Canada, Senate Debates, “Motion for an Address to Her Majesty the Queen—Debate Continued” (12 March 1981)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 2036-2045.
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DEBATES March 12, l98l
MOTION FOR AN ADDRESS TO HER MAJESTY THE QUEEN-
The Senate resumed from yesterday the debate on the
motion of Senator Pcrrault that an Address be presented to
Her Majesty the Queen respecting the Constitution of Canada.
Hon. Nathan Nurgitz: Honourable senators, in October
1980, some five months ago, I spoke in this chamber with
regard to the proposed resolution on the Constitution and the
motion which established the parliamentary committee to
study that resolution. At that time I expressed my concerns
and my doubts about the course of action the government was
taking and, indeed, about the contents of the resolution itself.
In the course of this intervention I hope to make less comment
on the content and to put more emphasis on the procedure that
is being followed by the government at this time.
Before doing so, I should like to join all other members of
this chamber in extending the congratulations and, indeed, the
thanks of all Canadians to the members of the committee who
performed well under what were, at times, very trying circum-
stances, and who did an outstanding job, having regard to the
time constraint and other problems. I believe that in extending
such a congratulatory note, one ought not to be bound to have
accepted every conclusion reached by the majority of the
I should also like to pay particular tribute to my own
colleagues on this side of the chamber who formed the more
permanent membership of the committee, and I now speak of
Senators Roblin, Tremblay and Asselin. They did an outstand-
ing job in very difficult circumstances and in the process
demonstrated to so many Canadians the importance of the
work of senators and, in particular, the effectiveness of the
small but hard-working opposition in the Senate.
Last week we were treated to the intervention of Senator
Thompson and, quite apart from the conclusion which the
honourable senator reached and my own partisan view and
acceptance of that conclusion, members on all sides of the
house must certainly applaud the incredible research which
must have been done in order to deliver that speech, Without
repeating anything of what Senator Thompson has said, the
central theme of his speech was to the effect that the means
did not justify the end. Undoubtedly, in his view and the view
of the authorities quoted by him, the entire procedure was, to
say the least, faulty-»—if not against parliamentary conven-
tion—-which, I assume, leads us to the conclusion that perhaps
it is even illegal. l will have more to say about the legal aspect
in a moment. Senator Thompson expressed his deep concern
not so much, as I said, with the substance ofthe resolution, but
rather with the unilateral action~—-the procedure being
Senator Thompson concluded, no doubt on a legal basis but,
more importantly, on the basis of parliamentary convention
and the commitments and undertakings of past prime minis-
ters, that the Constitution should not»-indeed, could not be
altered unilaterally, without the consent of the provinces. As
one reads and re-reads the good scnator‘s research, one finds a
deep and moral obligation on the part of the federal govern-
ment to proceed now, as it always has, with the consent of the
For various reasons, including the size and diversity of the
country, our nation was established as a federation with two
levels of government, each sovereign in its defined areas of
jurisdiction. It is a matter of simple fact that such has been the
case until today.
Initially, in the setting up of the federation the federal
government was given jurisdiction over matters of mutual
concern, and the provinces over matters of greatest concern to
their people and their particular areas and communities.
Under that system the country has grown and evolved, and in
the view of many the system is still satisfactory today. The
great distances, the great economic, social and cultural differ-
ences that exist among the various regions of Canada render it
virtually impossible for a single, central government to re?ect
adequately the legitimate expectations and aspirations of
people in all regions of the country.
March I2, I981 ___ SENATE
We are therefore governed by two levels of government, as I
say, each sovereign in its own area of jurisdiction. It is
important for us all to understand that the powers of the
provincial legislatures of Canada are not delegated powers.
They cannot be altered or diminished or removed by the
federal Parliament of Canada. There is ample authority, in
law, for that view. The legal authorities go as far back as 1883,
when the Privy Council determined that issue in what is known
as the Hodge case, and I will touch on that a little later.
Pronouncements by such eminent Canadians as the Right
Honourable Louis St. Laurent, both when he was Prime
Minister and Minister of Justice, and by a former Minister of
Justice, the Honourable Guy Favreau, recognize as a general
principle that the Canadian Parliament would not and could
not affect provincial rights without prior consultation and
agreement with the provinces.
One need not look much further back than December I979,
when the Supreme Court of Canada, in dealing with the
Senate reference case, once more affirmed that the federal
amending power extended only to the Constitution of Canada
in its federal aspect. I am sure that most senators read the
entire judgment, but a couple of lines are of particular
But Section 91(1) does not give power to amend the Act.
Instead, the phrase ‘Constitution of Canada’ is used. In
our opinion, the word ‘Canada’ as used in Section 91(1)
does not refer to Canada as a geographical unit but refers
to the juristic federal unit. ‘Constitution of Canada’ does
not mean the whole of the British North America Act,
I867, but means the constitution of the federal govern-
ment, as distinct from the provincial governments. The
power of amendment conferred by section 91(1) tr limited
to matters ofinterest only to thefederal government.
That, honourable senators, is the judgment of the Supreme
Court of Canada. I submit to you that it is therefore abun-
dantly clear that that is the established practice in Canada.
Further, it is very clear that amendments have not been
made to the Constitution without the consent of the provinces
unless, of course, such amendments did not affect any particu-
lar province, or their interests or jurisdiction.
Honourable senators, it is admitted that the constitutional
package now before us does affect the powers of the provinces.
This has been admitted in the factum submitted by federal
government counsel in the litigation heard in the Manitoba
Court of Appeal.
