A revised constitution for Canada
We share the widespread public view that among the requirements for Canadian unity is a fundamental revision of the Canadian constitutional and political structure. Many English-speaking Canadians, particularly in the west and the Atlantic provinces, are critical of the way our political system has been working. The vast majority of Québécois want, at the very least, basic reforms. Although the BNA Act has served Canada well for 1 1 1 years in a variety of changing circumstances unforeseen by the Fathers of Confederation, and although there have been numerous piecemeal adjustments over the years, there is a growing gap between the structure created in 1867 and the social, economic and political realities of the vastly different Canada of 1979. We believe, therefore, that there should be a new Canadian constitution to meet the aspirations and future needs of all the people of Canada.
1. The objectives of constitutional reform
In our view, constitutional revision should have three major objectives: (1) to preserve and reinforce the ability of the central institutions to serve as the legitimate focus for the common interests of all Canadians; (2) to provide greater institutional responsiveness to the regional and provincial self-confidence reflected in current demands for greater provincial autonomy and for more effective provincial influence upon central policy formulation; and (3) to provide the majority of Québécois with an acceptable federalist response to their desire to maintain their distinctive cultural and social identity and to their deep-rooted grievance that our political institutions do not adequately reflect the dualistic character of Canada.
Furthermore, the reform of our constitutional and political system must also take account of the need to create institutions which encourage attitudes of accommodation rather than confrontation among the different communities and governments, particularly in the area of federal-provincial relations. It must provide for the increasing demands for more responsiveness, sensitivity and accountability to the individual citizen. Finally, it must take account of the relative capacity for effectiveness and efficiency of the different orders of government.
To reflect these objectives, the new constitution should be adopted in Canada, be in the English and French languages with both texts official, and include in the preamble a declaration that the people of Canada (i) maintain and reinforce their attachment to democratic institutions, federalism, human rights and the principle of supremacy of the law; (ii) recognize the historic partnership between English and French-speaking Canadians, and the distinctiveness of Quebec; (iii) affirm the special place of the native peoples of Canada; (iv) recognize the richness of the contribution of Canada's other cultural groups; (v) recognize diversity among Canada's provinces and the need to permit all regional communities to flourish; and (vi) seek the promotion of social, economic and cultural development and the equality of opportunity for all Canadians in all regions of Canada.
2. A parliamentary and federal system
While advocating major revisions to our constitutional and political structure we believe that Canada should retain the combination of parliamentary institutions and a federal system, a combination which was the creative innovation of the Fathers of Confederation and a precedent copied in many other federations established since 1867.
In a country marked by diversity and operating a federal system there are some advantages to a presidential and congressional system such as that in the United States, or a collegial executive with a fixed term as in Switzerland, but we have concluded that these possible benefits are outweighed by the advantages of the cabinet system of parliamentary democracy. A parliamentary system allows for stronger executive leadership and more rapid implementation of legislation, since the executive is not separated from the legislature. By comparison to other forms it makes the executive, and through it the public service, more directly and continuously accountable to the elected representatives and the general public. This is achieved through the daily question period and the requirement of ministerial accountability, and the need to win votes of confidence in the legislature on major pieces of legislation.
The parliamentary cabinet system is part of the political traditions of both Britain and France, the two major sources of our cultural heritage, and has been rooted in our political experience for almost 130 years. Moreover, the parliamentary cabinet system appears to have widespread support and does not seem to be an issue of contention between French and English-speaking Canadians or among the variety of other ethnic and cultural groups in Canada. Opinion on the constitutional monarchy in Canada appears to be more controversial and we have concluded that attempts to institute any change at this time would do more to divide than unite Canadians.
After listening to many Canadians on our tour and elsewhere, and after much careful thought, it is our belief that a substantially restructured federalism is preferable for Canadians to some other form of political association. We offer a number of reasons for this. A federal system makes possible the accommodation of desires for both unity and diversity. It enables citizens to act through an effective common government for those purposes where there are common goals or benefits (such as in military, diplomatic or major economic matters), while making it possible for citizens to act through autonomous provincial governments for those purposes in which they wish to maintain their own distinctiveness. It allows the creation within a larger political system of different provinces or governmental entities through which a minority concentrated in one region can develop its own institutions.
Federal systems are generally more stable and more effective than confederal systems in which the central institutions consist of delegates of the component state governments each retaining their complete sovereignty. This is because a federal system establishes a power balance between the two orders of government and retains a capacity for generating positive directions at the centre as well as in the provinces. Furthermore, a crucial disadvantage of the confederal form of union or association is the difficulty such systems have in achieving an effective redistribution of resources to correct disparities among the constituent units. Is should not be forgotten that both the United States and Switzerland abandoned confederate forms of political organization because of their ineffectiveness and each looks back upon the adoption of a federal organization as a turning point in its effective development. Moreover, the slowness of the European Economic Community in achieving its original objectives has been a source of frustration to its proponents.
This does not mean that we are unaware of some weaknesses of federalism. We acknowledge that a federal system often slows the process of rapid and effective policy-making in such areas as the economy, that it sometimes tends to generate conflict between governments, that it sometimes creates opportunities which vested interests can exploit to assert themselves against the common public interest, and that it is prone to stresses whenever large regional disparities emerge or dissatisfied minorities seek an outlet for their grievances. But problems with minorities, regionalism and separatist movements are by no means confined to federations, as the experience of Britain, France and Spain shows. On balance, we have concluded that a federal system, albeit a substantially restructured one, is still the optimal system for Canada.
3. The character of our proposals for a revised federation
Within a basic parliamentary federal framework there is extensive scope for variation in each of the elements which go to make up a federal system-the number and size of regional units of government, the actual distribution of legislative and executive powers and revenues, the instruments facilitating relationships between the two orders of government and the representativeness of the central institutions.
The number and size of the component units of the federation is an important variable because it affects the relative capacity of the units to perform functions. For example, the small size of cantons of Switzerland (twenty-three of them in a total population less than Ontario's) clearly affects the scope of governmental functions they can perform. In the Canadian context, among the alternatives one might consider are the possibility of two units in a binational federation, a federation composed of four or five regions, one composed of the existing ten provinces, one composed of twelve provinces if the territories were to become full-fledged provinces, or, if existing provinces were split, a federation composed of many more units. On balance we have concluded that the weight of historical continuity and current provincial distinctiveness will require the maintenance of the existing ten provinces, possibly with the eventual addition of the territories, as the basic regional units of government. This means that the consequent dramatic variation in the cultural character, size, population, resources, fiscal capacity and administrative scale of the existing provincial units will continue. One simple example of this disparity is the substantial number of municipalities in other provinces which serve more people than the province of Prince Edward Island. An implication of this variety and disparity is that it will require a greater recognition, possibly in constitutional form and certainly in political practice, of the asymmetrical relative capacity, power and character of the provincial units within the Canadian federation.
Our proposals for major changes in the Canadian federal system are focused in six key areas: (1) the clarification and adjustments of the constitutional division of powers between the central and provincial governments; (2) better methods for handling federal provincial relations, in particular through the replacement of the Senate by a Council of the Federation composed of provincial delegates; (3) a revamped and formally independent Supreme Court of Canada; (4) provision for constitutional amendment and flexibility; (5) electoral reform to improve the regional represenatativeness of parties in the House of Commons; and (6) constitutionally entrenched fundamental rights. All of these must revolve around the attempt to give a better expression to the principles of duality, regionalism and the sharing of benefits and powers within a viable Canada.
Our approach is an integrated and systematic one in which the various elements are linked and interrelated. In arriving at any balanced overall federal solution it may be possible for political leaders to achieve compromises by trading off variations in particular elements in order to achieve overall agreement. At the same time, however, in considering the various elements individually, it must not be forgotten that they are interrelated and that our recommendations on the distribution of powers, on instruments for federal-provincial relations and on representation in central institutions form a balanced interrelated and integrated set of proposals.
The deep-rooted crisis before Canada calls for a more systematic approach than a negotiated consensus between central and provincial governments on a limited number of discrete topics will provide. To achieve such a systematic resolution will require our political leaders at both levels of government to rise above traditional jealousies and to achieve a spirit of creativeness and innovation, such as that which existed in the 1860's when out of political crisis and deadlock Confederation was conceived.
