Document Information

Date: 1978-09
By: British Columbia
Citation: British Columbia, British Columbia’s Constitutional Proposals, Paper No. 1 (Victoria: Queen’s Printer, 1978).
Other formats: Coming soon.

British Columbia’s
Constitutional Proposals

Paper No. 1
TOWARD A REVISED
CONSTITUTION FOR CANADA

Province of
British Columbia

INDEX
PAGE

Introduction 7
The Need for Constitutional Review 8
The Process of Constitutional Review 11
Provincial Concerns 11
(a) No Prior Consultation With Provinces 11
(b) Unilateral Action 13
(c) Compartmentalized Constitutional Review 14
(d) The Codification of Our Constitution 14
(e) Constitutional “Overstuffing” 15
Conclusion 16

“The time has come for all governments
in Canada to embark upon a serious review
of the country’s Constitution. . . . That is
why it is the intention of my government
to develop a comprehensive set of constitu-
tional proposals to provide . . . creative
yet realistic solutions toward a better and
more united Canada.”

Premier W.R. Bennett
Brief to Task Force on Canadian Unity
February 8, 1978

Introduction

The preamble to the British North America Act, 1867 expresses the
desire of the original provinces, and those which followed, to be federally
united into “One Dominion under the Crown, with a Constitution
similar in Principle to that of the United Kingdom”. It was on that
basis that the united Crown Colony of British Columbia joined Canada
in 1871.

The Government of British Columbia continues to be committed
to the concept of a united Canada and to the basic principles of a federal
system. With its vast size and the diversity of its regions a new federal-
ism designed to meet the contemporary needs of the people of Canada
can be the system of government best suited to Canada’s needs.

Those principles to which the Government of British Columbia are
committed include the principle of responsible government whereby
executive authority is vested in the Crown although exercised by the
Crown’s ministers having at all times the con?dence of a majority of
the legislature. The traditional role of the monarchy is essential to the
functioning of such a system of responsible government and the Govern-
ment of British Columbia is opposed to any move that would, in any
way, diminish that role.

Although British Columbia is committed to the federal form of
government it is dissatis?ed with the importance given to British
Columbia within our present federal system. Sad to say, in constitu-
tional terms British Columbia is afforded little more weight, relatively
speaking, than it was given in 1871. That situation must change.

But the comprehensive proposals contained herein are not solely
designed to redress British Columbia’s grievances within Confederation.
They propose structural changes to our constitutional arrangements
designed to meet the needs and aspirations of Canadians from all parts
of Canada to the end that collectively we might go on to attain the great
destiny to which Canada is called.

The Need for Constitutional Review

It would be a mistake to assume that serious dissatisfaction with
certain aspects of Canadian federalism has only recently occurred or is
tied to any particular event. Nor should it be assumed that disaffections
are limited to the Province of Quebec. Even a casual observer of
the Canadian federal scene will know that western alienation and
maritime regional disparities are not merely catch phrases but that they
express serious concerns with deep-seated structural de?ciencies in the
central institutions of federalism, the division of powers, and with cer-
tain longstanding national policies.

The Government of British Columbia is ?rmly of the view that if we
are to cope with the serious stresses with which we are faced as a nation
then there must be bold and imaginative action now by all levels of
government on two fronts—?rst, the economic front and equally im-
portant the constitutional front.

This is no the place to deal at length on economic matters except to
say that at the First Ministers’ Conference in Ottawa in February, 1978
Premier Bennett presented an Economic Strategy for Canada——an inte-
grated and comprehensive program designed to put Canada on its
economic feet again.

Canada has gone from boom to bust in seemingly inevitable economic
cycles, and as policy after policy has emerged, unrelated to one another
and often counteracting earlier policies, business, labour and the people
of Canada have lost con?dence in governments’ ability to manage the
economy. The results of such ad hoc policies are unacceptably high
unemployment, almost double digit in?ation, poor domestic investment
performance, the movement abroad of Canadian investment, poor
labour/management relations and declining competitiveness in inter-
national markets. These ad hoc policies have led to serious and deep-
rooted structural weaknesses in the Canadian economy which cannot be
corrected easily and quickly—they require major surgery.

