McGILL LAW JOURNAL
Volume 14
Montreal
1968
Number 3
The Canadian Federal Dilemma *
Maxwell Cohen, Q.C.**
Most community life has its periodic crisis and the only difference
for Canada possibly is that hers seems perpetual. If Canada were
born in deadlock, as a federation, providence seems to be imposing
almost chronic crises as the means of achieving maturity.
What seems a self-evident problem to many is not an opinion
shared by everyone. For one western premier is reported to have
said that in any -list of one hundred serious problems, the consti-
tutional question would be the one hundred and first. Yet on any
reading of recent history this would be a frivolous view. For un-
doubtedly the question as to whether Canada can survive as a federal
system, embracing French language Quebec and the other provinces,
and developing in the process a self-image at home that is acceptable,
politically and psychologically, as well as an identity abroad that
it is identifiably unique, this is surely the Canadian question. Not to
recognize it is to risk events overtaking a barren imagination.
And yet there is something to be said for those who wonder
about this preoccupation with the anxieties of Canadian survival.
On all sides, the world seems so much more unstable than does
Canada. Indeed, the very contrast between Canadian concerns and
* From a paper given to the Manitoba Law School Foundation, Winnipeg,
October 24, 1968. I am grateful to Professor D.V. Smiley for his valuable insights
into the problems of co-operative federalism.
**Macdonald Professor of Law and Dean of the Faculty of Law, McGill
University.
McGILL LAW JOURNAL
[Vol. 14
global dilemmas puts to shame this sharp focus on things domestic.
Everywhere the old order changeth –
social systems, population-
growth, international student unrest and the ongoing arms race,
wearing the black crown of nuclear annihilation. These fill media
and dreams, a Kafkaesque nightmare from which there seems no
exit. At a moment when man is conquering space, the new ethnology
tells him that his capacity for aggression and self-destruction is
possibly unique among the species; and that perhaps man should
give prime attention to his inner world of the spirit rather than to
launching his Odyssey to the stars. The challenge to his ethics and
to moral sensibility has perhaps never been more pervasive or in
more urgent need of social reply. White versus non-white stand
across the gulf of oppression and accidental history, one armed
with affluence, the other with poverty. And this union of colour and
guilt, of skin and well-being, may express itself in profoundly violent
terms if the gap between men and races is not bridged.
The classical cement of family and community, the leadership of
established elites, the taming role of religious feeling and the liberal
tradition –
all are under attack. Islands of stability are no doubt to
be found everywhere, but they are islands only. The two most
powerful nations in the world, the United States and the U.S.S.R.,
happen at this moment in time to be Canada’s very immediate
neighbours but often they symbolize, by their very power, the external
threats to states and to mankind and, paradoxically, the internal
vulnerabilities of even the most powerful of peoples.
In the face of this time of trouble what importance may a
reasonable man assign to the Canadian conflict? In the scale of global
priorities, Mr. Thatcher’s comment perhaps has a relevance wiser
than he wrought. Yet in Canada, we are prisoners of the frontier
when it comes to assigning priorities. For it is a fact that, certainly
in Quebec, and to varying degrees elsewhere (substantially in Ontario
and New Brunswick and with declining force eastward and westward
from those provinces), the primary short-run issue for Canadians is
whether we can re-interpret federal experience so as to make it
meaningful for all those who must willingly participate in it
if
Canada is to remain a united people living in harmonious federation.
In short, history and other lands may downgrade the Canadian debate
in this wider world setting. Existentially, Canadians may not be able
to do so because it is here as a fact and demands serious attention
and viable answers.
At this point it is important at least to remember that Canada
was fated, almost from its beginnings, to be the child of dispute.
English and French-speaking peoples did not end their rivalry on
No. 3]
THE CANADIAN FEDERAL DILEMMA
the Plains of Abraham but only began it in another form. A trimphant
Anglophonic majority made North America theirs by the 1770’s,
leaving the French minority in Quebec to view itself as if it were
in a state of permanent cultural siege. Its institutions and its values
thereafter were designed for defense, for survival. Land, law, religion,
church, family and language were the pillars of a “closed” system,
cut off from essential cultural interplay with English-speaking
neighbours and fed sparingly by its former imperial mother, France,
which was without very deep devotion when Quebec was hers and
was almost indifferent when Quebec was lost.