The distribution of powers
A critical issue in any federation is the distribution of legislative and executive powers and revenues between the central and provincial governments. The problem is a complex and controversial one, involving the reconciliation of the need for larger political units, desirable for such purposes as economic development, with smaller political units, desirable to ensure regional distinctiveness and responsiveness to the citizens.
1. The need for clarification and adjustment
A number of factors have made a review of the distribution of powers a basic issue in the current Canadian debate. As the role of both the central and provincial governments has grown enormously, it has become increasingly difficult to say where the responsibilities of one order of government end and those of the other begin. There appears to be a federal and provincial dimension to almost every area of government activity, from culture to economic development; and even when two governments are acting wholly within their own constitutional jurisdiction they may easily find themselves in competition or conflict. Furthermore, as new provincial responsibilities have emerged over time, an imbalance between their legislative responsibilities and their fiscal capacity has led to the development of a complex system of fiscal transfers from the central to the provincial governments and of shared-cost programs which have progressively blurred the delineation of their responsibilities. It is not surprising that in a time of growing provincial strength and maturity such overlapping jurisdiction should be a source of friction. Examples in recent years include the joint publications by the western premiers charging that Ottawa has intruded into numerous areas of provincial jurisdiction and Ottawa's counter-charges. But what makes this issue particularly critical at the present time is the question whether the distribution of powers can be revised in such a way as to meet the pressure from the provincial governments for greater responsibilities in their areas of particular concern and from Quebec to be able to maintain and indeed develop its distinctive character, while at the same time retaining for the central government sufficient powers to be effective and viable.
We have concluded that there is need for a clarification and adjustment in the distribution of powers to reduce these sources of friction and to fit more adequately the contemporary socioeconomic, technological, cultural and political realities of Canada. At the same time we would caution that in any federation the functions assigned to the two orders of government can never in practice be totally isolated from each other into watertight compartments; there will always be limits to the precision with which constitutional draftsmen will be able to define the relative responsibilities of the two orders of government.
Our approach to this issue is a general one. Rather than drafting a blueprint for an actual revised distribution of powers, we outline as a guide to the public and to those political leaders who must negotiate the final text of a new constitution the general considerations which we believe should govern the revision of the distribution of powers.
2. The principal roles and responsibilities of the central and provincial governments
The revision of the distribution of powers must respect the need for a central government that can handle problems of Canada-wide importance and maintain a viable Canadian federation, for provincial governments that can handle regional and provincial concerns for local-prosperity and preferences, and for the Quebec government to maintain and develop its distinct culture and heritage. In meeting these needs the principles of power and benefit sharing, regionalism and dualism which we identified earlier are fundamental.
We see the essential role and responsibilities of the central government as being to sustain, encourage and symbolize a Canadian identity and pride, to ensure the security and preservation of the Canadian federation, to have an overriding responsibility for the conduct of foreign policy, to control the major instruments of economic policy, to oversee interprovincial and international trade, and to stimulate economic activity within the federation. In addition, because the resources and economic advantages of Canada are not spread evenly throughout the country's ten provinces, the central government must be in a position to assume equitable benefit sharing for all Canadians. This means that it must have a responsibility for combatting regional disparities, establishing appropriate minimum standards of living for all Canadians where appropriate, and redistributing income between individuals and between provinces.
We see the essential role of the provinces as being to take the main responsibility for the social and cultural well-being and development of their communities, for the development of their economies and the exploitation of their natural resources, and for property and civil rights. This implies exclusive (or occasionally concurrent) jurisdiction over matters pertaining to culture, education, health, social services, marriage and divorce, immigration, manpower and training, the administration of justice, natural resources including fisheries, regional economic development, trade within the province, consumer and corporate affairs, urban affairs, housing and land use, and environment. It implies, as well, correspondingly adequate powers to tax. The provincial governments should also have the right, as long as they abide by Ottawa's overriding foreign policy, to establish some relations with foreign countries and to sign treaties in matters coming under their jurisdiction.
In the case of Quebec, it should be assured of the full powers needed for the preservation and expansion of its distinctive heritage. This would require either exclusive or concurrent jurisdiction, assigned to all provinces generally or to Quebec specifically, over such matters as language, culture, civil law, research and communications, as well as related power to tax and to establish some relations in these fields with foreign countries.
In our opinion, it should be possible to meet these objective s in a coherent way, consistent with the realities of modern Canada. At the same time, delineating the distribution of powers more clearly would reduce those running controversies between the two orders of government which aggravate their relations and increasingly irritate the public.
3. The constitutional equality of the central and provincial governments
A definitive characteristic of any federal system is the equality of status under the constitution of the two orders of government, central and provincial, in relation to each other.
The question of status is a problem of attitude as well as of constitutional provision. There are a number of provisions in the BNA Act which imply an inferior constitutional standing of the provincial governments and these have led some commentators to describe that constitution as "quasi-federal" rather than genuinely federal. Moreover, we have been told repeatedly that the attitude of politicians and civil servants in Ottawa toward their provincial counterparts is that of a superior dealing with an inferior. This is obviously an extremely difficult area in which to obtain accurate or scientific information; but, if half the things that were said to us on the subject are true, we cannot help but regard this as a significant cause of conflict between governments. We do not wish to imply that the provinces are blameless in their behaviour, although we can report at the same time that no one has ever complained to us that a provincial government has been disposed to treat the central government as an inferior.
Since we view the provincial governments as equal in stature and maturity to the central government, we have no difficulty in stating that in a restructured, genuinely federal union the provinces should be recognized as having a constitutional status equal with that of the central government.
4. Equality of provinces and distinct status
Quebec's unique position as the province within which a linguistic minority within the country as a whole is in a majority has frequently led to suggestions that that province should be granted powers over matters denied to other provinces. But many in other provinces have argued that no province should have a privileged "special status" under the constitution and that all provinces should be equal in law-making terms.
In considering this issue it is vital to recognize that all existing federations-there are more than twenty with a total population of a billion people-are in practice what we might call asymmetrical: their component states or provinces differ in size, culture, social structure, wealth, administrative capacity and power, and these differences are reflected in political and even constitutional terms.
Since 1867 Canada itself has mirrored this fact: some provinces have proportionately more Commons or Senate seats than others, the use of the English and French languages is guaranteed differently by different provinces, Quebec's civil law is different from the common law used in other provinces, and financial transfers from Ottawa to the provinces have taken account of their different circumstances. Furthermore, recent federal-provincial programs have accepted the right of a province to opt in or out-that is, to differ in what they do. In short, the Canadian federation, like others, from the beginning has never been, nor can it be, totally symmetrical.
At the same time we must recognize, as the experience of other federations indicates, that there are limits to the degree of constitutional asymmetry that can be tolerated without producing disruptive effects. A particularly pertinent example was the fatal tension within the Malaysian Federation during Singapore's brief membership in 1963-65 caused by the marked variance in its autonomous powers and correspondingly limited participation in central policy-making. Furthermore, many Canadians who are otherwise sympathetic to the desire of Qubb6cois to maintain their culture and heritage, find the notion of "special status" for one province, with its connotation of "privileged" and favoured treatment, repugnant to their belief that all Canadians should be equal under the constitution.
Nevertheless if we perceive the Canadian duality in a political perspective as the expression of two realities, neither of which is superior to the other, then to recognize the distinctiveness of each is not to confer upon either of them a "special" or "privileged" status. Each is as special as the other: the only special feature is that one side of the duality is expressed politically at the level of provincial governments by nine and the other by one. "Special status," used as a term inferring favoured treatment, should therefore be avoided. But given the variety of distinctive arrangements which have been found appropriate for various provinces (for example, in representation in central institutions or central transfers to the provinces), we believe that the distinctive role of the Quebec government as the single province containing a French-speaking majority must be recognized. Nor is it inconsistent with our traditions. Indeed, in the years since 1867 we have learned to live with the fact that Quebec has a considerable degree of what we think should be labelled a distinct status: in its civil law, in the recognition of French as an official language, and in the fact that three of the nine judges of the Supreme Court must come from that province.
Let us put our conviction strongly: Quebec is distinctive and should, within a viable Canada, have the powers necessary to protect and develop its distinctive character; any political solution short of this would lead to the rupture of Canada.
What are the implications of this for the distribution of powers? There are two possible approaches. One is to assign to Quebec formal law-making powers, denied to other provinces, over such matters as culture, language, immigration, social policy, communications and some aspects of international affairs.
