Published by the Government of Canada
Honourable Jean Chretien
Minister of Justice of Canada
As discussion continues in Canada of the request for enactment by the United Kingdom Parliament of the proposed Canada Act and its Schedule, the Constitution Act, 1981, there is growing interest in the Parliament of Canada and among Canadians concerning the role of the United Kingdom in relation to our constitution. The recent publication of the Report of the Foreign Affairs Committee of the U.K. House of Commons entitled "British North America Acts: The Role of Parliament", commonly referred to as the "Kershaw Report", has also attracted considerable attention in Canada.
I have therefore had this background paper prepared for the information of members of the Senate and House of Commons of Canada, and for Canadians generally, that they may better appreciate the respective responsibilities in this important process of the Parliaments and Governments of these two sovereign Commonwealth countries.
Honourable Jean Chretien
Minister of Justice of Canada
This is the English version of a document printed in Canada in English and French. The bilingual version is available on request from:
The Canadian High Commission
1 Grosvenor Square
London, WIX OAB
|Patriation and Amendment of Canadian Constitution||1-2|
|Role of the United Kingdom||3-8|
|Summary of Conclusions||9|
|Legal Link with United Kingdom||11-12|
|United Kingdom Role Governed by Convention||13-17|
|Convention Applies Solely to Federal Requests||18|
|Statute of Westminster Preserved Constitutional Status Quo||19-22|
|The Amendments: Convention Consistently Followed||23-29|
|The Reason for the Convention- Principle of Responsible Government||30|
|The Search for an Amending Formula- 54 Years of Deadlock||31|
|The Need for a Solution||32-35|
|The Proposed Patriation Package||36-45|
|Provincial Opposition Judicially Rejected||46-48|
|Inadequacy of Evidence||51-54|
|The Kershaw Position:||55-56|
|A. Role of British Authorities||57-62|
|B. Constitutionality of Canadian Proposal||63-71|
|C. Circumstances Justifying British Compliance||72-76|
|D. Interference with Canadian Independence||77-80|
1. Canada, now an independent nation, is composed of what were once British colonial territories. Because of these colonial origins, the basic documents of the Constitution of Canada are British statutes, which cannot at present be amended in certain important respects without the co-operation of the Parliament of the United Kingdom. This anachronistic situation is inappropriate to the status of a wholly autonomous member of the world community. It is also inconvenient for the British authorities who are called upon from time to time to provide the legal sanction for Canadian constitutional amendments.
2. For the past 54 years, the Government of Canada and the various provincial governments have attempted unsuccessfully to reach agreement on a legal device that would end this unsatisfactory state of affairs by "patriating" the Constitution, and establishing an ali-Canadian procedure for its future amendment. In view of this prolonged failure, and of the impediment it poses to desired substantive reforms of the Canadian Constitution, the Government of Canada has proposed to the Parliament of Canada a measure to break the deadlock.1 Consisting of a patriation provision and an amending formula, together with certain other reforms that have long been under discussion, the proposed amendment will finally put an end to the need for future British involvement in Canada's constitutional amendment process. To accomplish this goal, however, the co-operation of the United Kingdom Parliament will be required one last time.
3. The role of United Kingdom authorities in these matters is governed by a very important two-part convention:
(a) It is only the Government and Parliament of Canada which may request the Parliament of the United Kingdom to exercise its legal power to amend the Constitution of Canada; and
(b) Whenever such a request is received, it is always complied with.
This is a long-established and invariably honoured convention of British-Canadian relations.
4. Some opponents of the current patriation proposal have asserted that British authorities possess not just legal powers with respect to the amendment of the Canadian Constitution, but also the political discretion to decide how and in what circumstances that power should be exercised. Unfortunately, this mistaken notion has also been adopted recently by the Foreign Affairs Committee of the United Kingdom House of Commons (Kershaw Committee), in advice offered by the Committee to the United Kingdom Parliament concerning the patriation proposal. 2
5. The Kershaw Committee has advised the United Kingdom Parliament that:
(a) "The UK Parliament's fundamental role in these matters is to decide whether or not a request conveys the clearly expressed wishes of Canada as a whole, bearing in mind the federal character of the Canadian constitutional system." 3
(b) "Where a requested amendment or patriation would directly affect the federal structure of Canada, and the opposition of Provincial governments and legislatures is officially represented to the UK Government or Parliament, the UK Parliament is bound to exercise its best judgment in deciding whether the request, in all the circumstances, conveys the clearly expressed wishes of Canada as a federally structured whole." 4
(c) An appropriate level of provincial concurrence that would be required to achieve this would be one which is "commensurate with that required by the least demanding of the formulae for a post-patriation amendment (similarly affecting that federal structure) which have been put forward by the Canadian authorities" 5
(d) Alternatively, "it might well be proper for the UK Parliament to accede" without the concurrence of the provinces to a patriation/amendment request if it were substantially altered from the concurrent proposal in certain respects specified by the Committee.6
6. This advice ignores the convention that United Kingdom authorities do not exercise political discretion with respect to requests from the Government and Parliament of Canada for amendment of the Constitution of Canada. It suggests, moreover, that discretion may be exercised in ways that would require British involvement of a very detailed nature in Canadian constitutional and political affairs - matters with respect to which only Canadian authorities have a governmental mandate from the Canadian electorate. Such an approach would be wholly without precedent in British-Canadian relations.
7. Should the advice of the Kershaw Committee be followed, the consequences would be grave. A Canadian constitutional impasse of already excessive duration would be prolonged indefinitely, Canada's cordial relations with the United Kingdom would be severely strained, and the future course of Commonwealth relationships could be seriously affected.
8. In view of the seriousness of these and other ramifications that could flow from the advice of the Kershaw Committee, it is important that the Government of Canada record its position on these matters, indicate in what respects it believes the Kershaw Report to be in error, and explain the severe problems to which reliance on the advice contained in that report could lead.
9. It may be useful to outline in summary form at this point the major conclusions that are reached in the ensuing commentary:
(a) The Constitution of Canada needs to be patriated, and an all-Canadian procedure established for future constitutional amendments. (Paras. 31-35.)
(b) The patriation amendment package should include certain substantive constitutional improvements, such as a Charter of Rights and Freedoms, the extension of provincial jurisdiction over natural resources, and a commitment to the equalization of economic opportunities throughout Canada. (Paras. 32-44.)
(c) These constitutional reforms, which are the subject of a current proposal by the Government of Canada, have been the subject of extremely lengthy study, consultation and discussion by and among the federal and provincial orders of government in Canada, as well as by many other segments of Canadian society. (Paras. 31 and 40-41.)
(d) Nothing in these proposed amendments would transfer any provincial right or power to the federal order of government. The only way in which they would affect the federal structure of Canada or federal-provincial relationships would be by expanding provincial powers with respect to natural resources, and giving the provinces a legal role in the amendment process for the first time. (Paras. 43-44.)
(e) Because of the peculiar nature of the Canadian Constitution, these proposed amendments require the legal sanction of the Parliament of the United Kingdom. Once enacted, they will put an end to this anachronistic procedure for all future amendments. (Paras. 11-12 and 36.)
(f) There is no constitutional requirement, whether based on convention, the nature of federalism, or any other circumstance, that the concurrence of Canadian provinces must be obtained before the Government and Parliament of Canada seek amendments of the type proposed. (Paras. 63-71.)
(g) There is a long-standing convention to the effect that the legal power of the United Kingdom Parliament to amend the Canadian Constitution is exercised in accordance with the wishes of the Government and Parliament of Canada. This convention has always been honoured by United Kingdom authorities. The convention ensures that Canadians have, in reality, full control of their Constitution. British authorities retain no political responsibility for the Constitution of Canada because they are not answerable to the Canadian electorate. (Paras. 13-17 and 57-62.)
(h) There is nothing in the proposed patriation package that would justify deviation from the convention on this occasion. (Para. 45.)
(i) Failure to respect the convention would place severe strains on British-Canadian and Commonwealth relations. (Paras. 50 and 81-82.)
10. Canada is a totally independent nation in reality, though not in law. It is comprised of former British colonies and territories, of course, and the British North America Act, 1867, 7 which brought the new nation into being, did not entirely end its colonial status. Canada's independence developed rapidly thereafter, however, and was complete, as a matter of practical reality, by the end of the First World War. That fact was formally announced to the world by the Balfour Declaration of 1926, in which representatives of the Government of the United Kingdom joined with those of several Domimon Governments to proclaim that the United Kingdom and the Dominions were "autonomous" and "equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united in a common allegiance to the Crown". 8
11. Canadians take pride in the fact that our Constitution, unlike those of many nations, is entirely lawful in both its origins and its subsequent development. The Constitution of Canada was not the product of armed revolution, as in the case of the United States. It was created instead by legal devolution from the Parliament of the United Kingdom. Since then, every stage in the gro\Vth of the Canadian Constitution has been marked by scrupulous adherence to the rule of law. An unbroken chain of legality extends from the time Canada was a British colony to its present status as a fully autonomous member of the world community.
12. At the time of the Balfour Declaration in 1926, the Parliament and Government of the United Kingdom retained, as a vestige of Canada's former colonial status, very sweeping legal powers over Canada and its Constitution. The Declaration did not change that legal situation; it was a political document that simply gave explicit recognition to the independence the Dominions had already attained in reality, though not in law. To change the legal situation a statute of the United Kingdom Parliament would be required.
13. The apparent paradox of independence in reality, but dependence in law, was resolved by a constitutional device that has been developed to a high degree of refinement under the British constitutional tradition: the restraint of legal power by political usage or convention. Under British and Commonwealth constitutional practice, it is common for an individual or agency of government in whom some legal power has been vested to exercise that power in accordance with the wishes of some other agency that possesses no legal authority in the matter, but enjoys a democratic mandate from the voters affected. Thus, for example, the Queen in the United Kingdom and the Governor-General in Canada have, legally, a final veto power over all proposed legislation of the respective national Parliaments of those countries. This arises from their legal right to grant or refuse Royal Assent. In reality, however, this legal power is exercised on the advice of the Prime Minister and Cabinet of the day. This separation and balancing of legal and democratic authority is the key to the success with which constitutions shaped in the British mold have been able to accommodate the shifting needs of changing times. It is one of the most characteristic and useful features of the British constitutional approach.
14. From the earliest years of Canada's independence, this familiar constitutional technique has been applied consistently in the realm of British-Canadian relations to overcome the apparent contradiction involved where one autonomous nation continues to hold important legal powers over another. A convention developed under which British authorities exercised their remaining legal powers over Canada and Canadian affairs in accordance with the wishes of the Canadian authorities who have the real democratic responsibility for such Canadian affairs: the Government and Parliament of Canada.
15. That this convention was fully applicable to the amendment of the Constitution of Canada long before the Balfour Declaration is well illustrated by the procedures followed in connection with the enactment of the British North America Act, 19159 This statute amended the B.N.A. Act with respect to the number and distribution of Senators, and established a minimum provincial representation in the House of Commons. These matters were of considerable importance to the provinces, and had been the subject of an inconclusive meeting of provincial Premiers. The Government of Canada did not consult the provinces before presenting a resolution proposing the amendment to the Senate and House of Commons. An alteration suggested by the Government of British Columbia was incorporated into the resolution, but an objection by the Government of Prince Edward Island was rejected. The Resolution for a Joint Address to the Crown requesting the amendment was passed by the Senate and House of Commons, despite suggestions in both Houses that the provinces should first be consulted. In the Senate, a motion to that effect was rejected on division. 10 The Parliament of the United Kingdom, paying no heed to the controversy surrounding the request, enacted the amendment in the precise form set out in the draft bill emb0died in the Canadian Joint Address.
16. The 1915 amendment has been cited because, being the last disputed amendment before the Balfour Declaration, it demonstrates that well before Britain's formal acknowledgment of Dominion independence, United Kingdom parliamentarians had adopted an attitude of non-involvement in Canadian political and constitutional affairs, even in a situation in which an amendment requested by federal authorities significantly affected provincial interests, there was public provincial opposition, and some Canadian parliamentarians were calling for provincial consultation. This is by no means an isvlated example. The 1907 amendment, which will be discussed later, 11 offers even earlier evidence of the convention.
