Document Information

Date: 1970-09-01
By: Continuing Committee of Officials
Citation: Constitutional Conference, A Constitutional Obligation to Reduce Regional Disparities, Doc 254 (1 September 1970).
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CONFIDENTIAL

Document No. 254 (1)
September 1, 1970.

CONSTITUTIONAL CONFERENCE

A CONSTITUTIONAL CONFERENCE
REGIONAL DISPARITIES

Presented by the
Continuing Committee of Officials
to the
Second Working Session
of the
Constitutional Conference

CONSTITUTIONAL OBLIGATION TO REDUCE REGIONAL
DISPARITIES

A. Introduction

At the December 1969 session of the Constitutional
Conference the following conclusion was reached:

“The Conference reiterated the earlier agreement that the
objective of reducing disparities across the country should
be written into the preamble of a revised Constitution as a
basic goal of the Canadian people.

It was recognized that both levels of government had
responsibility for the achievement of this goal and that each
should have appropriate powers for this purpose. Eight
provinces and the federal government agreed that the federal
government should have the power to alleviate regional dis-
parities in relation to the income of individuals, inequality
of economic development and standards of public services.
British Columbia and Alberta advanced the view that, instead,
a guaranteed annual income would remove disparities between
individuals wherever they might be in Canada and therefore
the effect would be to lessen regional disparities.

There was some support for the inclusion of a substantive
provision in the body of the Constitution which would set forth
the obligation, not subject to judicial review, of the federal
and provincial governments related to regional disparities.

Because of the significance of the legal questions raised
in the discussion, the Conference agreed that the Continuing
Committee of Officials should give further study to the
implications of placing specific clauses in the Constitution.”

The inclusion of such classes in the constitution creating
an obligation on the federal and provincial governments, not
subject to judicial review, may be seen as having both legal
and political implications. In accordance with the December
1969 conclusions, the legal implications have been examined by
the Continuing Committee of Officials.

3. Legal Implications

It has been suggested at various times that the respon-
sibilities of governments to reduce regional disparities might
be expressed in the preamble to the constitution, or in
provisions in the body of the constitition variously described
as “non-enforceable obligations”, “purposes and principles”,
or “directive principles”.

1. Preamble

All governments have expressed agreement (as recorded
in the December 1969 conclusions) that the objective of
reducing disparities across the country should be written
into the preamble. Clearly, such a statement would not be
regarded as directly enforceable: that is, it would not
create legal rights or duties which would enable parties
to bring actions in court for its enforcement. However,
the courts might have resort to the preamble occasionally
as an aid to interpreting other provisions of the
constitution whose meaning was ambigious.

2. Other Provisions of Principle or Obligation

With respect to such statements in the body of the
constitution itself, it appeared to the Continuing Committee
that there would be little difference in legal effect as
between “non-enforceable obligations”, “purposes and
principles”, “directive principles”, or any other such
formulation, provided that the constitution made clear
with respect to any of them that they were not intended to
create any judicially enforceable rights or duties. However
they might be described, such provisions would differ from
the preamble mainly in the degree to which they could appear
to impose obligations on governments rather than simply
state objectives, and the greater degree of detail in which
they might be expressed. This greater detail might give
them a stronger political effect than a more general state-
ment in the premble. However, their legal effect would be
essentially the same as that of the preamble, except that
the courts might more readily resort to them rather than
tp the preamble for the purpose of clarifying ambiguities
because they would be part of the constitution proper rather
than preambular in nature. But it was also recognized that
nothing could be asserted with complete assurance on this
point as there is little in Canadian constitutional experience
to indicate precisely what the judicial approach might be.
It is probable, however, that the effect of such constitu-
tional provisions would not in principle be significantly
different from that of the objective stated in the preamble,
on which an agreement has already been recorded in the
conclusions of the December 1969 meeting of the Constitutional
Conference.

This view of the effects of a statement of principles
in the constitution assu , as noted above, that the
constitution would make clear that such principles w
not to be judicially enforceable. If this is not made clear,
there would be a possibility of attempts to invoke the aid
of the courts to require legislative bodies to enact laws
to comply with these constitutional principles. It was the
view of the same delegates that the intent that such principles
are not to be judicially enforceable should be expressly
stated in the constitution. Other delegations thought this
intent might be implied in the wording of the principles
themselves.