So it is in the constitutional area. The difficulties within our federal
system will not be resolved through minor tinkering so as to give a
few more Senate seats here and there or by moving a few federal public
servants out of Ottawa into the provinces in the name of decentralization
—for that does not of itself constitute decentralization of power.

The central institutions of federalism such as the Senate of Canada,
the Supreme Court of Canada and major federal boards and commissions
are neither constituted in such a way nor are they inclined to properly
take into account in their decision-making process the points of view of
the various regions that go to make up this country. Nor is there suffi-
cient appreciation within many of those institutions as to the impact
which their decisions have on legitimate regional or provincial aspira-

tions. British Columbia’s proposals for restructing these institutions to
more properly take into account regional interests or to make them
appear to be more legitimate institutions, are set out in detail in Papers
Nos. 3, 4, and 5.

There are other reasons why the Government of British Columbia
sees the need for revisions to the Constitution at this time. The division
of legislative powers between the two levels of government has been
virtually unaltered since 1867 and is, therefore, silent in dealing with
the many technological areas of importance which have come to the fore
in recent years. The Constitution then, to some extent, is out of tune
with contemporary needs and is silent on many of the modern-day sub-
ject matters of high priority to governments. This is not to say that,
faced with a question as to which level of government has the constitu-
tional jurisdiction in a new ?eld, the courts have not interpolated the
existing provisions of the Constitution and thereby assigned jurisdiction
to one level of government or the other. But that process can be slow
and fragmented and is a poor substitute for a full and modernized state-
ment of the division of powers.

Paper No. 8 assesses the basic principles on which the division of
powers should be based. In a large and diverse country such as Canada
we need to reconsider whether we can or should be governed to so great
an extent from a national capital hundreds of miles from most of the
communities of the country. We need to reassess whether the federal
government should be delving into virtually every area of our lives. This
process of reassessment will take time but we should begin now. Paper
No. 8 represents the beginning of the process.

Restructuring the division of powers along rational lines and in
clearer language and more de?nitive terms might lead to lessening the
degree of duplication of government programs and services that now
exist. Atthe present time there are many instances of overlapping
government bureaucracy between the two levels; lack of harmonization
of governments’ policies and above all confusion for the citizens as to
which level of government has jurisdiction. In areas of concurrent
jurisdiction between both levels of government it will be necessary that
a greater degree of federal/ provincial co-ordination and harmonization
take place to prevent useless duplication. Paper No. 5 suggests
improved instruments for federal/provincial relations.

Another factor which calls for constitutional action at this time is
the fact that the B.N.A. Act—a Statute of the British Parliament—does
not contain within it an amending, formula, which would permit most of
the crucial provisions of that Act to be amended in Canada by Canadian
legislators. It is true that since 1949 the Parliament of Canada has had
power to amend unilaterally the provisions of the B.N.A. Act that do not

affect provincial rights but in the more important and difficult category
of matters which do affect provincial rights, present amendment pro-
cedures require resort to the Government of the United Kingdom. This
is surely a vestige of colonial days which ought to be removed. British
Columbia’s proposals on patriation and the amending formula are con-
tained in Paper No. 9.

The Process of Constitutional Review

On June 20th, 1978, the Prime Minister of Canada, on behalf of
the federal government, introduced into the House of Commons Bill
C-60, The Constitutional Amendment Bill. The introductory notes
state that “The Bill proposes the beginning of a process that would lead
to a new and wholly Canadian statement of Canada’s Constitution.”
The White Paper entitled “A Time for Action” issued preceding the
introduction of the Bill con?rms the fact that it is the intention of the
federal government to undertake the process of constitutional review not
only by alterations to the British North America Act but by codifying
in one document many of the other instruments that go to make up the
totality of Canada’s Constitution, namely Acts of the British Parliament,
Imperial Orders in Council, Acts of the Parliament of Canada, consti-
tutional practice and usage, and even leading judicial decisions which
have interpreted the meaning of the B.N.A. Act and other of our
constitutional documents.