17. Indeed, while the convention of British non-intervention in the real governance of other Canadian affairs has not always been as absolute as it was by the time of the Balfour Declaration, it had been evident from the beginning where Important constitutional issues were concerned. As early as 1868, a unanimous Address to the Queen from the Nova Scotia House of Assembly, requesting the removal of that province from Confederation, was rejected by British authorities. A petition to the same effect, signed by 36 of the 38 House of Assembly members and 16 of 19 Nova Scotia members of the Canadian House of Commons, resulted in a motion in the United Kingdom Parliament to send an investigatory commission to Nova Scotia, but tbe motion was defeated by a large majority in both British Houses. 12 The reason for the "determined attitude" of British authorities not to entertain Nova Scotia's request for a change in its constitutional status was what one scholar has described as the view of the British Colonial Secretary "that the province should look to Ottawa for the redressing of her grievances". 13 The Under-Secretary for the Colonies told Parliament that British authorities have "no business to inquire into the local arrangements of the North American Provinces". 14 Every subsequent provincial attempt to secure constitutional amendment from British authorities has met with a similar response. 15
18. It will be noted that it is the federal order of government - the Government and Parliament of Canada - to whose requests the convention applies. Requests and submissions from provincial authorities concerning constitutional amendments have been consistently declined. The reason for this is clear: in relations with the rest of the world, Canada's sole official representative is its national government. As the Government of Prince Edward Island acknowledged in its brief to the Kershaw Committee:
.. The federal government is the paramount of the two levels of government of Canada and, to a large extent, the embodiment of the nation, particularly beyond the boundaries of Canada." 16
19. Although acceptance of this convention avoided the worst disadvantages of continuing British legal authority over an independent Canada, it was nevertheless thought desirable to make the law correspond to the reality as soon as possible. A series of conferences was accordingly held for this purpose. The result was the Statute of Westminster, 1931 18
20. In Canada's case, however, it proved impossible to terminate British legal authority over Canada altogether at that time. Unlike the other Dominions, Canada did not possess an internal procedure for the amendment of its own Constitution. The only way in which most aspects of the British North America Acts could be amended was by statute of the United Kingdom Parliament. Although discussions had been held between federal and provincial governments in 1927 with a view to devising a satisfactory Canadian amending formula, no agreement had yet been reached. All parties to these discussions had acknowledged that any permanent amending formula should involve some element of provincial consultation and/or consent, but they could not agree as to the appropriate degree of provincial involvement. Provincial spokesmen were concerned that, if the Statute of Westminster transferred all legal powers to Canada in constitutional matters before agreement was reached on an amending formula with a suitable provincial role, the past practice of unilateral amendment requests by the federal order of government might be converted from a convention to a legally binding statutory stipulation. This, they feared, might foreclose the possibility of developing a future amending formula that included a satisfac- tory element of provincial consultation and consent. As a result, section 7 was drafted to exempt the amendment of the B.N.A. Acts from the ambit of the Statute of Westminster for the time being. 19 This exemption left unaltered the convention of unilateral federal requests for amendments and of British compliance with such requests. As the Kershaw Report has said, its effect was "simply to maintain the status quo in relation to constitutional amendments". 20
21. As explained above, the "status quo" concerning constitutional amend- ments that section 7(1) of the Statute of Westminster preserved was a situation in which British authorities did not exercise any political responsi- bility, but merely employed the legal powers entrusted to them in the manner requested l,y the Government and Parliament of Canada, without enquiring into the circumstances leading to the request. Viscount Bennett, who was Prime Minister of Canada when the Statute of Westminster was passed, and who later served in the House of Lords, told that House in 1946 (in connection with an amendment that Quebec opposed) that the practice was so well established as to bestow, in reality, the amending power on the federal order of government:
"They cannot amend it directly, but they do it indirectly, becau<;e we have agreed that we will consent to pass any legislation that they may petition to have passed by this Parliament." 21
22. Insofar as provincial involvement in the amendment process was concerned, the status quo was one in which provinces were sometimes consulted about amendments and sometimes not. The final decision as to whether a request for amendment should be made remained in federal hands, and requests were sometimes made in spite of provincial objections.
23. That the status quo before 1931 was as it has been described above, and that it remained unaltered thereafter, is thoroughly documented by the history of Canadian constitutional amendments since 1867. The Parliament of the United Kingdom has enacted legislation amending or affecting the B.N.A. Acts on 21 occasions. Twelve of these amendments were passed up to (and including) the Statute of Westminster, 1931, and nine have been enacted since then. In every case the request has come from the federal order of government, always (with two early and inconsequential exceptions) 22 in the form of a Joint Address to the Crown from the Senate and House of Commons. Every request has been granted (apart from occasional technically-based alterations in drafting) in the form requested. Several of these amendments have affected provincial interests significantly, and some such amendments have been requested without provincial consultation or consent. Indeed, on a few notable occasions such requests have been made in the face of public opposition by one or more provinces. Yet the Government and Parliament of the United Kingdom have never concerned themselves about the existence or extent of provincial consultation or consent.
24. The practice of British non-involvement in the merits of Canadian constitutional amendments has been frequently and uniformly confirmed in public statements by British Ministers of the Crown and senior parliamen- tarians over a period of many years. Some examples include the following:
- July 10, 1940 - United Kingdom, House of Commons Debates, pp. 1177-81 (Re B.N.A. Act, 1940):
"The Solicitor-General (Sir William Jowitt) I beg to move, 'That the Bill be now read a Second time.' ....
This House will remember that the Statute of Westminster, which gave legal recognition to the fact that the Dominion of Canada had already obtained full sovereignty in its own affairs, expressly preserved the powers of the British North America Act. Therefore, as a matter of mere legal machinery, it is still necessary, until some better method is evolved for amendment of the British North America Act, for the extension of the Canadian powers to be passed by this Parliament. But our Parliament, in passing such legislation, is merely carrying out the wishes of the Dominion Parliament, and in that way the legal position is made to square with the constitutional position. Hence Members will see that the Preamble to this Bill recites the fact that:
'the Senate and Commons of Canada in Parliament assembled have submitted an Address to His Majesty praying that His Majesty may graciously be pleased to cause a Bill to be laid before the Parliament of the United Kingdom.'
In accordance with these provisions we are therefore carrying out the wishes of the Canadian Parliament in passing this piece of legislation. Nothing further need be said, I think, by way of explanation ....
My justification to the House for this Bill- and it is important to observe this- is not on the merits of the proposal, which is a matter for the Canadian Parliament; if we were to embark upon that, we might trespass on what I conceive to be their constitutional position. The sole justification for this enactment is that we are doing in this way what the Parliament of Canada desires to do ....
I do not know what the view of the Provincial Parliaments is. I know, however, that when the matter was before the Privy Council some of the Provincial Parliaments supported the Dominion Parliament. It is sufficient justification for the Bill that we are morally bound to act on the ground that we have here the request of the Dominion Parliament and that we must operate the old machinery which has been left over at their request in accordance with their wishes."
- July 22, 1943 - United Kingdom, House of Commons Debates, pp. 1100-1102 (Re B.N.A. Act, 1943):
"The Secretary of State for Dominion Affairs (Mr. Attlee): I beg to move, 'That the Bill be now read a Second time.' ....
(T)he procedure ... for amending the British North America Act remains as it was before the Statute of Westminster. This procedure has for many years been followed on the basis of an Address presented to the King by both Houses of the Canadian Parliament, and that is what has been done on this occasion. I understand that the address was carried in both Houses by very large majorities. The Clauses of the Bill follow substantially the terms of the Address passed in the Canadian Parliament, and the Recital corresponds closely with that adopted on the last occasion on which similar legislation was passed here ....
I have no information as to any Province objecting, but, in any case, the matter is brought before us by an Address voted by both Houses of Parliament, and it is difficult for us to look behind that fact."
- December 2, 1949 - United Kingdom, House of Commons Debates, pp. 1458-1459 (Re B.N.A. Act, 1949 No. 2):
"The Secretary of State for Commonwealth Relations (Mr. Philip Noel-Baker): I beg to move, 'That the Bill be now read a Second time.' ....
The Bill is cast in the terms of the Address adopted by the Federal Parliament of Canada, and, of course, we are all ready to do what they desire. In moving his Resolution about the Address to His Majesty, the Canadian Prime Minister said that it dealt with the attributes of Canada as an adult sovereign State among the States of the world."
- May 30, 1951 - United Kingdom, House of Commons Debates, p. 225 (Re B.N.A. Act, 1951):
"The Secretary of State for Commonwealth Relations (Mr. Gordon-Walker): I beg to move, 'That the Bill be now read a Second time.'
This is really a Canadian Bill, or rather a Canadian Act, because it has been passed by both Houses of the Canadian Parliament, and it comes before us as a matter of constitutional convenience. It would therefore be quite improper for me to go into the merits of the Bill on either side .... "
- November 11, 1960 - United Kingdom, House of Commons Debates, pp. 1369-1370 (Re B.N.A. Act, 1960):
"The Minister of State for Commonwealth Relations (Mr. C. J. M . Alport): I beg to move, 'That the Bill be now read a Second time.' ....
We are therefore to all intents and purposes acting in what is a formal capacity for the Canadian Parliament in a matter which is solely its concern. In accordance with long established precedent, we refrain from discussing the merits of a Bill submitted to us amending the British North America Acts when this has been introduced in consequence of Addresses to Her Majesty adopted by both Houses of the Canadian Parliament."
- July 25, 1979 - United Kingdom, House of Lords Debates, p. 2007:
"Lord Trefgarne (Government Whip): ....
The Statute of Westminster reserves to the United Kingdom Parliament a purely technical role in relation to the British North America Act.
I must, therefore, emphasise again to the House that the United Kingdom Parliament's power over the Canadian Constitution is strictly ltmited. If Parliament were, in spite of constitutional precedent, to decline to act on a request from the Canadian Government, we would lay ourselves open to charges of interference in Canadian domestic politics. Even to query whether there was internal support in Canada for a request to patriate the constitution would be tantamount to questioning the authority of the Canadian Parliament or Government to make it. Further, for the United Ki'lgdom Parliament to purport to legislate otherwise than at the request and with the consent of the Canadian Govern- ment would conflict with the agreements reached with the Domin- ions at the Imp~rial Conference of 1930 and the Statute of Westminster of 1931, to which I have already referred. The Federal Government is the sole representative of Canada in international relations. We cannot be the arbiters of the correct balance of the case presented to us: this must be the sole responsibility of the Canadian Government."
25. The frequency and consistency of such public statements by repre- sentatives of the British Government (always without dissent from any quarter) prompted one witness before the Kershaw Committee tc admit that, although he disagreed with the view they express, it has become "an article of faith". 23
26. Appendix A contains a summary of the fourteen most important amendments to the Canadian Constitution that have been enacted since 1867, indicating the extent to which they have affected provincial interests and the extent, if any, of provincial consultation, consent or disagreement. (None of the other seven amendments had any significant effect on provincial interests.) It is submitted that the survey in Appendix A fully confirms the observations made above. All fourteen amendments described had significant effects on the rights, powers or interests of the provinces. While some of these were of relatively minor importance, others had, or were perceived to have, serious impact on provincial interests, or on federal-provincial relationships. Of the fourteen amendments, nine were requested and enacted without provincial consent, and a tenth (1960) had only partial consent. Only four were fully agreed to by the provinces. Even more significant is the fact that six amendments (1907, 1915, 1943, 1946, 1949 No. 1, 1949 No. 2) were requested and enacted in the face of opposition by one or more provinces. Most important of all, the United Kingdom Parliament did not hesitate on any of these occasions, even when strong provincial opposition was known, to pass the amendment requested by the Government or Parliament of Canada.
27. Insofar as both the actual or apprehended impact on provincial interests and the extent of provincial opposition are concerned, the most striking of the amendments were probably the two enacted in 1949. These will be discussed next.
28. The B.N.A. Act, 1949, No. 1 24 added Canada's tenth province, Newfoundland, to Confederation. This significantly affected the interests of the other nine provinces in a variety of ways, such as by reducing theit proportionate representation in the Senate and the House of Commons, and by increasing claims on federal subsidies and services. Quebec was especially affected, in that its disputed boundary with Labrador was confirmed by the Act.25 Yet neither Quebec nor any of the other existing provinces was consulted about the matter. The Premiers of two provinces, Quebec and Nova Scotia, stated publicly that the provinces should have been consulted. 26 But the United Kingdom Parliament passed the amendment without regard to the absence of provincial involvement in the process.
