Owen Sound: A Four-Year City Business Plan

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The Foundation

Chapter 3Canadian Constitutional Government

4,085 words · Mike Seiler · Owen Sound, Ontario

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Before Owen Sound can decide what it should do, we need to be clear about what it is legally permitted to do, what belongs to Grey County, what belongs to Ontario, what belongs to Canada, and where responsibilities overlap.

This section deliberately separates two questions.

First: What does Canada's Constitution currently provide?

Second: What should Owen Sound advocate to change?

Those questions should not be blended together.

We can believe strongly that decisions should move closer to the people while still being completely accurate about the law that exists today.

That distinction matters because one of the commitments of this plan is that residents will never be told the City has authority it does not possess.

3.1The Canadian Constitutional Tradition

Canada is a constitutional monarchy and a federation.

Power is divided rather than concentrated in one government.

The Constitution establishes federal institutions, provincial institutions, legislative authority, constitutional rights and the rules under which those institutions operate. Sections 91 and 92 of the Constitution Act, 1867 establish the central division of legislative powers between Parliament and the provincial legislatures.

The Constitution Act, 1982 adds the Canadian Charter of Rights and Freedoms, recognizes and affirms existing Aboriginal and treaty rights, establishes constitutional amendment procedures and confirms that the Constitution is the supreme law of Canada.

Our system therefore rests upon several ideas working together:

These ideas sometimes create tension.

That is not necessarily a weakness.

A system that divides power deliberately creates places where one institution must answer to another.

The question for this business plan is how Owen Sound can operate confidently inside that system while advocating for greater local responsibility where greater local responsibility makes sense.

3.2The Crown

Canada is a constitutional monarchy.

The King is Canada's Head of State. The Governor General represents the Crown federally, while Lieutenant Governors represent the Crown in each province. Parliament consists of the King, the Senate and the House of Commons. Provincial legislatures consist of the Lieutenant Governor and the elected legislative assembly.

This distinction is important.

It would not be accurate to describe Canada's monarchy as simply a federal monarchy sitting above provincial governments.

The Crown is part of Canada's constitutional structure federally and provincially.

Nor are provincial governments merely regional offices of the federal government.

The Constitution assigns Parliament and provincial legislatures different areas of legislative authority.

For this plan, the most valuable lesson of the Crown is simpler.

The office is greater than the person temporarily occupying it.

Governments change.

Prime Ministers change.

Premiers change.

Mayors change.

The institution continues.

Authority is therefore something entrusted temporarily, not something personally owned.

That is a principle worth carrying directly into City Hall.

A Mayor should never behave as though an election transfers ownership of the City.

Council holds authority temporarily.

Staff administer public institutions temporarily.

Public assets pass from one generation to the next.

That is stewardship.

What the Crown does not provide

There is no general constitutional power allowing the federal Crown or Parliament simply to remove Ontario from the relationship between the Province and its municipalities.

Section 92 expressly assigns "Municipal Institutions in the Province" to provincial legislative authority.

Ontario's Municipal Act, 2001 consequently states that municipalities are created by the Province of Ontario as responsible and accountable governments for matters within their jurisdiction.

That is the present law.

It does not prevent us from asking whether that arrangement has become too centralized.

It does mean that greater municipal independence must be achieved lawfully, through provincial legislation, negotiated delegation, constitutional reform where necessary, or some combination of these approaches.

The objective of this plan is not to pretend those limits do not exist.

It is to make the strongest possible case for moving appropriate authority closer to residents.

3.3Federal Responsibilities

Section 91 of the Constitution Act, 1867 assigns Parliament a series of national responsibilities. The original constitutional language is old in places, but the division of powers remains fundamental to Canadian government.

For practical purposes, federal responsibilities include the following.

National Government and Finance

Parliament has legislative authority concerning:

National Defence and Security

Federal authority includes:

The administration of much of the justice system itself is provincial, which is why criminal justice is a good example of two orders of government carrying different pieces of the same public function.