That being so, the changes could only be made in accord-
ancc with what is now the established amending formula in
this country. Although the Prime Minister attempts to argue
otherwise, such a formula is in existence today. We may be
unhappy with the situation, but the unanimous consent of the
provinces and the Parliament of Canada is necessary before
changes affecting both levels of government can be made.
Senator Frith: Would the honourable senator permit a
Senator Nurgitz: I prefer to finish first.
It would appear that the position being taken by the govern-
ment is that there may well have been commitments by prime
ministers, justice ministers and the like, but as I understand
the position of Senator Lamontagne and the position taken by
the Government of Canada in its appearance before the
Manitoba Court of Appeal, those are not legal, binding com-
mitments which prevent the government froin proceeding with
As I read Senator Lamontagne and others who have argued
as to the legality of proceeding as the federal government is
now doing, I notice throughout those arguments a clear prefer-
ence, perhaps even some government obligation, if not a legal
one, for obtaining the consent of the provinces. Once more,
those may well not be legal commitments, but if they are not
binding they may at least be described as being moral commit-
ments. ln addressing this matter today I would like to make a
distinction between a moral commitment and a legal one, and
I take the position that both commitments are binding on the
Honourable senators, if we accept the view of many senators
opposite, we are in the midst of a constitutional crisis, the
country is paralyzed, and now is not the time to be worrying
about morals. That being the case, perhaps what we ought to
examine is the legal position. What I do not understand is why
this government is not referring this matter to the ultimate
legal authority in this country, the Supreme Court of Canada.
Why is there such reluctance to test the legality of this
proposed major overhaul of the Constitution of this country‘?
Just yesterday, Senator Godfrey, speaking in favour of the
resolution, though with reluctance. which I will not repeat,
said, as reported at page 2007 of Debates ofthe Senate:
As I said earlier, one of the matters that I very definite-
ly disagree with is the apparent eagerness of the federal
government to press the U.K. Parliament to deal with this
resolution before the Supreme Court of Canada has a
chance to adjudicate as to whether or not it is legal.
The Prime Minister, in the other place, and, indeed, the
Minister of Justice from public platforms, have taken the view
that this entire matter is a political one and not a legal one.
Indeed, counsel for the Government of Canada attempted to
persuade the Manitoba Court of Appeal of that position as
I would like to refer to a short passage in the majority
judgment of the Chief Justice of Manitoba. He is referring to
question two, which was as follows:
Is there a constitutional convention that Parliament will
not request the Imperial Parliament to amend the Consti-
tution affecting fcderal-provincial relationships or powers
without obtaining the agreement of the province’!
The Chief Justice of Manitoba said, in the majority
Counsel for the Attorney General of Canada submits that
the question is essentially a political one and therefore
should not be answered. Indeed he says it is, “purely
political“. In my view this submission goes too far. Its
DEBATES March 12, 1981
characterization of question two as “purely political”
overstates the casc. That there is a political element
embodied in the question, arising from the contents of the
Joint Address, may well be the case. But that does not end
the matter, lf Question Z, even if in part political, pos-
sesses a constitutional feature it would legitimately call
for our reply. ln my vie\v the request fora decision by this
Court on whether there is a constitutional convention, in
the circumstances described, that the Dominion will not
act without the agreement of the provinces poses a qnes~
tion that is, at least part, constitutional in character. lt
therefore calls for an answer, and I propose to answer it.
Honourable senators, there is clearly a legal problem here,
albeit constitutional in character. I submit to you that it is a
problem which is presently before the Supreme Court of
Canada, and why we cannot wait, before proceeding, to hear
the ultimate legal authority in this country is difficult to
understand. Perhaps there is a concern or worry on the part of
the promoters of this exercise that the Imperial Parliament is
not supreme or sovereign over Canada and is not bound by any
conventions. ls there concern that a court may say that there
arc conventions that do have the force of law and which cannot
Arc there not, among honourable senators, lawyers and
parliamentarians who recognize that the Canadian Constitu~
tion is not entirely written—-that is, that it consists ofa written
part and an unwritten part and that the unwritten part may
well be very important? The unwritten part of the law consists
of the customs, usages, principles, practices and conventions
which have been recognized or are now recognized by all of
the courts in this land as having the force of law.
For those of you who might consider the view that conven-
tions are not legally binding, I refer you to the words of
Viscount Haldane who, in 1923, said: ,
One must remember in dealing with what is Dominion
status, we are dealing with nothing which you can find
any definition of in any law book-~~there cannot bewit is
a question really of constitutional practice. By the strict
legal theory of this Constitution of the Empire, the King
is omnipotent; but there has grown up a restriction of a
Constitutional kind through Parliaments and through the
necessities of responsible representative governments,
which strictly limits the power of the King; but you will
not find a limitation by searching books; you will not find
this laid down in the form of an abstract legal proposition
of statute law or common law; they are just as real but
they are constitutional limitations.
Surely, that is a commentary on the history that has
evolved, not just in Canada but throughout the British Com-
monwealth. By the striet letter of the law perhaps the Queen
can make her own laws of her own will. Although that would
be a strict reading of the law, it is now an accepted principle,
and universally recognized, that the Queen is restrained from
making such laws. This is a constitutional practice in usage
which is now universally accepted.
Could it be that the constitutional advisers to the govern~
ment are deeply concerned that pronouncements by the courts
over the years have maintained that each of the federal and
provincial governments is sovereign within its own legislative
boundaries? Could one of them have read the Supreme Court
decision of Mr. Justice Dickson in the /tmax Potash Limited
casein i977, when he said:
The courts will not question the wisdom of enactments
which, by the terms of the Canadian Constitution are
within the competence of the legislatures, but it is the
high duty of this Court to ensure that the legislatures do
not transgress the limits of their Constitutional mandate
and engage in the illegal exercise of power.
