Nova Scotia and Constitutional Amendment
Hon. Judge P.J.T. O’Hearn *
Nova Scotia was brought into Confederation by Sir Charles Tup-
per guiding an uneasy Legislature and overriding a mutinous populace.
The objections to the scheme that then stood large in the popular
mind have coloured the Province’s attitude to the union ever since
and account in some part for the Nova Scotian attitude towards
constitutional amendment. The chief objections to Confederation were
set out by Joseph Howe in a letter dated January 19, 1865, to Earl
Russell, as follows:’
1. That, by adopting the principle of Representation by population, the
Maritime Provinces will be forever swamped by the Canadians.
2. That, if the Canadas, always in trouble of some sort, and two or three
times in open rebellion, should repeat such eccentricities, we should be com-
promised, and our connexion with the Mother Country endangered.
3. Because the plan of double Legislatures, tried in Scotland and Ireland
and swept away, is cumbrous and expensive, and cannot be carried out
without raising our ad valorem duty, which is now only 10 percent to 20.
4. That, when we raise our duties to this point, for the benefit of 3,000,000
of Canadians, we burthen our trade with the Mother Country and with our
British brethren in 50 other Colonies scattered all over the world.
5. That when the Tariff is thus raised but 250,000 currency will be left
for dafence, a sum utterly inadequate, for any such purpose while nothing
is gained by weakening the unity of command and control now possessed by
Her Majfsty’s Government.
The emphasis here is on mistrust of the Canadians and on money.
Howe, in an 1866 pamphlet, expanded on the first part as follows: 2
When the American republic was formed, the smaller States which entered
it had many guarantees for protection and fair play which this Quebec
scheme of government does not give to us. In the first place, no one large
State could dominate over all the others …
In our case we are to have a confederacy in name, but in reality the centre
of power and of influence will always be in Canada. It can be nowhere else.
County Court, Halifax, Nova Scotia.
1 The Speeches and Public Letters of Joseph Howe, Chisholm, Ed., (Halifax,
1909) Vol. 2, p. 437; J. Murray Beck, Joseph Howe: Voice of Nova Scotia, Carle-
ton Library No. 20 (Toronto, 1964), p. 175; from Beck’s text which makes more
sense.
2 The Speeches and Public Letters of Joseph Howe, Vol. 2, pp. 490-1.
McGILL LAW JOURNAL
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When divided, the eastern and western sections may quarrel as they have
always done upon sectional questions, but they may be trusted to combine
against us whenever our interests clash,…
The Confederation settlement set up fairly adequate safeguards
for the vital interests of the Canadas and the Canadian minorities.
These interests were cultural, i.e., educational, linguistic and religious.
Nova Scotia being quite capable of keeping her cultural individuality,
even in a centralized government, soon found that her vital interests
were not cultural but economic. In being made part of the union
she was not only deprived of the economic advantages she then
enjoyed but no safeguards at all were provided for her.
This mistrust of the Canadas meant that the Nova Scotians of
1867 did not look to Canadians for helpful changes in their consti-
tutional predicament but expended all their efforts in England. Howe
and the rest of the Bluenose resistance were probably quite content
at that time to accept the method of amendment proposed by the
Canadians: that it be the prerogative of the Imperial parliament.
The Canadian proponents of Confederation apparently did not con-
template any other way. Thus Galt wrote to Sir Edward Lytton in
1858: s
It does not profess to be derived from the people but would be the constitu-
tion provided by the Imperial parliament, thus affording the means of re-
medying any defect, which is now practically impossible under the American
constitution.
And D’Arcy McGee was quite definite about it in the Confeder-
ation Debates: 4
We go to the Imperial Government, the common arbiter of us all, in our
true Federal metropolis – we go there to ask for our fundamental Charter.
We hope, by having that Charter that can only be amended by the authority
that made it, that we will lay the basis of permanency for our future govern-
ment.
Others who spoke in the Debates seemed to take this position
for granted although a couple expressed the hope that a means would
be devised to permit the federal parliament to amend the charter.
Some of the more prescient expressed the view that leaving the job
to the Imperial parliament would make amendment too facile and
too unpredictable. These latter objected to passing the scheme with-
out consulting the electorate, a view expressed also by Howe in his
letter to Lord Russell:”
3 Sir Alexander Tilloch Galt by 0. D. Skelton (O.U.P., Toronto, 1920), p. 243;
abridged reprint, Carleton Library No. 26 (Toronto, 1966) p. 97.
4 Confederation Debates (Quebec, 1865; reprinted Ottawa, 1951 by the King’s
Printer) p. 146.