Trade and the National Economy

Federal jurisdiction includes:

Transportation and Navigation

Federal jurisdiction includes:

This is particularly important for Owen Sound because activity involving the harbour, navigable waters, shipping or certain waterfront works can engage federal authority even when the surrounding land is municipal or provincial.

Communications

Canada's constitutional framework places interprovincial and international communications undertakings within federal authority.

This is one reason telecommunications cannot simply be treated as an ordinary municipal utility.

Municipalities can still have important responsibilities involving streets, municipal property, local infrastructure, rights-of-way and development approvals, depending upon the circumstances.

Immigration and Citizenship

The Constitution gives Parliament authority concerning naturalization and what the original constitutional language calls "Aliens." Immigration itself is also expressly an area in which both federal and provincial legislatures may legislate, subject to federal legislation prevailing where the two conflict.

Fisheries

Sea-coast and inland fisheries fall within federal legislative authority, although provincial property, environmental, natural-resource and land-use responsibilities can also affect projects involving water.

Marriage and Divorce

Parliament has authority regarding marriage and divorce.

Provinces have authority regarding the solemnization of marriage.

That division is another example of one subject involving more than one government.

Indigenous Matters

Section 91(24) assigns Parliament legislative authority over the constitutional subject historically worded as "Indians, and Lands reserved for the Indians." That wording comes directly from the 1867 Constitution and reflects the language of its time.

That does not mean every modern Indigenous matter is simply federal.

Section 35 of the Constitution Act, 1982 recognizes and affirms existing Aboriginal and treaty rights, and both the federal and provincial Crown can carry constitutional duties when contemplated government action within their jurisdiction may affect those rights.

That distinction will matter considerably in Owen Sound's relationship with Saugeen Ojibway Nation.

3.4Provincial Responsibilities

Section 92 gives provincial legislatures exclusive legislative authority over another substantial group of subjects.

For Ontario, these include the following.

Municipal Government

The Constitution places:

Municipal Institutions in the Province

within provincial legislative jurisdiction.

This is the constitutional foundation for Ontario legislation governing cities, towns, counties and other municipalities.

Municipalities have significant democratic responsibilities, but their legislative powers are presently derived primarily from provincial law rather than from a separate constitutional head of municipal power.

Property and Civil Rights

One of the broadest provincial powers is property and civil rights in the province.

In practical terms this is connected to a very large portion of everyday economic and private law, including areas such as:

The precise constitutional boundary depends on the subject and applicable legislation, but property and civil rights is one of the principal reasons provinces play such a large role in daily economic life.

Hospitals and Healthcare Delivery

Provincial jurisdiction includes the establishment, maintenance and management of hospitals, other than the historic federal category of marine hospitals.

Most organization and delivery of healthcare therefore occurs provincially, although federal authority remains significant through areas such as criminal law, patents, quarantine, taxation and federal spending.

Education

Education is principally a provincial legislative responsibility, subject to the constitutional provisions and protections contained in section 93 and other constitutional provisions.

Provincial and Local Works

Provinces have authority concerning local works and undertakings, except those constitutionally assigned to federal jurisdiction because, for example, they connect provinces or extend outside a province.

Natural Resources and Electricity

Section 92A gives provinces important legislative authority over:

Provincial Public Lands

Provincial authority includes management and sale of provincial public lands and associated timber and wood.

Administration of Justice

Provinces have authority over the administration of justice within the province, including the organization and maintenance of provincial courts and civil procedure in those courts.

This helps explain why Parliament may create criminal law while provinces administer much of the justice system in which that law is applied.

Provincial Correctional Institutions

Provinces are responsible for provincial public and reformatory prisons, while federal jurisdiction includes penitentiaries.

Provincial Companies and Licensing

Provincial authority includes:

Matters of a Local or Private Nature

Section 92 concludes with provincial authority over matters of a merely local or private nature in the province.

This broad local responsibility is another reason provincial government has such a significant constitutional relationship with municipalities.