That judgment gocs on to proclaim that it is the duty of the
court not only to be certain that a province does not transgress
its boundaries but also that the federal government does not
act in violation of the Canadian constitution. Those interesting
words by that particular Supreme Court judge indicate that
the courts will not permit any legislature to do indirectly what
it could not do directly or, to quote Mr. Justice Dickson again,
“and by covert means to impose illegal burdens”.
Honourable senators, if you accept the view, as I am sure
you do, that Canada is a free, sovereign and completely
independent country, then is there not sortie concern as to
whether the Parliament at Westminster would even have the
legal power to alter the fundamental structure of the federa-
tion without the consent of its constituent parts?
llonourable senators, until this current constitutional con~
flict emerged, most of you, either as lawyers or as persons
engaged in the operation of government, I am sure, had had
experience in dealing with constitutional matters, and particu~
larly those very basic constitutional questions dealing with
sections 91 and 92 of the British North America Act. ls a
certain piece of legislation within the legislative competence of
the enacting body or is it beyond its powers-»that is, ultra
The courts are often asked to deal with the question of
whether a certain statute is within or beyond the jurisdiction of
the legislature that enacted it. A very simple example is in
regard to the Criminal Code offence ofdriving while disquali~
ficd, which within the last three or four weeks was declared by
the Supreme Court of Canada to be within the legislative
jurisdiction of the provinces, not of the federal government.
The Supreme Court determined that this Parliament could not
enact a law which said that driving while disqualified is a
criminal offence; that this is a matter which falls within
provincial jurisdiction. Accordingly, that section of the Crimi-
nal Code was declared to be ultra vfres. It is at very simple
principle that legislators and lawyers have long understood.
Honourable senators, I have difficulty understanding how,
based on the same principle, this Parliament can legislate
matters affecting the rights of the provinces if it is not within
our constitutional authority to do so. However, should we be
getting into the argument of whether Senator Lamontagne is
correct or whether Senator Thompson is correct‘) Surely, in
March 12,1981 SENATE
this great nation of ours we have and accept the Supreme
Court of Canada as the highestjudicial authority.
Honourable senators, no less an authority than Professor
Maxwell Cohen, one of the leading witnesses to appear before
the committee, expressed agreement in principle with the
general form of both the constitutional package and its
entrenched Charter of Rights. I should mention, though, that
very little of the original charter met with his approval. I
believe that Professor Cohen had some 30 complaints with
regard to the charter, but he expressed general agreement with
the entire package.
Senator Roblin: No referendum?
Senator Nurgitz: No referendum.
Professor Cohen appears to take issue with the Kershaw
report. and. indeed, attacks the legitimacy of the Kershaw
committee to interpret the Canadian Constitution and the
federal system. Professor Cohen went on to say:
What the committee ignored was the established principle
that the only proper forum for any binding interpretation
of the Canadian federal system and its Constitution must
be in Canada. This is true for obvious reasons, including
Canaela‘s general sovereign status, the 1931 Statute and
the abolition of all appeals to the Privy Council. Hence,
the only institution for the ittterpretation of the Canadian
Constitution that has final and authoritative value for
Canadians and Commonwealth as a whole remains the
Supreme Court of Canada.
It must be concluded therefore that there was no proper
legal or political or, indeed, historical basis for any unilat-
eral British political-legal interpretation of that part of
the Canadian Constitution represented by section 7 of the
Statute of Westminster. That section froze the status quo
of 193], since federal and provincial governments could
not agree on an amending procedure affecting their legal
powers and so left it for the British Parliament until a
formula would emerge. As part of the Canadian constitu-
tional system, the only place to interpret any segment of
that system, including section 7, must be in Canada. The
only authoritative interpretative source is the Supreme
Court of Canada.
Honourable senators, I think it has already been pointed out
by others that our honourable friends opposite are urging upon
us a constitutional package which, in essence, says that the
best protection that the citizens of this country can get for
their rights is having those rights entrenched in a charter with
the interpretation, the validity, or the obvious consequences of
any of the sections of the charter to be pronounced and
determined by the courts. These very same people, moving in
what Senator Manning has called “indecent haste”, are barrel-
ing along the road to have this matter passed, approved and
sent to the Parliament at Westminster, before the Supreme
Court—–the institution that they say will be the guardian angel
of our rights—has had an opportunity to rule on it. One
marvels at the inconsistency.
Has anyone thought through the question of what the
consequences would be to proceed and have the Imperial
Parliament accede to the request of this Parliament and, after
all of that, face the possibility of a Supreme Court ruling to
the affect that all of it is illegal? Has anyone thought through
the unscrambling of that egg?
Honourable senators, just last Tuesday I raised a question
dealing with amendments to the Criminal Code of Canada, as
it related to a prostitution problem in the city of Vancouver.
On March 5, 1981, last Thursday, the Deputy Leader of the
Government provided an answer, part of which was:
Another aspect of the problem is the case on the subject
that is at this moment before the Supreme Court. It is
traditional for the Minister of Justice to wait until the
final determination of a point of law has been made by
the courts before he proposes amendments. When the
Supreme Court has disposed of that case, we will advise
Parliament about what steps, if any, the government
proposes to take.
The deputy leader is my best authority.
