The Fulton-Favreau Formula in Alberta
Alexander Smith, Q.C. *
The reaction in Alberta to the blood and toil, tears and sweat
as concomitants of the hammering out of an indigenous procedure
for amending the Canadian Constitution was one characterized by
silence. When in 1960-61 the Dominion-Provincial Conferences la-
boured and brought forth the Fulton Formula, and when in 1964
the Conferences of that year produced the Favreau version, and when
in March 1965 the latter version came before the.Alberta Legislative
Assembly for approval, the public at large, the press, and even
the legal profession itself, failed overtly to respond. It should at once
be added, however, that this apparent lack of interest or concern
cannot, I think, rightfully be attributed to apathy, complacency, or
indifference. Rather, it was due to a prevailing and wide-spread un-
awareness of the significance and importance of the momentous
constitutional and historical goal that the federal and provincial
authorities jointly were endeavoring to achieve. In any event, so
far as I am informed, the only expression of opinion was that of the
present writer in a submission to the Provincial Government on the
eve of the Formula coming before the Legislative Assembly for ap-
proval. With the reader’s indulgence, and, I trust, without impropriety,
I shall here recapitulate the tenor of that submission.
The position taken was that the unanimity requirement of the
proposed amending procedure, as it related to amendments affecting
the legislative authority of the provinces, was to impose upon the
Canadian Constitution the rigidity of the strait jacket. Were the
procedure to be adopted, and subsequently a general and pressing
need felt throughout Canada for the federal control,
let it be
assumed, of the whole field of labour relations, inclusive of the
area within provincial domain, an amendment in that behalf would
be doomed to rejection depending, as it would depend, upon the
unanimous consent of ten provinces. The dissent of one province
would defeat the amendment. On the other hand, by way of contrast,
it was emphasized that an amendment providing for the surrender
by Parliament to the Provincial Legislatures of authority over, for
example, “Interest”, could be achieved by a two-thirds majority of
the provinces representing 50% of the Canadian population. It was
* Dr. Alexander Smith, Q.C., Faculty of Law, University of Alberta.
No. 4] FULTON-FAVREAU FORMULA IN ALBERTA
477
pointed out that this basic fault of inflexibility was not cured by
the expedient of inter-delegation, which had been introduced into
the Formula, in that such a device afforded, essentially, a temporary
and not a permanent solution.
The submission went on to acknowledge (as the federal “White
Paper” 1 had pointed out) that the proposed procedure represented
the maximum of agreement possible at the time, but proceeded to
declare that such maximum was not enough and that, therefore, it
followed that the time was not yet propitious or ripe and that final
action should be delayed; that this was a case where prudence required
that haste be made slowly; that the dangers of delay were far less
than the dangers of precipitate action; and that it was much better
to endure present ills than flee to those of greater magnitude.
Continuing, it was submitted that a constitution must be at once
sufficiently rigid to ensure stability yet sufficiently flexible to ac-
commodate change. Flexibility, the permitting of play in the joints,
was to be achieved either by a liberal judicial interpretation of the
fundamental law, or by amendment thereof. The history of the
judicial performance as related to the expounding of the British
North America Act, however, had rendered it unmistakably clear
that the necessary elasticity was not to be forthcoming from that
source. Accordingly, flexibility, therefore, remained to be achieved
by amendment. However, that avenue too had been closed by virtue
of the unanimity requirement in the proposed Formula. An important
amendment was to be at the mercy of the veto of a single province.
And furthermore, the submission warned, it must be remembered that
once the Formula was adopted, no escape was. permitted, for the
rigidity which was injected into the Constitution proper was like-
wise injected into the amending procedure itself. That was to say,
the amendment of the amending procedure in turn required una-
nimity. The result was to place ourselves in shackles and to throw
away the key.
In the following month, March 1965, the Honourable Ernest C.
Manning, Premier and Attorney-General, moved in the Legislative
Assembly the adoption of the amending Formula. By way of recital
to his motion Mr. Manning noted that it was a matter of concern
both to the Assembly and to Canadians generally that full authority
to amend the Canadian Constitution did not presently reside in this
country; that the Governments of Canada and of the Provinces had
for many years attempted to establish an acceptable scheme permitt-
1 The Amendment of the Constitution of Canada, (Queen’s Printer, 1965),
at p. 44.
478
McGILL LAW JOURNAL
[Vol. 12
ing the exercise of such authority domestically; and that as such a
scheme had now been agreed upon it was proper that the Legislative
Assembly give its approval thereto and to the implementation thereof.
Then followed the formal resolution:
“THEREFORE, BE IT RESOLVED, That this Assembly approve the
request proposed to be made to the Parliament of the United Kingdom for
the enactment of an Act to Provide for the amendment in Canada of the
Constitution of Canada, such Act to be substantially in the form approved
by the Conference of the Prime Minister of Canada and the Premiers of all
the Provinces on the fourteenth day of October, A.D. 1964.”
The motion was seconded by the Leader of the Opposition, Mr.
Michael Maccagno, Liberal, and, without debate, was unanimously
carried.
2
In the course of his address moving the adoption of the motion,
Mr. Manning traced the history of the attempts to agree upon and
frame a procedure for amending the Constitution in Canada which
had culminated in the Fulton Formula in 1961 and the revised ver-
sion thereof, namely, the Fulton-Favreau Formula, in 1964, the sub-
ject-matter of the motion. He acknowledged that of the criticisms
which had been advanced against the Formula the most prominent
was that, by constitutional authorities, of over-rigidity. Referring
to the “White Paper” he went on to submit that the rigidity com-
plained of was overcome by the flexibility injected into the Formula
by way of the provision permitting inter-delegation of powers be-
tween Parliament and the Provincial Legislatures. He frankly con-
ceded, however, that universal acceptance of the Formula through-
out Canada was too much to expect.
He said:
“I know there’s going to be disagreement among the public as to the
wisdom of this statute – whether it’s in proper form or not, but, Mr. Speaker,
I would only have this further to say on that point –
after having attended
these conferences since 1950, and being familiar with the efforts that have
been made over such a long period of time to reach finality in this matter,
it is my very firm belief that there is no hope of getting agreement to the
measure of unanimity that exists today between and in all the Governments
of Canada on any other approach to this matter than that which has finally
‘evolved out of these discussions. No one would say that it is perfect, but
it is a good formula and it gives the Constitution of Canada into the hands
of the Canadian people exclusively.”s
Such, then, is a description of the reception and disposition of
the Fulton-Favreau Formula in Alberta.
2 (1965) 70 Journals of the Legislative Assembly of the Province of Alberta,
at pp. 59-68 and 74-83.
Of the 63 seats in the Assembly, the composition thereof was as follows: Social
Credit 59, Liberal 2, Coalition (Liberal-Progressive Conservative) 1, vacant 1.
a Taken from a recorded transcription of the proceedings.