The second and, in our view, much the more preferable approach is to allot to all provinces powers in the areas needed by Quebec to maintain its distinctive culture and heritage, but to do so in a manner which would enable the other provinces, if they so wished, not to exercise these responsibilities and instead leave them to Ottawa. There are two methods of achieving this: to place these matters under concurrent jurisdiction with provincial paramountcy, thus leaving provinces with the option whether to exercise their overriding power in these fields; and to provide in the constitution a procedure for the intergovernmental delegation of legislative powers. In our view both methods should be used.
5. Criteria for the distribution of powers
The draftsmen for the distribution of powers in a restructured federalism should take account not only of the points made in the preceding sections of this chapter but of the following criteria:
6. The form of the distribution of powers
All federal constitutions contain, in one form or another, lists which allocate to each order of government competence to legislate with respect to the powers specified. Subject matters may be assigned exclusively to one order of government or the other, concurrently to both orders with paramountcy (i.e., overriding authority) assigned to one or other order, or remain unlisted and so become the responsibility of the order of government to which the residual authority is assigned. An arrangement existing in some federations, most notably the Federal Republic of Germany, is the provision in some subject matters for the central government to enact laws while leaving the actual administration or enforcement of the law to the provincial government. In addition, in some federations, including Canada under the BNA Act as interpreted by the courts, the central government may in certain instances be given specific powers to override otherwise normally exclusive provincial powers, for example in emergencies.
A number of federations, such as the United States and Australia, have enumerated only central exclusive and concurrent powers, leaving residual powers to the states, but their experience indicates that in practice such an arrangement has narrowed rather than protected state powers.
We have, therefore, opted in favour of a full enumeration of both central and provincial powers. In a revised constitution the allocation of powers should be listed under seven categories:
We believe that as far as possible matters should be placed in one or other of the two exclusive lists. We would do so even to the extent, where appropriate, of dividing a given subject area so that one part is assigned to one government and one part to another, an arrangement found frequently in the Swiss constitution. This would disentangle as far as possible central and provincial powers, keeping to a minimum the areas of concurrent jurisdiction which require intergovernmental cooperation and which can become at the same time potential sources of conflict. Given the tradition in Canada of parliamentary cabinets responsible to their legislatures, the scope for the category of laws made by the central government and administered by the provinces will be limited. But we do have a precedent in the Criminal Code, enacted by the- central parliament but administered by the provinces, which indicates that there may be wider potential for uniform central laws to be combined with flexible provincial enforcement.
Although we have advocated a careful specification of seven categories of central and provincial powers, it is impossible to cover all possible eventualities by lists of specific powers. Federal constitutions, therefore, usually allot to one order of government or the other those powers which are not listed. In most federations, this residual power is vested in the member state governments. In Canada, however, under the BNA Act's "peace, order and good government" clause, it is largely vested in Ottawa. A third alternative advanced recently by some is a shared residual power in which an unlisted subject matter would be assigned according to whether it was of interest to the central or provincial government. In our view it would be difficult to avoid the impression that only unimportant residual matters would be attributed to the provinces. On balance, therefore, we have concluded in favour of assigning the residual power in a revised constitution to the provincial governments, as is the case in most other federations.
7. A functional approach to the allocation of specific powers within policy areas
When it comes to the assignment of specific powers to governments we would advocate that those involved in the negotiations adopt a systematic functional approach.
The enumerations of powers in sections 91 and 92 of the BNA Act lack coherence or logical theme to their arrangement. The powers refer in different cases to the purposes of policy ("peace, order and good government"), to the subjects of a policy ("Indians"), to the instruments of a policy ("weights and measures") and to the objects of a policy ("education", "immigration", "agriculture"). Some powers are broad in scope ("trade and commerce", "property and civil rights"), while others are very specific ("beacons, buoys, lighthouses and Sable Island"). The arrangement of items is haphazard, related items not being grouped together. Furthermore, there has recently developed a number of major policy areas, such as pollution or energy, which cut across the traditional subject matters. We believe that clarification would be assisted by a coherent and functional approach to the actual enumeration of powers.
We therefore advocate the grouping of subject matters in terms of general domains of government activities. Such broad policy areas might include: external affairs, defence, economic policy, transportation, communications, natural resources, administration of justice and law enforcement, the status and rights of citizens, culture, health and welfare, habitat and environment. Within each of these domains would be listed the more specific subject matters arranged in related groups. For example, under economic policy might be listed trade and commerce (differentiating external trade, interprovincial trade and intraprovincial trade), monetary policy (including foreign exchange and currency and coinage), financial institutions, taxation, (distinguishing specific taxing powers), public borrowing, and corporations and companies. Under culture might be listed language, education, schools, universities, archives, research, exchanges, copyrights, books, films, arts, leisure, marriage and divorce, property and civil rights. Under habitat and environment might be listed urban affairs, housing, land use, parks, protection of the environment and control of pollution.
Once activities are divided in this way, it should be possible to distribute specific responsibilities within a given general domain exclusively or concurrently to the order of government best suited to carry them out. In most of these broad domains both the central and provincial governments will have some specific interests, but by allocating subject matters or even parts of subject matters to one level or the other it will be clear how the exclusive responsibilities of each order of government and the areas of concurrent jurisdiction within that domain relate to each other.
We believe that this functional approach should provide a clarity which has been lacking and that it should be easier to allot components than entire areas to a given level of government. When the courts are subsequently asked to determine the jurisdiction under which a new activity belongs, it would help them in interpreting the rationale of the distribution of powers.
8. Some contentious areas
In recent years a number of areas of jurisdiction have proved particularly contentious. We have singled out some of these for particular research and analysis: natural resources (especially oil and natural gas), offshore resources and fisheries, communications, immigration, foreign relations, higher education, transportation, social policy, and urban affairs and housing. Although these studies are still in progress, it is possible to make some observations on the general approach we would advocate for reducing the degree of intergovernmental contention over these areas.
Each of these fields represents an area where both the central and provincial governments believe they have a legitimate interest and jurisdiction. This is in part the result of the changing perception of the role of governments in general in modern society. The expanded activity of both levels of government has given to almost every subject both a federal and provincial aspect. It is also a result of the fact that these fields in particular have been marked by radical changes in technology, international developments, environmental circumstances and social impact, altering out of all recognition the way in which jurisdiction over such areas was viewed thirty years ago, let alone in 1867. Examples are the impact Of OPEC and the oil embargo upon the price and importance of oil and gas resources; the effect of the extension of Canada's offshore boundaries to the 200-mile limit or even the whole continental shelf and the technological advances in extracting resources from the oceans and their seabeds and in fishing methods; the rapid advances in sophisticated telecommunications technology (in which Canada is in many respects leading the world) and the ever-widening impact of communications on every aspects of life Canada-wide and local; and the expansion of Canadian universities to give much wider access to higher education at the same time as these institutions have developed as the bases for advanced research requisite for Canadian development. These developments have transformed these fields into ones in which there are both Canada-wide and distinctive provincial dimensions and in which, therefore, both the central and provincial governments have a very keen interest.
In resolving conflicts over jurisdiction in these areas the present distribution of powers under the BNA Act is not very helpful. To take an example: in the field of oil policy, the conflict between the Alberta government and Ottawa emerges specifically as a clash between the provincial ownership of resources and the central government's control over international and interprovincial trade and commerce. In communications, the clash arises between the central government's view of communications as an integrated Canada-wide system serving as a powerful instrument for nation-building and the insistence of the provinces, particularly Quebec, that the impact of communications on local and provincial responsibilities is so pervasive that provincial control is necessary for them to meet the demands placed upon them and for the provinces to safeguard regional and local distinctiveness.
In our view, any attempt to reduce the friction and resulting frustration and conflict over each of these contentious areas would appear to require two steps. The first is a careful review of the aspects of that policy area with a view to delineating by agreement the aspects which might appropriately be placed under the exclusive jurisdiction, of one government or the other, or under concurrent jurisdiction. In this process the criteria and considerations we have referred to in the preceding sections of this chapter should be taken into account.
The field of immigration can serve as an illustration of the sort of approach we have in mind. Although it is one of the few areas formally placed under concurrent jurisdiction by the BNA Act, it was for so many years effectively under federal management. Federal control became increasingly contentious for those aspects of the immigration field which are more directly related to provincial and local interests. Intergovernmental negotiations have resulted recently in agreements between governments upon the appropriate jurisdiction over various aspects of the immigration policy area.