This is no place to argue the means and the merits of these
early years. Yet the fact remains that English-speaking self-interest,
combined with some generosity, helped to establish in Quebec free-
doms for language and religion, with large degrees of local self-
government. Indeed, Lower Canada by the beginning of the 19th
century was already a viable and recognizable political and cultural
unit one day soon to be heavily reinforced through its French-
speaking citizens achieving a clear majority position in the province.
Once the American colonies had gone their own way, British North
America was to become a land of two cultures and although the
early, pre-confederation self-image was quite unclear about that
lingual dualism, the foundations in fact were laid for the unique
bilingual society Canada might one day become.
One hundred years of federalism have demonstrated that it has
been possible to evolve a framework of government within which
Quebec, and French-speaking Canadians in Quebec, not only preserved
their numbers and values but were encouraged to grow to ever greater
strength so that one day some could consider the option of going
it alone. Thus the first irony in the present crisis is that the claim
for a re-examined federalism in aid of French-Canadian survival
comes at a moment when, in Quebec at least, French-speaking culture
has never been more vital, its intellectual and artistic life never
more creative, its institutions never more self-confident. Many
nationalists would challenge this assessment but an effective in-
ventory of achievements suggests such a conclusion is justifiable.
Hence the question arises, why then in the face of self-confidence,
as a society of rising cultural and economic development, and of
ever-increasing influence in the Canadian order as a whole, does
Canada have this crisis of unity? A close look at the reasons will
suggest that not all has been well within French-speaking society;
that there were unsolved economic, language and school problems,
historic and hurtful to them in other provinces; and that certain
issues were arising in the very nature of the federal system inde-
McGILL LAW JOURNAL
[Vol. 14
pendently of the French-English question, issues which now have
combined to create the critical, explosive mass Canadians have known
these past several years.
In French-Canada itself the present crise de conscience has had
to do with converting or advancing “survival” into the satisfactions
of “fulfilment”. French-Canadians were discovering that outside of
Quebec they were not only strangers in the land, in monolingual,
English-speaking Canada; they were discovering also that their
living standards generally were lower than their English-speaking
neighbours and that somehow, if they were to move out into the
world, it was a North American, English-speaking world whose media
and values could inundate their society. In short, their desire to be
fulfilled in economic, social and political terms raised questions for
French-Canadians that had been more or less concealed theretofore
when the primary value had been survival, with their exposure to
the total Anglophonic world about them defensive and minimal.
Hence, there has grown a new fear (and restiveness) in Francophonic
Quebec: how to be both French-speaking and fully Canadian; how
to be themselves yet North Americans; how to be economically and
socially mobile and yet retain their language and essential values.
As subordinate clauses to this new Quebec Francophonic dilemma
were not merely the memories of older collisions over values and
policy, between it and the English-speaking Canadian majority –
conscription in 1917, compulsory service in 1944, “intrusions” on
provincial jurisdiction from family allowances to pensions and medi-
care. But equally there was the memory of the essential rejection
of French-Canadian claims leading toward a bicultural society in
other provinces dramatized by the Manitoba school question in the
1890’s, by Rule 17 in the Ontario education policy, and by the earlier
cautious attitude in New Brunswick towards its substantial French-
speaking minority. There were other evidences too of this implied,
national, monolingual policy: the federal government itself, essentially
English-speaking except for certain limited operations of the two
languages in Parliament, in documents and in some federal courts;
the abolition of French when from the Northwest Territories were
carved the Provinces of Alberta and Saskatchewan; and symbolically,
if perhaps inevitably, the conversion of Louis Riel into a folk hero,
the very image of rights rejected, of English-speaking supremacy
overcoming earlier western settlers and natives who spoke French.
Another element
transcended
the English-
French question but interpenetrated with it in Quebec and elsewhere,
namely, the changing role of government and administration in the
in crisis-making
No. 3]
THE CANADIAN FEDERAL DILEMMA
federal structure itself. The Canadian system was an odd hybrid of
imperial, quasi-unitary and federal systems and ideas. Indeed, it is
arguable that all parties at Confederation somehow saw the provinces
in relation to the federal government as essentially subordinate, just
as the self-governing colonies had been to the imperial mother, with
that maternal role now moving from London to Bytown. The counter-
balance here was the entrenched protection of language and civil law
in Quebec and, equally, of the Catholic and Protestant school systems
of that province and possibly others. To put it in plain terms, the
provinces were local governments, no more, no less, in 1867, but each
of the four founding members had certain special conditions under
which it entered Confederation and in the case of Francophonic
Quebec, those conditions went to the very heart of her ethnic, religious
and linguistic “survival” and the means to assure it.
