Document Information

Date: 1978-09
By: British Columbia
Citation: British Columbia, British Columbia’s Constitutional Proposals, Paper No. 9 (Victoria: Queen’s Printer, 1978).
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British Columbia’s
Constitutional Proposals

Paper No. 9
THE AMENDMENT OF
THE CONSTITUTION OF CANADA

Psrovince of
British Columbia
September 1978

INDEX
Page

Introduction 7
I. Critique of the Existing Amendment Process 9
II. The Categories of Constitutional Amendment 11
III. The Forum for Constitutional Amendment Decisions 17
Summary of Proposals 18

“. . . the weight that ought to be
given in an amending formula to Western
Canada should be approximately one-third
of the country as a whole. The five-region
concept would do this for. . . it would
require the approval of each of Ontario,
Quebec, two of the three Prairie Provinces,
two of the four Atlantic Provinces, British
Columbia and the Federal Government. . . .
Two of the six is a reasonable reflection of the
importance of the West in today’s Canada.

Introduction

The British North America Act, passed by the United Kingdom
Parliament in 1867 created the Dominion of Canada and continues to
be Canada’s fundamental constitutional document. It contains among
its provisions the distribution of legislative powers between the two levels
of government, a necessary part of any federal state.

While the B,N.A. Act has, by and large, served Canada well over
the past 111 years, the absence of an express formula within the Act by
which the distribution of powers, and other important sections, may be
amended in Canada has resulted in a degree of constitutional inflexibility
that is detrimental to coping with contemporary problems. Accordingly,
beginning with the Federal-Provincial Conference of 1927 and continu-
ing to the present day, almost continual efforts have been made to arrive
at an amending formula and thereby place fully in Canadian hands
control over its constitutional development.

It is important to note that the absence of a domestic amending
formula has not resulted in a corresponding absence of constitutional
amendments of any kind. Two distinct avenues of constitutional amend-
ments have developed and been used to effect a number of constitutional
amendments. First, the British North America Act, in Section 91 (1),
passed in 1949, and Section 92 (1) makes provisions for Parliament
and the provincial legislatures respectively to amend the Constitution
wholly within Canada in areas within their exclusive jurisdiction. Acting
pursuant to Section 91 (1) Parliament has amended the Constitution in
a number of areas, including providing for a stated retirement age for
Senators, providing foi representation in the Senate from the Northwest
Territories and Yukon Territory and redistributing electoral boundaries.
Using Section 92 (1) provincial legislatures have also’ made electoral
boundary changes and many of them have altered their initial constitu-
tional provisions relating to provincial upper houses.

In addition, through an evolving process of constitutional conven-
tion, it has proved possible to amend, from time to time, some of the
more fundamental parts of the Constitution, including the distribution

of legislative powers. The conventions which permit amendments by
the United Kingdom Parliament in this area can be summarized in the
following propositions:

(1) The United Kingdom Parliament will not amend the Con-
stitution without a Canadian request.

(2) A request by the Canadian Government (Cabinet) is not
sufficient. The Government request must be sanctioned by
the Canadian Parliament.

(3) The United Kingdom Parliament will not heed provincial
requests for constitutional amendment.

(4) The Canadian Parliament will not request an amendment
directly affecting provincial rights without prior consultation
and agreement with the provinces concerned.

Through utilization of the mechanisms just described it has been
possible to achieve a number of important amendments to the British
North America Act, including the admission of new provinces to the
Confederation, the transferring of ownership of natural resources in
Alberta, Saskatchewan, and Manitoba from the federal government to
the provinces, and the vesting in Parliament of jurisdiction to make laws
in relation to unemployment insurance and old age pensions and sup-
plementary benefits.

I. Critique of the Existing Amendment Process

In spite of the combination of constitutional provisions and constitu-
tional conventions permitting amendments to the Constitution above
referred to and in spite of the numerous amendments that have in fact
been realized, the constitutional amendment process has proved unsatis-
factory-for at least three reasons.

First, the process has not been as flexible as both levels of govern-
inent would desire, particularly in the realm of the distribution of
powers. Indeed one of the themes of most recent amendment proposals,
including the Fulton-Favreau and Victoria Charter formulae, has been
an attempt to make the amendment process less rigid than it is at present.
At present the unanimity of all provinces is necessary before an amend-
ment altering the distribution of powers or affecting provincial rights is
made.