These agreements appear to have taken much of the heat out of the issue. Thus, it is now possible to envisage a distribution of responsibilities such that settlement and integration of immigrants is an exclusive provincial responsibility, selection criteria and levels of immigration to a province are concurrent with provincial paramountcy, recruiting of immigrants abroad and admission of refugees are concurrent with central paramountcy, and deportation of aliens and public safety come under exclusive central jurisdiction. We understand that in recent months central and provincial government representatives have been conducting a review of the areas of contentious intergovernmental overlaps and duplication, and we would hope that this effort to achieve a clarification and reduction of friction will be pursued. We must caution, however, that in areas as complex and rapidly changing as those we are considering in this section, an identification of central and provincial aspects of jurisdiction will not by itself ensure an adequate coordination.
The second step which is required, in each field, therefore, is the development of effective councils or other standing intergovernmental bodies. Membership in these councils should not be restricted to public officials but should include representation from the private sector in that field, to facilitate the formulation of policy at both levels of government that will effectively mesh with each other. In addition, the review of central legislation in such fields by the Council of Federation (which we propose in a subsequent section) should assist this process by reassuring provinces that their views will have a direct impact when Parliament legislates in these areas.
9. Taxing powers
In all federations the allocation of taxing powers has been an extremely important and controversial subject. It is significant in three ways: (1) the allocation of financial resources will facilitate or limit the extent to which a government can fully exercise its assigned legislative and executive powers; (2) it affects the political balance because whichever order of government has the major financial resources has in its hands the means for political dominance; and (3) the assignment of fiscal and spending powers will determine which governments are able to use these instruments as levers to control the economy.
Broadly speaking, there are three approaches to the distribution of taxing powers. The first is to allocate specific sources of taxation to each order of government in terms of its perceived needs; the second is to retain all major tax resources in central hands with substantial unconditional transfers replacing provincial taxes; the third is to grant to both orders of government equal access to most revenue sources.
We favour the third approach. Experience in most federations indicates that attempts to allocate specific tax resources in relation to perceived needs invariably go quickly out of date. The second approach implies an unacceptable degree of centralization, a serious gap in accountability between the spending government and the taxpayer. There would, of course, need to be some specified exceptions to the general rule of equal access, an obvious example being that in order to maintain a common market within the Canadian federation the imposition of customs and excise taxes would be an exclusive central power. The provincial right to use indirect taxation would have to be qualified also to ensure that the impact would not be on persons outside the province. It would be our hope that the clarification of provincial powers over indirect taxation would reduce such frictions as those which have arisen recently over Saskatchewan's policies concerning the potash industry.
10. Overriding central powers
The category of special overriding central powers requires careful attention because such powers, specified or implicit, under the BNA Act enabling the central government to act in what might otherwise be considered a provincial field have been the source of considerable federal-provincial controversy. These are the emergency power, the declaratory power, the spending power, the powers of reservation and disallowance, and the power to appoint lieutenant governors.
There are times in both war and peace (in the latter case, for example, economic crises or natural disasters), when extraordinary circumstances make it necessary for the central government to assume for a temporary period emergency powers affecting areas of provincial jurisdiction. The time has come, however, to base this emergency power, not on court interpretations of the "peace, order and good government" clause of the BNA Act, but on express recognition in the constitution with safeguards written in. We say this because the existing emergency power violates the principle of non-subordination of the two orders of government and its abuse could endanger our federal system. When in future Ottawa seeks emergency powers it should be required to spell out the reasons in a proclamation, to obtain approval of the proclamation by both the House of Commons and the revised second chamber (which we propose in the next section) as soon as is reasonably possible, and to be limited for a specified duration.
Under section 92(10)(c) of the BNA Act, Parliament may unilaterally declare "local" works situated solely within provincial boundaries and within provincial jurisdiction to be for the general advantage of Canada or for the advantage of two or more provinces and hence subject to central jurisdiction. This so-called declaratory power has in the past been used to bring grain elevators, pipelines and many other projects under central jurisdiction. The frequent use of this power without provincial consent could seriously undermine the authority of the provinces. At the same time we recognize that historically the invocation of the declaratory power has had some beneficial results, for example contributing to the development of a comprehensive railway system and a successful international grain marketing scheme. We conclude, therefore, that the central declaratory power should be retained but that its use should be subject to the consent of the provinces concerned.
Particularly controversial in recent years has been Ottawa's power to spend its revenues for any purpose, even in areas of provincial jurisdiction. Under it, such pillars of central government policy as hospital care and medicare have evolved. It would seem that the provinces generally do not object to the use of the spending power to fight regional disparities or to make equalization payments which most of them receive. But they have charged that Ottawa has gone beyond this to intrude in provincial spheres in a way that has undermined their autonomy and has forced provinces into programs they neither want nor need.
In our opinion, the spending power must be retained to enable Ottawa to ensure unconditional equalization payments to the poorer provinces and to ensure Canada-wide standards for programs in which a strong general interest has been demonstrated. But we think it, too, should have limits. The exercise by Ottawa of its spending power, whenever it is related to programs which are of provincial concern, should be made subject to ratification by the reconstituted upper house which we are proposing. To further safeguard provincial autonomy, provinces should have the right to opt out of any program and where appropriate receive fiscal compensation.
In recognition of the principle of non-subordination, we would eliminate two methods by which provincial legislation can be blocked by Ottawa. Under the BNA Act, a lieutenant governor can refuse to give royal assent to a bill approved by his or her provincial legislature and "reserve" it for assent by the governor general, in effect the central cabinet. In addition, the central cabinet can also disallow a provincial statute within a year. Over the years more than one hundred provincial bills have been disallowed by Ottawa and some seventy have been reserved. But both methods have gradually faded from use and now are considered dormant. To eliminate these two powers would not only recognize a situation which exists, but would recognize the ability and right of the provincial governments to act as responsible non-subordinate bodies.
Likewise, we would recognize the constitutional equality of the two orders of government by having the Queen appoint a lieutenant governor on the recommendation of the provincial premier rather than on that of the prime minister, as is now the case. The precedent for such a procedure already exists in the regular Australian practice.
The improvement of federal-provincial relations
Effective intergovernmental relations are a fundamental aspect of any federal system, as important as the distribution of powers. That means that the reduction of intergovernmental conflict in Canada will depend to a great extent on a general harmonization of relations between the two orders of government.
1. The Interdependence of the central and provincial governments
While we have advocated a clarification and rationalization of the constitutional responsibilities of the central and provincial governments, the functions assigned to the two orders of government in a federation can never be totally isolated from each other and will inevitably to some degree interpenetrate both administratively and politically. As the roles of both the central and provincial governments have grown, it has become increasingly difficult for one government to act in isolation from the other. A simple example will suffice to illustrate the problem. Many people agree that provincial control over natural resources should- be strengthened and so should central control over trade and commerce. Yet in an age when governments are responsible for setting the terms on which natural resources are marketed in the world, these two constitutional responsibilities simply cannot be exercised independently of each other. Consequently, in order for public policy to be effectively implemented in this area some means must be found to promote cooperation between both orders of government on a continuing basis.
This situation applies to almost every area of constitutional jurisdiction. As we saw in the section on the distribution of powers, constitutional jurisdictions may be organized into broad domains of activity within which different specific powers are assigned to each order of government. For policy to be effectively applied within the broad area as a whole, however, the specific powers which rightfully belong to both orders of government must be brought into play. It also means that any reform of the distribution of powers must be augmented by proposals for improved mechanisms and procedures for the conduct of federal-provincial relations.
2. The record of executive federalism
The need for institutions to reconcile and harmonize the objectives of both orders of government is attested to by the spontaneous growth in recent years of a wide network of intergovernmental meetings and conferences, at both the ministerial and official levels. This network of conferences has come to be known as "executive federalism" because of the way it responds to the new reality of interdependence through direct negotiations between the executives of both orders of government.
Executive federalism in Canada has done a great deal to adapt our federal system to changing circumstances and it has some remarkable achievements to its credit. To name only the most obvious: it has facilitated the implementations of fiscal equalization programs intended to reduce disparities among the provinces; to promote regional economic development, to provide basic health and social services up to a minimum standard across the country, and to negotiate a continuing transfer of financial resources and responsibilities from the central to the provincial governments.