By contrast, to the central government was given the power
of disallowance, of reservation of bills, of the appointment of Lieu-
tenant-Governors and of members of the county and superior courts
(as well as of the Supreme Court of Canada) and of the Senate. It
had, too, the right to declare certain works to be for the general
advantage of Canada. And, finally, a whole series of specific economic
powers touching tariff, trade, banking, commercial paper, “criminal
law” and other matters were set out in such a way as to clearly suggest
a union where the federal Parliament and administration were pre-
eminent, a system potentially very centralist, perhaps even quasi-
unitary, as some have described it.
The general rationale for this kind of confederation in 1867 is
now widely understood. Evidence of federal weakness in the United
States’ system of the day, the economic fragility of the Atlantic
provinces, the need to avoid the deadlocks and stalemates character-
istic of the temporary union of Upper and Lower Canada after 1841
and, finally, the serious intent to have a strong, guiding hand in
Ottawa, not unlike the role that London once played for the colonies
and still played in their defence, foreigm policy and certain other
areas –
all these were considerations in the grand design. There
were genuflections to bilingualism in Section 133 protecting the
English language in Quebec for courts and governmental purposes
and the French language within certain federal institutions. And
in Section 93 there was the parallel protection of school rights but
in denominational terms which had its indirect consequences for
language rights in Quebec because most Catholics spoke French, and
Protestants English.
But essentially and fundamentally, the Fathers of Confederation
were dealing with a union that had to be strong if it was going to
McGILL LAW JOURNAL
[Vol. 14
manage the northern half of a sparsely settled continent whose
western lands were being hungrily viewed by a powerful neighbour
emerging now with even greater strength from the trials of a recent
civil war. What was not foreseen was that courts and events would
redirect the intentions of men who lived and drafted the constitution
in another time. By the end of the 19th century it was quite clear
that the Privy Council saw federalism differently and that this
interesting, if distant court, was soon to reshape the Canadian scheme
and create “strong” provinces, juridically, whatever their social and
economic resources in fact may have been.
Thus the real dilemmas of federalism became evident not so
much in such interventions as in the conscription challenges of 1917.
Here, after all, was war and in wartime the rules are changed in
favour of the centre. The difficulties became evident as the great
depression tore the mask of self-reliance from so-called “sovereign”
provinces unable to bear without federal support the burdens of their
jurisdictional claims. Unemployment, welfare, mortgage foreclosures,
the deprivations in cities, villages and on the land simply could not
be resolved by the slender resources of most of these governments.
The Rowell-Sirois Commission began its work in 1937-38 as an exer-
cise in reshaping the rationale of federalism to meet the evident
requirements of mass unemployment. Legal and administrative tools
had somehow to be newly designed to justify without subterfuge
direct federal intervention in the larger, and smaller, needs of the
economy, national and local. Indeed, one of the ironies of Canadian
social history is that the Rowell-Sirois Report in 1940 turned out to
be an immensely important exercise in education but its specifics were
lost in the effective solutions to the legal and social problems of
the day now given by war.
For it was war which changed the Canadian economy from under-
employed to “overemployed”, which removed mass poverty as an
experience and suspended the argument over jurisdiction until it was,
for the time, forgotten. By war’s end, an almost wholly “managed”
capitalist economy had evolved administrative and legal instruments
covering wages and prices, supplies and profits, and labour relations.
Ottawa collected the total income tax revenues through a single
federal funnel under agreements with the provinces that shared the
revenue on some equalizing basis resulting in a kind of rough equity
for all, but with the pie administered by the national government.
