Constitutional Amendment in a Canadian Canada
Hon. Guy Favreau, P.C.*
In the presence of so many distinguished experts –
and future
experts –
on Canada’s constitution, I would not dare try to give
here a classroom lecture on constitutional law. As a former law
professor myself, I will admit, of course,’an instinctive preference
for the free-wheeling postulations that make the academic career
so satisfying; but as Minister of Justice, I must, alas, content myself
with the far less exciting task of soberly explaining government
policy. From the noble work of awakening young minds, you might
say, I have graduated to the post-prandial function of keeping old
men (those of my own age) from falling asleep.
Since I fear the teachers’ scrutiny and respect the students’ taste
for forthrightness, I shall not attempt in the twenty or thirty minutes
at my disposal to offer you a fully documented essay on the new
amending formula, complete with footnotes and precedents. That
you shall have next month, when the Government publishes its
comprehensive White Paper on this subject. All that I wish to do
to-night is present a brief sketch of the formula in layman’s terms
suitable for digestion with a fine banquet.
I shall treat the new formula in three stages. We shall begin
with a summary of the formula’s main provisions in the light of
efforts to define an amending procedure over the years; then will
follow a defence of the formula against what I am compelled to
consider ill-founded criticisms; and finally, I shall try to convey the
historic significance of the formula for a Canada seeking a fresh,
and distinctively Canadian identity.
1. The Formula Explained:
The search for a procedure allowing amendment of the whole
Canadian Constitution in Canada began immediately following the
First World War. By her extraordinary contribution to that conflict
and her active participation in the ensuing peace conferences and
* Late Justice, Superior Court. Notes released to the Press for a speech
delivered as Minister of Justice -at Massey College, Toronto, at the closing dinner
of University of Toronto Conference on Law and World Affairs for 1964 (“The
Supreme Court and Canadian Federalism”), November 20, 1964. Portions delivered
in French are printed in the Minister’s translation.
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the League of Nations, Canada demonstrated that her inability to
amend her entire Constitution was anomalous. Dr. Maurice Ollivier,
Parliamentary Counsel to the House of Commons, has shown that
Canadian statesmen during the half-dozen years after Versailles
decried this irregularity almost every few months. Most notably,
Mackenzie King did so in 1920, J. S. Woodsworth in 1924, and
W. F. MacLean in 1925.
This unofficial questioning, heartened by the Imperial Conference
of 1926, led the Minister of Justice, the Hon. Ernest Lapointe, to
raise the problem at the Dominion-Provincial Conference of 1927.
After justifying the need of a procedure for amendment in Canada,
the Minister went on to propose a qualified formula in which one
can easily recognize the major lines of the formula achieved in 1964.
In particular, the Minister urged that:
“in the event of ordinary amendments being contemplated the provincial
legislature should be consulted and a majority consent of the provinces
obtained, while in the event of vital and fundamental amendments being
sought involving such questions as provincial rights, the rights of minorities,
or rights generally affecting race, language and creed, the unanimous consent
of the provinces should be obtained.”
At this Conference in 1927, Lapointe’s proposal was scarcely well
received. Indeed certain provinces considered that the Canadian Con-
stitution, being a charter granted by the British Parliament, could
not be amended anywhere but in London. The final report of the
Conference did no more than record the Canadian Government’s
intention to study the problem carefully.
After this rather modest beginning, four other high-level Federal-
Provincial Conferences took up the question, respectively in 1935-36,
1950, 1960-61 and 1964. I shall not bother to remind you of all the
details of these discussions or to recite the impressive list of persons
who moved their work forward. It is enough to observe that these
Conferences traced the constant and coherent evolution of men of all
parties toward the definition unanimously agreed on last month.
For make no mistake: the amendment formula of 1964 in no way
represents a sudden departure; it is but the logical –
in fact,
inevitable –
consequence of an uninterrupted series of small ad-
vances forged by men of two generations. It cannot be portrayed as
the fruit of a single mind or a single day’s work; it is a monument
sculpted patiently, with chisels made of patriotic concessions, by
statesmen who, from ministry to ministry, saw themselves as Can-
adians first.