But these successes should not hide the weaknesses of the process and its contribution to the present crisis of Canadian unity. The general public has been more aware of the dramatic public confrontations between central and provincial leaders which it has occasioned. The way in which the process has been conducted has often left provincial governments with the feeling the central government's choice of priorities and conditions has imposed a fait accompli upon them, distorting their own priorities, while the use of intergovernmental meetings by provincial leaders to score points against the central government for partisan advantage at home has exasperated representatives of the central government. The spectacle of Canadian governments wrangling constantly among themselves has done nothing to reduce cynicism about public affairs and it has presented Canadians with the image of a country deeply divided against itself.
Another unfortunate side effect of the current form of intergovernmental relations in Canada is that it has developed outside the framework of our traditional democratic and parliamentary institutions and has sometimes seemed to be in competition, if not in conflict, with them. For this reason, some observers have regarded it with suspicion as a weakening influence on Canadian democratic life.
3. Options for the conduct of federal-provincial relations
The lesson we draw from the record of recent federal-provincial relations in Canada is that in a parliamentary federal system with the dominant role played by cabinets, the developing practice of executive federalism is an inevitable and necessary one, but that the mechanisms and procedures for the conduct of federal-provincial relations should be reformed to serve more adequately Canadian unity and democracy.
There are two general directions which reform of our own processes of intergovernmental relations could take. The first would be to institutionalize the current pattern of executive federalism in order to provide a framework for ongoing consultation, negotiation and decision-making. The new federal-provincial machinery would be placed under the authority of the conference of first ministers which would become a continuously functioning arm of government, formally recognized in the constitution, in which central and provincial policies would be coordinated, differences resolved and major Canada-wide priorities established. This option would be somewhat analogous to some aspects of the Australian Loans Council, an intergovernmental council provided for in the constitution as the result of a constitutional amendment, which has the power to make binding decisions over a limited range of matters.
This approach, however, would also institutionalize many of the defects of the present arrangements. It would lack the disciplinary features of the normal political process which permit the resolution of conflicts, including an ultimate appeal to the electorate; it would not provide any incentives for the cooperative attitudes which are essential to the effective working of executive federalism.
The second option, which we therefore prefer, would also accept the reality and value of executive federalism but would build it into the parliamentary institutions at the central level. In order to do this the present Senate would be replaced by a second chamber of the Canadian Parliament in the form of a council of representatives of the provincial governments.
4. A now central second chamber
Before concluding that a new second chamber would be the most appropriate instrument for improving the conduct of federal-provincial relations we have reviewed the functions which second chambers have performed in other federations and the different forms which a central second chamber may appropriately take. We have identified seven potential -functions: (1) the critical review and improvement of central government legislation; (2) the conducting of investigatory studies; (3) the protection of minority rights; (4) the provision of broader regional representation for political parties and the correction of imbalances in the ,first chamber created by the electoral system; (5) the provision of a legislative house less dominated by the executive and party discipline; (6) representation of constituent provincial governments on a more equal basis than in the popular chamber, thereby increasing their influence over central legislation bearing directly on regional or provincial concerns and (7) the promotion of central-provincial consultation on those particular areas which are - of joint concern. Not all of these functions are equally important and some may be performed by other institutions if they are adequately structured for the purpose.
Among the possible options we have reviewed are: the Canadian Senate in its current form, an elected Senate, the House of the Federation proposed in the Constitutional Amendment Bill (1978), and a second chamber composed of provincial appointees. While the usefulness of the existing Senate has often been underestimated, its main value is confined to the first two of the seven functions listed above. Moreover, the appointment procedure has prevented it from being a genuine guardian of regional and sectional interests within central political institutions. Indeed, it could be said that few other federations have made as little use as Canada of the central second chamber as a way Of bringing regional or provincial interests to bear on central legislation.
An elected Senate would clearly enjoy much more popular support, be in keeping with the spirit of democracy, and create a centre of power that would not fall automatically within the control of the governing party. Elected second chambers have been successful in federations like the United States and Switzerland, where a system other than the responsible parliamentary cabinet is in operation. But, as the Australian experience indicates, an elected Senate can create serious problems in a parliamentary system like our own when there is a conflict between the popular mandate of that body and of the House of Commons to which the cabinet is responsible. Furthermore, party discipline rather than regional concerns are likely to be the dominant factor in deliberations.
The proposal in the Constitutional Amendment Bill (1978) for a House of the Federation composed equally of members selected by the House of Commons and the provincial legislative assemblies in proportion to the popular votes in elections is a novel one and we have considered it carefully. Such a house would certainly widen the regional representation of the major political parties in Ottawa and would have the superficial advantage of balancing central and provincial appointees. It suffers, however, from two critical drawbacks. First, the only accountability of its members would be to the appointing bodies which in effect would be the central and provincial parties; party interest rather than regional ones are therefore likely to predominate. Second, since its members could not speak for provincial governments, it would be unable to play an active constructive role in intergovernmental relations.
The fourth alternative for the second chamber is one composed of provincial delegations appointed by the provincial governments. We have concluded in favour of such an institution, suggesting the name Council of the Federation, because it could combine the function of a second legislative chamber in which provincial interests are brought to bear, and a means of institutionalizing the processes of executive federalism (with their confederal character) within the parliamentary process. Our conclusion is similar to the proposals advanced by the government of British Columbia, the Ontario Advisory Committee on Confederation, and the constitutional committees of the Canadian Bar Association and the Canada West Foundation.
5. The Council of the Federation
In the place of the existing Senate we propose that there be established a Council of the Federation composed of provincial delegations to whom provincial governments could issue instructions, each delegation being headed by a person of ministerial rank or on occasion by the premier.
The Council would be composed of no more than 60 voting members with provincial ,representation roughly in accordance with their respective populations but weighted to favour smaller provinces. Membership for any one province would be limited to a maximum of one-fifth of the seats, and a minimum of one-fifth would be guaranteed to any province which has at any time had 25 per cent of the population (such as Quebec and Ontario).
Such a formula might produce a representation along the lines of 12 seats each for Ontario and Quebec, 8 for British Columbia, 6 for Alberta, 2 for Prince Edward Island and 4 for each of the other provinces. Upon becoming full-fledged provinces the territories would qualify for seats also.
We would propose that in addition, central government cabinet ministers be non-voting members so that they have the right to present and defend central government proposals before the house and its committees. At first sight the suggestion that central government ministers not have a vote may seem to run counter to the function we advocate for this Council as a way of integrating executive federalism into the parliamentary institutions. But( since the initiating power for ordinary legislation before the Council would rest with the central government, voting within the Council would simply signify provincial ratification or rejection of central proposals concerning matters of provincial concern or of agreements already negotiated. In such a context a voting central government delegation would be anomalous.
Against the concern that such a Council might become a house of provincial obstruction we would suggest that the requirement of a two-thirds vote in the Council on those subjects of high provincial concern would reduce the premium for intransigence from that created at present by the unanimity rule in the first ministers' conference. Moreover, the open meetings would require provincial positions which would stand public scrutiny. A particular encouragement to accommodation would be the fact that the suspensive character of the veto in most subject areas would provide the central government, on the one hand, with an incentive to present proposals that would not be susceptible to delay and the provincial government delegates, on the other, with an inducement to agree upon Modifications that would not provoke subsequent action to override them. We would expect that much of the preparatory work for the meetings of the Council would be done through its committees.
We would envisage differing requirements of majorities within the Council and of suspensive veto time for different categories of legislation. Matters within the exclusive central jurisdiction would not require the approval of the Council. Matters falling under concurrent jurisdiction but with central paramountcy would be subject to a suspensive veto of relatively short duration by the Council, but those failing under areas of concurrent jurisdiction where there is provincial paramountcy or in areas where central legislative authority combined with provincial administrative responsibility is specified in the constitution would be subject to suspensive veto by the Council of longer duration. The ratification )of treaties dealing with matters within provincial jurisdiction, the exercise of the central spending power in areas of provincial jurisdiction, and the ratification of a proclamation of a state of emergency, would require special approval by the Council as set forth in our summary of recommendations in Chapter 9. Federal appointments to the Supreme Court and certain specified major regulatory agencies such as the Canadian Transport Commission and the National Energy Board would require approval of the appropriate committee of the Council. To determine the classification of a bill and hence the powers that the Council may exercise we suggest that there be provision for a permanent committee composed of the Speakers and some members from both the House of Commons and the Council.
