Who should speak for Canada on the world stage?

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Scott Fairley is a senior partner in Cambridge LLP in Toronto and the author of Foreign Affairs in the Canadian Constitution.

Canada is in Washington’s crosshairs. The second Trump administration’s unpredictable waves of tariffs and annexationist rhetoric has challenged both our economy and national security. However, Canada’s underlying vulnerability may not be simply a mercurial president but our own wrongly perceived political and constitutional ambiguity about who speaks for Canada in meeting such external threats.

For nearly 75 years after Confederation, Canada was a self-governing dominion of the British Empire without sovereign status. Even after the Statute of Westminster in 1931 granted full autonomy, our Constitution continues to say nothing about the subject of foreign affairs. This legacy of omission has generated occasional yet significant uncertainty as between federal and provincial actors projecting onto the international stage.

This matters today. In responding to Washington, Prime Minister Mark Carney has promoted a national strategy of “one economy, not 13,” yet provincial leaders have also gone to Washington, pursuing their own agendas. This discordant messaging undermines Canada’s international credibility and bargaining power.

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Part of the confusion stems from how Canadian law has historically divided treaty powers. Ottawa negotiates and signs treaties, but their implementation can fall to either federal or provincial legislatures. The U.K. Privy Council – Canada’s final court of appeal until 1949 – once concluded “there is no such thing as treaty legislation as such.” Provincial premiers have acted accordingly.

Provincial impulses have flared at key moments. In the 1980s, some provinces threatened to block Canada’s free trade agreement with the United States and did so again when responding to NAFTA. More recently, several provinces fought Ottawa’s carbon-pricing scheme tied to international climate accords. In 2021, the Supreme Court of Canada upheld federal authority in the Greenhouse Gas Pollution reference case, affirming that matters of true national concern fall under Ottawa’s residual constitutional power to ensure the “peace, order and good government” of the nation.

At the same time, federal trade and commerce powers have also matured. In the Pan-Canadian Securities reference case of 2018, the Supreme Court confirmed that Ottawa can act where national markets and the national interest require common standards. These rulings increasingly reflect a Canada that is at once a strong federation internally and a single nation-state at the international level.

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None of this should suggest that provincial powers do not remain robust in their own sphere. Ottawa is not entitled to ignore affected regional interests in pursuing the national interest abroad. Saskatchewan Premier Scott Moe’s plea for Ottawa to address Chinese tariffs on canola is a good example of how provinces should channel their concerns. The Premier’s recent visit to China was framed as paving the way for the Prime Minister, in no way undercutting federal leadership. Canada gains strength when the prime minister speaks for one Canada – not when premiers freelance foreign policy.

The underappreciated constitutional foundation for this approach is more secure now than ever before. Our Constitution is a judicially recognized “living tree capable of growth within its natural limits,” transcending previous conceptions of a petrified forest of statutory language.

In this spirit, the courts have extended the scope of judicial review to cover the exercise of federal executive powers, including the royal prerogative that embraces treaty-making. Under this more comprehensive regime of constitutional accountability, Ottawa has progressively refined its approach to fashioning foreign policy. This includes enhanced provincial input and representation within federal delegations in treaty negotiations, more federal-provincial consultation at the executive and bureaucratic levels and renewed transparency before and accountability to Parliament. In the result, Canada has evolved to have comprehensive foreign affairs powers in federal hands even though Canada’s written constitution does not affirm that proposition in black-letter text.

This revised status quo can always stand improvement. Earlier and better integration of provincial perspectives and legislative pathways for purposes of a unified federal position abroad would be a good thing. More standing federal-provincial collaboration on high-risk foreign relations issues such as trade remedies, supply chains and climate compliance is another. While difficult to achieve in the rapidly evolving atmosphere of international chaos that Canada faces now, a single, federally led posture abroad predicated on federal responsiveness to provinces raising legitimate international concerns is nonetheless within Ottawa’s grasp at both the executive and legislative levels.

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None of what I am suggesting here forces provinces to surrender their constitutionally protected powers over “local” diversity – maintaining a truly federal state. There is no provincial capitulation in agreeing to function within a framework that recognizes a simple truth: credibility abroad depends on unity at home.

Constitutional incapacity is no longer a legitimate excuse for Ottawa not to project a coherent political will abroad. Ottawa must responsibly exercise the power it has, and the provinces must show a disciplined approach to that reality.