Out of this long and continuous search for a procedure of amend-
ment came, as you know, the formula of October 14, 1964. This
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arrangement will permit Canadians to amend any part of their Con-
stitution through Canadian institutions; and for this reason one
can say that it will domicile our Constitution in Canada.
The formula may be broken down, for simplicity, into two major
phases, one treating amendment of strictly federal powers, and the
other, amendment of powers concerning to both Ottawa and the
provinces.
You will remember that section 91(1) of the British North
America Act was enacted in 1949 specifically to grant Parliament
the right to amend the Constitution in matters of exclusively federal
interest. In conferring this right, it sought obviously to give Ottawa
a power already enjoyed by the provinces, in respect to their part
of the Constitution, under section 92(1). At the. time, however, and
ever since, certain provinces have expressed fears that the 1949
amendment was drafted with an imprecision that might conceivably
be interpreted by the courts to impinge upon provincial right and
prerogatives. For example, some provinces worried that the new
section might some day deprive them of their traditional proportion
of representatives in the Senate and House of Commons. It is no
secret that some provinces during the 1960-61 conference declined
to approve any general formula for bringing home the Constitution
until section 91 (1) had been amply clarified.
The immediate and characteristic achievement of the 1964 con-
ference was to make this clarification. Henceforth, the clause in the
formula replacing the present section 91(1) authorize Parliament
to amend “the Constitution of Canada in relation to the executive
Government of Canada, and the Senate and House of Commons” –
new exceptions being made of minimum provincial representation
in the Senate (as well as residence qualifications of Senators) and
proportional representation of provinces in the House of Commons.
It was in great part the redefinition of the present section 91(1) in
more precise language that made possible at this time the unanimous
acceptance of the general amendment formula arrived at in 1961.
This understanding of 1961 forms, in fact, the entire second part
of the present agreement, that affecting powers of joint federal and
provincial concern. Since I shall be defending this part in detail in
a few moments, I shall for now merely recall its stipulations in general
terms.
This part of the formula can in turn be reduced to two main
aspects, namely the basic amending procedure and the so-called
“delegation clause”. For cases not spelt out specifically in the formula,
the basic procedure allows amendments with the approval of Parlia-
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ment, as well as two thirds of the provinces having at least fifty
per cent of the Canadian population. For amendments to those pro-
visions of the constitution which presently concern only a limited
number of provinces, Parliament can act with the simple consent of
the interested provinces. And finally, for certain fundamental matters,
such as the division of legislative powers between Ottawa and the
provinces or the use of official languages, Parliament can amend
the Constitution only if all the provinces agree.
The “delegation clause”, for its part, represents an attempt to
soften any possible rigidity in the amending procedure that miglht
have resulted from this requirement of unanimity. The clause allows
Parliament,’ with the consent of any four provinces, to delegate
conditionally to these provinces limited portions of its law-making
powers. Similar delegation can be made by any four provinces to
Ottawa.
2. The Formula Defended:
Since the proposed new amending formula was officially published
last October 14, it has been the object of certain criticisms. While
we should welcome criticism as evidence of a serious public interest
in constitutional matters, we have a right to expect it to be informed,
objective and responsible.
True to their vocation, university specialists commenting on the
formula have, I think, met these standards. Perhaps a few academics
have confused the amending procedure with the distinct question
of substantial amendments; and perhaps some others have tended
to rationalize the formula more to suit symmetrical theories than
inconveniently complex realities. Yet in the main, professional jurists
and political scientists have examined the formula carefully and im-
partially.
As for the formula’s critics in Parliament, I would never suggest
that they lacked this same integrity or a sense of public duty; but
I insist most candidly that many of them have not troubled to give
the proposed formula the diligent study it deserves. Perhaps, indeed,
only one of these opponents, Mr. Andrew Brewin, can claim to have
based his presentation on truly competent research. Some Members,
I think, notably those directly in front of me in the House of Com-
mons, have preferred not to clutter their cases with any reference
to the facts at all. Certain of the more prominent critics, as I hope
to show, seem in sum to have constructed their arguments from a
curious amalgam of lethargy, prejudice and political opportunism.