All this would be a radical departure, one that would end the traditional roles of the Senate as a chamber of "sober second thought" on Commons' legislation and as an investigatory body on various issues. These roles we would transfer to a strengthened committee structure in the Commons. Unlike the existing Senate, the Council of the Federation, whose structure, powers and functioning we have here only sketched out, would be an institution which could play a major part in ensuring that the views of provincial governments are taken into account before any central action which might have an impact upon areas of legitimate provincial concern occurs, thus inducing more harmonious federal-provincial relations.
6. Additional mechanisms for Improved federal-provincial relations
Our proposal for a Council of the Federation as a second chamber of Parliament does not mean that the necessity for intergovernmental meetings and conferences will evaporate. To improve their effectiveness we propose that the conference of first ministers be put on a regular annual basis and that additional conferences be held whenever a government secures the agreement of a simple majority of the other ten. Furthermore, to establish agendas, to co-ordinate preparatory research and the development of proposals, and to follow through on the implementation of agreements resulting from such conferences, we suggest that there be a committee on policy issues made up of the eleven ministers responsible for intergovernmental affairs.
Because of the chronic possibility in any federation of overlaps in governmental policies, we further recommend that a standing task force of officials and experts representing all governments be established to review policy and program duplication on a continuing basis.
To bring federal-provincial relations more effectively within the scope of accountability to the legislatures, we recommend that standing committees be established in the House of Commons and in all the provincial legislatures to review the activities of the major federal-provincial conferences and the agreements arrived at by the central and provincial governments.
What we are seeking is a way to make the federal-provincial interdependence which is inevitable in a modern federation work more smoothly and effectively and to reduce the tensions that have arisen because both orders of government have tended to act on their own and without due regard for the other.
The Supreme Court and the judicial system
It is the Supreme Court of Canada which must finally decide whether central and provincial laws are valid, must rule in cases of conflict between them, and must guard the constitutional distribution of powers. As such it has a crucial role in the evolution of Canadian federalism and must be and appear to be independent of both orders of government.
Yet at the present time the existence of this highest court in the land is based upon a simple statute of 1875 which Parliament could change at will. Furthermore, its justices are appointed by the central government alone.
While the Supreme Court has in fact displayed a high degree of independence in reaching its judgements, we believe that the time has come to make the public perception of that independence clear by entrenching within a revised constitution the existence and independence of the Supreme Court and indeed of our entire judicial structure. In view of our recommendation, later in this chapter, that fundamental rights be entrenched in the constitution, the importance of ensuring the actual and apparent independence of the courts and particularly the Supreme Court takes on added significance.
1. The jurisdiction of the Supreme Court
The present Supreme Court has very broad authority, exercising appellate jurisdiction in all types of cases both constitutional and non-constitutional and in relation to the interpretation of both central and provincial statutes.
In considering the jurisdiction of the Supreme Court there are then two basic issues. First, should the Court be a specialized constitutional court with jurisdiction limited to cases involving constitutional issues? Second, should the Supreme Court's appellate jurisdiction be limited to cases involving the interpretation of central statutes, with provincial superior courts exercising final appellate jurisdiction in cases relating to the interpretation of provincial statutes? A relevant factor in the consideration of these issues is the dualistic character of the Canadian legal system within which there is a civil law system in Quebec and a common law system in the other nine provinces.
While a specialized constitutional court on the European model, such as that which exists in the Federal Republic of Germany, is a workable approach, we have concluded instead in favour of a Supreme Court with general appellate jurisdiction over cases involving both constitutional and non-constitutional issues because of the inevitable difficulty in many cases of separating constitutional and non-constitutional issues , and the desirability of a court whose judges see the full scope of the law in interpreting cases.
Because references to the Court by a government on a point of law are a useful and expeditious way of having constitutional issues settled, while avoiding lengthy and costly litigations, we have concluded that the Supreme Court retain this jurisdiction, but provincial governments should have the same rights as the central government to refer constitutional matters to the Supreme Court.
Proponents of the view that Supreme Court jurisdiction should be limited to central statutes only have argued that a provincial superior court is better able to interpret provincial statutes because of its greater sensitivity to the needs of the provincial community, and that this is particularly applicable to Quebec with its unique system of civil law. Indeed, many Quebec lawyers have argued that Quebec's civil law should be interpreted by judges trained in a civil law system rather than by a Supreme Court of Canada with only a minority of such judges. It has also been suggested that such an arrangement would reduce the number of Quebec judges on the Supreme Court since it would not need to be able to deal effectively with civil law cases.
We believe, however, that there is an advantage in, having one federal appeal court interpreting all legislation and that it is important for Quebec to participate as fully in all federal institutions as the other provinces. We attach particular importance to the symbolic role of the Supreme Court as a common court of appeal for all of Canada. This will require in our view the structuring of the Supreme Court of Canada in such a way as to recognize fully the duality of the Canadian legal system which it is interpreting as well as the wider political duality within Canada.
To make the Supreme Court, as a general court of appeal, more easily accessible to all Canadians, we propose that a special fund be established for the reimbursement of the travelling costs of the people involved in the cases before it, whenever the Court is of the opinion that the situation warrants it.
2. The composition and structure of the Supreme Court
Assuming that the Supreme Court of Canada would in a revised constitution be given such a broad appellate jurisdiction over cases involving both constitutional and non-constitutional issues and over both central and provincial statutes, including those of Quebec, we propose a slightly enlarged court of eleven judges, five of whom would be chosen from among civil law judges and lawyers, and six from among common law judges and lawyers on a broadly regional basis. To facilitate its operation the Court might be divided into three benches: one of provincial jurisdiction with a Quebec law section composed of the civil law judges and a common law section composed of common law judges; one of federal jurisdiction with a quorum of seven or nine judges; and one of constitutional jurisdiction composed of the full court.
We have proposed this near-equality of representation and internal structure of benches both because of the two basic legal systems within Canada and because of the wider political duality within Canada. We attach great importance to the crucial need to have Quebec look upon the Supreme Court as a bastion for the protection of that province's responsibilities for a distinct heritage. If we are to accept the element of dualism within Canada, this is one place in our constitutional structure to give it fundamental recognition. We have emphasized throughout our report the need to give expression within a restructured federalism to the elements of duality and regionalism; our proposals for the Council of Federation provide a particular vehicle for the latter against which we balance an emphasis in the direction of duality within the Supreme Court.
3. The appointment of Supreme Court judges
To ensure the visible independence of the Supreme Court of Canada as an impartial umpire in the federal system, we would recommend a change from the existing system of appointments to the Court by the governor general on the unilateral recommendation of the central cabinet. We would recommend that the central government before making nominations be required to consult the Quebec attorney general about the choice of civil law judges and the attorneys general of all the other provinces with respect to the choice of common law judges. To ensure that effective prior consultation has taken place we would recommend that all appointments to the Supreme Court be ratified by the appropriate committee of the Council of the Federation which we have proposed.
In the case of the appointment of the chief justice, we suggest that he be chosen from among the members of the Court. Since his original appointment as a judge will have already required the provincial consultation process, we do not believe a repetition of such consultation would be necessary. Appointment, therefore, would be by governor in council for a non-renewable term and the post should be held in alternation by a common law judge and a civil law judge. The provision that appointment as chief justice be non-renewable would ensure a regular alternation and a sharing of duties.
As a further assurance of the independence of the Supreme Court, we suggest that the constitution specify that removal from office be only by the governor in council following a joint address from both houses of Parliament.
4. Appointment of provincial higher court judges
The current practice under section 96 of the BNA Act whereby judges to higher provincial courts are appointed by the governor general on the advice of the central cabinet is a questionable remnant of federal centralization. We suggest that consideration be given to a procedure whereby all provincial judges would be appointed by the provincial governments, but in the case of higher court judges only after consultation with the central government, since they interpret central laws as well. Federal Court judges would, of course, continue to be appointed by the central government.
Constitutional Change and adaptation
The need over time for amendments in the institutional structure of government to meet changing social, economic and political conditions arises in all political systems. It is, however, of particular significance in federal systems because of the impact of changes upon the relative powers of the central and provincial governments.
1. The balance between constitutional flexibility and rigidity
Within a federal system there are inevitably conflicting demands for flexibility and rigidity. On the one hand, the constitution must be made adaptable to changing needs and circumstances. On the other hand, the very regionalism which makes a federal system necessary encourages the demand for an amendment process sufficiently rigid for the provincial governments to feel secure about the functions assigned to them. Given the dualism and regionalism which a revised Canadian constitution would be intended to preserve, it will be important to ensure that the amendment and adaptation of the constitution should be neither so difficult as to produce frustration nor so easy as to weaken seriously the safeguards the constitution provides.