Secondly, the provinces are unhappy with the current practice
because it places them in a subservient position which is contrary to the
classical notion of federalism as a system of government in which there
are two separate and equal levels of government. Although, as has been
said, one of the conventions that has developed concerning constitutional
amendment is that the Canadian Parliament will not seek an amendment
in a field affecting provincial rights without obtaining the prior agree-
ment of the provinces, in practice it has been Parliament alone which has
determined what constitutes a matter of provincial concern. The United
Kingdom Parliament has never heeded provincial objections to federal
requests for amendments–it has refused to umpire between the con-
flicting claims of the two levels of government. Accordingly, although
there is a constitutional convention requiring joint federal-provincial
action to amend the Constitution on provincial matters, that convention
is substantitally diluted by the prior fact that the definition of what
constitutes such matters is in effect a unilateral decision of the federal
government.

Thirdly, and most importantly, both levels of government are agreed
that an amendment process which relies on the United Kingdom Parlia-
ment is inconsistent with the notion of the complete independence of
the Canadian nation. It is important that Canadian independence be
absolute–in both a real and symbolic sense. There is no doubt that in
a real sense Canada is fully independent. But in a symbolic sense that
independence is lacking as long as we are dependent on an external
agent for the alteration of our basic constitutional document.

Because of these three important defects in the present amendment
process there has been a prolonged, and almost continuous, search for
a new amendment formula. Major federal-provincial conferences on

the amendment issue were held in 1927, 1935-36, 1950, 1960-61
1968-1971.
The most recent attempt at solving the problem took place in 1976
when Prime Minister Trudeau proposed to the Premiers that further
efforts be made to reach agreement on an amending formula. The
provincial Premiers met twice in 1976, in Edmonton in August and in
Toronto in October, to discuss this and other constitutional issues.

II. The Categories of Constitutional Amendment

Thus far all these conferences have failed to produce agreement on
an amendment procedure. In recent years, however, there has been
basic agreement on the general categories of matters in relation to
which various amendment mechanisms should be considered. Those
categories are:

(1) Subject matters concerning only the provincial legislatures;

(2) Subject matters concerning only Parliament;

(3) Subject matters concerning Parliament and one or more,
but not all, the provincial legislatures;

(4) Subject matters concerning Parliament and all the provincial
legislatures.

Unfortunately, agreement has not gone beyond this identification of
general categories. There has been no agreement on the actual contents
of the subject matters of each category nor on the methods for amending
sortie of the different categories.

Against this historical background, what are British Columbia’s
proposals concerning a new constitutional amendment process?

Subject Matters Concerning Only the Provincial Legislatures

First, those subject matters of concern to only the provincial legis-
latures should be amendable by the provincial legislature acting uni-
laterally. This is currently permitted by section 92 (1) of the British
North America Act and should be maintained.

Subject Matters Concerning Only Parliament

Secondly, those subject matters of concern to the Federal Govern-
ment only, should be amendable by Parliament acting unilaterally. This
is currently permitted by Section 91 (1) of the British North America
Act. However, the Government of British Columbia believes that the
contents of this category have been defined too broadly in the past thus
purporting to allow Parliament to act alone in relation to subject matters
that concern both the national and provincial levels of government. The
most recent federal constitutional proposals is a good example of this.
Using Section 91 (1), the Federal Government is proposing sweeping
changes in, among other things, the Senate and the Supreme Court of
Canada, two institutions with an immense impact on the affairs of both
levels of government. In our paper entitled Reform of the Canadian
Senate (Paper No. 3) we considered this problem in some detail:

“Section 91 (1) gives Parliament jurisdiction to amend
unilaterally those parts of the Constitution which are