3.5Municipal Responsibilities

The City of Owen Sound does not receive its own list of exclusive legislative powers directly from sections 91 and 92 of the Constitution.

Ontario establishes the municipal framework through the Municipal Act, 2001, the Planning Act and numerous other provincial statutes.

The Municipal Act states that municipalities are created by Ontario to act as responsible and accountable governments for matters within their jurisdiction. It also provides that municipal powers are generally exercised by council.

For Owen Sound, local responsibilities presently include or involve areas such as:

The City's own current organizational and planning documents reflect responsibilities across public works, water and wastewater, transportation, fire services, parks, recreation, planning, building, culture, municipal administration and other local services.

These powers are meaningful.

They affect daily life more directly than many debates in Ottawa or Queen's Park.

The condition of the sidewalk outside a senior's home is local.

The drinking water coming through a household tap is local.

The park where a child plays is local.

The building permit needed to create an apartment is local.

The bus someone takes to work is local.

The condition of the downtown street is local.

The response to a broken sign, dangerous pothole or blocked sidewalk is local.

This is why municipal government deserves to be treated as government rather than simply administration.

At the same time, honesty requires us to acknowledge that the legal framework within which those responsibilities are exercised comes largely from Ontario.

3.6Grey County

There is another level of municipal government that matters enormously to Owen Sound.

Grey County is an upper-tier municipality.

It is not an arm of the federal government or a provincial ministry. It is itself municipal government operating within Ontario's municipal structure.

A number of major services affecting Owen Sound residents are delivered regionally by Grey County rather than by the City alone.

Current County responsibilities include major areas such as:

Grey County currently operates emergency paramedic services, housing and homelessness programs, Ontario Works and three long-term care homes, including Lee Manor in Owen Sound.

This division matters because residents should not need to understand municipal bureaucracy simply to determine who is responsible.

One objective of this plan will therefore be a Who Does What public guide covering:

If a resident calls the wrong government, our answer should not simply be:

"That isn't ours."

It should be:

"Here is who is responsible, here is how to reach them, and here is what we can do to help move the issue forward."

3.7Shared and Overlapping Responsibilities

Canada's constitutional structure cannot always be understood by placing every issue into one of two boxes.

Many of the most important issues facing Owen Sound involve more than one government.

Housing

Housing touches:

A housing problem can therefore require local, County, provincial and federal action at the same time.

Healthcare

Ontario organizes and regulates most healthcare delivery.

Grey County operates paramedic services and long-term care facilities.

Owen Sound makes decisions concerning land use, roads, local emergency planning and infrastructure surrounding healthcare facilities.

Canada has relevant authority through areas including quarantine, criminal law, patents, taxation and spending.

Environment

The Constitution does not assign one government an exclusive category simply called "the environment."

Environmental issues can involve:

The responsible government depends on the particular activity.

Infrastructure

There is no constitutional rule stating that "infrastructure" as a whole belongs to the federal government.

Responsibility follows the particular asset and the constitutional authority involved.

A local street may be municipal.

A County road may be Grey County's responsibility.

A provincial highway is provincial.

An interprovincial railway or other qualifying undertaking may fall under federal authority.

All three orders can also contribute funding to infrastructure they do not directly operate.

The source of funding and the legal responsibility for the asset are not necessarily the same thing.

That distinction will be used throughout this plan.

Telecommunications

Telecommunications can engage federal jurisdiction, particularly where an undertaking crosses provincial or international boundaries.

At the same time, telecommunications infrastructure physically occupies communities.

Local streets, municipal land, construction, access and other local issues can therefore engage municipal and provincial authority as well.

Agriculture and Immigration

Agriculture and immigration are expressly shared constitutional fields.

Section 95 permits both provincial legislatures and Parliament to legislate in these areas, with federal legislation prevailing to the extent of an inconsistency described by the Constitution.

Old-Age Pensions

The Constitution expressly authorizes Parliament to legislate concerning old-age pensions and supplementary benefits while preserving the operation of provincial legislation in that field.