This image of powerful economic management from the centre
remained even after the war, buttressed not only by the tax-sharing
agreements but also by the initiation, at the federal level, of many
“social” programmes that otherwise might have seemed to have been
No. 3]
THE CANADIAN FEDERAL DILEMMA
within provincial jurisdiction. For the spending power of a highly
centralized tax collector became an instrument for direct or implied
jurisdictional claims and was becoming perhaps as important in the
delineation of powers as the legal niceties of Privy Council decisions
or the becoming obsolescence of disallowance and reservation. And
behind it all was an immensely confident political (Liberal) party,
in office since 1935, that had built up an elitist civil service possibly
even more self-confident than the politicians themselves. In short,
by the middle 1950’s, the Canadian federal system, despite seventy-
five years of judicial decisions almost chronically shaped in favour
of provincial power, had in fact become, through these countervailing
measures –
tax-sharing, federal spending, and social program-
making –
a strongly centralized system, at least in the areas of basic
economic and social policy. And all this despite the fact that,
technically speaking, prices, wages, resources, welfare and education,
were within provincial jurisdiction.
What happened to bring this edifice of sublime managerial ef-
ficiency, and confident political control, into radical challenge by the
provinces and to some extent by the public which only a few years
before had welcomed federal power, if not war itself, as the rescuer
of a desperate and weakened economy? The Liberal defeat of 1957,
following the pipeline debate, now appears to have had deeper roots.
Indeed, the rejection of the party in power by an increasingly
prosperous public and provinces suggested that there were new
problems for which the old insights were not enough. The rising
demands of the late ‘fifties and early ‘sixties were those making
claims reaching toward equality of opportunity and a fair share both
of resources and of protection against the hazards of life and society.
All of this meant new programs, from education
to pensions,
from medicare to farm supports. Suddenly it became evident that
the neat solutions of the tax-sharing agreements and federal social
initiatives might not be adequate to the day when the demands on
provincial and municipal treasuries were rising far more quickly
than statistical prophecy could anticipate. New generations of pro-
vincial civil servants, competent and aggressive, were appearing to
buttress provincial leaders in their negotiations with Ottawa. Political
parties of the same name no longer had the same necessary per-
spective when they were dealing with provincial as against federal
interests. Indeed, in the case of Alberta and Saskatchewan, the two
major traditional parties no longer even had a provincial following for
a generation. In short, some new balance was necessarily to emerge
that would somehow have to reflect the growing functions of the
provinces side by side with the continuing and overriding role of
the federal government in matters of national economic and “social”
McGILL LAW JOURNAL
(Vol. 14
policy. And, curiously, at that very moment, when that new balance
would have to be discovered, both in institutions and perhaps in law,
the need was reinforced by its interpenetration with the Quebec
problem on the one side and the related English-French question
throughout Canada on the other.
Thus “the Quiet Revolution” in Quebec which Jean Lesage ushered
in with his administration in 1960 – but which really predated him
by many years of artistic, intellectual and social ferment –
gave a
degree of social dynamism to the federal-provincial debate over
powers, programs and monies that inevitably escalated the issue
to the level of crisis. For while Mr. Duplessis had fought his battles
for jurisdiction, -his image was essentially negative and defensive –
less a competition for funds and programmes than for an isolated
“autonomy” almost for its own sake. Now to many Quebec leaders,
self-preservation required some recognition of language rights at
every level, federally and in all Provinces, while fulfilment for French-
Canadians needed a new sense of opportunity in government, in
management, not only in Quebec, but outside. And all of these would
require institutions and funds and programmes which heretofore may
have been in the possession of, or were carried on partly or wholly
by, the federal government. Hence the French-Canadian debate in
Quebec was married in this special way to the federal-provincial
debate over new powers, new resources and new activities. Moreover,
it was rediscovered that the law was heavily on the side of the pro-
vinces, as constitutional interpretation had evolved, when it came to
such matters as education and welfare, wages and prices, resource
development, hospitals –
indeed, a whole range of matters touching
the individual intimately.
Hence the Canadian crisis since 1960-61 has had inner, self-
escalating elements mutually reacting on each other that transcended
in complexity and potential danger any of the previous threats to
the viability of Confederation.