29. The B.N.A. Act, 1949, No. 2 27 bestowed on the Parliament of Canada the power to amend the "Constitution of Canada" in certain respects. 28 While the ambit of this amendment has subsequently been held to extend only to matters of exclusive concern to the federal order of government, 29 the governments of several provinces were very concerned at the time that the new federal power might permit the Parliament of Canada to encroach on matters of provincial competence. Correspondence between the Prime Minister and the provincial Premiers, tabled in the Canadian House of Commons, gave public notice of substantial provincial dissent to a unilateral federal amendment request on the matter. Quebec and Alberta "outspokenly" demanded provincial consultation. 30 Ontario doubted "the advisability of dealing with the matter piecemeal without first attempting general agreement", and Nova Scotia expressed the same view.31 Manitnba declined to agree without a more careful examination of the implications for the "provincial position". 32 In light of this widespread provincial dissent, the Opposition introduced a motion in the Canadian House of Commons to delay the amendment request until after a federal-provincial conference on constitutional amendment, but the motion was defeated, and the proposed Joint Address was passed and dispatched to Westminster. The requested amendment was enacted by the United Kingdom Parliament promptly and without question. 33
30. It is important to understand that this history of invariable respect for the convention of British non-involvement in Canadian constitutional affairs is no mere question of protocol. The convention is rooted in one of the most fundamental notions of the British constitutional heritage: the principle of responsible government. Democratic systems like those of the United Kingdom and Canada place political decision-making in the hands of those who are responsible through the ballot box to the persons who will ultimately be affected by the decisions in question. The governmental authorities of the United Kingdom have no Canadian electorate to answer to; the Government and Parliament of Canada do. The Parliament of Canada represents every region of Canada, and is fully responsible for its actions to those with whom the ultimate political judgment must always rest in democracies: the voters of the nation.
The reason that British authorities have always respected the wishes of the Government and Parliament of Canada with regard to the amendment of the Constitution of Canada is that to do otherwise would be to deny the principle of responsible government.
31. Since 1927, discussions have been held intermittently between federal and provincial authorities in Canada with a view to agreeing upon an all-Canadian amending formula that would permit this last vestige of British legal authority over Canadian affairs to be terminated. These discussions continued until the summer of 1980. Patriation and an amending formula have been the subject of ten major federal-provincial processes of consultation - in 1927, 1931, 1935-36, 1950, 1960-61, 1964, 1967-71, 1975-76, 1978-79 and 1980. These subjects have been discussed by federal and provincial governments in thirteen first ministers' conferences, seventeen ministerial conferences, and countless meetings of officials. These efforts span the ministries of six Canadian Prime Ministers (two Conservative and four Liberal), and some dozens of provincial first ministers. There appeared to be agreement to the "Fulton-Favreau Formula" in 1965, but the Quebec Government changed its mind at the last moment. There was unanimous tentative agreement in 1971 to what has become known as the "Victoria Formula", but final acceptance was frustrated by failure to reach agreement on other aspects of the constitutional amendment "package" of which it formed a part. Appendix B describes this unsuccessful search more fully.
32. The failure of the Victoria Conference in 1971 frustrated more than the search for a satisfactory future amending formula. It also brought to an unsuccessful conclusion several years' efforts to reach agreement on the reform of various substantive aspects of the Canadian Constitution. Lengthy aiscussions had been underway, for example, concerning the enactment of a constitutionally entrenched Charter of Rights and Freedoms. Methods were being sougiJt to express the commitment of all governments to the goal of reducing regional disparities and promoting equality of opportunity for all Canadians. Proposals had also been under study for a number of possible changes in the distribution of legislative powers between the federal and provincial orders of government. All these negotiations came to an end. Although several attempts to reach agreement on these and other matters have subsequently been made, none has succeeded. Items as important and diverse as ownership and management of natural resources, jurisdiction over electronic communications, and responsibility for family law, have been added to the list of constitutional issues that have been discussed and require resolution. And the list continues to grow. Appendix C contains a description of the substantive constitutional reforms discussed between 1967 and 1980.
33. It is also striking, in reviewing the past attempts to find agreement on an amending formula or on substantive changes, that no combination of items or ordering of priorities has brought success. In the first six attempts at constitutional reform described in Appendix B, covering the years 1927 to 1966, agreement was unsuccessfully sought on patriation and an amending process alone. Substantially the same option was proposed by the Prime Minister of Canada in 1976 in the eight attempt, and the Premiers of the provinces concluded that this would not be acceptable witltout other changes being adopted at the same time. On the other hand, the seventh (1967-71), ninth (1978-79) and tenth (1980) attempts involved discussion of far-reaching substantive changes, and this approach also failed to bring about agreement.
34. This prolonged failure to achieve even minor constitutional reforms by the consultative process has played into the hands of those who seek much more radical constitutional changes. This was dramatically illustrated in 1976 by the decision of Quebec voters to elect a provincial government dedicated to removing Quebec from Confederation. While it is true that those same voters rejected the "sovereignty-association" option in 1980, it is probable that their decision was based, in part, on assurances made by federalist speakers (including most provincial premiers) during the referendum campaign. Those assurances were to the effect that substantive reforms to the present Canadian Constitution, which would ensure that Confederation remains an attractive permanent option for the people of Quebec, are attainable. Yet the September 1980 First Ministers' Conference on Constitutional Reform, convened after the referendum and after a summer of intensive federal-provincial consultation, ended, once more, in failure.
35. The efforts to reach agreement at the September 1980 conference were genuine and energetic on all sides. All eleven First Ministers had agreed to a list of twelve items for negotiation. Some had been proposed by the federal government and others by various provincial governments. In the negotiations that ensued, some Premiers accepted some of the Prime Minister's proposals, the Prime Minister accepted some of the Premiers' proposals, some Premiers accepted some proposals of other Premiers, some Premiers rejected the proposals of other Premiers, and some Premiers rejected some proposals of the Prime Minister. When a summary of the positions of all First Ministers on each of the twelve items was made, it became clear that there was not unanimous consent on any of the twelve items, but the reasons for this lack of consensus were many and varied, and blame for the failure to reach consensus cannot be assigned to anyone. The fault lay with the process; the meeting demonstrated once more that progress on substantive constitutional reform cannot be expected until an all-Canadian amendment procedure is in place.
36. Following the failure of the 1980 constitutional conf0rence the Government of Canada proposed a measure to break the impasse. The Parliament of the United Kingdom would be requested to exercise its legal power of amendent one final time, by terminating its authority over the Constitution of Canada, establishing an all-Canadian amendment formula, and providing for two substantive matters on which there is wide agreement among Canadians: the entrenchment of a Charter of Rights and Freedoms, and the recogmtion of a commitment to reduce regional disparities and equalize opportunities for all Canadians.
37. The amending formula proposed was based, with modifications, on the Victoria Formula (on which there was unanimous provincial consent in 1971), together with a procedure for substituting a more satisfactory formula if one can be devised. The chief modification made to the Victoria Formula was to add the possibility of amending the Constitution on the authority of a referendum to the voters, as well as on the authority of the Parliament of Canada and legislatures of the provinces. 34 There was nothing radical in that feature; the Constitution of Australia is also amendable by referendum. 35 Nor was there anything about it that was oppressive to provincial interests; it required the same extent and distribution of provincial concurrence as the Victoria Formula, which is considerably more demanding than the requirements of the Australian Constitution.
38. It should not be overlooked that the proposal provided for an alternative amending procedure to be substituted for this modified Victoria Formula if agreement could be reached on a suitable alternative within two years of patriation. For the first two years after patriation, unanimous federal and provincial consent would be required for constitutional amendments, 36 and during that period the Prime Minister of Canada would be required to convene constitutional conferences at least annually. 37 During this period agreement might be reached among all governments on a formula that would be preferred to the modified Victoria Formula that would otherwise come into effect at the end of the interim period. Even if unanimous agreement is not possible, but if an alternative amending formula should be agreed upon during that time by seven or more provinces representing at least 80% of the population, that alternative could be put to the people in a subsequent referendum, and if approved it would replace the modified Victoria Formula now proposed. 38
39. The equalization statement and Charter of Rights and Freedoms were matters on which there had been extensive federal-provincial consultation over many years. There is no significant opposition in Canada to the goals of equalizing opportunities and reducing regional economic disparities. The initiative for a Canadian Charter of Rights and Freedoms is not new nor is it confined to the present Government of Canada. Earlier statutory Bills of Rights in Canada included that of Saskatchewan, first adopted in 1947, and the Canadian Bill of Rights, adopted by Parliament in 1960. Also, as early as 1950, the entrenchment of a constitutional bill or charter was proposed by Saskatchewan at a federal-provincial constitutional conference. Since 1968 it has been a regular topic of federal-provincial discussion. Entrenchment of a limited list of rights was agreed upon at the Constitutional Conference in Victoria in 1971 (the adoption of the "Victoria Charter" subsequently failed , as noted above, for other reasons). The principle of entrenchment of a charter, and many of the specifics of the proposed Charter, were endorsed by a Joint Parliamentary Committee in 1972 and in 1978, by the Canadian Bar Association in 1977, by its Constitutional Committee in more detail in 1978, and by the Task Force on Canadian Unity in 1979. It is clear that there is general public support for such a measure. As a spokesman for the Official Opposition, the Honourable J. Epp, indicated to the Special Joint Committee on the Constitution on January 20, 1981:
" ... in presenting our proposed amendments to the government's resolution, we do so in the knowledge that it is the popular will of Canadians that our constitution rest in this country. It is also the popular will that we have a Charter of Rights and Freedoms for the Canadian people embedded in the constitution." 39
40. The patriatiora proposal was introduced in the Canadian House of Commons in October 1980, by way of a Resolution for an Address to Her Majesty. After debate in the House, a Special Joint Committee of the Senate and House of Commons was established. That Committee held very lengthy public meetings on the matter, receiving a multitude of written and verbal presentations from an extremely wide range of Canadian organizations and individuals. A total of 962 written communications were received as of December 31, 1980. 40 Of these, 639 were from individuals, and 323 were from groups representing many thousands of other Canadians. While some of the communications were simple requests for information, or for an opportunity to appear before the Joint Committee, there were 572 submissions addressing the substance of the proposal, 409 from individuals, and 163 from organizations. 41 Of that number, 10 individuals and 94 organizations presented their submissions in person at meetings of the Joint Committee, and made themselves available for questioning by members of the Committee. 42 The Committee held 106 meetings on 56 sitting days for a total of 267 sittin~ hours. The Minister of Justice appeared as a witness 39 times and the Acting Minister of Justice appeared on his behalf nine times. Clause-by-clause consideration occupied 90.5 hours. 43 The meetings of the Committee were l!xtensively covered by the news meriia and were, from an early stage, broadcast regularly on radio and television.
41. As a result of these hearings, the Special Joint Committee recommended numerous alterations to the proposal, including modification of the amending formula, a strengthening of the Charter of Rights and Freedoms, the recognition and affirmation of aboriginal and treaty rights of the aboriginal peoples, and the inclusion of a detailed elaboration and extension of the powers of the provinces with respect to natural resources. The Committee's Report 44 is now undergoing careful study and debate by the Parliament of Canada. By the time a request is made to the Parliament of the United Kingdom for enactment of the patriation package of amendments, extensive consultation will have taken place within the Canadian social and political structure, and Canada's political process will have provided a decisive democratic mandate for the proposal.
42. While the patriation proposal does not cover many of the substantive matters that must eventually be dealt with in the constitutional reform process, it is a vital first step in that direction. It will essentially complete the devolution of legal authority over the Canadian Constitution from British to Canadian hands, and will permit Canadians to get on with the important task of re-shaping their Constitution to better serve the needs of every Canadian.
43. There has been some misunderstanding of the effect the proposal will have on the federal nature of the Canadian Constitution. Important though it is, the measure will not alter or affect Canada's federal structure, in any way that would be detrimental to provincial interests. Nor will it directly affect federal-provincial relationships or transfer any provincial powers to the federal order of government. It requires only brief consideration of its major components to establish that the proposal poses absolutely no threat to federalism in Canada:
(a) Patriation will have a neutral effect, favouring neither the federal nor the provincial order.
(b) The Amending Procedures proposed are entirely appropriate to a federally structured constitution, allocating important roles in the amendment process to both orders of government. While it is true that the Government of Canada would be in a position to initiate amendment referenda in certain circumstances, the Constitution of Australia, which entrusts a similar function to the federal Government of that country,45 has always been regarded as thoroughly "federal", despite that fact. Indeed, the governments and legislatures of the Australian states have utterly no role to play in the amendment process. 46 The present proposal contemplates a much more significant role for provincial authorities in Canada than their Australian counterparts enjoy.