If certain ladies of the night in Vancouver can have their
fate determined by the Supreme Court of Canada, why cannot
the government extend the same principle to a matter which is
fundamental to all Canadians? Honourable senators, we in
this chamber know in our hearts that the contents of the
resolution are fundamental to the extent that they will alter
forever our very system of government. That point, I believe, is
beginning to be understood by Canadians in every part of the
land. Citizens everywhere are expressing unease with the
government‘s course of action. Their concerns, I submit, are
I add my voice to the eloquent appeals made by my col-
leagues, by members in the other place and by scores of our
conccrncd citizens: Until the Supreme Court renders judg-
ment, the government has not the full legal authority to
command our support. Even beyond the legal mattcr, we must
address the grave moral and political implications that now
confront our country.
Honourable senators, I am left with no choice, as Canadians
are left with no choice, but to oppose the resolution with all my
Hon. John J. Connolly: Honourable senators, may I begin
by commending Senator Nurgitz for a very thoughtful and
scholarly address‘? I certainly can call him my learned con-
frere. I am particularly impressed with the original and per-
sonal research which has obviously been conducted by him. I
should also like to say, at the beginning, that the quality of his
speech and of the other speeches made in this chamber on this
resolution has been of an extremely high order. I congratulate
all of the participants in this debate on the care and attention
they have given to so serious a matter. Also, I thank Senator
Nurgitz for the linc he took at the beginning, which I think is
a most impressive one. It greatly assists me in developing a
single point out of all of these issues, which I propose to do.
2040 SEN ATE
DEBATES March I2, l98l
Before proceeding further, I should like to say a few things
about the committee itself. I was appointed an original
member of the committee, and was reasonably faithful in my
attendance from the early part of November. For all the
meetings that I was not able to attend. I was so interested in
what they were doing that I was glued to the television. I had
not been a member of a joint committee since I956. I found
the meetings to be somewhat strange after the free and easy
way we operate in committees of the Senate. The rules of the
House of Commons applied. There were timed interventions,
by party. There was a tendency to make political speeches.
But, on the whole, I must commend the members of the
committee for the fact that while much of the discussion was
political, there was no personal invective of any consequence.
That is a great tribute to the members of the committee. They
tried, and I think they succeeded in, sticking to the subject
matter that was before them.
The little red eye of the television cameras commanded the
attention of many of the members of the House of Commons,
more than it did the senators’, although Senators Roblin,
Tremblay, Lucier and most certainly Senator Austin were very
conscious of the little red eye, and did very well in front of it.
Not only do I say that because of their performance which I
witnessed in the committee room itself. I watched them care-
fully on television when I was not in committee, and they were
equally good then.
I must commend the members of the committee, too, not
only for the very thorough way in which they examined the
witnesses-and there were many—~but also for the way in
which they handled the clause-by-clause discussion. It was a
thorough process, and it was tiring.
One thing I think people do not recognize in connection with
the work of a committee of this kind is the importance of
having good research. The group I want to commend and
congratulate on their research is the staff which looked after
the two opposition parties. I thought this was a piece of work
of very high calibre. The material committee members and
others had supplied to them by these people could not have
been better. I realize how difficult it is for those in the
opposition to deal with this problem. Unlike members of the
government party, they do not have the facilities, if, indeed,
they have any of the facilities, of the departments concerned.
That applies not only to the briefs that came in, but also to the
evidence, to the precedents, to the cases, and to the references
to the evidence that were made available to members of the
committee. I wish we could have had something equally as
good on the government side. We could not, because one
cannot look for political help from public servants. There were
political arguments and stances developed on the government
side, but they were developed on a free-wheeling basis. Per-
haps that is good enough.
May I commend the joint chairmen? I believe Serge Joyal
and Senator I-lays complemented each other extremely well.
They ran a good and thorough show. They were there con-
stantly, and were alert to everything that happened. I thank,
too, the senators, other than the senators who were originally
appointed to the committee, for the help they gave the mem-
bers. Personally, I think we owe a particular debt of gratitude
in this house to the lady senators who helped the regular
members of the committee. They showed great devotion and a
great sense of responsibility.
I believe it will not be taken amiss, and as a political
statement, ifl say that I thought the outstanding performance
was given by Mr. Chrétien, the Minister of Justice. He spent
weeks before the committee, both at the beginning of the
hearings and as the committee wound up its proceedings. He
dealt with the clause-by-clause study. He showed that he was
familiar with the details as well as with the larger issues
involved. He showed great patience. Perhaps also as a result of
the work he did with the attorneys general of the provinces
during the summer, he has qualified himself as a great consti-
tutional expert. Apart from party, I think the Parliament of
Canada should be most grateful to him for his work before the
Honourable senators, I should like to say a few words about
the charter. The Charter of Human Rights is not new to
Parliament. Mr. Diefenbaker had a Bill of Rights which
passed this Parliament many years ago. Parliament has been
involved and has discussed the United Nations Declaration on
Human Rights. We had Bill C-60 two or three years ago. We
have had provincial Bills of Rights with which many of our
members are familiar. We have a Canadian I-luman Rights
Commission. We have Human Rights Commissions in many,
if not all, ofthe provinces.
Last summer we heard of the meetings on the charter
between the Minister of Justice and the attorneys general. We
saw on television the discussion of the charter at the First
Ministers’ Conference. We had three months of meetings in
the committee which involved a great deal of discussion on the
charter. The evidence given on the charter was of a high
quality. We heard from experts; we heard testimony given at
times with emotion; but the views of the country expressed
there were fully representative, I believe, of virtually every
point of view, and I feel the weight of the evidence was
strongly in favour of having a charter, and having it now,
All political parties represented on the committee participat-
ed fully, and not only in the process but in the results, too.
because the charter has been improved and extended.