within exclusive federal jurisdiction. In relation to a
good many subject matters–for example, the establish-
ment of electoral districts for the House of Commons,
representation in the Commons, qualifications and dis-
qualifications of Members of Parliament-this jurisdic-
tion is undoubtedly legitimate. But there are other
subject matters which may be inappropriately subject to
unilateral parliamentary amendment under Section 91
(1) of the B.N.A. Act. For example, it may be argued
that Parliament can deal unilaterally with the existence,
composition and jurisdiction of such national institutions
as the Senate and the Supreme Court of Canada. But the
thrust of this paper has been that it is precisely these
institutions that require greater provincial participation.
Accordingly, assuming this was accomplished, it would
then not be logical to allow the House of Commons to
amend unilaterally (the Senate would, of course, be
involved in the amendment process; but unless its veto
was absolute the Commons in effect would be able to act
unilaterally) the provisions of the B.N.A. Act dealing
with the Senate. Since the main rationale for a reformed
Senate would be the representation of provincial interests
it is only sensible to allow the provinces a role in any
alterations that are to be made to the Senate. The same
can be said of the Supreme Court of Canada. It is illogi-
cal to create in the Constitution a final court whose
appointment mechanisms and jurisdiction reflect a fair
balancing of federal and regional interests–and then
allow all that to be upset by unilateral amendment of the
Constitution by Parliament acting without the possibility
of an effective veto by the Senate properly reconstituted.”
The Federal Government has acknowledged the force of these
arguments in its paper, published in 1965, entitled The Amendment of
the Constitution of Canada. At page 25 of that paper some of the
background of Section 91 (l) is discussed:

“During the 1950 Constitutional Conference, most of the
provinces objected to the newly-enacted amendment,
Section 91 (1). They felt that it went too far; that in
the absence of rights of participation by the provincial
legislatures, it could enable Parliament unilaterally to
make changes that could be of great importance to the
provinces.”

The acknowledgment of the validity of these provincial fears came
later in the paper, at page 30:
“The problem posed by Section 91 (1) was that it
defined Parliament’s powers in broad general terms–
broader, for example, than those that had been contem-
plated in 1935-36. The intention in 1949 was to give
Parliament power to amend the Constitution of Canada
in its purely federal aspects only, but to leave it to the
Courts to determine precisely what matters were included
in or excluded from the powers conferred. It was the
generality and uncertainty of this provision that had been
objected to by the provinces in 1949-50 and 60-61.”

To summarize then: The Government of British Columbia recom-
mends that Parliament continue to have jurisdiction to amend unilater-
ally those provisions of the Constitution which are genuinely of interest
to only the national level of government. Such provisions would be
amendable by joint resolution of the two branches of Parliament. If the
reconstituted Senate refused to assent to a particular amendment its
veto could be overridden by the House of Commons because, by defini-
tion, those provisions involve no regional interests.

British Columbia recommends, however, that some of the subject
matters currently covered by Section 91 (1), such as amendments
concerning the Senate and Supreme Court of Canada, be considered
to be within the fourth category (referred to on page 11) of amendable
mattersand be subject to the amendment procedure that applies to that
category (see discussion below). The status and jurisdiction of major
federal institutions such as the Senate and the Court are just as important
to, and have just as much influence on, the regions as many issues within
the distribution of powers. These matters should be subject to an
amendment formula that takes account of both national and regional
interests.

Subject Matters Concerning Parliament and One or More,
But Not All, the Provincial Legislatures

The third category of subject matters involves those matters of
concern to the national government and one or more, but not all, of the
provinces. The Government of British Columbia recommends a continu-
ance of the present method of amendment in relation to this category of
subject matters-namely, amendment by those governments concerned.

Subject Matters Concerning Parliament and All the
Provincial Legislatures

The fourth category of subject matters, and the most significant for
purposes of this paper, consists of matters of concern to all the govern-
ments. As it includes distribution of powers issues it is the crucial
category of amendment. It is also the category upon which most of
the federal-provincial conferences have focussed and it is the category
in which agreement on an amendment formula has never been reached.

Through the years there have been many proposals of amendment
formulae for the subject matters in this category. It is not necessary
to examine them all in this paper because manu of them are now of only
historical interest. It is, however, relevant to consider two of the most
recent proposals because British Columbia’s proposals, although based
on a similar initial premise, diverge in important practical respects from
both of them. The two proposals to be considered are the Fulton-
Favreau formula and the Victoria Charter procedure.

The Fulton-Favreau formula of 1964, named after the two federal
Ministers of Justice who were instrumental in its creation, offered a
three-tiered approach to constitutional amendments. The most crucial
elements of the Constitution, including the distribution of legislative powers, the use of the English and French languages and guaranteed
denominational rights in education, could not be amended without the
consent of all eleven governments. As an innovation to overcome the rigidity of this formula the proposal introduced the doctrine of delega-
tion which would permit one level of government to transfer its powers
to the other if certain prescribed conditions were met.

