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Hirschl Symposium: Municipalities & Subnational Constitutions: What Creature of the Provinces Means

Ran Hirschl’s City, State identifies a silence among constitutional law experts in Western countries with respect to the implications of massive urbanization for constitutionalism. By engaging with newer and more flexible constitutions in countries of the Global South, Ran Hirschl’s City, State invites innovative constitutional thought about how to overcome “stagnation” in Western countries’ constitutionalism. Canada is presented as a kind of “worst” case of constitutional stasis. Indeed, the Canadian Constitution’s rigid amending procedures establish politically impossible thresholds of consent to amend major parts of the federal constitution. This includes Section 92 (8) which places “municipal institutions” under the exclusive constitutional jurisdiction of provinces. Canadian municipalities are legal/statutory creations of subnational governments in the Canadian federation, a status common to federal Anglo democracies such as the United States and Australia.

However, unlike the United States, Canadian political discourse about municipalities’ status has not benefitted from conflicting doctrines about a power of local self-government and state constitutionalism such as the debate about “Dillon’s rule” versus the “Cooley doctrine” and the associated notion of “home rule”. Instead, orthodox opinion accepts uncritically that, from a constitutional perspective, municipalities exist at the pleasure of the provincial government of the day. When Canadian provinces impose fundamental reform to municipal political institutions or the division of power without municipal consent, political elites and the courts cite the doctrine that municipalities are “creatures of the provinces,” presented as a self-evident legal fact that implies that provinces can do what they wish with municipal institutions. The logic of the doctrine of “creatures of the provinces” in Canada is that entire municipal systems could be eliminated through a simply majority vote of a provincial legislature, a threshold easily met in majority government situations in provincial legislatures where power is concentrated in political executives (in other words, provincial Premiers and their cabinets) which govern with support from highly disciplined parties.

Thus, the challenge of municipal empowerment in Canada (including its major cities) is that the Constitutional edifice is both too rigid and too flexible. Any change to the federal division of power (including limiting provincial authority in relation to “municipal institutions”) would require the consent of the House of Commons, the Senate and, at minimum, the approval of seven provinces representing at least 50 percent of the population. What is more, any province could dissent and opt-out of a constitutional amendment that impacts upon its legislative authority (including in relation to municipal institution.

On the other hand, Canadian provincial constitutions are extremely flexible, not to mention obscure. Most Canadians don’t know that they exist because they are not codified in a single document and since they combine entrenched elements with constitutional conventions (following the British tradition of constitutionalism), they are more difficult to pin down. As an exclusive legislative authority of provinces in the federal Constitution, many think about municipal institutions as a policy area similar to “health care” or “education” and subject to changing provincial policy decisions rather than as part of “provincial” constitutional traditions in the way that municipalities are considered elements of state constitutions in the United States.

In my work, I argue that finding constitutional space for municipal governments in Canada requires (re)discovering provincial constitutions and situating municipal systems within them. Like federalism, the division of power between provinces and municipalities furthers important Canadian constitutional values including liberty, recognition of territorial and other forms of diversity (including multiculturalism, democracy and subsidiarity.) For this reason, they ought to be considered constitutional in subject matter and therefore “organic laws” in the British tradition. This requires a shift in thinking for some experts not to mention citizens in Canada. Nonetheless, the thornier issue is whether limits could be placed on provincial action in relation to municipalities. This is because in Westminster systems, the principle of Parliamentary supremacy/sovereignty has been conceptualized as inviolable. And, parliamentary sovereignty is generally conceived of as an expression of the will of the majority of Parliament. Furthermore, even if Canadians acknowledged municipalities’ constitutional significance, there are few entrenched limits on provinces’ ability to amend their constitutions (with the institutions of the Crown an important exception) and the power to legislate with respect to municipal institutions is considered unlimited.

A key to empowering local democracy in Canada will be to find ways to limit provincial power in relation to municipal institutions. An option that I explore in this respect is a form of what one might call “soft entrenchment”, the introduction of manner and form limitations, which are self-imposed procedural (rather than substantive, policy) limitations on a legislature’s ability to make changes to legislation in the future. Although the constitutionality of such mechanisms is contested (in Canada and other Westminster parliamentary democracies), leading constitutional authorities in Canada argue that they would be upheld by courts if enacted in particular ways. Such procedural requirements to change provincial municipal acts could include a requirement to consult with municipalities, a supermajority vote in provincial legislatures or even referenda at either the municipal or provincial scale. Or, such mechanisms could be used to entrench provincial constitutions and municipalities’ place within them (an admittedly more ambitious project). Such legal mechanisms could go a long way to provide basic stability to municipal governments in a country where forced amalgamations have been widespread and the Ford government in Ontario imposed a reduction (by almost half) of the City of Toronto’s council (Canada’s largest municipality) in the middle of its municipal election campaign in 2018. This unprecedented interference in a municipal election was ultimately appealed to the Supreme Court of Canada, which ruled against the city but with four of nine judges of the Supreme Court of Canada dissenting. Canada’s courts need new legal thinking upon which to draw in such decisions.

Ran Hirschl’s book also highlights a global pattern of underrepresentation of urban places in central legislatures, a reminder that finding constitutional space for cities is not simply a question of addressing municipal institutions and their autonomy. Rather, it’s also about how to incorporate spatial-territorial diversity effectively into central legislatures. In Canada, the combination of weak protection of municipal institutions and the highly concentrated nature of executive power in provincial legislatures mean that there are few checks on provinces that ignore urban concerns or fail to respect the significance of municipal institutions to Canada’s democratic tradition. A focus on the question of what types of limitations ought to be placed on provincial legislatures must be considered in this broader constitutional context. Provincial reforms that address the “executive dominance” that characterizes provincial legislative processes would make heavy-handed provincial action in relation to municipal institutions less likely. In considering these and other elements of provincial constitutionalism, we must also be aware that provinces have a role to play in addressing urbanization including by contributing to effective metropolitan or city-region governance and through fiscal equalization.

Hirschl furthers a crucial debate about the implications of urbanization and spatial differentiation among communities for political institutions and policymaking at all levels including subnational constitutions.

We need fresh thinking about municipalities’ place in subnational constitutions that considers how they ought to divide power to encourage a robust democratic debate about balancing the legitimate concerns of central legislatures to enable effective and equitable metropolitan governance with community diversity and respect for local democracy. Hirschl’s City, State shows how cross-national comparisons and a truly global comparative constitutionalism (that includes cases from the Global South) will be key to addressing Western countries’ constitutional inertia. In Canada, most fundamentally, this requires moving beyond an impoverished understanding of municipalities as mere “creatures of the provinces”, based on a simplistic understanding of a legal fact, and instead considering the constitutional significance of legislating in the area of municipal institutions in a modern federal democracy.


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