(c) The statement on equalization will not affect the federal-provincial balance, since it is expressly stated to operate "without altering the legislative authority of Parliament or of the provincial legislatures" 47.
(d) The Charter of Rights and Freedoms will not involve any transfer of powers between federal and provincial authorities, either. It will place certain limitations on both federal and provincial orders of government in the interests of protecting certain fundamental rights and freedoms of the individual.
(e) Similarly. the recognition and affirmation of treaty and aboriginal rights will not transfer any powers. It will place limits on both federal and provincial orders of government in the interests of better protecting the rights of Canada's aboriginal peoples.
44. The only way in which the proposal will alter the federal-provincial equilibrium will be to increase provincial powers. This will occur in two respects:
(a) The present power of the Government and Parliament of Canada to secure amendments to the Constitution of Canada by request to the United Kingdom Parliament without provincial consent will be ended and replaced by an amending formula under which a large measure of provincial consent will be legally required; and
(b) Provincial powers in the field of natural resources will be expanded.
45. It has been suggested by some opponents of the proposal that it is so unprecedented in its impact on provincial powers and interests, federal-provincial relations, and the structure of Canadian federalism, that the convention of British non-involvement in the merits of amendments should not be regarded as applicable. It is submitted that an objective observer, analysing the various components of the measure carefully, and comparing them with past amendments, must conclude that there is nothing unprecedented in the proposal. It differs in content from previous amendments, of course, but so did every other amendment. It is unquestionably important, but so too were many of the past amendments. As to its impact on Canadian federalism, the only conclusions to which an objective examination of the proposal and its predecessors can lead are the following:
(a) Nothing is being proposed that would alter provincial rights or powers, federal-provincial relations, the federal-provincial equilib- rium, or the federal structure of Canada in any way that would be detrimental to provincial interests; and
(b) The provinces had much more to fear in this regard from some of the previous amendments- the 1949 ones, for example- than from the present proposal.
Accordingly, it is mistaken to suggest that anything in the proposal differs so markedly from previous amendment requests as to justify deviation from the invariable practices of the past.
46. The governments of several Canadian provinces have tak.en issue with the proposed amendment request. They allege that such a request should not be made to the United Kingdom Parliament unless concurred in by every province. The Government of Canada is of the view that although it is desirable to consult, and to obtain the consent of, the provinces where feasible, there is no constitutional requirement for doing so, and where, as in the present circumstances, prolonged consultation has proved fruitless, there is ample justification for proceeding without further consultation.
47. The dissenting provinces launched constitutional references in the courts of three provinces. On February 3, 1981, the Manitoba Court of Appeal, which was the first court to hear and determine a reference, rejected this challenge by a majority decision. The Court denied the contention that there is any constitutional requirement of provincial consent for amendment requests, and upheld the position of the Government of Canada that the Senate and House of Commons of Canada are legally and constitutionally entitled to present the proposed patriation package to the United Kingdom Parliament without further provincial consultation. 48
48. The decision of the Manitoba Court of Appeal came only a few days after the publication of the Kershaw Report in the United Kingdom. This Report will be considered next.
49. The Report of the Kershaw Committee to the United Kingdom House of Commons, dated January 30, 1981, is a lengthy document that attests to both the seriousness and the assiduousness with which the members of the Committee approached the task they had set for themselves. Many of the Report's conclusions are in full accord with the position of the Government of Canada, as explained above. For example, the Report acknowledges:
(a) "Canada's full independence as a sovereign state in the international legal and political order." 49
(b) "It would be quite improper for the UK Parliament to deliberate about the suitability of requested amendments or methods of patriation, or about the effects of those amendments on the welfare of Canada or any of its communities or peoples." 50
(c) A decision by the United Kingdom Parliament to terminate its legal power to legislate for Canada without creating a post-patriation amending formula, or to undertake no further amendments to the Canadian Constitution would "amount to a gross interference in the internal affairs of Canada and a grave breach of relations between the UK and Canada" 51
(d) "(I)t would be unconstitutional for the UK Parliament, if requested to patriate the B.N.A. Acts along with a new Charter of Rights to enact only part of the requested package (eg by enacting it without the whole or part of the requested Charter of Rights). Such a course of action would amount to legislating for Canada without its request and consent." 52
(e) "There is no rule, principle or convention that the UK Parliament, when requested to enact constitutional amendments directly affecting Canadian Federal-Provincial relations, should accede to that request only if it is concurred in by all the Provinces directly affected. " 53
(f) "There can be no doubt that if a request by the Canadian Government and Parliament is a proper request, it is the responsibility of the UK Government and Parliament to secure the enactment of the request with all the urgency or priority which the Canadian Government may reasonably desire." 54
50. Unfortunately, in several other respects the opinions expressed by th. Kershaw Committee seriously misconstrue both Canada's internal constitutional situation and the fundamental nature of Canada's relationship to the United Kingdom. These misunderstandings have led the Committee to offer advice to the United Kingdom Parliament which, if followed, would prolong Canada's constitutional impasse indefinitely, and would seriously jeopardize relations between the two countries. The source of these regrettable misunderstandings will be examined in the paragraphs that follow.
51. It might contribute to an understanding of the errors that were made to point out, at the outset, that the task which the Committee undertook involved a detailed inquiry into complex issues of Canadian law, history and constitutional practice- subjects that understandably fell outside the personal experience of its members. To make up for this crucial shortcoming, the Committee was forced to rely on submissions made to it, and unfortunately those submissions did not present, in total, a balanced view of the question.
52. The Committee received briefs from the governments of several provinces which oppose the amendment proposal, and from three British legal scholars, two of whom indicated that, though expressing personal views, they had been consulted by provincial governments, and none of whom claimed expert knowledge about the Canadian Constitution. Perhaps because they appeared in person before the Committee, the opinions of these three British academics received considerable attention from the news media, and seem to have had great influence on the views of the Committee.
53. The Government ot Canada did not make a presentation to the Committee because it was considered inappropriate for the executive government of one nation to offer advice to a committee of the Parliament of another nation. The Committee did receive a purely factual background memorandum from the Foreign and Commonwealth Office which took no position on contentious issues, and it had access to the factums filed in the Manitoba Court of Appeal, as well as to a background paper prepared for other purposes by the Canadian Department of External Affairs. However, the availability of these documents did not offset the predominantly provincialist nature of the evidence presented to the Committee, especially by the British academic witnesses who appeared in person. This is regrettable, because many of the submissions suffered from illogicality and errors of fact.
54. When asked by Canadian journalists about the absence of impartial evidence from Canadian experts, the Chairman of the Committee is reported to have replied:
"The Committee was already being accused of meddling in Canadian affairs and would have been open to more such charges if Canadian witnesses had been invited to appear." 55
This statement illuminates the dilemma that the Kershaw Committee faced in undertaking to investigate the patriation proposal: to conduct a thorough inquiry into matters of Canadian law and practice would risk being accused of "meddling"; yet to make recommendations that might profoundly influence Canada's constitutional future without such an inquiry, as the Committee has chosen to do, involves even greater perils.
55. The position taken by the Kershaw Committee may be summarized as follows:
A. British authorities continue to hold not only legal, but real political responsibility for the Canadian Constitution, permitting them to decline a constitutional amendment requested by the Parliament of Canada if in their judgment the request contravenes some fundamental principle ("established constitutional position") of the Canadian Constitution. 56
B. It would contravene a fundamental principle ("established constitutional position") of the Canadian Constitution for the Parliament of Canada to request British enactment of the proposed patriation package if "it did not enjoy a sufficient level and distribution of Provincial concurrence" to "convey the clearly expressed wishes of Canada as a federally structured whole". 57
C. The United Kingdom Parliament would be justified in enacting a patriation measure requested by the Parliament of Canada if it either:
(i) had the concurrence of the governments, legislatures, or voters of Quebec, Ontario, and provinces containing 50% of the Western and 50% of the Atlantic populations; 58 or
(ii) were substantially altered from the current proposal in certain specified respects. 59
D. Such a refusal by the United Kingdom Parliament would not "constitute an 'interference' in Canadian internal affairs". 60
56. Arguments, like chains, are no stronger than their weakest links. If an. step in the argument can be shown to be fallacious, the conclusion collapses. The reasoning of the Kershaw Report suffers from several such fatal flaws. In fact, most of the steps in its argument are demonstrably erroneous. The following paragraphs deal with the argument in order of the steps outlined above.
57. The line of reasoning upon which the opinion that British authorities retain a real supervisory power over the Canadian Constitution was based appears to be as follows:
(a) The intent and effect of section 7(1) of the Statute of Westminster, 1931, was to preserve the "status quo" with respect to the amendment of the Canadian Constitution.
(b) The status quo permitted British discretion to be exercised in order to protect fundamental principles ("the established constitutional position") of the Canadian Constitution.
(c) Nothing that has happened since 1931 - neither the disputed amendments of 1943, 1946 and 1949, nor the frequent and consistent public statements of non-involvement in Canadian affairs by representatives of the British Government over the years - has altered that situation.
58. The premise of this argument is correct: section 7(1) of the Statute of Westminster was designed to preserve the status quo constitutional amendments. It is a mistake, however, to status quo contemplated British political involvement in Canadian constitutional amendments. 61
59. The principal evidence offered by the Kershaw Committee to support the view that British authorities continued to exercise political discretion in such matters is the manner in which the 1907 amendment was enacted. This amendment concerned the amount of subsidies paid by fhe Government of Canada to the provinces. The Government of British Columbia disagreed with the amendment proposed by the Parliament of Canada on the basis that the subsidy for it was inadequate and made strong representations to Westminster (federal authorities having consented to the dispatch of the provincial delegation to the United Kingdom for that purpose). A small and different drafting change, to remove the words "final and unalterable", was eventually made (and accepted by the Government of Canada). This is sometimes represented as having been based on British Columbia's objections. In reality, however, the amendment as originally requested by the deral authorities was enacted in substance by the United Kingdom Parliament in spite of British Columbia's objections, and the drafting change was made thereto, as the Kershaw Report admits, because of "a parliamentary draftsman's view that it was technically inappropriate" to use certain words in the legislation. 62 The 1907 experience ought to have led the Committee to a very different conclusion than the one it reached: that at least as early as 1907, even though Canada had not yet reached the state of full de facto independence in all matters that it was to attain during World War I, it was already independent enough in constitutional matters that British authorities did not concern themselves with the merits of Canadian constitutional disputes.
60. Even if the 1907 experience had involved a substantive British supervisory role over the Canadian Constitution, its significance would have been erased by two subsequent events of great importance:
-The 1915 amendment (described earlier), 63 which was the first occasion on which the Canadian Address to the Crown contained a draft of the requested amendment, and which was passed without modification despite provincial opposition. The Kershaw Committee seems to have overlooked this important precedent.
-The Balfour Declaration, 1926, which put an end to any possible remaining doubts as to Canada's absolute autonomy and total responsibility for its own destiny. An indication that the Kershaw Committee did not give sufficient weight to the Balfour Declaration is the Committee's statement that in 1931 "Canada was becoming a sovereign and independent state".64
61. Even less plausible than the argument that British authorities retained a residue of substantive responsibility for the Canadian Constitution in 1931 is the Committee's contention that there was nothing in subsequent events or in subsequent statements by representatives of the British Government that would be incompatible with such a residue. To the events of 1943, 1946 and 1949, when the United Kingdom Parliament passed amendments which significantly affected (or were feared to affect) provincial interests, on federal request, without provincial consultation or consent, and in the face of substantial provincial objections, the Report replies only that the objections were not "officially" made known to the British Government. 65 The fact is, however, that the controversies were matters of public notoriety, and that whenever members of the British Government were questioned on the subject their uniform public response was to the effect that they ought not to be concerned about the events leading up to Canadian requests for amendment. While it may be true, as the Committee suggests, 66 that these statements did not constitute "undertakings" to Canada, they did constitute, together with the invariable practice of British deference to the constitutional wishes of the Government and Parliament of Canada, overwhelming evidence of a convention upon which Canada was and is entitled to rely.
62. The fact that British authorities themselves harboured no private reservations when making such public statements is well illustrated by an incident to which the Kershaw Report itself refers. In 1946, the United Kingdom High Commissioner in Canada wrote to the Permanent Under-Secretary, Dominions Office, reporting a conversation between the British Secretary of State for the Dominions and the Premier of Quebec, in which the latter complained about the recent passage of the 1946 amendment without provincial consultation. 67 The letter continues:
"The Secretary of State replied that there were only three possible courses of action for the UK Government on the receipt of the Canadian Government request. One was to pass the Act as requested, the second to refuse to do so and the third to amend it; if we had refused to pass the legislation there would have been an outcry from one end of Canada to the other; the Secretary of State was advised that we had no power to amend the legislation; therefore, he had no alternative to passing the Act and he took this in hand as quickly as possible."