Since the date of its introduction the Bill and the accompanying
White Paper have received wide distribution throughout the country
stimulating much debate and the Bill has been the subject of consider-
ation by a Joint Committee of the Senate and House of Commons and
also by a Committee of the Senate of Canada.

The White Paper states that “The (federal) government believes
that each government in Canada, provincial or federal has a respon-
sibility to make its contribution to the on-going debate”. It is in
keeping with that view that the Government of British Columbia has
developed over the past year the comprehensive set of Constitutional
proposals contained within this set of nine papers.

PROVINCIAL CONCERNS
(a) No Prior Consultation With Provinces

British Columbia views with considerable regret that with no prior
consultation with the provinces the Federal Government saw ?t to
proceed with the putting forward of its proposals on the Constitution
in the form of a Bill before Parliament. These concerns were expressed
in some detail in a letter from Premier Bennett to Prime Minister Tru-
deau dated June 26th, 1978, a portion of which is as follows:

” . . . I want to express to you my serious concerns about
the nature of the process of constitutional review that you
propose to follow. In your proposals and your accom-
panying letter to me of June 12th you indicate a number
of times that both with respect to the matters included in
phase 1 and phase 2 you are “committed to extensive

consultation with the Provinces . . . .” It is the nature
and scope of those consultations that I am concerned
about and on which I seek your clari?cation.

I would hope that the consultation process with the prov-
inces will not be limited to your seeking merely our
reactions to your proposals. Rather I trust that the
process will provide a full opportunity to the provinces
to put forward their own proposals, if they so desire, to
be treated at the conference table on an equal basis and
with the same degree of deference as the Federal pro-
posals now made public.

Speaking for my province, I can advise you that for many
months we have been working on the development of a
comprehensive set of constitutional proposals through
our Cabinet Committee on Confederation. We expect to
have them ?nalized by late August or early September.
I expect that other provincial governments are doing
likewise. That being the case, does the consultative pro-
cess which you have in mind allow for the full and proper
consideration by ?rst ministers of any and all such pro-
posals in an equal light? When phase 1 ultimately goes
forward and becomes part of our Constitution will it
represent a truly joint effort bringing together the propos-
als of all governments?

I hope that you envisage a consultation process along
the lines just described. I fear that if the process is any
thing less—for example, a few brief meetings during the
summer at the officials’ level, followed by a single First
Ministers’ Conference in the early autumn with an agenda
consisting largely of the Federal proposals, followed by
the introduction and passage of legislation in Parliament
shortly after the conference—then there is a good chance
that the new Canadian Constitution will neither have the
support of many parts of the country nor contribute
usefully to a lasting solution to many of our national
problems.”

The Prime Minister responded by letter dated July 10, 1978, which
reads in part as follows:

“I am sure we will have every opportunity, at the forth-
coming Conference of First Ministers on the Constitution,
for a thorough discussion of the proposals you will be
bringing forward. On the question of process for con-

sultation, anumber of the points you raised in your letter
have, I believe, been covered in my letter of July 7. The
process, as I see it, is certainly not limited to the federal
government seeking “merely your reactions” to federal
proposals. I have said repeatedly that we will welcome
alternative suggestions for the various proposals con-
tained in the Constitutional Bill, and while our own ideas
have been put forward after a good deal of thought and
represent our considered views, we do not in any way
preclude the possibility that other ideas may be presented
which could, after discussion and reflection, seem even
better.”

British Columbia, therefore, looks forward to the genuine process
of negotiation and consultation that has been promised.

Apart from the matter of full consultation there are other aspects to
the process of constitutional review envisaged by the federal govern-
ment which are of concern to the Government of British Columbia.