What English-speaking Canadians, even in Quebec, were slow
to realize was the extent to which intellectual and political leaders
in French-speaking Quebec had evolved a new self-image, had re-
evaluated their place in the sun and found it wanting, had examined
the status of fellow French-speaking Canadians elsewhere and found
it too, wanting, in the matter of economic opportunity, of language
and school rights. For the first time, serious and otherwise moderate
Quebecers of the Francophonic family began to ask whether there
was not a separate option open to them if their new vision of Quebec
and its place in Canada somehow could not be fulfilled within the
present system.
No. 3]
THE CANADIAN FEDERAL DILEMMA
The movement toward “co-operative federalism” and the use of
the “opting-out” procedure between 1963 and 1965 was a creative
federal response to this new situation. But to have succeeded, co-
operative federalism would have had to almost bind the federal gov-
ernment in any program to consult at every stage at which a provincial
jurisdictional interest might possibly be involved, before that program
was enacted; and conversely, each province would have been equally
obliged to consult. And, while in fact, more consultation took place,
and has taken place since, on programs than at any time in federal-
provincial history, none of the governments was prepared to perma-
nently institutionalize the consultative obligation –
as yet. Similarly,
the opting-out programme was, as Mr. Trudeau began to point out
as early as 1966, a means for indirectly creating a “special status”
for the one province making use of it, namely, Quebec, since it
was not a mechanism that seemed sufficiently attractive to other
provinces to be worth the administrative trouble.
The decline of co-operative federalism after 1965 was reinforced
by the failure of the Fulton-Favreau Formula to be accepted as a
means of constitutional “repatriation” and amendment. And when to
this were added the serious debates over medicare and pensions, it
was clear by 1966-67 that somehow constitutional responses to the
everchanging balances between federal and provincial functions were
not going to be easy to discover. Indeed, the irony was that, on paper,
by the beginning of 1967 Canadian federalism already was one of the
more decentralized federal systems of the western world. Yet a high
degree of authority still remained in the federal centre, resting upon
its power to spend and to initiate joint or shared programs and,
of course, resting also on its overall responsibility for the economy
expressed through the tax-sharing agreements, fiscal and monetary
policy, and through the management of foreign exchange policies
and other direct and indirect economic mechanisms.
The severe debates between Mr. Lesage and the federal govern-
ment were by no means reduced in substance even if they were
somewhat modified in tone by the late Daniel Johnson when he came
to office in 1966. A whole series of unsettled and unsettling questions
remained to be gingerly handled: university financing; vocational
training; Quebec and international relations; Indians and Eskimos;
offshore mineral rights; medicare (the pension problem having been
resolved) ; and the demand for constitutional reform, generally, both
for symbolical and substantive reasons.
Nor were matters helped by the intervention of General de Gaulle
on his visit to Canada at the height of Expo and the evidence that
under him French policy was mischieviously playing with pro-
McGILL LAW JOURNAL
[Vol. 14
separatists and their slogans, relying on a Quebec Gaullist temper
to respond. Meanwhile, the growing pressure on a cautious federal
government to undertake some leadership in the area of constitutional
review and reform was partly met by the initiatives of Mr. Robarts
and Mr. Johnson, particularly the former, in designing the Confedera-
tion of Tomorrow Conference of December, 1967. It should not here
be forgotten that General de Gaulle again intervened by remarks
bound to influence the Conference; that the Estates-General met in
Montreal just days before and passed strongly nationalist, anti-
federalist resolutions; that Mr. Johnson gave a moderately-toned but
toughly articulated statement of Quebec’s demands; and, finally, that
the entire exercise was climaxed by the emergence within a few days
afterwards of Volume I of the Report of the Royal Commission on
Bilingualism and Biculturalism.
The truth is that most of the Premiers attending the Conference
were not prepared for the “hardness” of Mr. Johnson’s position and
the cold experience of listening to him was a rapid education in the
Canadian crisis eased only by the diplomacy of Mr. Robarts in his
management of the Conference. But if they were not persuaded in
Toronto, the Premiers had their education furthered by the B. and B.
Report which set out in concrete terms the means and necessity for a
program of bilingualization, federally and in all provinces, if Con-
federation was to survive.
Mr. Pearson, having announced earlier in the autumn of 1967
that he would hold a Conference of Premiers on the constitution in
February of 1968, was compelled by these developments to alter the
scope of the agenda from a rather simplistic concern with a possible
bill of rights to a wholly open-ended conference on the future of
constitutional review and possible reform, and a new emphasis on
language rights. That Conference is now historic for a number of
reasons. It demonstrated the growing political significance of the
Conference of Prime Ministers and Premiers as a kind of authoritative
“constitutional” device for policy-making in Canada – with impli-
cations that have yet to be fully explored and understood.