At another point in the letter the High Commissioner acknowledges that: " ... the Dominion Parliament has power in itself to propose amendments without consulting the Provinces" ; and that " ... the United Kingdom action is and must be purely automatic". 68
63. It is essential to the thesis advanced in the Kershaw Report to establish that it would offend a fundamental principle ("established constitutional position") of the Canadian Constitution for the Canadian Parliament to seek British enactment of the proposed patriation package without further ovincial consultation or consent. It was on this question that the Kershaw Committee was probably at its greatest disadvantage. As pointed out earlier, the Committee relied primarily on submissions by parties to one side of the dispute in Canada or by British academics who did not claim first-hand knowledge of the Canadian scene.
64. The reasoning by which the Kershaw Committee arrived at the conclusion that the proposed patriation package would be unconstitutional was as follows:
(a) No amendment "significantly affecting the federal structure of Canada" 69 may properly be proposed to the United Kingdom Parliament without "the clearly expressed wish of Canada as a whole, bearing in mind the federal nature of that community's constitutional system". 70
(b) The proposed patriation package would "directly affect the federal structure of Canada". 71
It was mistaken on both counts.
65. The Committee relied on three sources for its view that no amendment "significantly affecting the federal structure of Canada" 72 may properly be requested by federal authorities without provincial consultation and consent:
(a) statements of the Supreme Court of Canada in the Senate Reference; 73
(b) statements contained in a 1965 publication of the Government of Canada: The Amendment of the Constitution of Canada;74 and
(c) an implication arising from the federal nature of Canada.
66. The Senate Reference 75 may be disposed of quickly. It was a ruling by the Supreme Court of Canada as to whether the Parliament of Canada has the legislative power under section 91 (1) of the B.N.A. Act to enact on its own authority certain amendments affecting the Canadian Senate. The case had nothing to do with the capacity of the Pariiament of Canada to make amendment requests to the Parliament of the United Kingdom.
67. Reliance on the Government of Canada's 1965 publication, The Amendment of the Constitution of Canada, 76 to support a constitutional requirement of provincial consent is puzzling, because in fact the publication establishes the contrary proposition. It is true that it refers to a general principle concerning a degree of provincial consultation and agreement with. respect to requests for amendment "directly affecting federal-provincial relationships", but it points out the uncertainty surrounding the appropriate nature and degree of provincial participation, 77 and, moreover, expressly states that the principle in question is "not constitutionally binding in any strict sense". 78 Inasmuch as the publication received the tacit approval of all provincial governments before it was released, it offers compelling authority for the proposition that provincial consultation and consent is not a constitutionally binding requirement of the existing amendment process.
68. It is interesting to note that in the decision of the Manitoba Court of Appeal upholding the constitutionality of the proposed patriation package, even the dissenting judges were unable to find clear historical evidence of a convention requiring provincial consultation and consent for such an amend- ment request. 79
69. The Kershaw Committee seemed to sense the weakness of the argument that a convention exists relating to provincial consent. It was perhaps for that reason that it tried to derive the constitutional principle it asserted primarily by implication from the federal nature of the Canadian Constitution rather than from past experience.
70. It is true that the Constitution of Canada is, generally speaking, federal in nature. It can also be conceded that in a theoretically ideal model of federalism it would be desirable that both the central and the regional orders of government should play significant roles in the constitutional amendment process. It does not follow from these premises, however, that an amendment request which would significantly affect the federal structure of Canada requires provincial consultation and consent. There are several reasons why this does not follow:
(a) Solutions to real political and constitutional problems must be based on actual existing constitutions rather than on theoretical ideals.
(b) In actuality, no existing "federal" constitution conforms exactly to the ideal model. Historical, social and political realities prevailing in each "federal" nation permit only an approximation of the ideal. The Canadian Constitution deviates from perfect federalism in a number of important respects. For example, the B.N.A. Act bestows on the federal order of government the power to affect the rights and interests of the provinces unilaterally in such significant ways as appointing and instructing provincial Lieutenants-Governor,80 disallowing provincial legislation, 81 declaring provincial works to the "works for the general advantage of Canada," 82 and influencing matters within provincial jurisdiction through the "spending power". 83 No purpose would be served by an exhaustive elaboration of these powers and their ramifications. It should be observed, however, that some of them have exerted profound influence on the shape of Canadian federalism, and continue to do so. Provincial works as diverse and important as railways, grain elevators, and uranium mines are subject to federal jurisdiction by reason of the federal declaratory power, for example, and programmes as vast and socially significant as public medical insurance owe their existence to the federal spending power. It is also worthy of note that under Canadian federalism the residue of unallocated governmental power iies, not with the provinces as in Australia and the United States, but with the federal order of government. 84
(c) In the present context the most significant deviation from perfect federalism in the actual Canadian Constitution is the fact that until an ali-Canadian amendment procedure is devised, the federal order of government has been left with the responsibility of requesting British amendments to the Constitution of Canada. This has been a feature of Canada's particular brand of federalism since the cvuntry's birth.
(d) The proposal under current discussion will move the Canadian Constitution considerably closer to ideal federalism in this regard by giving the provinces a legal role in the amendment process which they have never had before. The role that the provinces will thereafter be able to play in the process will be very important -- much more important, for example, than that which their counterparts play under the "federal" Constitution of Australia.
71. Even if the Kershaw Committee were correct in its mistaken belief that the Constitution of Canada requires a measure of provincial concurrence before the Parliament of Canada can properly approach the United Kingdom Parliament to request a constitutional amendment "significantly affecting the federal structure of Canada", the requirement would not apply to the proposal currently under discussion, because, as has been explained earlier, 85 that proposal, when implemented, will not affect the "federal structure" of Canada in any way that would be detrimental to the interests of the provinces.
72. The Kershaw Committee has expressed the opinion that the United Kingdom Parliament would be justified in granting an amendment request from the Government and Parliament of Canada if a certain specified degree of provincial concurrence were manifested, 86 or, alternatively, if the proposal were substantially modified in certain specified respects. 87 Another possible alternative, which the Report discusses inconclusively, would be to await the final outcome of litigation on the subject. 88 Finally, the Committee has raised the possibility that "the UK Parliament might reasonably consider setting a term of years" beyond which it would no longer be willing to abide by certain constraints which it now recognizes on its legal powers over the Canadian Constitution. 89 Each of these suggested conditions to British co-operation will be examined.
73. Having decided that the Constitution of Canada requires a measure of provincial concurrence before an amendment request can properly be made to the United Kingdom Parliament by the Government and Parliament of Canada, the Committee was then obliged to determine the extent and distribution of such concurrence that would, in its opinion, justify British compliance. All the provincial briefs to the Committee had urged the need for unanimous provincial consent. This approach was rejected 90 in favour of a standard based on the amending formula set out in the Government of Canada's original proposal (since modified somewhat in this respect): consent of the governments, legislatures, or voters of Quebec, Ontario, and of provinces representing at least 50% of the population west of Ontario and 50% of that east of Quebec. 91 While the test chosen is certainly a suitable measure of required provincial concurrence to future amendments to the Constitution of Canada, the suggestion that it be applied in the present context prompts the following observations:
(a) It is very difficult to understand how this criterion could be said to be somehow inherent in the nature of federalism, when the constitutions of the two other major federal systems in the world, the United States and Australia, have markedly different provisions for regional involvement in the amendrr.ent process. In both those countries, the amending procedures require less regional support for constitutional amendments than the modified VictOI ia Formula adopted by the present proposal would provide. The United States Constitution calls for the ratification by the legislatures of 75% of the states, regardless of their population or geographic distribution. 92 The Australian Constitution requires the support, by referendum, of only a majority of voters in a majority of states, again without regard to which states are involved. 93
(b) The Committee suggests that the criterion be applied only where the "federal structure" would be "significantly" or "directly" affected by an amendment. 94 As shown above, 95 the proposed patriation package would not affect the federal structure in any way that would be detrimental to provincial interests. Therefore, by the Committee's own standards there would be no need for provincial concurrence in this case.
(c) Even if one accepted the Committee's view that a request of the type proposed must be shown to meet "the clearly expressed wishes of Canada as a whole, bearing in mind the federal character of the Canadian constitutional system", 96 it is the Parliament of Canada, with a membership drawn from all parts of the country, and the constitutional responsibility for Canada's relations with the rest of the world, which is best suited to convey to the United Kingdom "the clearly expressed wishes of Canada as a whole".
74. An alternative suggestion is made in paragraph 115 of the Kershaw Report - that it would be acceptable for the United Kingdom Parliament to enact, without provincial concurrence:
"a request for patriationjamendment involving only (i) termination of the UK's legislative powers and (ii) a post-patriation amendment formula providing for amendment only with at least such a degree of provincial support as is required to initiate an amendment" 97 under Part V of the proposal.
This would involve the elimination of the Charter of Rights and Freedoms from the proposal, and the adoption as a permanent amending procedure of a special formula that the proposal provides for interim purposes only. It would require an extensive alteration of the proposal now being considered. The Committee's explanation of why it would be justifiable for the United Kingdom Parliament to enact this modified proposal without provincial consent is not easy to follow. It is stated that such an enactment "would not substantially affect the federal character of Canada's constitutional system" 98 , but, as has been explained above, 99 the proposal now being considered would not do so either. The Kershaw Committee's "alternative" suggestion looks very much like an attempt to do that which the Committee itself has said would not be appropriate for British authorities: to determine "the suita bility for the peoples of Canada of a requested constitutional package". 100
75. The section of the Kershaw Report which discusses pending litigation 101 does not make any positive recommendations on the subject to the United Kingdom Parliament. It does serve a useful purpose, however: to remind everyone concerned that there is no need for the dissenting provinces to seek a forum for their complaints outside Canada. The courts of Canada, before whom the provincial challenges have been placed, are better able than any other body to determine issues of Canadian constitutional law. To the extent that the challenges involve political issues, Canadian politicians and the Canadian electorate are better able to judge their merits than are the politicians of another country. The first of the courts consulted by the dissenting provinces has already ruled that there is no constitutional impediment to the proposal of the Government of Canada. Whatever the decision of the other courts, and ultimately of the people of Canada, may be, there can be no doubt that Canadian legal and political institutions are completely competent to deal with this Canadian problem. In short, those who disagree with the current proposal have no need for an external forum; their objections can be adjudicated- knowledgeably, impartially and effectively - at home.
76. The "Conclusions" section of the Kershaw Report suggests that "the UK Parliament might reasonably consider setting a term of years beyond which this constitutional position could not be expected to continue" 102 There does not appear to be anything in the body of the Report that supports such a conclusion; the question seems to have arisen for the first time at the conclusion stage. It is possible that if the Committee had had more time to reflect on the unfortunate consequences that could result from the combination of rejecting the proposed request and imposing a time limit on British co-operation in the Canadian amendment process, it might have thought better of the idea. Yet the suggestion does offer another useful reminder - that Canadians should not expect to rely indefinitely on the good will and patience of our British friends when amendments to the Canadian Constitution are required. The time has arrived for Canada to be constitutionally independent, legally as well as politically. The proposed patriation package will achieve that goal, and will eliminate all future need to in onenience the Government and Parliament of the United Kingdom with Canadian amendment requests. No time limit is necessary.
77. The Kershaw Report describes Canada, quite properly, as "an independent and sovereign state", 103 and asserts that: "The primary desire of the UK Government and Parliament is to maintain and enhance the warm and friendly relations with Canada which have subsisted over many decades and through two World Wars". 104
78. Unhappily, many of the Report's conclusions advise the Government and Parliament of the United Kingdom to respond to the proposed Canadian request for amendment of the Canadian Constitution in ways that would constitute intolerable interference with the internal affairs of "an independent and sovereign state". To appreciate the extent of intervention in Canadian affairs that would occur if the Committee's advice were heeded, one has only to consider a few of the responsibilities that the United Kingdom Parliament would be called upon to undertake:
(a) Guardian of Canadian Federalism. It would owe, without any electoral mandate, a "duty or responsibility to the Canadian people or community" 105 to decide, contrary to the decision of Canada's democratically elected national Parliament if necessary, "whether or not a request for amendment or patriation of the B.N.A. Acts conveys the clearly expressed wish of Canada as a whole, bearing in mind the federal nature of that community's constitutional system". 106
(b) Interpreter of the Canadian Constitution. To perform the role of guardian of Canadian federalism, it would have to decide whether the Kershaw Committee has correctly interpreted Canadian constitutional requirements, or whether other authorities have more accurately construed Canadian law, history and constitutional practice.