(b) Unilateral Action

The federal government has divided the constitutional review
process into two phases and has included in phase one what it
considers to be matters on which it is entitled to proceed unilaterally
without necessarily obtaining the concurrence of the provinces.
Included in this category are the measures contained in Bill C-60
relating to the federal executive, including the role of the monarchy
and the Governor—General of Canada and the proposed changes to
the Senate of Canada.

While it is true that since a 1949 amendment to the B.N.A. Act
the federal Parliament is able to unilaterally amend provisions of
the B.N.A. Act within federal jurisdiction, it is equally true that it
does not have such power on subject matters which affect the
rights or privileges of the provinces. It is British Columbia’s view
that a number of the more signi?cant subject matters contained
within phase one are simply beyond the scope of those matters on
which the federal government can proceed unilaterally. The role
of the Monarchy, the position of the Governor-General and a major
revamping of the Senate of Canada are clearly matters of profound
import to the provinces to a like degree as they are to the federal
government. Accordingly, having regard to Section 91 (1) of the
B.N.A. Act and past constitutional practice in which amendments
to the B.N.A. Act which affect provincial rights ?rst received the
unanimous concurrence of all provincial governments, the Govern-

ment of British Columbia is of the view that it would be a violation
of established constitutional practice for the Government of Can-
ada to proceed unilaterally on these matters.

Apart altogether from what may be the accepted constitutional
practice, it is the Government of British Columbia’s view that it
would be extremely- unwise for the federal government to proceed
in this way. What the federal government describes as “the re-
newal of the federation” ought to be carried on by a process that
is conducive to engendering national unity. Any unilateral move
would lead to further disunity and unnecessary devisiveness
throughout the country and the process would, therefore be self-
defeating.

c) Compartmentalized Constitutional Review

There are other reasons why the Government of British Colum-
bia is not in favour of the constitutional review process being
proceeded with in a compartmentalized way. Changes to the
central institutions, of federalism, which is a subject contained
within phase one, interact with and only take on their full meaning
if the distribution of powers between the two levels of government
(a phase two matter) is clearly known. This interaction between
institutional change and jurisdictional change means that both
must, of necessity, be considered and go forward simultaneously.

d) The Codi?cation of Our Constitution

The B.N.A. Act is not, of course, the sum total of Canada’s
Constitution. As has been stated above, the Constitution of Canada
includes the B.N.A. Act and also a great many other statutes—
Imperial and federal—as well as numerous Imperial Orders in
Council and many unwritten constitutional customs and practices.
This, of course, was the British system of constitutional develop-
ment which is the basis for our own in Canada.

It is clearly the intention of the government of Canada to
proceed to codify all of these elements that make up our Constitu-
tion into one comprehensive document. That is the basis on which
Bill C-60 has been drawn. The government of British Columbia
sees no necessity to proceed in this way. The totality of the Con-
stitution has been ?exible enough to evolve over time. To codify
it is to freeze it in place, with, in all liklihood, a rather rigid process
for amendment. Moreover, codi?cation will lead, and has already
lead, to undue debate and devisiveness as to precisely what the
totality of our Constitution now contains.

(e) Constitutional “Overstuffing”

There is a danger in including too many subject matters in the
Constitution as if placing matters in the Constitution is necessarily
going to advance their solution. To be sure revision of the B.N.A..
Act is necessary to meet contemporary needs and to alleviate the
current stresses within the federation. But we must guard against
the tendency to put too much in the Constitution as if such a
course would be the panacea for all the country’s ills. There is no
basis for believing that the constitution-makers of today will prove
to be wiser than the legislators of tomorrow.

For example, the Government of British Columbia is not con-
vinced that basic human rights, including language rights are best
dealt with by entrenching them in the Constitution A Good argu-
ment can be made that ordinary legislative action 1S a more ?exible
and more appropriate means of assuring these rights. The issues
are dealt with at length in Papers Nos. 6 and 7 in this series.

Conclusion

The proposals of the Government of British Columbia contained in
these papers provide a comprehensive plan of revision to the Constitu-
tion of Canada. They are advanced in the belief that they “provide
creative yet realistic solutions toward a better and more united Canada.”