It
disclosed the gulfs between Quebec on the one hand, Ontario and
New Brunswick as a second group, and perhaps all the other pro-
vinces as a third area, on the character and content of possible
constitutional reform, with the federal government itself anxious to
confine the immediate dialogue to language rights and possibly a
charter of human rights. But its most important achievements were
the clear victory –
in obtaining a kind of consensus on language rights without pre-
judging methods of enforcement by constitutional entrenchment or
and most particularly for federal leadership –
No. 3]
THE CANADIAN FEDERAL DILEMMA
otherwise. Of equal significance was the agreement to establish
permanent consultative and study machinery, through the creation
of the Constitutional Conference of Prime Ministers and Premiers
and the Continuing Committee of Officials to examine the whole
question of constitutional review and possible change.
These officials now have met on five occasions since May of
1968 and Mr. Trudeau has announced that he hopes the Premiers
will meet in conference again, in February, 1969, to consider what
has been achieved.’
Meanwhile Mr. Johnson has been succeeded by Mr. Bertrand;
Mr. Manning, a conservative participant in the constitutional dialogue
has left; and Mr. Smallwood, an enthusiastic supporter of Mr.
Trudeau, will soon retire. In New Brunswick an official languages act
will soon make the province officially bilingual –
schools, govern-
ment, agencies, courts, legislatures, etc. In Ontario much the same
policy is being evolved without the full New Brunswick range being
formally adopted in an official ‘languages act. Newfoundland is to
“bilingualize”, which is essentially a gesture to its Labrador minority
and to the development of French as a second language in New-
foundland schools. Elsewhere throughout Canada the movement
toward a bicultural society, certainly at the federal level with the
new Official Languages Act, and slowly, variously but steadily in
some provinces, suggests that a great Canadian watershed may
one day soon be reached. Indeed, were it not for the irony of the new
language issue in Quebec – where English-language school rights
may be in partial jeopardy because they depend upon denominational
protection, not on language protection as such –
the picture would
be one inviting a salute of optimism.
As for the future, there is no public knowledge about the work
of the Continuing Committee of Officials and, as yet, of the forth-
coming agenda of the Conference of First Ministers. But Quebec
(and now British Columbia) have made public their main submissions
to the Officials’ Committee, and it is no secret that several govern-
ments also have prepared submissions dealing with the method and
substance of constitutional review and reform. These are being dis-
cussed by the Officials and may be made public and be discussed by
the Prime Minister and Premiers at the February, 1969 meetings.
1 At the request of the Hon. J.J. Bertrand the Conference was postponed
until February, 1969, since Mr. Bertrand’s illness prevented him from attending
the meetings planned for December, 1968.
McGILL LAW JOURNAL
[Vol. 14
Certain conclusions may be drawn from these developments. They
are the following:
First
The formation of Ren6 L6vesque’s new party, the “Parti Qu6b6-
cois”, the “priority doctrine” with respect to the French language
in Quebec held by both the Union Nationale and the provincial
Liberals, and the surprising mishandling there of the St. Leonard
English language school affair of recent months, all testify to the
continuing potential of crisis that must qualify any too rosy an
image of the federal future. To put it plainly, it would be a mistake
to pretend that Quebec’s “nationalism” is strongly in retreat and
that some permanently moderate and accomodating force has
now triumphed for the long run. Nevertheless, Mr. Trudeau’s
strategic victory on a strong federalist platform also was support-
ed by the Crdditistes who are vigourously anti-separatist, and
this suggests that, for the time being, the Quebec belief in a
viable French-English-speaking Canada is stronger than it has
been at any time within the past half-dozen years.