Op. cit., note 2, pp. 436-7.
No. 4] NOVA SCOTIA – CONSTITUTIONAL AMENDMENT 435
In England no important change in the machinery of government is made
without an appeal to the country. In the United States no amendment can
be made to the constitution which is not sanctioned by two-thirds of the
members of both Houses, and ratified by a majority of the electors.
Your Lordship will readily understand how our people would feel if
their institutions, enjoyed for a century, were swept away by a surprise,
without the constituencies, who have worked them peacefully and success-
fully, being consulted.
Howe and his group failed to make any change in England and
the Nova Scotians of 1868 lost faith in the Imperial parliament
without gaining any in the Canadians. The resistance split into two
groups: –
those, with Howe, who tried to make the best of a bitter
deal and negotiate ‘better terms’; those who toyed with secession
while accepting provincial government as a means to achieve as-
cendency and to further their views. Because of Howe’s preeminence
but also because his stand involved an apparent change of princi-
ples on his part, neither group ever captured majority support until
after World War I, when secession was finally relegated to the realm
of the ideal: it is not yet quite dead.
The ambivalent nature of this outlook is apparent in an entry
in the proceedings of the first Interprovincial Conference, held at
Quebec in 1887:6
In view of recent movements in the Province of Nova Scotia, the Repre-
sentatives of that Province desire to place on record that they participate
in the deliberations of this Conference upon the understanding that, while
they join the Representatives of the sister Provinces in seeking reforms in
matters which are of common interest, they do so without prejudice to the
right of the Government, Legislature or people of Nova Scotia to take any
coursa that may in future be by them deemed desirable with a view to the
separation of the Province from the Dominion.
The Interprovincial Conference recommended several amendments
to the British North America Act. The Imperial government refused
to act on these recommendations and this, coupled with the ease with
which it was now apparent that the federal government could secure
Imperial amendments led to a demand for consultation of the prov-
inces. Nova Scotia, however, has never taken an extreme position
on this: its constitutional lawyers have, on the whole, been opposed
to the Compact Theory, and have tended to recognize that there is
a sphere of constitutional law that is solely of federal concern.
What Nova Scotian governments have insisted on, in season and
out, is a constitutional readjustment of financial resources to enable
the provinces to fulfill their functions properly. This, as noted, was
6 Dominion-Provincial and Interprovincial Confcrences from 1887
to 1926
(King’s Printer, Ottawa, 1951) p. 19.
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the main vital interest of the Province affected by Confederation
and it was adversely affected without constitutional guarantees or
adequate compensation. Indeed, it is almost impossible to deal with
within the framework of Confederation, except by money payments.
The device of equalization, first formulated in the Rowell-Sirois Re-
port, and developed by the King ministry in World War II at the
hands of finance Minister J. L. Ils’ey, and by the succeeding minis-
tries, seemed to offer a way out to some extent, without need of
constitutional amendment.
Consequently, constitutional amendment no longer poses to Nova
Scotians an issue of vital importance and they tend to be unexcited
about it. They share the general Canadian view that it is desirable
that amendment be a wholly Canadian process but, as there are no
entrenched educational or linguistic rights operative in the Province,
they can afford to be dispassionate. There were attempts in the past
to establish such rights and, at the time, these caused high feelings
which could be easily roused again. Most of our public men seem
to be prepared to establish for the Acadiens whatever linguistic
rights they desire, but denominational schools pose a much more
touchy problem despite de facto settlements in Halifax and one or
two other places.
Nova Scotian governments, of whatever political hue, have not
differed in their approach to fiscal reform. This is not unique: it
occurs in most provinces with respect to their primary interests.7
Nor have successive administrations in the Province differed in their
attitude to what has become for them almost a primary constitu-
tional purpose. This is to get over the barriers to effective govern-
ment posed by the ‘watertight compartment’ doctrine of legislative
powers in Canada. That is, it has been found by long experience
that there are certain problems falling within the federal legislative
field which are not of sufficient national importance to warrant
legislation at that level but which are, of local importance and need
regulation at that level. The situation exists also in reverse. Under
the O’Connor approach this would be sufficient to justify legisla-
tion by the body concerned but that approach has not (as yet, at
any rate) been accepted by the courts.
There are also situations where the limits imposed by the inter-
locking jigsaw of powers do not permit the most efficient employ-
ment of administrative forces and efforts: fisheries is one such
7 Cf. op. cit., note 6, p. 13 for remarks of Hon. H. Mercier, Premier of Quebec.
I have cited other instances in Peace, Order and Good Government (MacMillan,
Toronto, 1964) Ch. 20 & 21.