(c) Determiner of Precise Amendment Requirements. In order to carry out the role that the Kershaw Committee calls for it to play, the United Kingdom Parliament would also be required to determine the appropriateness of the detailed conditions for acceptance of an amendment request that the Committee has postulated. This would m an deciding:
(i) whether "Victoria Formula" type criteria should be applied to determine the extent and distribution of provincial concurrence; 107 and
(ii) whether, in the alternative, the Parliament of Canada should be required to make substantial alterations to the proposed amending formula, and abandon altogether the proposed Charter of Rights and Freedoms.
If it undertook these responsibilities, the United Kingdom Parliament would find itself very deeply immersed in Canadian affairs.
79. In light of that fact, it is surprising to read in the Kershaw Report statements that: "Nothing in our Report casts any doubt on Canada's full independence as a sovereign state" 108, and that adopting its recommendations would not "constitute an 'interference' in Canadian internal affairs". 109
The key to this inconsistency may lie in the following statement:
"The Canadian Parliament is not 'absolutely sovereign', but is (by the will of the Canadian community confirmed in 1931) subject to the constraints of federal constitution". 110
Implicit in this statement are two fallacies:
(a) The belief that the status quo that was "confirmed" in 1931 involved a British supervisory power over the Canadian Constitution which still persists. As has been explained, 111 this is a mistaken belief.
(b) The notion that the internal division of governmental responsibilities between central and regional governments in a federal system somehow restricts the national sovereignty of a federal nation like Canada in its relations with the outside world. The truth is that while the Canadian Parliament and provincial legislatures each have certain assigned law-making powers within Canada, Canada's national sovereignty is unlimited, and is exercised on behalf of the entire nation by the democratically elected Government and Parliament of Canada.
These twin fallacies appear to have been primarily to blame for leading the Kershaw Committee to several of its most unfortunate conclusions.
80. If the United Kingdom Parliament were to accept these mistaken assumptions and the suggestions of the Committee that flow from them, it would be casting aside one of the Commonwealth's most fundamental precepts. That association was proclaimed by the Balfour Declaration to be one of "autonomous communities ... equal in status, in no way subordinate one to another". 112 The principle of equality has always included the equality of the national Parliaments of the communities making up the Commonwealth. It is surely not the time to abandon a concept which has been the strength of this unique association.
81. It was pointed out earlier that any flaw in the Kershaw Committee's chain of reasoning would invalidate its conclusions. It is submitted that many such flaws have been demonstrated by the preceding paragraphs. Indeed, every major component of the Committee's position can be shown to be mistaken:
(a) British authorities do not retain political responsibility for the amendment of the Canadian Constitution because:
(i) British authorities had divested themselves of political discretion with respect to the Constitution of Canada long before the Statute of Westminster, 1931;
(ii) the Statute of Westminster preserved the constitutional status quo in this regard; and
(iii) subsequent statements by representatives of the United Kingdom Government and actions by the United Kingdom Parliament have consistently and emphatically confirmed this position.
(b) The Constitution of Canada does not require provincial concurrence to an amendment request such as has been proposed because:
(i) there is no support in Canadian constitutional law or practice for the Kershaw Committee's belief that provincial consent is required for amendments "significantly affecting the federal structure of Canada" 113; and
(ii) in any event, the amendments proposed would not affect the federal structure of Canada in any way detrimental to provincial interests.
(c) The detailed conditions suggested by the Kershaw Report as to the extent of provincial concurrence required, or, alternatively, the type of changes in the proposal required, to justify British acceptance of an amendment request, offend the Committee's own advice that "it would be quite improper for the UK Parliament to deliberate about the suitability of requested amendments or methods of patriation". 114
(d) If the Parliament of the United Kingdom followed the advice of the Kershaw Committee on these matters, it would "constitute an 'interference' in Canadian internal affairs" 115
82. Canadians have reason to be very grateful to the Government and Parliament of the United Kingdom for the patience, understanding and co-operation they have consistently displayed throughout Canada's prolonged constitutional amendment stalemate. Deeply steeped in democratic traditions, British authorities have always known that political judgments concerning the amendment of the Constitution of Canada can only be exercised by those who hold a political mandate from the people of Canada They have, therefore, always respected the wishes of the Government and Parliament of Canada when amendment requests have been made. Canadians are confident that when this final request for British constitutional assistance arrives at Westminster, it will be treated in the same understanding and co-operative manner that has always marked the relations of these two cordial associates in the Commonwealth of Nations.
1 See: Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, Ottawa. Feb. 13, 1981.
2 The British North America Acts: The Role of Parliament, House of Commons, First Report of Foreign Affairs Commillee, 1980-81. Jan. 30, 1981 (hereinafter called the Kershaw Report).
3 Para. 14(8), based on paras. 107 and 111.
4 Para. 14(9), based on para. 114.
5 Para. 14(10), based on para. 114.
6 Para. 115.
7 30 and 31 Victoria, c. 3 (United Kingdom).
8 Report of Inter-Imperial Relations Committee of Imperial Conference, 1926.
9 5 and 6 George V, c. 45 (United Kingdom). (See Appendix A for fuller description.)
10 See Appendix A.
11 See below, para. 59, ff.
12 P. Gérin-Lajoie, Constitutional Amendment in Canada, pp. 139-40.
13 Ibid., p. 139
14 Ibid., p. 140
15 Ibid., p. 140, ff.
16 Represemation of the Government af Prince Edward Island to the Foreign Affairs Committee ... Regarding the British North America Acts, Nov. 28, 1980, p. 3.
17 22 George V, c. 4 (United Kingdom).
18 S. 4.
19 S. 7(1).
20 Para. 99.
21 United Kingdom, House of Lords Debates, 1946, pp. 698-99.
22 Gérin-Lajoie, note 12 above, pp. 145-6.
23 Submission of Dr. Geoffrey Marshall, p. 3.
24 12 and 13 George VI, c. 22 (United Kingdom).
25 Terms of Union, s. 2.
26 Gérin-Lajoie, note 12 above, p. 129.
27 13 George VI, c. 81 (United Kingdom).
28 S. 91(1).
29 Senate Reference (1980) 102 D.L.R. (3rd) 2 (S.C.C.).
30 Gérin-Lajoie, note 12 above, at p. xvii. The word "outspokenly" is that of Dr. Gérin-Lajoie.
32 Ibid., p. xviii.
33 There were some minor and purely technical drafting modifications: ibid., p. xxii.
34 S. 46.
35 Constitution of Australia, s. 128.
36 S. 36.
37 S. 35.
38 S. 42.
39 Minutes of Proceedings and Evidence, Issue No. 41 , p. 93.
40 By Feb. 2, 198 1, the tota l number of wri tten communications had reached 1,208: op. cit. note 1 above, s. 3.
41 Ibid., Appendix D.
42 Ibid., Appendix B.
43 Ibid., s. 2.
44 Note 1, above.
45 Constitution of Australia, s. 128.
46 Except to amend state constitutions and to agree under s. 51 (xxxvii) to a delegation of jurisdiction.
47 Note 1 above, s. 34(1).
48 Patriation Reference, Man. C.A., Feb. 3, 1981.
49 Para. 85.
50 Para. 113 and 118.
51 Para. 120.
52 Para. 122.
53 Para. 14(7).
54 Para. 57.
55 Toronto Globe and Mail. National Edition, Feb. 6, 1981 , p. 1.
56 Paras. 14(5) and 84.
57 Para. 14(10).
58 Paras. 14(10) and 114.
59 Para. 115.
60 Para. 96.
61 See above, para. 23, ff.
62 Para. 58. It is true that Mr. Winston Churchill stated in Parliament at the time that the alteration had been made "in deference to the representation of British Columbia", and that British authorities would not "always be prepared to accept the Federal point of view as against the provincial" (para. 38). He appears to have been mistaken in his view of the origin of the technical amendment, however, and he acknowledged that British authorities would not "pretend to go into the merits of the difference on a constitutional question between British Columbia and the Federal Government" (para. 38).
63 See above, para. 15.
64 Para. 85. Emphasis added.
65 Para. 76. It might be noted in passing that para. 110 states that "informal" conveyance of provincial approval would be sufficient.
66 Para. 77.
67 Para. 72. note 2.
68 Emphasis added.
69 Para. 114.
70 Para. 111.
71 Paras. 14(9) and 111.
72 Para. 114.
73 Note 29 above. Kershaw Report, para. 33, ff.
74 Para. 48, ff.
75 Note 29 above.
76 Note 74 above.
77 P. 15.
78 P. 11.
79 Note 48 above, per O'Sullivan J . A .. p. 26, and per Huband J. A., p. 9.
80 B.N.A. Act, note 7 above, s. 58, ff.
81 S. 90.
82 S. 92(10)(c)
83 See: Government of Canada. Federal-Provincial Grants and the Spending Power of Parliament, June 1969.
84 B.N.A. Act, s. 91, introductory words (the "Peace, order and good government" clause).
85 See para. 43 above.
86 Para. 114.
87 Para. 115.
88 Paras. 123 and 127.
89 Para. 14(11).
90 Para. 14(7).
91 Para. 114.
92 Constitution of United States, Article V.
93 Constitution of Australia, s. 128.
94 Paras. 111 and 114.
95 See para. 43 above.
96 Para. 14(8).
97 Para. 115.
99 See para. 43 above.
100 Para. 14(11).
101 Paras. 123, ff.
102 Para. 14(11).
103 Para. 7.
104 Para. 14.
105 Para. 103.
106 Para. 111.
107 See para. 73 above.
108 Para . 85.
109 Para. 96.
111 See para. 14, ff., above.
112 Note 8 above.
113 Para. 114.
114 Para. 113.
115 Para. 96.
(Source: Factum of Attorney General of Canada in Manitoba et al v. Canada, Manitoba Court of Appeal, November 1980.)
1. The British North America Act, 1871 affected federal-provincial relationships and the powers and rights of provincial governments. It empowered Parliament alone to create new provinces without the consent of the existing provinces and thereby alter significantly the balance between province and province and between province and the federal government. It allowed Parliament alone to add new Senate seats for such provinces. It prescribed an amending formula for making changes to provincial borders. No provincial consent was sought or given.
2. The question of provincial consent was raised in a series of resolutions in the Canadian House of Commons by the Honourable Mr. Mills. They were not accepted. The last of these resolutions was as follows:
"That the respective Legislatures of the Provinces now embraced within the Union having agreed to the same on a Federal basis, which has been sanctioned by the Imperial Parliament, this House is of opinion that any alteration by the Imperial Legislation of the principle of Representation in the House of Commons recognized and fixed by the 51st and 52nd Sections of the British North America Act, 1867, without the consent of the several Provi:tces that were parties to the compact, would be a violation of a fundamental principle in our constitution, and destructive of the independence and security of the Provincial Governments and Legislatures."
(Canada, House of Commons Journals, 1871, pp. 253-54.)
3. The British North America Act, 1886 affected federal-provincial relationships and the powers and rights of provincial governments. It empowered Parliament alone to provide for territorial representation in Parliament, including the Senate. Any additional Senate members would, of course, affect the relative voice of the other Senators. No provincial consent was sought or given.
4. The British North America Act, 1907 affected federal-provincial relationships and the rights of provincial governments. It increased the amount of subsidies paid to the provincial governments under the original terms of the B.N.A . Act, 1867. It was sought by Paliament and granted by the United Kingdom Parliament despite the objection of British Columbia. The other provinces agreed. British Columbia claimed it was entitled to additional subsidies because of its peculiar needs arising out of a mountainous terrain, scattered population and geographical isolation. On March 25, 1907, the Legislative Assembly of British Columbia passed a resolution protesting against the federal proposal. British Columbia submitted a memorandum to the British Colonial Office protesting the inadequacy of the amount. British Columbia's objection did not prevent the passage of the Act although the British Government did accept one drafting change. They deleted the words "final and unalterable" from the Act, apparently on the advice of the parliamentary draftsman that such words were not appropriate in a statutory enactment. The substance of the amendment was enacted in spite of the provincial objection.