Second
That faith, both in Quebec and elsewhere, can only be maintained
if the movement toward the provision of French language and
school opportunities in all provinces is proceeded with as quickly
and as generously as possible. This must be said because of the
fuel to reaction provided by the St. Leonard affair. Hopefully,
it will find its own Quebec solution. Indeed, if it does not, if
language and school rights are not wholly and fully re-protected
in Quebec, then bilingualism and biculturalism are in danger even
there, and once in danger in Quebec, they cannot succeed else-
where in Canada. But nothing would retard a moderate solution
to the Quebec situation more than to have some “instant” back-
lash in the other provinces stimulated by a premature and
mistaken judgment on the Quebec future for English language
rights. There is reason to hope that the present language rights
legislation before the Quebec Legislative Assembly will receive,
in due course, Assembly approval.
Third
No one can predict what will come out of the present exercise
in constitutional review. An optimist may be permitted to believe
that only good can emerge from common study by the Premiers
and their Officials, and that such study may help to de-politize
many matters which do tend to be escalated artificially into
No. 3]
THE CANADIAN FEDERAL DILEMMA
issues when there may be technical and symbolic solutions that
could do justice to the claims concerned.
Fourth
For the constitutional study to succeed, however, all provinces,
together with the federal government, must participate with
full interest and a commitment to the program. It is not revealing
any secrets –
since the Prime Minister of Canada himself
so informed the Canadian Bar Association in Vancouver last
September –
that several provinces have yet to demonstrate a
serious concern with this exercise in constitutional review and
reform. This may be understandable from their point of view
because for the most part, except perhaps on the question of their
fair share of tax revenues, or having certain federally initiated
programs imposed upon them, these provinces are quite content
with the present constitutional structure and its division of
powers. Indeed, this is a view many students generally share, but
it is no excuse for neglecting to have a completely open mind in
view of the anxieties of others on the desirability of constitutional
review and the possible alternatives available for constitutional
reform. There is here no place for “opting out”. No province can
avoid the responsibility of sharing in this fundamental re-appraisal
of the political and legal framework for Canadian society.
Fifth
It is urgent that public opinion ask itself the question as to
its role in these proceedings, now undertaken at the Premiers’
and Officials’ level. How does the popular will get a reasonable
chance to penetrate the high screen of political authority and
fonetionnaires’ privacy? How shall we be certain that the best
minds in Canada, in the universities and among writers and
journalists, in labour, business and agriculture have a chance to
influence the search for means to constitutionalize “the just
society”? This is not an easy question to answer and a wise
response also requires some new understanding of the authority
under which the Premiers themselves operate to agree upon and
to implement constitutional change. On one level their mandate
is easily recognizable as a necessary aspect of the general purposes
of government. Yet that mandate may not be so easy to identify
for all the problem of fundamental constitutional revision, should
it take place.
Sixth
There is public knowledge that reform is desired by some govern-
ments in the matter of the Senate and the Supreme Court of
McGILL LAW JOURNAL
[Vol. 14
Canada, while Quebec is insistent on a total re-examination of
the division of powers, with a particular concern for such matters
as international agreements, offshore mineral rights, radio and
television, immigration, and social welfare programs. All provinces
are interested in the future of tax-sharing arrangements, and they
should be interested if they are not, in some national approach
towards common budget control and planning. It is possible we
may have to consider converting the Tax Structure Committee
into some kind of formal or informal agency for dealing with
revenues and expenditures by all governments, particularly in
view of the fact that the combined budgets of the provinces and
municipalities now exceed that of the federal government.
Seventh
Finally, the human condition requires satisfaction for the spirit,
and if there is to be an identifiable Canadian community, it may
be that the syntax and the symbols that unite Canadians must
somehow be designed and restated for new times and new men.
But such a restatement should leave Canada stronger than it
was, not weaker; otherwise the search for a viable federalism
will have been all vanity and frustration. 2
2 Since this paper was prepared, the Honourable J. J. Bertrand, the Prime
Minister of Quebec, has introduced Bill 85 designed to deal with the protection
of English and French language School and other rights. This legislation has
been referred to a Committee of the Quebec Legislative Assembly and its
controversial nature is now evoking wide public debate. The two main issues
are whether the Bill will actually protect the rights of all Quebec residents
to choose the language of instruction for their children and whether the French
language will have some kind of priority in public and private business and
possibly in education as well, at least for “new Canadians”. In any case, while
there appears to be a most serious effort on the part of the government of
Quebec to come to grips with these problems there is no indication that the
government or any Quebec political party are prepared to “entrench” in the
constitution English language rights as such, at this time.