Before reviewing the main accusations against the formula, I
think it appropriate to put these in perspective. To begin, the current
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criticisms are not directed primarily against the present govern-
ment’s own fresh contribution to the formula –
namely the clarific-
ation of exclusively federal amending powers in section 91(1) of
the B.N.A. Act; virtually all of the most strident attacks fall upon
that part of the arrangements adopted almost verbatim from the
formula arrived at in 1961 during the tenure of my friend and
predecessor, the Hon. E. Davie Fulton. On the two key points of
contention, indeed, perhaps you will allow me to quote from a memo-
randum (somehow leaked to the press) which the former Conserva-
tive Minister of Justice sent last October 26 to the Leader of the
Opposition. Calling the new amending formula “precisely identical”,
with minor exceptions, to the Conservative formula of 1961, Mr.
Fulton went on to confirm that “these new provisions do not…
alter in principle or affect the amending formula as embodied in the
1961 proposal”. And on the second subject of criticism, the so-called
“delegation provisions are thus exactly as they were embodied in
the 1961 proposal”. And on the second subject of criticism, the so-
called “delegation clause”, he observed that the (1964) “delegation
provisions are thus exactly as they were embodied in the 1961 pro-
posal”. Some might consider my willingness to quote from the internal
correspondence of the Conservative Party rather indecent; I would
reply simply that in the light of Mr. Fulton’s clearly stated judgments,
the readiness of certain of his ex-colleagues to vituperate the present
formula strikes me, to put it charitably, as incongruous.
Let us weigh now each of the leading criticisms of the formula
in turn. These focus, as I said, on two crucial stipulations: the basic
amending procedure and the “delegation clause”.
The basic amending procedure is attacked essentially for its
alleged rigidity. More precisely, its critics assert that the requirements
of a unanimous vote of the provinces and Ottawa on all changes
affecting the fundamental rights of the provinces, including control
over resources, education and official languages, will put Confeder-
ation in a so-called “straitjacket”. For at least four good reasons,
this fear appears unfounded.
First, the procedure does not impose any legal constraint that
thwarts the traditional forces of constitutional change; on the
contrary, it mirrors these forces with utter realism. In the past,
Ottawa has never amended the Constitution on matters touching
essential provincial rights (as defined in clause 2 of the formula)
without the consent of all the provinces. Given the current –
and
I think, fruitful –
resurgence of provincial initiative, a change in
this convention becomes inconceivable. However much some people
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may regret this convention, it remains an undeniable political reality.
The formula does not invent that reality; it merely acknowledges it.
Second, any rigidity the unanimity clause might theoretically
produce is softened by the possibility of judicial interpretation. We
have witnessed often during our history interventions by the courts
that, in the view of many, have in fact transferred powers originally
assigned to Ottawa and the provinces with apparent finality. Sections
91 and 92 of the B.N.A. Act thus distinguish subjects intrinsically
federal and matters properly provincial; yet since Russell V. The
Queen in 1882 and well beyond the abortive “New Deal” legislation
of R. B. Bennett in the 1930’s, the courts have readjusted the effective
federal-provincial distribution of powers frequently and substantially.
As long ago as 1938, Professor Frank Scott tried to show that, since
Confederation, judicial interpretation had added no less than 11
powers to federal jurisdiction and 21 to that of the provinces. We
can expect such judicial review to interpret our constitution with
continued sensitivity to Canada’s changing needs.
Another
important precaution against
the formula’s feared
rigidity is enshrined intentionally in the formula’s delegation clause.
This clause is designed precisely to prevent any constitutional impasse
that might result from the requirement of unanimous federal-
provincial agreement. Should this requirement make it impossible for
Ottawa and all the provinces to secure a permanent amendment,
those parties desiring a change (assuming they included at least four
provinces and Ottawa) could achieve their immediate purpose by
delegating to the appropriate authorities the power to enact a par-
ticular law. Moreover, if all the provinces did agree with Ottawa
that such a law were desirable, but not all wished a permanent
transfer of legislative power through amendment, the eleven govern-
ments could agree to a delegation of limited power –
thereby using
the clause simply as a convenient device for avoiding a cumbersome,
and indeed far more rigid, formal amendment.