Honourable senators, the proposal to postpone dealing with
the charter until patriation certainly does not commend itself
to me, because if it were to be dealt with after patriation, with
the amending formulae and procedures prescribed by the
resolution, it might well be that those rights would not be put
into the Constitution for as much as five years or longer, and
there arc a good many people anxious to see a charter in this
country who would consider that far too great a delay.
The rights proposed in the charter arc, as we know, general
rights. They are rights to which, I think it is commonly agreed.
all Canadians are entitled. They are rights which Parliament,
with its broad powers on national matters, should legitimately
March I2, 1981 SENATE
decree in a constitution. It should not be the privilege of any
province to deny those rights to any group by some opting-out
option or by invoking the power to legislate on local or private
or provincial matters. Especially do I make that statement in
the face of the officially bilingual status of our society.
When Parliament alone petitioned the British Parliament, or
His Majesty, for the admission of the western territoires as
provinces, it did so without consulting the existing provinces,
and yet their future status was undoubtedly affected by that
step. But that step, as is the ease with the charter, was
acknowledged to be another step towards the goal of national
fulfilment. I think it is in the context of attaining that goal, or
at least of taking a giant step towards attaining it, that we can
support strongly the proposal to include the charter in this
Some Hon. Senators: Hear, hear.
Senator Connolly: Honourable senators, I want now to talk
about a legalistic matter of great consequence which arises out
of the discussions held in connection with the resolution. It
may be that Senator Nurgitz will feel that I am repeating
what he said. I begin by saying that every independent country
worthy of the name should control its own destiny. To do that
it becomes imperative for it to control its basic law, its
constitution, and to control it completely. From its constitution
?ow the principles that establish a country’s government, its
society, its economy, and its external relations. Therefore, it
alone can determine the appropriate extent of constitutional
change needed to meet its own emerging circumstances.
Pride in its independence is a compelling factor in a coun-
try’s desire to control its own constitution. But, more than
that, the practical needs of the nation may be still more
At the Imperial Conference in i926 there were three men
who really were behind the issue of the Balfour Declaration.
Of those three, two were rebels and one was the grandson of a
rebel. I refer to De Valera from Ireland, Smuts from South
Africa, and King of Canada. The declaration that was made
on that occasion, as all honourable senators know, provided
that the six dominions and the United Kingdom, all of them,
would be autonomous communities within the Commonwealth,
equal in status and in no way subordinate one to another. In
193i the Statute of Westminster confirmed that. The Colonial
Laws Validity Act was deemed no longer to apply to the six
dominions; but, at Canada’s request, the ability to amend the
British North America Act remained in London. That was the
only caveat on our independence. After that, the times in
Canada were heady. Canadians basked in their newly-
acknowledged status of independence. But the caveat
remained. Both federal and provincial authorities failed to find
an amending formula in three successive federal-provincial
meetings, in I927, I931 and I935. Then war broke out.
After the war, Canadian development was spectacular.
There was immense growth in population, in primary and
secondary industry in this country, in capital formation and in
the growth of the GNP. The shape of Canada as a country
changed both dramatically and swiftly. But if the stature of
Canada, both at home and abroad, had moved to new heights,
there was a corresponding growth in the stature of many Of the
provinces as well. Emerging new national policies and priori-
ties had a profound effect upon the provinces. Federal~provin-
cial conferences became a more important forum for them to
clarify economic, social and political policies that were to
apply in the country.
The provinces quite rightly sought more input. Over the
years federal-provincial agreements were made in such areas
as the rental of tax fields, equalization payments, higher
education, and social programs. The provinces were spending
more and more of their own money and an increasing percent-
age of the federal revenues.
The rearrangement of the division of powers was demanded
by the provinces——a readjustment of sections 91 and 92. All of
us agree, still, that that is solely a Canadian concern. But the
fact is that Canada lacks the complete autonomy to do that.
We lack the ultimate dignity of an independent nation with the
power to amend its basic law, its constitution.
Our experience in the fifties, sixties and seventies convinces
us that unanimous agreement between federal and provincial
authorities on constitutional change is an illusion. I need only
refer you to what Senator Wood, in her thoroughly researched
speech, said yesterday in connection with the continual succes-
sion of federal-provincial conferences which failed to achieve
unanimous agreement. The provinces would never agree to vest
solely in the federal authority the power to amend the Consti-
tution. The federal authority could not abdicate its role by
handing such powers to the provinces.
Many attempts have been made to reconcile the differences.
To name just a few, there was: the Fulton-Favreau formula;
the Victoria formula; the Vancouver formula; and the Toronto
consensus. All of these suggested methods of making amend-
ments fell somewhat short ofunanimity.
Honourable senators, a deadlock is not an acceptable state
of affairs. No nation can reasonably condemn itself to stand
still. Reform continues to be the basis of progress.
In looking at the dilemma which does obtain, I think we
should remind ourselves of a few basic principles. We should
keep in mind the following series of ideas. The existing Consti-
tution of Canada is a statute of the Parliament of the United
Kingdom. It prescribes for the organization of a federal state.
The central or federal authority is Parliament. Parliament is
designed to govern the nation as a whole. It is designed, and I
quote from the act, “to make Laws for the Peace, Order, and
good Government of Canada.“ Again I would quote the act, it
is designed to make laws “for the general Advantage of
Canada.” Itsjurisdiction is general. It has the residual power.