Furthermore, if neither order of government is to be placed in a subordinate position to the other, then the ultimate control of amendment over those aspects of the constitution affecting both central and provincial governments cannot be left to unilateral action by one order but must require a process involving both orders of government.
Formal constitutional amendment is not, of course, the only method of altering the federal framework. Judicial review, customs and conventions, and federal-provincial agreements are important means of change through which the constitution can evolve. Indeed, Canada throughout its history has relied heavily on these other means of adaptation.
2. Formal constitutional amendment
Provincial legislatures have been able to amend their own constitutions, except for the office of lieutenant governor, since 1867, and Parliament has been able since 1949 to amend unilaterally those portions of the BNA Act which concern only Parliament and do not concern the provinces. But although since 1927 a series of major federal-provincial conferences have sought to reach agreement on an amending formula for those portions of the constitution concerning both the central and provincial governments, as yet no agreement has been reached. We believe that it is important to contain within a revised federal constitution an amendment formula for those matters of joint concern to both orders of government, and that such a formula should attempt to strike a balance between the need for both flexibility and rigidity. Furthermore, we believe that the amendment procedure should be exclusively Canadian and not require enactment elsewhere.
There are two distinct elements in an amendment formula: a definition of the subject matters that will require both a central and a regional consensus; and the definition of that consensus itself.
With respect to the first, we suggest that the following parts of the constitution require a special amendment procedure involving both orders of government: the distribution of legislative powers, the basic features of both houses of Parliament, the existence and composition of the Supreme Court of Canada and the method of appointment and removal of its judges, the offices of governor general and lieutenant governor, a list of fundamental rights and liberties, the designation of official languages and related linguistic rights, and the constitutional amendment formula itself.
With respect to the definition of the consensus, various proposals have been made over the years. All would involve approval by both houses of Parliament, but the proposals vary according to whether ratification would be by provincial legislatures or governments or by a referendum process, and also in terms of the extent of provincial or regional approval to be required.
Among the best-known proposals for ratification by provincial legislatures or governments are the Fulton-Favreau formula of 1964 which in some areas would have required the consent of each province; and the Victoria Charter formula of 1971 which would have required approval by a majority of the provincial legislatures including among them provinces having more than 25 per cent of the population (Ontario and Quebec at this time), two of the four Atlantic provinces and two of the four western provinces (provided they made up together half of the population of that region). More recently the Committee on the Constitution of the Canadian Bar Association has proposed a modified version of the Victoria formula whereby in the western region approval would be required by at least two of the four western provinces including at least one of Alberta or British Columbia. The governments of Alberta and British Columbia have both requested that their provinces be given a right to a veto over constitutional amendments.
We are concerned that all these proposals would introduce a very high degree of rigidity, making subsequent agreement on constitutional amendments difficult to achieve. At the same time we recognize that the need to reassure the major regions and the larger provinces that their distinctive interests will not be overridden makes some such formula necessary if ratification is to be by provincial legislatures.
We have also considered the possibility of a referendum process for the ratification of constitutional amendments, a procedure which is followed in both the Swiss and Australian federations. But the provincial governments, through their membership in the new second chamber which we have proposed, will have direct participation in the approval of constitutional amendments and even the right to initiate them. We have concluded, therefore, that a ratification process involving a mandatory referendum would be more appropriate than ratification by provincial legislatures. Such a proposal has the further advantage of involving citizens at large in a matter as important as constitutional amendment.
Our proposal for the approval of constitutional amendments of concern to both orders of government then would be passage in the House of Commons and in the Council of the Federation, in each case by a simple majority of votes, plus ratification by a Canada-wide referendum with a majority vote in favour in each of four regions consisting of the Atlantic provinces, Quebec, Ontario, and the western provinces. We have given some consideration to the question whether for this purpose British Columbia should be considered as a fifth region, but on balance have concluded that, because of the relative size of its population, its interests would be safeguarded by the proportion of its votes within a region of four western provinces.
3. Delegation of powers
While various forms of delegation of administrative powers between the central and provincial governments are permitted, the courts have held that the BNA Act does not authorize the delegation of legislative powers from one order of government to the other. Generally, with the notable exception of the Fulton-Favreau proposals, there has been a reluctance to envisage the delegation of legislative powers. We are of the view that this reluctance is based upon exaggerated fears that massive delegation would occur, upsetting the constitutional balance, and that a provision enabling the delegation of legislative powers, provided it were accompanied by appropriate safeguards, would be a useful device not only to achieve greater flexibility but to enable the distinctive requirements of various provinces (in particular Quebec) to be met without having to apply those arrangements to all provinces.
We therefore propose that a new constitution recognize the right of the central and provincial governments to delegate to each other, by mutual consent, any legislative powers on condition that such delegations be subject to periodic revision and be accompanied where appropriate by fiscal compensation.
Electoral reform and the House of Commons
The effective and harmonious operation of any federal system depends very much upon the degree to which the central institutions are considered in their operation to be fully -representative of the major groups within the federation.
Our research of experience in other federations indicates that when party membership in the central parliament becomes concentrated in regional blocks it is an advance signal of eventual disintegration. The regional polarization of federal political parties corrodes federal unity. Because we see developing signs of such a situation in Canada we have come to the conclusion that electoral reform is urgent and of a very high priority.
The simple fact is that our elections produce a distorted image of the country, making provinces appear more unanimous in their support of one federal party or another than they really are. Quebec, for instance, has for years given an overwhelming proportion of its Commons seats to Liberals: in the 1974 Federal election, the party won 81 per cent of the seats though it got only 54 per cent of the popular vote. In the same election the Progressive Conservatives gained the second highest popular support while, , with less total support across the province, the Social Credit Party won four times as many seats. In the elections of 1972 and 1974 two Alberta voters out of five favoured other parties but every elected member was a Progressive Conservative. Nor are these examples exceptional. Under our current electoral system, which gives the leading party in popular votes a disproportionate share of parliamentary seats in a province, the regional concentration in the representation of political parties is sharply accentuated. This makes it more difficult for a party's representation in the House of Commons to be broadly representative of all the major regions.
In a country as diverse as Canada, this sort of situation leads to a sense of alienation and exclusion from power. Westerners in particular increasingly resent a disproportionate number of Quebec members in a Liberal caucus which has very few of their own. If there were more Quebec members in the Progressive Conservative caucus representing more accurately the popular vote in that province, that caucus would be in a better position to reflect and understand the concerns of Quebecers.
1. Toward better electoral representation
To correct the existing situation with its corrosive effect on Canadian unity, we propose a major change in the electoral system. We would continue the current simple-majority single-member constituency system because of the direct links it establishes between the voter and his MP, but would add to it a degree of proportional representation. We would increase the overall number of Commons seats by about 60 and these additional seats would be awarded to candidates from ranked lists announced by the parties before the election, seats being awarded to parties on the basis of percentages of the popular vote. We have opted for these additional seats being assigned to those on party lists announced before an election rather than to candidates who have run and placed second in individual constituencies in order to avoid any connotation that these additional members are second-class representatives and to encourage parties to use this means to attract candidates who might otherwise be difficult to entice into politics.
We have examined in some detail various ways in which this could be done, although we would prefer to leave the final choice in this matter to Parliament in consultation with experts. One method would base the allocation of the 60 seats on the basis of the vote in each province won by a party, the additional seats being awarded to those parties which otherwise would be proportionately under-represented. Another method would be to allocate the 60 seats on the percentage of the country-wide vote received by each party and apply what is known as the d'Hondt formula for allocating seats provincially among parties.
The procedure for allocating seats in the second method is more complex and difficult for electors to understand, but reduces the likelihood of minority governments resulting. Canadians have traditionally expressed a fear that a system of proportional representation would produce frequent minority governments and hence weak and unstable cabinets. An analysis of how our proposal might have worked in each federal election since 1945 suggests that the combined electoral system we are proposing, with about 280 single-member constituencies plus 60 additional seats to make representation more proportionate, would not only have produced a more broadly based representation within each party in the Commons but would not have significantly increased the incidence of minority governments over that period.
