IMFG Paper | 2019

The Fallacy of the Creatures of the Provinces Doctrine

This paper explores the place of municipalities in Canada’s democratic system and constitution, arguing that their status in Canada’s constitutional order ought to be recognized and secured. The constitutional doctrine of “creatures of the provinces” is a legal fiction. The fact that municipalities are included under provincial jurisdiction in Section 92 of the Constitution Act, 1867, need not imply a subordinate status. Municipal systems are fundamentally constitutional insofar as they establish and design democratically elected governments and divide power on councils and between levels of government in a way that furthers constitutional values.

Nevertheless, municipalities’ current status is insecure because their boundaries, institutions, and division of power can be altered by ordinary provincial legislation. Moreover, court interpretations of their status do not recognize how municipal systems interact with other elements of the constitution including its underlying principles of federalism and democracy, which have been recognized and articulated by the Supreme Court of Canada.

The paper suggests ways to secure municipalities’ place in the constitutional order either through recognition in the federal constitution or by legal recognition in provincial constitutions. The latter option is preferable because it is feasible and flexible and respects provincial autonomy. More specifically, the paper argues for the inclusion of “manner and form” provisions in provincial laws establishing municipal systems (including city charters) to protect municipal autonomy and democracy; these provisions must be sufficiently flexible to allow provinces to implement changes if a strong consensus develops that provincial intervention in municipal affairs is warranted to achieve important legislative objectives

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