Marriage

Parliament has authority regarding marriage and divorce.

Provinces have authority over solemnization of marriage and many associated civil matters.

Criminal Justice

Parliament legislates criminal law and criminal procedure.

Provinces administer justice and organize provincial courts.

Local police services operate within provincial policing legislation while enforcing laws originating from different levels of government.

The lesson is important:

Government responsibility should be mapped issue by issue, not assumed from the name of a department or funding program.

3.8Indigenous and Treaty Relationships

Owen Sound's relationship with Saugeen Ojibway Nation deserves more than a line inside an intergovernmental chart.

The Constitution recognizes and affirms existing Aboriginal and treaty rights.

The legal duty to consult is a duty of the Crown. Justice Canada describes that obligation as potentially resting with either the federal or provincial Crown when contemplated Crown conduct within its jurisdiction may adversely affect section 35 rights. The precise legal position of municipalities concerning the constitutional duty itself is more complex and should not be overstated.

Owen Sound does not need to wait for a lawsuit or minimum legal requirement to build a respectful relationship.

Our existing initiative already proposes opening a formal relationship with Saugeen Ojibway Nation and listening first on matters of shared importance.

That relationship should include matters such as:

The approach should be government-to-government where appropriate, respectful of rights and honest about jurisdiction.

This is not merely another stakeholder consultation.

It is a relationship that deserves continuity beyond any particular Mayor or Council.

3.9Subsidiarity

The Constitution tells us where legislative authority currently resides.

It does not prevent us from having a philosophy about where practical responsibility ought to reside.

This plan adopts the principle of subsidiarity.

A public responsibility should be carried by the smallest competent level capable of performing it lawfully, fairly and sustainably.

That begins below government.

Where an individual can reasonably make the decision, leave it with the individual.

Where a family can manage its own lawful affairs, respect the family.

Where neighbours, congregations, clubs, charities or associations can solve something voluntarily, government should consider supporting rather than replacing them.

Where a municipality can solve a local problem, the municipality should be trusted to do so.

Where a regional solution genuinely provides value, use the County.

Where provincial coordination is necessary, Ontario should act.

Where the problem is genuinely national, interprovincial or international, Canada should lead.

A practical hierarchy

Our preferred order is:

  1. Person
  2. Family and household
  3. Neighbourhood and voluntary community
  4. Municipality
  5. Regional municipality or County where regional scale adds value
  6. Province
  7. Federal government

This is not a rigid constitutional formula.

It is a test for good government.

The burden of explanation should increase with distance

The farther a decision moves from the people affected by it, the stronger the reason for that distance should be.

A higher level of government may have a very good reason:

When that reason exists, say so.

When it does not, we should be prepared to ask why the decision remains centralized.

3.10Municipal Reform

This business plan is municipal.

It is therefore not a plan to rewrite the Canadian Constitution from Owen Sound City Hall.

It can, however, demonstrate a better relationship between levels of government.

There is a legitimate question at the heart of this discussion:

If a community is capable of governing a local matter responsibly, why should an unnecessary layer of permission stand between the community and the solution?

That question deserves to be asked.

The answer should be based on evidence rather than hostility toward another level of government.

Some provincial functions provide necessary coordination, rights protection, expertise or regional consistency.

Others may be better delivered locally.

The objective is to find the difference.

The Owen Sound Municipal Reform Agenda

This plan should advocate for the following principles.

1. Local Authority Should Match Local Responsibility

If Ontario expects municipalities to deliver a service, municipalities should receive the authority required to deliver it properly.

2. Funding Should Follow Responsibility

A higher government should not transfer a responsibility downward without identifying how that responsibility will be sustainably funded.

Owen Sound should maintain a public Unfunded Mandate Ledger showing:

3. Provincial Permission Should Have a Public Purpose

Where provincial approval is required, residents should be able to understand why.

If approval exists because regional coordination, safety or constitutional responsibility requires it, that is legitimate.

If an approval process repeatedly adds cost and delay without changing the outcome, the City should document that evidence and request reform.