Parliament is not the Prime Minister; it is not the cabinet. it
is not the government; and it is not the executive. Parliament is
the monarch, the Senate and its members, and the House of
Commons and its members. To carry on, the government must,
of course, retain the confidence of the Commons. But in
DEBATES March 12, I981
Parliament are the representatives, the spokesmen, of all of the
people of Canada. In the Commons they are elected; in the
Senate they are appointed. They come from all regions. They
come from all provinces. They come from every riding. They
are the people who have the power to exercise, by their vote,
the authority conferred by the British North America Act
upon Parliament, the central authority. As such, as I conceive
it, it is their duty to act according to their lights, for the peace,
order and good government of Canada, for the general advan-
tage of Canada, for the welfare of the nation as a whole.
The duty cast by the statute on the provinces, their govern-
ments, their legislatures and their members is different. Their
jurisdiction is not for the nation as a whole. It is over matters
“of merely local or private Nature in the Province.“ They act
within provincial boundaries, as Senator Nurgitz has said.
Under the statute, this is the beginning and the end of their
The agreements of l865—prior to Confederation—were the
agreements which produced this result. lt was an agreement to
establish a federation, but a federation organized under a
statute. That was the compact—to be organized under a
statute. One does not look behind a statute to interpret a
statute. In other words, the scheme of Confederation, as
described in the statute, provides for two primacies~as Sena-
tor Nurgitz would say, two sovereignties. One is for Parlia-
ment, its components and its members, in matters of national
concern. The other primacy is for the legislatures, their com-
ponents and their members in matters of local, private or
Ever since 1926, and certainly since 1931, methods have
been used to attempt to bridge this gap between these jurisdic-
tions. Tax-rental agreements, shared-cost programs and the
like have been one method. Federal-provincial meetings of first
ministers, of other ministers and of officials have been another
method. A new accommodation was sought for both jurisdic-
tions, federal and provincial.
Honourable senators, agreements have succeeded but, con-
ferences, as Senator Wood demonstrated yesterday, have
failed to provide a permanent arrangement. The present reso-
lution is designed for the establishment of a lasting method to
adjust, as needs emerge in the country, and to escape from the
rigidities which result from the two jurisdictions imposed by
It seems that if we patriate our Constitution without an
amending procedure requiring less than unanimous consent,
we shall exacerbate the frustrations, we will probably continue
in the deadlock we have experienced, and we will certainly
delay constitutional reform on more vital issues.
It is irrelevant, I think, to discuss which level of government
is senior or junior to the other. The fact is that they are
different, in role, in function and in purpose. Some provinces
have huge territories, have great resources, have large popula-
tions. But that does not alter the case. The statute invests them
with authority for local, private or provincial matters.
Honourable senators, for generations federal governments,
consistent with their duty to act in the interests of the nation
as a whole, have strived to accommodate the changing condi-
tions in the provinces and in all of Canada. The ultimate
solution involves full control of our own Constitution, with a
suitable method of amending it.
From time to time the federal authority has sought to use
powers not allocated to it by the Constitution. When these
proposals are designed to help the provinces, primarily, and,
especially financially, the agreements are very swiftly made.
As examples, I would mention old age security, tax sharing,
equalization payments, medicare and higher education. How-
ever, more recently, provincial demands for greater jurisdic-
tion in the field of resource control, offshore mining, interna-
tional trade and fisheries, have been resisted by some provinces
and by the federal government.
The existing desire for, and expectation of, unanimous
agreement, which seems to have been a motive within the
federal-provincial conference, has been a self-imposed restric-
tion. It has provoked deadlock, unacceptably slow progress,
bargaining, bickering and hostility within the ll groups which
form the federal-provincial conference.
Honourable senators, on a personal note, may I say that l
watched with dismay this process from the inside in the 1960s,
when I used to attend meetings of the attorneys general and
the first ministers. I have watched them since from the outside,
and I am still dismayed.
The thing about the resolution that I believe is more impor-
tant than perhaps any other item in it is the fact that it
contains a formula to attempt to dissolve the unholy deadlock
which plagues us.
Some Hon. Senators: Hear, hear.
Senator Connolly: We should stand back and look at some
aspects of the resolution. Basically, the formula proposed to
break the deadlock is the Victoria formula, contained in clause
45. If that formula is accepted, for the first time in the written
Constitution the provinces will become involved in constitu-
But clause 45 is not definitively imposed by this proposal.
Clauses 36 and 41 enact an interim rule of unanimity for all
constitutional amendments. This regime, requiring unanimous
consent, will last for two years from the passing of the
proposed bill. But that period of two years may be abridged in
one of two ways. The following are the two methods to shorten
the two-year period. The first is that if the ll governments
agree within that two-year period upon a permanent amending
formula to replace the Victoria, from that time on clause 45
will be replaced.
I should note, in passing, that in the first two years a
federal-provincial conference must be called annually. The ll
first ministers will therefore have two opportunities in that
period-—-if it should last so long—to discuss and decide what
they want to do about a permanent amending formula.
March I2, I981 SENATE
The second method is that if the ll governments fail to
agree, in that two-year period, on a new, permanent, or
relatively permanent, amending formula, the provinces have
another option. Before dealing with that option, may I note
that—-and this is only on the legalities and legalistics of the
proposal-—part V deals only with the interim amending for-
mula, clauses 36 to 44. It does not apply to the making of a
general amendment. It is confined to the amendment of the
Victoria formula, of clause 45-—-the permanent amending
As to the second option to shorten the two-year period when
unanimous consent is required immediately after the passage
of the proposed bill, we must remember that unanimous
agreement has eluded the ll g0vernments—there is a dead-
lock. This resolution, to resolve that deadlock, proposes that
any province, during the first two years, may propose an
amendment to the Victoria formula, to clause 45, and if such
amendment is approved by the legislatures of seven provinces,
with a population of 80 per cent of all of the provinces, a
national referendum will automatically be triggered. That
referendum must be held within two years after the consents of
the seven provinces have been deposited in accordance with the
The choice in this referendum, on the ballot, will be one of
two items. The first is: Do you approve the new formula as
proposed and agreed to by the seven provincial legislatures?