No. 4] NOVA SCOTIA – CONSTITUTIONAL AMENDMENT 437
field.” The device proposed to alleviate these situations is the dele-
gation of legislative authority between the federal and provincial
legislatures. This is, of course, presently beyond the powers of
either.9
The case for delegation is summed up concisely in the Rowell-
Sirois Report ‘o in Volume I at page 259:11
Where legislative power over a particular subject matter is divided, it is
ordinarily desirable that these powers should be pooled under the control
of a single government in order to secure unified effort in administration.
There is a tradition in the Attorney General’s Department that
Nova Scotia first proposed the idea of delegation at the 1927 Do-
minion-Provincial Conference when Premier E. N. Rhodes’ Con-
servative government held power in the Province. I have not been
able to find mention of it in the pr6cis of proceedings. Nor have
I been able to find it in the proceedings of the 1935 Conference.
In the Rowell-Sirois Report, Vol. 2, p. 72 it is noted that delega-
tion was suggested by Nova Scotia, Saskatchewan and the Canadian
Chamber of Agriculture and Nova Scotia’s Liberal Premier, Angus
L. Macdonald, pointed this out in making a renewed plea for dela-
gation at the 1950 Federal-Provincial Conference.12
At that conference, Premier Macdonald also proposed to add
a new section 148 to the British North America Act, to enable the
Act to be amended in Canada.’ 3 Following the plan of the continuing
committee of the 1935 Conference ” this would have divided the
sections of the Act into four classes with a different formula of
federal-provincial legislative concurrence for each class. The Nova
Scotia proposal also provided for delegation of powers.
A committee of the 1950 Conference later eilarged the number
of classes to six, a classification again elaborated in the Fulton and
Fulton-Favreau formulas by the sections dealing with education.
8 Cf. J. S. Corry, Difficulties of Divided Jurisdiction, Appendix 7 to the Rowell-
Sirois Report (King’s Printer, Ottawa, 1939); Rowell-Sirois Report (King’s
Printer, Ottawa, 1940) Vol. 1, pp. 254-9.
9 Nova Scotia Delegation Case: A.G. Nova Scotia v. A.G. Canada [1951] S.C.R.
31, [1950] 4 D.L.R. 369.
10 I.e., Report of the Royal Commission on Dominion-Provincial Relations
(King’s Printer, Ottawa, 1940; reprinted in one volume, 1954).
11 Cf. also Volume II at pp. 72-3.
12Proceedings of the Constitutional Conference of Federal and Provincial
Governments, January 10-12, 1950 (King’s Printer, Ottawa, 1950) p. 21.
13Ibid., pp. 52-5.
14 Cf. The Amendment of the Constitution of Canada, Hon. Guy Favreau,
(Queen’s Printer, Ottawa, 1965, J2-1665) pp. 20-23.
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While Nova Scotia has consistently taken the position that edu-
cation should remain a provincial responsibility it sees no particular
threat in federal financial support and, as there is no legal establish-
ment of denominational schools, the Province’s stand on education
lacks tlhe passion that others feel towards the federal threat to
cultural values. Indeed, one questions why the Maritimes would want
subsection (1) of section 4 of the two formulas, which requires the
concurrence of all provinces (with the exclusion of Newfoundland)
in any constitutional change affecting education in any one of them.
This seems designed to freeze the present educational settlement
forever. Surely the solution adopted for Newfoundland is prefer-
able. Possibly the Maritime governments went along in the hope
that it would save them any future bother over this troublesome
question.
On the whole, this history indicates that Nova Scotia is in a
position to be disinterested on constitutional questions: her chief
concerns are fiscal soundness and effective administration. The first
has not yet entered the constitutional reform problem to any extent;
the latter can be dealt with by the delegation of powers.
The Nova Scotian ministers were therefore rather surprised to
find that neither the Fulton Formula nor the Fulton-Favreau For-
mula, as originally presented, contained any provision for delegation
of powers. It had to be pressed for each time, apparently against
strong opposition from some quarters but also with considerable
support from others. Nova Scotia wanted full powers of delegation
both ways, and the settlement of the question in the formulas was
felt to be an inadequate compromise. Nevertheless, Attorney General
R. A. Donahoe stated on September 13, 1961, that he was satisfied
to recommend it for approval. He noted that Nova Scotia had been
particularly interested in the delegation of powers and that under
the proposals any delegation would have to have the consent of at
least four provinces, even though it involved directly only one.15
15 Halifax Chronicle-Herald, Thursday, Sept. 14, 1961, p. 31.
In 1965, in introducing the resolution to approve the Fulton-
Favreau Formula in the House of Assembly, Mr. Donahoe said: 10
… from the very beginning of the conferences with respect to the Consti-
tution the province of Nova Scotia has always insisted that there should
be this feature of delegation in any amending formula.