4. Municipalities Should Be Allowed to Pilot

Ontario should provide greater opportunity for capable municipalities to test new approaches within clear safeguards.

That could include limited pilot authority concerning:

Successful pilots could then inform provincial reform.

5. Decisions Should Move Down When Capacity Exists

Where Owen Sound can demonstrate:

the City should be prepared to ask Ontario for greater discretion.

6. Regional Government Should Demonstrate Regional Value

Grey County should be treated as a partner, not an opponent.

But every service delivered regionally should still be able to demonstrate why regional delivery provides better value than separate local delivery.

The same standard should apply in reverse.

If a service clearly works better regionally, individual municipalities should not duplicate it merely for the sake of control.

7. Federal Funding Should Not Require Permanent Dependency

When Ottawa helps fund a municipal project, we should know:

A grant is useful.

Dependency is not a business plan.

8. Every Layer Must Add Value

No level of government should exist in a particular transaction merely to receive money from one level, administer paperwork and pass a reduced amount to another.

Where an intermediate process genuinely protects taxpayers, coordinates services, provides expertise or ensures fairness, its value should be clear.

Where it does not, Owen Sound should document the duplication and advocate for a simpler relationship.

Constitutional Reform Must Be Lawful

There is an important difference between advocating greater municipal independence and claiming that a municipality can simply declare it.

It cannot.

The general constitutional amendment procedure requires approval of the Senate, House of Commons and at least two-thirds of the provinces representing at least 50 per cent of the population of all provinces for amendments falling within that procedure. Certain constitutional matters have different procedures. Amendments concerning the office of the Crown, Governor General or a provincial Lieutenant Governor require unanimous federal and provincial authorization.

That is not an obstacle to discussion.

It is the lawful path for constitutional change.

There are also many significant reforms that do not require reopening the Constitution.

Ontario can change municipal legislation.

Ontario can delegate greater authority.

Municipalities can enter partnerships.

Governments can simplify approvals.

Services can be reorganized.

Funding relationships can change.

Local pilots can be authorized.

Administrative duplication can be removed.

Those practical reforms should come first.

The Owen Sound Position

Our position should be neither centralized government nor reflexive rejection of government.

It should be:

Government at the right level, exercising the right amount of authority, for a clearly defined purpose.

Canada should do what properly requires Canada.

Ontario should do what properly requires Ontario.

Grey County should do what genuinely benefits from regional delivery.

Owen Sound should take responsibility for what Owen Sound is capable of doing.

Families, neighbourhoods, businesses, congregations, charities, clubs and individuals should retain the freedom and responsibility to do what government does not need to do for them.

When these boundaries become confused, accountability disappears.

Everyone can blame someone else.

This business plan will not allow that.

Every major initiative that follows will identify:

Municipal Authority
What Owen Sound controls.

County Responsibility
What Grey County controls.

Provincial Responsibility
What Ontario controls.

Federal Responsibility
What Canada controls.

Indigenous Rights and Partnership
Where Indigenous rights, governments or relationships are engaged.

Shared Responsibility
Where cooperation is genuinely required.

Reform Requested
Where existing rules prevent Owen Sound from taking reasonable local responsibility.

The Principle

Canada is strongest when its institutions know both their authority and their limits.

The Crown reminds us that public authority is held temporarily.

The Constitution divides power.

Rights place boundaries around government.

Elections provide democratic authority.

Local government brings decision-making close to daily life.

Families and communities carry responsibilities that government should respect.

Our objective is not to make Owen Sound independent of Canada or Ontario.

Our objective is to make Owen Sound capable.

Capable of maintaining its own community.

Capable of understanding its own finances.

Capable of solving local problems.

Capable of protecting local information.

Capable of working respectfully with neighbouring governments.

Capable of telling another level of government when a rule is not working.

Capable of asking for greater responsibility and proving we are ready to carry it.

And capable of showing that strong local government does not weaken Canada.

It strengthens Canada from the community outward.

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