In a word, it seems obvious that the delegation clause will be
used exactly in those cases where the present constitution acts as a
straitjacket. I have in mind the various sectors of application of
those federal and provincial jurisdictions which, though not juridically
concurrent, are nevertheless complementary –
those cases referred
to by Lord Atkin in the Natural Products Marketing case of 1937
when he said: “… as the provinces and the Dominion between them
possess a totality of complete legislative authority, it must be pos-
sible to combine Dominion and Provincial legislation so that each
within its own sphere could in co-operation with the other achieve
the complete power of regulation which is desired”.
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Finally, it can be shown that the proposed procedure is distinctly
less confining than present constitutional conventions. Since Con-
federation (and leaving aside the 1949 enactment of section 91(1)
on purely federal powers), only three constitutional amendments
have dealt with legislative powers as between Ottawa and the
provinces. Had the proposed unanimity clause existed since 1867,
only one of these amendments, that on unemployment insurance in
1940, would legally have demanded unanimous agreement. Yet, in
the absence of such a formal clause, and because of resulting un-
certainty as to amending procedure, Ottawa felt obliged to secure
the consent of all provinces on each of the two other amendments.
These amendments, enacted in 1951 and 1964 to permit federal leg-
islation on old age pensions, in no way affected provincial power to
make laws on such pensions under section 92; therefore, had the
amendments been made under the presently proposed formula, they
could have been achieved with the consent of only two thirds of the
provinces. Far from putting Confederation in a constitutional strait-
jacket, it is clear, the new procedure frees it from a timid and
restrictive constitutional convention.
A second set of criticisms attack the delegation clause itself. These
can be reduced to three main allegations.
First, we are warned that the delegation clause, presumably by
transferring federal powers wholesale to the provinces, will “Bal-
kanize” Canada. One can forgive some of our professional Cassandras
who pretend this their characteristic lack of serenity; one forgives
less readily their remarkable inability to read. For the delegation
clause says nothing of transferring jurisdiction; it foresees simply
the conditional delegation of authority to enact specific laws.
For instance, Ottawa could not, under this clause, relinquish
to any province its power under section 91(12) of the B.N.A. Act
over sea coast and inland fisheries; it could, however, delegate to
the four Atlantic provinces the right to round out their own local
fisheries legislation by letting them enact provisions dealing with
catch limits, closed seasons, and interprovincial and international
trade. Furthermore, it must be remembered, such limited authority
under the delegation clause would be subject to abrogation or recall
at any time by the federal government. In sum, Ottawa would consent
to such limited delegation only if it wished; and once granted, the
delegation could be cancelled whenever Ottawa thought it expedient.
At every stage, the delegation would be strictly subject to Parlia-
ment’s free and formal consent.
Moreover, the prophets of Balkanization forget that the delegation
clause does not allow the ad hoc loan of powers merely from Ottawa
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to the provinces; it is intended to let provinces concede authority in
a similar way to Ottawa. It is not difficult to imagine, for instance
(although I am not now suggesting it), that a majority of provinces
might at some time wish to authorize Ottawa to enact a comprehensive
law on contracts or some other civil matter. If critics persist in con-
fusing conditional delegation of limited authority with outright
transfers of general jurisdictions, they must therefore agree that
the clause could serve not only (as they put it) to “weaken” Ottawa,
but equally well to “strengthen” it. In fact certain extreme provincial
autonomists have already decried the clause as a perfidious device
to promote a unitary state. In their suspicions, they display just as
much logic as the Balkanizers.
Another school of critics worries that the delegation clause will
lead to a confusing “hodge-podge” of dissimilar jurisdictions among
provinces supposedly equal in law. Powers will vary haphazardly,
warn these orderly minds, from one province to another; we shall
no longer have two clearly defined levels of government, but eleven
peculiar and chameleon-like suzerainties. Again, a simple reading of
the clause would lay these fears to rest: for the clause leaves the
entrenched constitutional powers of all provinces intact and uniform.