This is done, was done and continues to be done because we were con-
vinced, as previous delegations to previous conferences were convinced, that
this would introduce into our legislative framework an element of fluidity,
16Nova Scotia House of Assembly Report of Debate, February 15, 1965, pp.
175-6.
No. 4] NOVA SCOTIA – CONSTITUTIONAL AMENDMENT 439
an element of ease, which could solve a good many difficult problems, and I
want to say that the power of delegation which is included – which is, as
you see, hedged around by a number of restraints and restrictions –
is by
no means the full and broad powers of delegation which we urged upon the
conference.
If we had had our way, we would have been prepared to say that any
province should have been free to delegate in a particular matter the right
to the Parliament of Canada to legislate in that matter, and that, vice versa,
the Parliament of Canada should have been free to delegate to any one
province the right for that province to legislate in a matter which was, under
the Act, reserved for the Parliament of Canada alone.
The resolution to approve the formula was introduced by Mr.
Donahoe on February 15, 1965, the same day that the new Cana-
dian flag was dedicated on the premises. It was seconded by Pre-
mier R. L. Stanfield. Only Mr. Donahoe, Hon. Peter Nicholson
(Leader of the Opposition) and Hon. Layton Fergusson (Minister
of Labour) spoke. Mr. Nicholson said that he thought adoption of
the formula represented a very significant development in our na-
tional status and urged all the members to support the resolution. 17
Mr. Fergusson wanted to know whether French could be made an
official language in Nova Scotia without the consent of the Province.
Apart from this possibly sour note, the resolution passed without
opposition and with general satisfaction. It incorporated the draft
as revised by the federal parliamentary draftsmen.
The writer has expressed his attitude to the device of delegation
of powers elsewhere. 8 It may be restated thus: (1)
it will compli-
cate the law needlessly, (2)
it will add the threat of going beyond
the powers delegated to the cases of ultra vires legislation already
possible, (3)
it is unlikely to be used to the extent needed: if the
Parliament of Canada is going to enact delegating legislation it
might as well go to the trouble to enact the original legislation;
different but analogous considerations apply -to provincial dele-
gating legislation.
These objections do not make delegation inoperable, merely un-
tidy and inefficient in practice. The sensible alternative to meet the
problem of effective administration – which is a real problem –
is
to confer full parliamentary powers on both the Federal and Pro-
vincial governments with each one having the right to override the
other where it now has exclusive authority. 9 This means that each
legislature could deal fully with any topic unless there were some
repugnancy between its laws and paramount legislation.
17Ibid., pp. 184-5.
1S Peace, Order and Good Government, pp. 5, 7-8, 27-8, 134, 274.
“.l Ibid., pp. 7-8, Ch. 16, 17.
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This solution was not discussed at either the Fulton or Favreau
talks. Delegation seemed to be the more innocuous way to approach
the problem without making active the fears of encroachment that
exist in some quarters. In any case, the conferences had no desire
to tackle fundamental changes: everyone wanted to get a workable
law with the least disturbance of existing arrangements.
Indeed, Mr. Fulton suggested that the repatriation be achieved
in two stages: (1) by enabling the Parliament of Canada to amend
with the concurrence of all the provinces while retaining recourse
to the Imperial Parliament; (2) by enacting a comprehensive amend-
ing formula to replace action at Westminster. Nova Scotia did not
favour this suggestion. Mr. Donahoe contended that it would em-
barrass the United Kingdom Parliament if it were called upon to
enact an amendment that did not have the concurrence of all the
provinces once Canada had that method of amendment available
and he further contended that it wou!d probably ‘postpone the day
when Canada would have its own constitution’. 20
The last quotation permits an inference that Nova Scotia con-
templated a new constitution with some basic changes. This was
and is hardly the case. Mr. Donahoe commented that there was no
basic objection to the constitution of Canada as established at the
present time by the British North America Act. He said, ‘It is true
that many people would suggest amendments, but basically there
has been agreement that we might pursue our discussion as relating
to the constitution as it now exists’.21 In fact, all Nova Scotia gov-
ernments since World War I have favoured a federation of strong
provinces and a strong central government within the structure of
the British North America Acts and have favoured a fairly rigid
demarcation of powers, with flexibility introduced through delega-
tion to deal with problems ad hoc.