The defect of the Fulton-Favreau formula was its rigidity. In effect
it would have formalized in the Constitution the inflexible constitutional
convention requiring unanimous agreement that has evolved over time.
British Columbia acknowledges that a constitution must not be subject to
easy change – yet equally, it must not be etched permanently in stone. In our view, the assessment of the Fulton-Favreau formula made in
1971 by the Special Joint Committee of the Senate and House of
Commons on the Constitution is accurate:

“While the Formula may have appeared to require for
constitutional amendment only the agreement of the
Federal Parliament and the Legislatures of two thirds
of the Provinces representing 50 per cent of the popula-
tion of Canada according to the latest census, actually
the amendment of any important section of the British
North America Act would have required the agreement
of all the Provincial Legislatures, since included in the
category requiring unanimous agreement were all the
powers in Sections 91, 92, and 93 of the Act . . . In

effect, therefore, the (Fulton-Favreau) formula would
have required unanimous agreement on all matters of
moment . . . In our view what was objectionable about
the Fulton-Favreau Formula was this rigidity.”

The proposals of the present Government of Alberta can be criti-
cized on the same basis. Alberta contends that constitutional amend-
ments that would diminish provincial rights should occur only if there
is unanimous consent by all eleven governments. The Government of
British Columbia believes that this proposal errs on the side of rigidity,
particularly since it does not contain a countervailing flexibility com-
ponent such as delegation of powers to mitigate the rigours imposed by
the straitjacket of unanimous agreement.

The basic concepts developed oyer forty years of negotiation for a
domestic formula were altered markedly in the Victoria Charter of
1971. This formula was predicated on viewing the nation in terms of
four regions, rather than as ten provinces, the consent of each region
and of the Federal Government being required for amendments,

The Victoria Charter procedure is a substantial improvement over
the Fulton-Favreau formula in that it seeks to strike a balance between
stability and flexibility by application of the regional concept. How-
ever, the Charter can be criticized for an inaccurate designation of the
regions of Canada. The Government of British Columbia believes that
a new amendment formula must take full account of the place which
British Columbia now occupies in contemporary Canada.

In terms of geography and population and any other criteria for
growth, the position of British Columbia in Canada has dramatically
changed since its entry into Confederation in 1871. Yet, in large
measure, British Columbia is afforded today the same degree of impor-
tance in constitutional terms as it was in 1871.

In 1871 British Columbia’s population was 1 per cent of the total
Canadian population. Today the population is 10.8 per cent of the
total of Canada, the labour force is 11 per cent, the provincial product
is 12.9 per cent, retail sales are 11.8 per cent, and investment is 12.1 per
cent of the total of Canada.

It is equally true that the increasing importance of the other western
provinces is not properly recognized in the Constitution. In 1871 there
were not Provinces of Alberta and Saskatchewan at all and Manitoba
was little more than postage stamp size. Today the population of West-
ern Canada is 27.5 per cent of the total of Canada, the’ labour force is
27.7 per cent, the provincial product is 34.2 per cent, retail sales are
29.7 per cent, and investment in Western Canada is 32.8 per cent of the
total of Canada.

In 1867 the B.N.A. Act quite properly recognized only a three-
region Canada—Ontario, Quebec, and the Maritime Provinces. With

the subsequent entry into Confederation of British Columbia, the estab-
lishment of the Provinces of Alberta and Saskatchewan in 1905, and
the enlargement of Manitoba in 1912, the B.N.A. Act was amended in
1915 to reflect a four-region Canada. British Columbia is now propos-
ing that the regional concept be once more updated to reflect the realities
of 1978 by recognizing British Columbia as a fifth region. To do so
would also strengthen the fourth region comprising the three Prairie
Provinces.

In order to reflect the importance of British Columbia and the rest
of Western Canada in the Canadian Confederation British Columbia
rejects the amending formula contained in the Victoria Charter as not
properly recognizing contemporary realities. Instead it proposes that
British Columbia be treated as a separate region. (See Paper No. 2:
“British Columbia–Canada’s Pacific Region” for a detailed analysis in
support of this proposition.)

The statistics previously set out clearly show that the weight that
ought to be given in an amending formula to Western Canada should
be approximately one third of the country as a whole. The five-region
concept would do this for constitutional amendments of this category
would require the approval of each of Ontario, Quebec, two of the three
Prairie Provinces, two of the four Atlantic Provinces, and British
Columbia. The five-region proposal would give the West two of six
voices (the sixth being the Federal Government) in matters involving
constitutional change. Two of six is a reasonable reflection of the
importance of the West in today’s Canada. On the other hand, the
Victoria Charter amending formula does not recognize the emergence
of the West. It would give the whole of Western Canada only one
voice out of five.