The alternative is: Do you agree with the Victoria formula as
it is in Clause 45; or, if the federal Parliament, both houses,
approve a new substitute for the Victoria formula, at least 90
days before the voting day, do you approve of that as the
alternative to the provincial proposal? For the approval of one
of those items, a majority of voters who vote at that time is
The result of the referendum—either approval of the Vic-
toria formula, or of the new amending formula to replace
Victoria or the approval of the provincial proposal~—will mean,
whichever happens, that clause 45 from then on, whether or
not amended, will be the amending formula, and the two-year
unanimous rule will no longer apply.
May I deal briefly with the Continuing Amending Proce-
dure’? Let us assume that within the first two years after the
proposed bill passes the Parliament of the United Kingdom, no
change is made in the Victoria formula, which is then in place.
At that time the Senate or the House of Commons, or any
provincial legislature, may pass a resolution for constitutional
amendment on any item of the Constitution, including the
amending formula itself.
To be effective, such proposed amendment will require the
approval—I speak generally herewof each house of Parlia-
ment, of the two central provinces, of two Atlantic provinces,
and of two western provinces representing 50 per cent of the
population of the four western provinces. Let us say that
Parliament approves the proposed amendment, and that some
but not all of the required provincial consents are given within
a year after Parliament acts. We then have a deadlock if wc do
not get the six-province concurrence. That too will trigger a
referendum. It must be held within a further two years. The
question will then be a simple one; there will not be an
alternative: Do you approve of the amending formula proposed
To simplify this complicated procedure, let us say that
Parliament, with its members representing all the constituen-
cies, provinces and regions—the national legislature with a
duty to act»-in its wisdom approves an amendment to the
Constitution. Let us say, too, that five provinces fail to agree.
Without an escape hatch, we are back into a deadlock. The
escape hatch is the referendum.
What is proposed by this resolution, in order to break the
deadlock, is that Parliament will consult with the peoplemand
that is only proper, because to the people belongs the Constitu-
tion. It does not belong to Parliament. It does not belong to the
legislatures. It does not belong to the politicians. The question
will be a simple one: Do you approve the amendment proposed
by Parliament’? There may be a better way, honourable sena-
tors, but none was proposed by any outside witness or received
any kind of support from the committee.
Honourable senators, our problem has been derived from
our concept of the need for unanimity in matters of this kind.
That has been a source of frustration since I931. It has
created deadlock, standstill, stalemate, impasse, a log jam, a
hangup, a blind alley, a cul-de-sac. Part VI of this resolution
may not be the bcst method of dealing with that deadlock, but
it seems to me to be the best method available.
Honourable senators, the story of the development of
Canada, of national policies of self-reliance in political and
economic affairs, has been a stormy one, but I think a credit-
able one. The Canadian people have a native, ingrained love of
freedom, a desire to be master of their own destiny, to be
maitre chez nous, to pay our own way. Our population has
been small and scattered, our territories vast and diverse.
Canadian policies have been in?uenced much by climate,
distance and diversity. But Canadians have been a confident
and optimistic people. Perhaps that optimism was best
expressed by the Honourable D‘Arcy McGee in his Confedera-
tion speeches whcn he talked about the magnitude of our
resources, and particularly the ingenuity, industry and will of
our people. The story of the economic development of the
country is for another day. The process of economic develop-
ment will, I hope, be never-ending.
However, it is of the constitutional development of the
country that I would speak for a few moments—-and not in a
narrow, partisan or party context. All Canadians must remem-
ber with great gratitude that it was the Conservative Party,
under Sir John A. Macdonald and his colleagues, which, in the
middle 1860s, saw the great chance. Those people presided
over the birth of the new establishment. They guided the first
great steps to nationhood, to unity and self-sufficiency. If most
of the milestones which I identify now were achieved under
Liberal administrations, it was because the Liberal govern-
ments were longer in office, and more often, and had a strong
purpose for reform.
2044 SEN ATE
DEBATES March 12, 1981
I begin with the navy bill of Sir Wilfrid Lauricr in 1910,
and which contributed to his defeat in 1911. The principle of
that bill was that we would rely upon ourselves, our own
resources, to provide naval defences to the extent that we
could, rather than make contributions to the Royal Navy. Sir
Wilfrid was a generation before his time. But the value of the
step he then took was proved in the tremendous work done by
the Royal Canadian Navy in the Second World War. 1
remember the Honourable Angus Macdonald saying, at the
time, that every day he was at the Navy, he had a feeling he
was doing no more than carrying out the policies of Sir
Sir Robert Borden guided the war effort between 1914 and
1918. lt was costly in lives and in treasury, but Canada
emerged from it with a new stature. So highly acknowledged
was that stature that Sir Robert insisted upon signing the
Treaty of Versailles on behalfof this country himself.
Mr. King was in office in 1926, and in that year there was
an election. Some honourable senators may agree with sometof
the critical historians about events which led up to the election.