Nova Scotia’s support for strong central government stopped
short of approving section 91 (1) of the B.N.A. Act as enacted by
the 1949 (No. 2) Amendment. This was the reef upon which the
Fulton Formula foundered and the Province added its opposition
to those that would not accept the formula without revision of sec-
tion 91 (1). The root of the Maritimes’ objections were the danger
to provincial representation in the federal Parliament that the 1949
(No. 2) Amendment represented. This was not an issue in the Fa-
vreau talks, as the federal delegation conceded the point at the
outset.
2OHalifax Chronicle-Herald, Friday, Oct. 7, 1960, pp. 1, 6.
21Ibid.
No. 4] NOVA SCOTIA – CONSTITUTIONAL AMENDMENT 441
While opposed to entrenching too many clauses, Nova Scotia
took the initiative in securing section 51A of the B.N.A. Act in an
entrenched position, a matter of importance to the Atlantic Prov-
inces. This initiative may have fallen in the lap of the Province’s
delegation by virtue of what Mr. Donahoe termed the ‘batting or-
der’ at the conferences. Provincial de.egations speak in order of
provincial seniority in Confederation which has been determined
in some unaccountable 22 way as Ontario, Quebec, Nova Scotia, New
Brunswick, etc., but Quebec often defers its comments until it has
heard the other delegations. Thus, Nova Scotia was frequently the
first to express the view of the less populous and less favoured prov-
inces and in many cases struck a note that evoked their sympathy.
The Province’s representatives also took the view that the phrase
‘the Constitution of Canada’ in Class (1) of section 91 of the B.N.A.
Act was too vague to be healthy and, on the other hand, that it was
not feasible, in the light of the 1950 Conference, to get agreement
on lists of specific sections to make up the classes of topics that
would be subject to the different amendment procedures. Moreover,
a single amendment might require changes in two sections of dif-
ferent classes. Accordingly, Nova Scotia favoured the idea of general
classes of such topics, such as were agreed upon.
The views of the government and people of Nova Scotia have
been considered identical throughout this article. While this is largely
true it can only be gathered from the short debate in the House of
Assembly and one or two editorials. There has been little public
discussion on the subject in the province and even the failure of
Quebec to ratify the plan has produced little of the usual comments
from the francophobes, such as the flag debate brought forth. Per-
haps that effort exhausted them, or it may be that failure to achieve
the goal when it was apparently so near, has raised some fears about
the future of the confederation, and a consequent tendency to tread
softly. There may even have been some comprehension of the pre-
dicament of the Quebec government with respect to the Legislative
Council although that was not well reported or interpreted in Nova
Scotia.
What criticism there has been fol’ows the line originally voiced
by the New Democrats about the Fulton Formula, that it is too re-
strictive and would place Canada in a constitutional straitjacket. Mr.
Diefenbaker was converted to this view when the plan became the
Fulton-Favreau Formula but this does not seem to have made much
22 Probably on the strength of s. 5 of the British North America Act. But
who decided it for the Act ?
McGILL LAW JOURNAL
(Vol. 12
impression on his followers in Nova Scotia, probably because they
are also Premier Stanfield’s followers and Mr. Stanfield’s views
carry great weight both within and outside his party. He has ex-
pressed himself, when at all, as in favour of the plan.
My own hope is that the pause occasioned by the setback in Que-
bec will encourage all to take a new, critical look at the exclusive-
ness of our legislative powers and also at the alternative, fully
concurrent powers subject to traffic rules to determine which law
shall prevail in cases of conflict. It is easy to see why Quebec, for
example, would be leery of the latter regime, but the fear is not a
truly rational one but the product of history and rigid points of view.
The regime of concurrency would enable any province to achieve a
statut particulier to any extent that it desired within the federation
and would certainly encourage more effective administration than
is possible under the present structure, even with powers of dele-
gation added.
A Parthian shaft at the Formulas: it is perhaps a sign of the
times, automated and computerized, that while the Fulton and Ful-
ton-Favreau formulas are marvellously well drafted, it requires one
skilled in algebraic logic to work out their implications and there
may be contradictions: e.g., does section 9 of the last draft preserve
Class 1 of section 91 of the B.N.A. Act as it now is?
Meanwhile, Nova Scotians, while anxious to see the Constitu-
tional amendment process brought home to Canada in terms that
are fair to all provinces and all Canadians, find in the present pro-
posals no constitutional solution to the chief constitutional difficulty
they find themselves in, –
their unnatural subjection to the Cana-
dian economy. Someday, perhaps, the constitution will take as much
care of this as it does of the vital interests of other bodies.