2. Enhancing the effectiveness of the House of Commons
The enlargement of the House of Commons' membership which we have proposed would also open the way for committees to probe more deeply into government legislation. Hitherto, a major obstacle to strengthening the committee system in the Commons has been that members of Parliament have too little time and too little experience to take committee work seriously. Committee work is interrupted by regular sittings, and by constituency problems which require, rightly, a great deal of attention. The additional members without constituency responsibilities would provide additional manpower for House committees.
There are two basic reasons why we believe this would be an appropriate time to strengthen the committee structure of the House of Commons. The first is that the accountability of the cabinet to the House would be strengthened, at a time when many critics see the cabinet as becoming too dominant in the affairs of the House. The second is that the committees would be enabled to perform the useful roles previously played by the Senate in critically reviewing and improving legislation and in conducting investigatory studies, since the new second chamber we are proposing will be less suited to these particular tasks (although better suited to perform others).
We would hope that the improved representativeness of the political parties in the House of Commons and the enhancement of the effectiveness of that House would contribute to Canadian unity by reducing the sense of alienation and powerlessness which many Canadians feel toward their central institutions.
Individual and collective rights
There have been enough episodes in recent Canadian history to make us believe that some basic rights should be protected by the constitution. The removal and internment during the Second World War of British Columbia's population of Japanese origin, many of them natives and citizens of Canada, the October 1970 crisis in Quebec, and the recently revealed illegal activities of our security forces, not to mention the general pervasive growth in the power of governments, lead to doubts in many minds about the security of citizens' rights. There is a vital link between the protection of basic rights and Canadian unity, for only if Canadians feel individually and collectively confident of their rights can we expect them to display a positive attitude to change and accommodation.
The question of human rights in Canada has been extensively explored by such organizations as the Canadian Bar Association, the Joint Committee of Parliament reviewing the Constitutional Amendment Bill (1978), and a number of provincial reports. The Task Force's main concern, therefore, has been to examine the issue of the protection of rights in a general rather than a detailed way in relation to the context of major constitutional reform.
Rights may be grouped into three relatively distinct categories. One category covers individual rights which are almost universally considered fundamental by free peoples everywhere: political liberties such as the right to free speech and association, legal rights such as the right to security and to a fair hearing, egalitarian liberties such as the right to non-discrimination, and economic liberties such as the right to property and the right to employment. A second category embraces rights people have as individuals only because they belong to a particular group, an example being the school rights specified in the BNA Act for confessional groups. They are collective rights in the sense that for the individual to exercise them meaningfully the context of the group is necessary. A third category covers collective rights which only a group and not individuals can exercise, an example being the right of a union to bargain.
The importance of collective rights, particularly language rights, was often invoked in our hearings, not only as a way of safeguarding within Quebec its way of life, but also by French-speaking Canadians outside Quebec, by the English-speaking minority in Quebec, and by native and ethnic groups.
In the final analysis, the best protection for any right is an alert public opinion and a responsive democratic government. There are basically five forms of protection for rights: (1) the precedents affirmed by the common law as declared by the courts; (2) simple acts or statutes passed by our legislatures; (3) a charter of human rights collected in a single statute (of which the Canadian Bill of Rights of 1960 is an example); (4) embodiment in a portion of the constitution so that all government legislation must take them into account; and (5) embodiment in a portion of the constitution which is entrenched-that is, requires a special approval procedure for any change.
1. The Issue of constitutional entrenchment
Many who spoke to the Task Force on the subject of fundamental rights were firmly convinced that the time has come for a number of basic rights to be entrenched in the constitution.
Because entrenchment in the constitution would place in the hands of the courts the authority to declare laws in conflict with those rights inoperative or invalid, some have argued that entrenchment would undermine the tradition of parliamentary supremacy in Canada, and substitute for it judicial supremacy.
Against this view must be put what we saw and heard across the country: the growing concern of individuals at the pervasive impact of government on their lives, the energetic assertions of native peoples and ethnic groups, and the desire of Québécois for collective security and for assurances that the individual rights of French-speaking Canadians will be respected as much as those of English-speaking people. Furthermore, entrenchment would perform an educational and inspirational function by making Canadians more aware and more proud of the wide range of freedoms they do have. Above all, a sense of individual and collective confidence in the security of their rights would contribute to a positive attitude to Canadian unity.
Consequently, on balance, we have concluded that some key individual and collective rights should be entrenched in a new constitution. Indeed, it is in part because we do propose that some rights be entrenched, and because judicial decisions in constitutional matters are so important, that we have recommended changes to ensure the independence of the Supreme Court of Canada and to make it credible to all Canadians including those in Quebec.
2. What to entrench in the constitution
In considering what to entrench in the constitution there are two aspects to consider. The first is to what extent the entrenched constitutional rights should apply to both central and provincial legislation, and the second is what specific rights should be so entrenched.
The existing Canadian Bill of Rights (1960) applies only to the legislation of Parliament, and the Bills of Rights passed by such provincial legislatures as Saskatchewan (1947) and Quebec (1975) can, of course, apply only to provincial legislation. But when fundamental rights are embodied in a federal constitution it is normal that they apply to both central and provincial legislation. In a federation it is reasonable to expect that fundamental individual rights should be similar in all parts of the country. It could not be imagined, for example, that a Canadian citizen might enjoy freedom of speech in Newfoundland but not in British Columbia. Nor would Canadians tolerate equal opportunities for women in Manitoba but not in Ontario. Fundamental rights should therefore be embodied in the constitution in a way that assures the same basic guarantees to all citizens of the land.
But because of the difficulty of getting the central and provincial governments to agree, one of three possible strategies is required to determine what fundamental rights applying to both federal and provincial legislatures should be embodied in the constitution. The first is that suggested in the Constitutional Amendment Bill (1978) by which the fundamental rights specified in the constitution would at first apply only to central legislation, and subsequently in provinces as they individually opt in by adopting those provisions as a set. Only after all the provinces had opted in would that portion of the constitution be entrenched.
A second approach, intended to encourage early agreement by all the provinces to a set of rights entrenched in the constitution, is to weaken the force of those rights by qualifying them. This would involve including a clause in the constitution which would permit a legislature to circumvent a right (and incurring the odium of doing so), by expressly excepting the statute from respecting that right. Such a clause in a constitution is sometimes described as an exculpatory clause.
The third approach is simply to limit the set of entrenched rights applying to both orders of government to those on which both central and provincial governments can agree now, adding other rights later when agreement is reached.
Each of these approaches has its advantages and disadvantages. We would strongly favour the third approach wherever agreement can be readily reached. This might be supplemented if necessary by use of the second approach, for any additional rights on which a federal-provincial consensus on entrenchment in the constitution would be precluded unless there was included such a provision enabling specific circumventing of the right within a statute.
As to the actual rights to be entrenched we suggest that the Bill of Rights entrenched in the constitution should contain individual political, legal, economic and egalitarian rights, including those suggested in chapters 5 and 9 of this report.
On the question of language rights, we believe those rights listed in chapters 5 and 9 of this report should also be entrenched. Similarly, the unanimous agreement in principle by the premiers at their Montreal meeting in 1978 concerning the entitlement of each child of a French or English-speaking minority to education in his or her own language in each province wherever numbers warrant should also be entrenched in the constitution.
Finally, in the form of collective rights for the native peoples, there should be entrenched in the constitution a section enabling Parliament and the provincial legislatures to adopt special measures to benefit individual native people.
The integrated approach to a restructured federalism
Our scheme for a restructured federation represents a radical modification to the existing federal system, but we believe that these major changes are necessary if a sense of Canadian unity is to be maintained and developed in the years ahead. Our recommendations concerning the distribution of powers, the conduct of federal-provincial relations and the Council of the Federation, the Supreme Court of Canada, means of constitutional adaptation and change, the electoral system and the House of Commons, and entrenched fundamental rights represent an integrated set of proposals linked to each other in such a way that the modifications suggested in one section are related to those suggested in another.
We would hope that this set of proposals for constitutional and political reform would encourage and induce more harmonious relationships within the Canadian federation. No constitutional or political solution will solve all problems for all time; like the preservation of liberty, unity within a political framework of divided power requires continued effort. Nevertheless, it is our conviction that the continued unity of Canada requires a substantially restructured federalism that fully recognizes the dualistic and regional character of diversity within the country and provides a focus for all Canadians in an effective common government which facilitates the sharing of power and benefits among them.
William F. Maton