All that will vary from province to province will be the particular
laws in force at any time. And this, since each province is free as
well as equal, describes precisely the situation of provincial laws today.
Finally, we must deal with the distressing calculation of certain
alarmists (who noisily pretend they stand for national unity) that
the delegation clause will enable Quebec to become what is popularly
called an “associate state”. At the outset, I would remind you that
this term, though often echoed, has never been defined. I am sure
that those French-Canadian nationalists who use the phrase are
groping sincerely towards a formula aptly describing Quebec’s le-
gitimate need for broad law-making initiative. Just as a footnote,
however, I think this first attempt, borrowed as it is from a dis-
credited French colonial enterprise in Indo-China, ill suits a young
people seeking to affirm itself. Yet however obscure or inept its
origin, the term seems to convey a connotation that, in the Canadian
context, sounds nostalgically separatist. At the very least, it appears
to suggest that the federal government will have to relinquish certain
of its legislative powers to a single province.
The delegation clause certainly allows Ottawa to lend freely and
equally to all provinces limited portions of its powers. But Ottawa
can never, under the clause, relinquish its constitutional rights in
favour of one province or any number of provinces. Any transfer
of general legislative power as implied by the term “associate state”
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could result only from a substantial and unanimously adopted amend-
ment to the constitution itself –
and once more, I would emphasize
that substantial amendments have absolutely nothing to do with the
procedure for amendment. At present, we are proposing no more –
and I assure you this is quite enough to keep a Minister of Justice
busy –
than to bring to Canada the total power to amend her Con-
stitution.
A further assurance that the clause cannot confer special powers
on a single province is contained in the provision that any delegation
must command the agreement of at least four provinces.
The only possible conjuncture, under the clause, that would even
vaguely resemble a special position for one province would result
indirectly from the positive action of the other nine provinces. Were
these nine to delegate limited authority to Ottawa in order to unify
legislation on matters of complementary interest, obviously the
province outside these arrangements would enjoy (if that is the
word) a limited special status. Quebec, for instance, might then, in
this ironic hypothesis, attain “splendid isolation” willy-nilly through
the constructive efforts of the other provinces to forge a more central-
ized state.
3. The Formula’s Historic Significance In A Canadian Canada:
In what way, one may logically ask, does this new formula meet
the tangled circumstances of today ? At a time when everything in
our Confederation –
is called
into question, how can the formula stamp Canadian federalism with
a new certainty and a new confidence ?
principles, structures and means –
To these questions I reply first: the formula, because forged by
the accumulated wisdom of yesterday’s history, offers our Con-
federation an indispensable flexibility to calm the tension of to-
morrow’s history. Above all, the formula is an instrument of negoti-
ation –
an instrument of conciliation and peaceful readjustment
suited to the already formidable arsenal of means to understanding
furnished by co-operative federalism. Born of goodwill, fashioned
with clarity, seeking exclusively the ideal of pragmatic progress,
the formula gives reasonable men a way of building a reasonable
Canada. This aim obviously answers our country’s most practical
needs.
But the formula gives us more than a workable means of adjusting
interests. In the distant perspective of Canadian history, it marks
the birth in Canada of a new climate of political discussion. That
climate, for the first time, is unmistakably Canadian. As long as our
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country’s fundamental law remained domiciled abroad, a cloud of
doubt, humiliating doubt, obscured our homeland’s sovereignty. How-
ever deep the affection we all feel for that great island beyond the
seas that sent us one of our founding peoples, we could no longer,
as a proud and independent nation, allow our Constitution to stand
subject, even formally, to an absentee Parliament. The pilgrimage
to London was an intolerable anachronism; and I would ask the
carping and cavilling patriots who denounce the new formula to
remember that.
We enter then upon an exhilarating era of Canadian history with
a fresh, unchallenged identity and a sure confidence in our future.
The new formula symbolizes these qualities, as will soon, I trust,
our new flag and anthem. There remain to be enacted, in years to
come, whole archives of inspired laws –
economic, social, even
cultural –
to bring our greatness to maturity. Yet, as of now, we
are certain this greatness will mirror our native genius; the genius
of a Canada authentically and wholeheartedly Canadian.