But one thing about its results was very clear: lt established
for all time in this country that the monarch’s representative,
the Governor General, must take his advice from his Canadian
Prime Minister. In the same year an imperial conference was
held, and the Balfour Declaration, to which 1 have earlier
referred, was made. In the same year the North Pacific
Halibut Treaty, with respect to the fishery in the Pacific, was
signed at Washington. This was the first treaty ever signed on
behalf of Canada by a Canadian minister. That minister was
Mr. Bennett was in office in 1930 and he adhered very
strongly to the propositions embodied in the Balfour Declara-
tion of 1926. He was the Canadian Prime Minister when the
Statute of Westminster was passed and when the Colonial
Laws Validity Act was deemed inapplicable to the six domin-
ions at the conference.
Mr. King was back in office in 1939 when war was declared.
He insisted, from the beginning, that the instrument for the
declaration of war should be signed by His Majesty personally.
The Order in Council was passed by the Canadian
I think little need be said now about the magnificence of the
Canadian war effort and how it proved to be a distinctive
Canadian operation. It was mounted, directed and conducted
by Canadians. its three forces were magnificent. In addition,
Canada had a tremendous production effort. She became an
important and integral part of the arsenal of the west. She
co-operated strongly with her principal allies, the United
States and the United Kingdom. At the end of the war this
country forgave the war debt, amounting to $2 billion, which
was incurred by the United Kingdom. It was natural, there-
fore, in 1945, when the United Nations was formed, that
Canada should be sought out as one of the founding partners.
In 1949 Mr. St. Laurent was in office, and he was respon-
sible for the amendment to section 91(1) of the B.N.A. Act
which gave Parliament jurisdiction to amend the B.N.A. Act
in federal matters. He, too, brought in chapter 37 of the
Statutes of 1949, which gave ultimate jurisdiction to the
Supreme Court of Canada and abolished appeals to the Privy
Council. In 1952, despite controversy, he appointed the first
Canadian Governor General, the Right Honourable Vincent
Mr. Diefenbakefs government proposed an amending for-
mula to which Mr. Fulton’s name was attached. This formula
was rejected by the provinces and the frustration continued,
just as it did as a result of Mr. Favreau‘s modifications later.
The Fulton-Favreau formula is one of the milestones along this
same rocky road.
When Mr. Pearson came to office in 1963, the stature and
the wealth of Canada permitted a better contribution in the
field of foreign aid, a unique contribution in the field of
peace~keeping, and the proclamation of a Canadian flag.
There were many noisy demonstrations against it. There
were dire warnings that it would destroy our national unity.
“Pearson’s pennant“ it was called. Yet now we acknowledge it
proudly as our appropriate national symbol.
Our history, honourable senators, is a story of inexorable
progress towards national self-sufficiency and national in-
dependence. This progress has been made through the years,
not by revolution but by evolution. And so, too, it is with this
last step. In the light of this series of events, I believe that any
Canadian government could claim a clear mandate to move on
this resolution now. Of course, there may be more compelling
reasons for this government to do so.
I am not too concerned about the criticism based upon
unilateral action. On the basis of my conception of the relative
rules and functions of the federal and provincial authorities, on
the basis of my perception of the achievements of successive
Canadian governments along the road to full Canadian in-
dependence, on the basis of my assessment, and that of Sena~
tor Wood, of the futile attempts by federal governments and
the provinces to devise an acceptable amending formula, I
strongly support the government today when it declares, “Now
is the time.”
That decision had to be made many times before, and many
times decisions of the kind were controversial. Yet Canada is
the better for those decisions having been made. The time has
come for Parliament to discharge its last great duty along this
road. lt is consistent with its constitutional role to do so. I shall
be proud to be a member of a parliament to which this
opportunity is given.
I cannot too ‘highly commend the Prime Minister of this
country who, despite unwarranted and personal invective and
criticism, has steadfastly pursued a purpose which, as I con-
ceive it, it is his duty to pursue.
There is a host of significant Canadian names associated
with this process, in addition to the names of the prime
ministers I have mentioned, though they are not all on the
same side of the argument. I think of statesmen like Cartier,
March I2, I981 SENATE
Thompson, Brown, Blake, Doherty, Aylesworth, and Lapointe
particularly, and Mowatt, Fulton and Favreau, and, on the
basis of his performance before the committee and throughout
the summer, I include Chrétien in that group.
I think of men like Dandurand, Meighen, Hugessen, and,
indeed, Forsey of this house. I think of great public servants
like Skelton, Christie, Todd, Bourinot, MaeNeill, O‘Connor,
Sirois, Deutsch, Robertson and Hecney.
I think of academics like Kennedy, Brady, Rogers, Cory,
Dawson, Wrong, Lower, Morton, Gérin-Lajoie, Monpetit,
MacDonald and Angus.
I think of Lords of the Privy Council such as Haldane and
Watson. I think of judges such as Duff, Rand, Anglin, Mi-
gneault, Rinfret, Taschereau and Newcombe.
I think of great lawyers like Lafleur, Tilley, Geoffrion and
I think of journalists like Dafoe, Willison, Fergusson,
Dexter, Hutchisen and, indeed, our old friend, Grattan
These are not all of the people who have been involved in
this process, and they are not all dead.
Honourable senators, it is Parliament which has the broad
legislative responsibility in matters affecting the nation as a
whole. It is not the provincial governments. Parliamentarians
must not forget their proper and acknowledged representative
and legislative roles. They have the right, they have the duty,
to preside over national welfare. They have a high status in
this respect. They have a noble purpose. These rights and
duties are different from those of the provincial governments,
of the provincial legislatures and of their members. This issue
which is before us is essentially a national issue, for the general
advantage of Canada.
In my humble estimation, Parliament should adopt this
On motion of Senator Mcllraith, debate adjourned.