5. The British North America Act, 1915 affected federal-provincial relationships and altered provincial rights. It increased the number of Senators and altered the senatorial divisions. It also added what is the present section 51 A which guarantees that provinces would never have fewer members in the House of Commons than they have in the Senate. There was no consultation with the provinces, although the Province of British Columbia had requested a change in representation and this was embodied in the resolution. The Premier and Attorney General of Prince Edward Island appeared before the committee of the House of Commmons considering the resolution. Their representation for change was not accepted. This amendment affected all provinces by affecting the provincial allocation of Senators and by establishing a floor for House of Commons representation.
6. The question of provincial consent was raised by Mr. O. Turgeon (Gloucester):
" ... I am perfectly willing to accept this proposal as a very moderate one, but, in order to secure its acceptance by the Imperial Parliament, would it not be better first to submit it to an interprovincial conference: for it is scarcely two years ago that a conference of the provinces denied this right to the maritime provinces. I believe that if the Prime Minister referred this proposal to the judgment of the Provincial Legislatures and secured their assent or, at least, their favourable comment, the proposal would be sanctioned by the Imperial Parliament. I join with my hon. friend from Prince Edward Island in suggesting that this proposal be separated from the other, in order that it may be submitted to the Provincial Legislatures for their assent.... "
(Canada, House of Commons Debates, 1915, vol. II, pp. 1465-66.)
The address, however, was accepted without any further reference to the provinces.
7. In the Senate, it was noted that the subject of the amendment had been discussed at a provincial Premiers' meeting but that the Premiers had reached no decision on the matter.
(Canada, Senate Debates, 1914, p. 880.)
An amendment was moved in the Senate that the section providing for a minimum representation of each province in the House of Commons should not take effect until the consent of the legislatures of the provinces had been obtained. This proposal was rejected on division.
(Canada, Senate Debates, 1914, p. 902. See also Canada, Senate Debates;, 1914, pp. 885-86; 888-92; 896-97.)
8. The British North America Act, 1930 affected federal-provincial relationships and altered provincial rights. By that amendment the federal government transferred ownership of lands and resources to the four Western provinces (less extensively to British Columbia than to the other three provinces, since only the. Railway Belt lands were transferred in that province). All four provinces agreed. The consent of the other provinces was not sought although the subject had been discussed at a Federal-Provincial Conference in 1927 where Ontario and Quebec, at least, had indicated agreement in principle.
9. In the debates in the House of Commons it was argued by Mr. MacLaren:
" ... amendments to the British North America Act, especially those of the importance of the one we have before us, should be submitted not in an informal but in a very official way to all the provinces in order to obtain their concurrence therein, or to give them an opportunity of expressing objections. The procedure now suggested is contrary to both Confederation and the British North America Act. It is not following out the spirit in which that Act was framed; it is not giving to the provinces the opportunity of expressing objection or acquiescence. I do not see how it can be considered that the simple passage by this House of this petition represents the will of the provinces. Therefore, Mr. Speaker, I enter my protest that a petition of this character should be forwarded without consulting all the provinces of the Dominion with a view of obtaining their assent thereto or their objections."
(Canada, House of Commons Debates, 1930, p. 2628. The issue was also raised in the Senate Debates, 1930, pp. 335-39, 348-9.)
10. The government members took the view that the amendment affected only the four Western provinces and, therefore, the consent of all provinces was not necessary. Also, it was pointed out that no province was in objection, although the proposed amendment was common knowledge.
11. The Statute of Westminster, 1931 substantially increased both federal and provincial rights and powers. It provided that Parliament and all provincial legislatures could legislate free of the limitations previously imposed by the Colonial Laws Validity Act. Section 7(1) retained full United Kingdom legislative authority over the British North America Acts, and section 7(3) provided that neither Parliament nor the provincial legislatures were authorized by virtue of the powers conferred to legislate on matters other than those within their legislative competence.
12. Although provincial governments were consulted on this amendment and their consent given, it is clear from the surrounding circumstances that this was not intended to acknowledge or create a convention that the provinces must consent to constitutional amendments before they would be enacted by Westminster.
(a) The Imperial Conference of 1930 considered the provinces as being given only the right to consultation. In the Summary Proceedings of that Conference, at p. 3717, the following is found:
" ... it appeared that representations had been received from certain of the Provinces of Canada subsequent to the passing of the Resolution, protesting against action on the Report until an opportunity had been given to the Provinces to determine whether their rights would be adversely affected by such action. Accordingly, it appeared necessary to provide for two things. In the first place it was necessary to provide an opportunity for His Majesty's Government in Canada to take such action as might be appropriate to enable the provinces to present their views. In the second place, it was necessary to provide for the extension of the sections of the proposed Statute to Canada, or for the exclusion of Canada from their operation after the Provinces had been consulted." (Emphasis added.)
(b) The Minutes of the Federal-Provincial Conference of 1931 (at p. 10) states:
"Two provinces had felt (he [Mr. Bennett] did not consider wrongly) that they should be consulted in this particular matter of the Statute of Westminster, as they were directly affected by it. The Conference therefore had been called for that particular purpose." (Emphasis added.)
(c) In response to provincial concerns that the present section 4 and the preamble of the Statute of Westminster would add to federal powers it was proposed by Mr. Geoffrion that a section be added to exempt the British North America Acts from the application of the Statute. This proposal became the present section 7(1). This proposal is described in the Minutes as follows at p. 16:
"Mr. Geoffrion then explained that his suggestion was an effort to meet the difficulty of the implied recognition in the Statute of the Dominions' power to request amendments. He merely wished to insure that the position of the Provinces would not be any weaker after the Statute then it had been before. His suggestion would, he thought, reserve the provincial position until the whole question of amendment could be discussed in the future .... " (Emphasis added.)
After Mr. Geoffrion's proposal had been put into a formal textual form, the following discussion took place, described at p. 20:
"Mr. Guthrie followed Mr. Bennett by stating that it was the purpose behind the new draft tu make absolutely clear that the statute made no change in the British North America Act and gave the Dominion no new power to alter it. It was definitely designed to maintain the status quo ....
Mr. Cahan then emphasized that the sole purpose of the committee last night in suggesting alterations to Section 7 was to preserve absolutely the status quo as to relations inter se." (Emphasis added.)
(d) The practice followed after the passage of the Statute of Westminster was not invariably one of requiring consultation with or the consent of the provinces before a constitutional amendment would be enacted by Westminster. For example, that in 1949 admitting Newfoundland into Confederation, statutorily confirmed Quebec's border with Labrador, without Quebec's consent. The 1949(2) amendment conferred on Parliament powers to amend the Constitution in certain respects.
13. Despite the contrary conclusion of Gérin-Lajoie in his text, Constitutional Amendment in Canada, pp. 196-97, the wording of the 1930 Imperial Conference Report does not indicate an intention that thereafter amendments to the Constitution of Canada, even including amendments which affect federal-provincial relationships or alter provincial rights and powers, would be made only with the consent of provincial legislatures or provincial governments. It is clear the wording was intended to be neutral. The argument of Mr. Ralston in debate on the resolution requesting Westminster to pass the Statute of Westminster, following the Federal-Provincial Conference of 1931, illustrates this point:
" ... the report of the conference of 1930 is very careful not to provide for the consent of the provinces but only to give the provinces an opportunity to present their views. At page 18 the following appears:
'Accordingly, it appeared necessary to provide for two things. In the first place it was necessary to provide an opportunity for His Majesty's government in Canada to take such action as might be appropriate to enable the provinces to present their views. In the second place it was necessary to provide for the extension of the sections of the proposed statute to Canada or for the exclusion of Canada from their operation after the provinces had been consulted.'
But while this is the preamble - so to speak - when we come to the legal conditions which are to be complied with we find that the consent of the provinces is not mentioned nor are they necessarily to be consulted but that it is to be sufficient if the formalities required for amendments to the British North America Act are carried out. Note how the report proceeds:
'To this end it seemed desirable to place on record the view that the sections of the statute relating to the Colonial Laws Validity Act should be so drafted as not to extend to Canada unless the statute was enacted in response to such requests as are appropriate to an amendment of the British North America Act. It also seemed desirable to place on record the view that the sections should not subsequently be extended to Canada except by an act of the parliament of the United Kingdom enacted in response to such requests as are appropriate to an amendment of the British North America Act.'
Any idea which the provinces might have had, that their consent might be required, vanishes when we read the lr st sentence to the effect that the only procedure required to be followed is such procedure as is necessary and appropriate to an amendment of the British North America Act. And that procedure provides only for an address by both houses of parliament, without reference at all to the provinces."
(Canada, House of Commons Debates, 1931, p. 3208.)
14. The British North America Act, 1940 affected federal-provincial relationships and altered provincial rights and powers. It transferred authority to legislate on unemployment insurance from provincial to federal jurisdiction. The consent of all provinces was sought and obtained. (Correspondence with the provinces is printed as an appendix to Votes and Proceedings of the House of Commons, June 25, 1940.)
15. In speaking to the resolution the Prime Minister stated:
" ... not having received the consent of all nine provinces until this year, we could not possibly before this particular session have introduced in a manner which would avoid all questions a measure for the amendment of the British North America Act."
(Canada, House of Commons Debates, 1940, p. 1118.)
16. It is clear, however, from the exchange recorded on page 1122 that consent of the provinces was considered desirable but not necessary:
"Mr. Thorson: ... But I would not wish this debate to conclude with an acceptance, either direct or implied, of the doctrine that it is necessary to obtain the consent of the provinces before an application is made to amend the British North America Act. Fortunately, this is an academic question at this time.
Mr. Lapointe: May I tell my hon. friend that neither the Prime Minister nor I have said that it is necessary, but it may be desirable.
Mr. Thorson: The Prime Minister has made it perfectly clear that the question does not enter into this discussion, in view of the fact that all the provinces have signified their willingness that this amendment should be requested."
(Canada, House of Commons Debates, 1940, p. 1122.)
17. The British North America Act, 1943 affected federal-provincial relationships and arguably provincial rights. It postponed until after the war the redistribution of the representation of the provinces in the House of Commons, required after the 1941 decennial census by vutue of section 51 of the British North America Act, 1867. No provincial consent was sought or obtained. The Legislative Assembly of Quebec requested the federal government to modify its proposal. Mr. Adelard Godbout forwarded to the Prime Minister an official note along these lines. (Canada, House of Commons Debates, 1943, p. 4353-54.) Quebec's objections were ignored.
18. During debate the resolution was opposed on the ground that provincial consents had not been obtained. (Canada, House of Commons Debates, 1943, pp. 4356, 4364.) The Minister of Justice, Mr. St. Laurent, argued that the amendment did not alter the allocation of federal and provincial powers. At the same time he stated that if such allocation were to be changed it would not be proper to do so without the consent of the legislative body that was given the constitutional powers in question. (Canada, House of Commons Debates, 1943, pp. 4365-66.)
Mr. St. Laurent did not say that such amendments could not be passed by Parliament alone but merely that it would be proper, that is, appropriate, to have provincial consent. In the same debate, Mr. Coldwell stated:
"I know, of course, that at present the real power of amendment of our constitution, which is in the British North America Act, is in reality in the hands of this parliament. As I have just indicated, anything we may ask regarding amendment will be granted by the Imperial parliament at Westminster."
(Canada, House of Commons Debates, 1943, p. 4345.)
19. There was also discussion in the Senate regretting the lack of provincial consent. (Canada, Senate Debates, 1943, pp. 288-9.)
20. The British North America Act, 1946 affected federal-provincial relationships and altered provincial rights. This amendment replaced the original section 51 of the British North America Act, 1867 with a new one providing for the representation of the provinces on a strictly proportional basis. Provincial consents were neither sought nor obtained. Quebec objected (letter of May 30, 1946 from Duplessis to St. Laurent). Opposition members said provincial consent should have been obtained (Canada, House of Commons Debates, 1946, pp. 2228-35), and Mr. Diefenbaker moved an amendment to the effect that the Government be required to consult the provinces. This was defeated. (Canada, House of Commons Journals, 1946, vol. 87, pp. 373-374.) The government took the position that the amendment did not deal with provincial powers. Mr. St. Laurent indicated that in his view, matters given to the provincial legislatures and governments could not be dealt with without provincial consent (pp. 1936-37). Other members indicated such matters could not be dealt with without provincial consultation (pp. 2255-56, 2461, 2601, 2626). Mr. St. Laurent stated, however, that in his view Parliament alone could request changes respecting minority language rights under section 133 (p. 2621).
