in law enforcement that way leads to police states.
Of course, the opposition parties and the premiers know that there are jurisdictional issues, but they have been content to ignore the realities of them for the sake of playing politics. For the opposition, it's a cynical game of making it look like the federal government is sitting on their hands when they in fact lack the proper levers to take meaningful action and they know it. For premiers, it's a kind of learned helplessness, insisting that the federal government needs to provide money or direction, or guidance, or to "take the lead" when it's something that they can do on their own.
If the federal government did assert jurisdiction (likely through emergency powers), they would immediately cry bloody murder, that their constitutional rights were being trampled on, and that the division of powers exists for a reason, but in the meantime, they could take advantage of the fact that all eyes are focused on Ottawa, leaving them to escape accountability for their failures in the pandemic. And what is most frustrating is the fact that media have been complicit in this, abiding by the ethos that nobody cares about jurisdiction in a pandemic except they should, because the federal government can't invent levers it doesn't have, and the premiers need to be held to account for their own failings. Playing into the cynical games of politicians who obfuscate jurisdictional questions leaves that accountability in doubt.