British Columbia’s proposal on the amending formula represents a
compromise point of view to the several amending formula proposals
put forward. On the one hand, Alberta proposes a rigid amending
formula that would require the unanimous consent of all 11 governments
to constitutional change diminishing provincial rights, whereas, on the
other hand, the Victoria Charter amending formula would give an effec-
tive voice to only four provinces, or groups of provinces, and the Federal
Government. The British Columbia proposal provides more flexibility
than the Alberta proposal and yet retains a measure of stability from
frequent change, necessary to a viable Constitution. Finally, the
measure of agreement necessary under the five-region concept would
approximate the measure of agreement necessary in other federal states.
For example, in the United States, three quarters of the states must
agree.

III. The Forum for Constitutional Amendment Decisions

The only question which remains is: what should be the forum for
the aggregation of federal and regional votes when a constitutional
amendment is proposed? Obviously, Parliament is the proper institu-
tion to represent national interests. But there are two possible forums
for the representation and aggregation of the interests of the five
regions-first, the provincial legislatures; secondly, the Senate, provided
it is reformed along the lines suggested by British Columbia. (See
Paper No. 3: “Reform of the Canadian Senate”.)
The provincial legislatures was the foruni recommended in the Vic-
toria Charter. British Columbia regards this as an acceptable forum
but prefers the forum of a reconstituted Senate provided that all Senators
are appointed by, and are directly responsible to, provincial govern
ments. If the Senate became a genuine forum for the representation of
regional interests in the national law-making process, then British Co-
lumbia believes that it would be the logical place for provincial con-
sideration of amendment proposals. This procedure Would haw? the
advantage of allowing all the regions to discuss a proposed amendment
in a single place at a single time. This would probably make the dis-
cussion more sharply focussed, more comprehensive and, ultimately,
more useful than if it occurs in ten different legislatures at ten different
times where depth of analysis and an understanding of important points
of View held in other provinces are likely to be lacking.

Accordingly, British Columbia recommends that all federal-provin
cial subject matters be subject to amendment by the joint action of the
House of Commons and the Senate. Passage in the House of Commons
would require a simple majority; in the Senate ppassage would require
a majority of votes cast from each of the five regions-Atlantic Canada,
Quebec, Ontario, the Prairie provinces, and British Columbia. Because,
by definition, the subject matters in this category are_of fundamerita
concern to both the national government and the regions, a negative
Senate vote would be determinative of the issue.

Summary of Proposals

The Government of British Columbia makes the following proposals
concerning the process of constitutional amendment in Canada:

(1) The constitutional amendment process should be one that
is exclusively Canadian.

(2) Subject matters of concern to only the provincial legislature
should be amendable by the provincial legislatures acting
unilaterally.

(3) Subject matters of concern to only Parliament should be
amendable by Parliament acting unilaterally. Careful atten-
tion should be focussed on the identification of these
matters to exclude some which may be said to be included
in this category-for example, the Senate and the Supreme
Court of Canada-do not in fact affect only Parliament
but rather have a significant impact on the provinces as well.

(4) Subject matters of concern only to Parliament and some,
but not all, of the provincial legislatures should be amend-
able by those governments concerned.

(5) Subject matters of concern to Parliament and all the provin-
cial legislatures should be amendable by the affirmative
votes of the House of Commons, the Atlantic Region,
Quebec, Ontario, the Prairie Region, and British Columbia.

(6) The forum for aggregating the five regional votes required
for constitutional amendments should be the Senate, pro-
vided that it is reformed so that its primary purpose is the
representation of regional interests at the national level
and provided that all Senators are appointed by, and are
directly responsible to, provincial governments.

(7) If the Senate is not reformed along these lines then the
forum for aggregating the five regional votes required for
constitutional amendments should be the respective provin-
cial legislatures.

In conclusion, the Government of British Columbia believes that the
amending formula in any constitution, particularly federal constitutions,
must be a happy balance of flexibility and stability–flexibility to permit
the constitution to keep abreast of contemporary needs, stability to
provide some measure of constitutional certainty to governors and the
governed alike. British Columbia’s proposals seek to strike that balance.