21. The British North America Act, 1949 affected federal-provincial relationships and altered the rights of the provinces. It added Newfoundland to Confederation. The addition of a province alters significantly the balance between province and province, and province and the federal government. This amendment confirmed by statute the boundary between Quebec and Labrador - without Quebec's consent. Provincial consents were neither sought nor obtained. There was opposition to the bill in the House of Commons on the ground that the provinces should have been consulted. During the debate on the resolution the same point was made. (Canada, House of Commons Debates, 1949, p. 345; and Canada, Senate Debates, 1949, pp. 71, 79.)
22. The Leader of the Opposition moved an amendment that the resolution be amended in the following terms:
"And whereas it is desirable that the government of Canada should consult with the governments of the several provinces in respect to the said matter; 'Now therefore be it resolved, that the Government of Canada be required to consult at once the governments of the several provinces and that upon a satisfactory conclusion of such consultations a humble address be presented to His Majesty in the following words .... ' "
(Canada, House of Commons Journals, 1949, p. 69; and Canada, House of Commons Debates, 1949, pp. 498-501.)
The amendment was defeated.
(Canada, House of Commons Journals, 1949, pp. 73-75.)
23. The Premiers of Quebec and Nova Scotia stated publicly that consultation should have taken place (Gérin-Lajoie, p. 129).
24. Since Confederatioa the original four provinces have been increased to ten by action of the federal Parliament (and, on occasion, the United Kingdom Parliament or government) without any consultation with or consent by the original four provinces. It is, therefore, obvious that the contention that there is a convention that provincial consent is required for amendments to the Constitution of Canada affecting federal-provincial relationships or provincial rights and powers is untenable.
25. The British North America Act, 1949(2) at the time was thought by the provinces to have affected significantly federal-provincial relations and the rights of the provinces. This amendment added section 91 (1) to the British North America Act giving Parliament authority to amend "the Constitution of Canada" except with respect to five listed categories. There was no provmcial consent sought or obtained. The government took the position that the amendment dealt with matters entirely under federal jurisdiction.
26. The Opposition moved an amendment to the resolution that would have required the convoking of a federal-provincial conference to "devise a method of amending within Canada the Constitution of Canada, and of safeguarding minority rights". The method so devised would then become the subject of the resolution. (Canada, House of Commons Debates, 1949, p. 841.) The amendment was defeated.
27. The British North America Act, 1951 affected federal-provincial relationships and altered provincial rights. It transferred to Parliament jurisdiction over pensions. Provincial legislatures retained concurrent authority. The consent of all provinces was obtained.
28. The British North America Act, 1960 affected federal-provincial relationships and affected provincial rights. It imposed a compulsory retirement age of 75 on Superior Court judges. The amendment would have ramifications for provincial governments because of their jurisdiction over the administration of justice derived from section 92(14) of the British North America Act. Initial consent from all provinces was obtained for an amendment which would have applied to District and County Court judges, as well as to Superior Court judges. (Correspondence exchanged with provincial governments is printed as an Appendix to the Votes and Proceedings of February 16th, 1960.) In addition to establishing in the constitution the retirement age for County and District Court judges, the amendment would have extended the existing section 99 of the British North America Act to them so that their security of tenure would thereafter have been constitutionally entrenched as is the case for Superior Court judges. The Senate, however, objected to this amendment and deleted the reference to District and County Court judges. The resolution changed in this significant way was adopted by Parliament and thus the final text of the amendment was not that originally approved by the provinces. (Canada, House of Commons Debates, 1960, pp. 7199-201; Canada, Senate Debates, 1960, p. 997; Canada, House of Commons Journals, 1960, pp. 854-56.)
29. The British North America Act, 1964 affected federal-provincial relationships and altered provincial rights. It extended Parliament's concurrent jurisdiction over pensions to include supplementary benefits thereto. All provinces consented to the amendment. (Canada, Sessional Papers No. 202-J, June 10, 1964.)
(Source: Factum of Attorney General of Canada in Manitoba et al v. Canada, Manitoba Court of Appeal, November 1980.)
The following is the history of federal-provincial attempts to find an amending formuia for those parts of the Constitution not amendable in Canada:
(a) The first attempt was made at the Dominion-Provincial Conference of 1927 called in response to the Balfour Declaration of 1926. That report recognized that Canada, and the other Dominions, were independent countries and not subordinate to the United Kingdom. For Canada to achieve such a status legally, however, it was recognized that an amending formula for the Constitution would have to be found to enable full legal power to be transferred from the United Kingdom to Canada. The attempt to find such a formula was unsuccessful.
(b) The question of an amending formula was again raised at the Dominion-Provincial Conference of 1931 in anticipation of the passage of the Statute of Westminster. Agreement was not reached on an amending formula.
(c) A third attempt was commenced in 1935. The House of Commons established a Special Committee to study the best method by wh"ch the B.N.A. Act could be amended. This Special Committee held eleven sessions between February 18 and June 19, 1935. It did not result in adoption of an amending formula. However, this led to the holding of a Dominion-Provincial Conference in December 1935. The Conference resulted in the establishment of a Continuing Committee on Constitutional Questions to be comprised of federal and provincial representatives who were to draft an amending procedure. No agreement was reached.
(d) A fourth attempt was commenced in 1950 with the Dominion-Provincial Conference of that year. Agreement could not be reached.
(e) A fifth attempt was commenced at a Federal-Provincial Conference in July 1960 at which the then Prime Minister announced his intention to recommence discussions with the provinces on an amending formula and patriation. A conference of Attorneys General was initiated which met four times. These ministerial conferences drafted an amending formula (the Fulton Formula) that received the support of nearly all participants. The ensuing draft bill, however, did not receive unanimous approval and by 1962 this initiative was spent.
(f) A sixth attempt was initiated in 1964 at a First Ministers' Conference. The new draft (the Fulton-Favreau Formula) was unanimously recommended by the Attorneys General for acceptance by First Ministers at their meeting of October 14, 1964. The formula was later approved by the legislatures of nine provinces, but in January 1966 the Quebec government stated that it would not seek approval by its legislature.
(g) A seventh attempt was commenced in 1967 which led to what has been called the Constitutional Review Process of 1967-1971. This led to six first ministers' meetings, 26 meetings of ministers, and innumerable meetings of federal and provincial officials. It was decided that progress might be made by undertaking a full-scale review of the Constitution rather than concentrating only on the amending formula . This process led to the "Canadian Constitutional Charter, 1971" (generally referred to as the "Victoria Charter"). The Government of Canada and eight provincial governments accepted the Charter but, Quebec indicated it would not. In Saskatchewan, after the election of a new government, no opinion was expressed on the matter since Quebec's position made the question academic.
(h) An eighth attempt was initiated in 1975, at a Federal-Provincial Conference, by the Prime Minister suggesting that a more limited approach than that taken during the 1967-71 process be tried. It was suggested that an attempt be made to reach agreement primarily on an amending formula with certain additional guarantees respecting language rights. The Premiers held two meetings at which they discussed the proposal and then informed the federal government on October 14, 1976 that the; could not agree to patriation without wider ranging constitutional reform, involving transfers of federal authority to the provinces.
(i) A ninth attempt was initiated at a Federal-Provincial Conference of First Ministers in October 1978. This followed the introduction in the Parliament of Canada of a draft "Constitutional Amendment Bill" (Bill C-60 of 1977-78). A continuing Committee of Ministers was established by the First Ministers which met three times and reported back to the First Ministers in February 1979. There was no agreement.
(j) A tenth attempt was initiated in June of 1980. The Continuing Committee of Ministers on the Constitution was instructed by First Ministers to attempt to reach consensus on twelve items of constitutional reform including patriation and an amending formula. However, again no consensus was reached.
On May 10th, 1967, the then Prime Minister, Mr. Pearson, announced plans for holding a special federal-provincial conference to consider a constitutionally entrenched Bill of Rights for Canada. Subsequently language rights were added to the agenda because a federal Royal Commission on that subject was in the process of reporting. The provinces were invited to suggest "any related matters" for the agenda. Two additional agend~ items were added for the meeting which eventually took place in February 1968: regional disparities and further constitutional review. Out of this grew a federal-provincial constitutional review process which was to last more than three years and which discussed the following subjects:
(1) fundamental rights;
(2) official languages and language rights;
(3) equalization and regional disparities;
(4) amending procedure;
(5) patriation process;
(6) mechanisms of federal-provincial relations (e.g. annual First Ministers' Conferences);
(7) Supreme Court;
(8) modernization of the Constitution;
(9) income security and social services;
(10) principles and objectives of the Constitution;
(11) Senate reform;
(12) external relations;
(13) taxing powers (especially sales taxes and death duties);
(14) the federal spending power;
(15) capital markets and financial institutions;
(16) environmental management.
In June 1971, a tentative agreement was reached on proposals respecting the first nine items listed above (in a document known as the Victoria Charter). However, in the end the Quebec government refused to agree to the proposals, mainly on the ground that it wished to see increased provincial control in the area of income security and social services. The Saskatchewan government did not formally accept the Charter either. It was newly elected at the time and it was felt that Quebec's refusal made further action essentially academic.
In April 1975, the then Prime Minister, Mr. Trudeau, while meeting with the provincial Premiers on another matter, suggested they might collectively try once again to get agreement at least on an amending formula and patriation procedure in order to terminate the need for United Kingdom involvement in Canadian constitutional amendments.
This led to discussions with the provinces in which additional provisions were added at their request to the proposal. Thus, in April 1976, a draft proposal for constitutional reform was put forward which included provisions respecting:
(1) official languages and language rights;
(2) equalization and regional disparities;
(3) amending procedure;
(4) patriation process;
(5) federal-provincial agreements;
(6) Supreme Court;
(7) Senate representation.
The Premiers responded on October 14, 1976, indicating the following:
- all provinces agreed with the objective of patriation;
- eight provinces agreed with the amending formula bemg proposed (i.e. that which was drafted and agreed to by all 10 provinces in 1971 in Victoria);
- patriation would not be agreed to, however, unless "accompanied by the expansion of provincial jurisdiction and involvement in certain areas", i.e.:
(1) A greater degree of provincial involvement in immigration;
(2) A strengthening of jurisdiction over taxation in the areas of primary production from lands, mines, minerals and forests;
(3) A provision that the declaratory powers of the federal government to declare a particular work for the general advantage of Canada would only be exercised when the province affected concurred;
(4) That a conference composed of the eleven First Ministers of Canada should be held at least once a year as a constitutional requirement;
(5) That the creation of new provinces should be subject to any amending formula consensus;
(6) A new concurrent power with respect to culture;
(7) Greater provincial control over communications;
(8) A greater role for the provinces in the appointment of Supreme Court judges than provided for in the draft;
(9) Limitations on the exercise of the federal spending power.
Another initiative was started in October 1978, following the introduction into Parliament in June of that year of a Constitutional Amendment Bill (Bill C-60 of session 1977 -78). The subjects dealt with this time included:
(1) fundamental rights, including official languages and language rights;
(2) equalization and regional disparities;
(3) amending procedure;
(4) pa tria tion process;
(5) Supreme Court;
(7) indirect taxation;
(8) the federal spending power;
(9) limitations on the federal declaratory power;
(11) family law;
(12) resource ownership and interprovincial trade;
(13) ownership of and jurisdiction over offshore resources;
(14) fisheries jurisdiction;
(15) the monarchy.
Agreement by all governments was limited. It was agreed that no changes should be made in the monarchy and that that item should be dropped. It was agreed that additional legislative authority allowing the provinces to levy indirect taxation was not necessary and, therefore, that item should be dropped as well. There was agreement on the family law proposals and almost unanimous agreement on those relating to regional disparities and communications.
The process of constitutional discussion was reactivated in June 1980, when Prime Minister Trudeau again suggested to the provincial Premiers that an attempt should be made to reach agreement so that the Constitution could be "brought home". The agenda items this time included:
(1) fundamental rights, including official languages and language rights;
(2) equalization and regional disparities;
(3) amending formula (and the patriation process);
(4) Supreme Court;
(5) Senate reform;
(7) family law;
(8) resource ownership and interprovincial trade;
(9) offshore resources;
(11) statement of principles of the federation/preamble;
(12) powers over the economy-economic union.
Despite intensive and almost continuous negotiations over the course of the summer of 1980 involving two first ministers' meetings, four ministerial meetings and innumerable meetings of officials, unanimous agreement was not reached on any item. Even that which had previously been agreed to in the family law area -- increased provincial jurisdiction -- did not this time receive unanimous provincial consent.
William F. Maton