It was also noted by some delegations that a state-
ment of obligations on all governments to reduce regional
disparities might have the effect of enhancing legislative
powers of those governments which take action for this
purpose: that is, they might contend that their action
was justified, even though clearly within the scope
of their normal legislative ambit, on the grounds that
they were meeting a general constitutional obligation to
reduce regional disparities.

Some delegations did not consider this possibility
to be a significant problem; on the other hand, some sug-
ested that it might be desirable to include in the con-
stitution a provision that nothing in the statement of
principles is to confer on any legislative body any power
that it would not otherwise enjoy.

C. Conclusion concerning Legal Effects

The Continuing Committee is therefore of the view that
responsibilities of governments to reduce regional disparities
could be stated in both the preamble and the body of the
constitution with a legal effect which would be similar in
kind in each case and would be limited. The extent of the
use of such provisions by the courts as aids to interpretation
of the constitution would depend not only on the choice to be
made, as noted above, of the degree to which such use is
expressly limited by the constitution, but also on the degree
of particularity with which they are stated. Their political
effect as criteria for governmental action will also depend
on the particularity of their expression. This raises the
question of previsely what is meant by “regional disparities”
and of the extent to which the means for their reduction should
be indicated in the constitution.

D. Definition of Regional Disparities

Various discussions during the course of the constitutional
review suggest that the term “regional disparities” is taken
to embrace a variety of differences which may exist from one
region to another across the country, including the following:

– differences in the quantity and quality of public
services,

– differences in the average per capita personal income,

– differences in the relative rates of economic growth
and development,

– differences in social and cultural development,

– differences in the degree of “opportunity” available
to individual Canadians (which could be attributed
to the other differences identified).

As an illustration, a broad definition such as this seems
to have been implied in the wording of the objective which
was suggested by the Government of Canada in the working paper
“The Constitution and the People of Canada”:

“To promote national economic, social and cultural development,
and the general welfare and equality of opportunity for all
Canadians in whatever region they may live, including the
opportunity for gainful work, for just conditions of employment,
for an adequate standard of living, for security, for education,
and for rest and leisure.”

One point which has been consistently stressed by some
delegations during the Continuing Committee’s discussions is
that a clear distinction should be made between equalization
payments and other measures to alleviate regional disparities.
Equalization payments are made to ensure that a reasonably
comparable level of public services can be offered by all
provincial governments across the country without the imposition
of unduly high levels of taxation on the citizens of those
provinces whose economic situation is relatively weaker. Such
payments will not necessarily get at the root causes of the
disparity, although they may assist some provinces in providing
certain services which are necessary for economic development.
Measures to alleviate the basic economic and social differences,
such as economic development programmes, are in a different
category. If such measures, or other developments with
important economic consequences, were to result in the elimin-
ation of the differences that now exist between regions, these
could eventually end the requirement for equalization payments.
In short, the equalization payments are a partial offset to
some of the effects of regional disparity; other programmes
and other actions are also required to reduce or eliminate it.

The point has also been made that disparities are dis-
cernible at different levels. At the national level, there
may be disparities in the economic situation of one or more
provinces, relative to other provinces. At the same time,
there may be disparities between one or more areas within a
province and other parts of the province. Recognition of these
factors leads to the conclusion that both the federal and pro-
vincial governments should have responsibilities, along with
appropriate powers, to alleviate disparities.

Some provinces have taken the view that the stress should
be placed on the concept of general economic disparities between
individuals. It has been proposed that steps should be taken
to alleviate such disparity through the device of a guaranteed
minimum annual income, and it has been argued that regional
disparities would then be alleviated automatically because of
the better income position of individual citizens in each
region. Other delegations have expressed the view, however,
that the guaranteed minimum income would have to be set an
unattainably high level, before this could have an appreciable
effect on the tax base available to provincial governments in
the less prosperous provinces.

E. General Conclusion

The above paragraphs have attempted to identify the main
considerations which appear to be involved when the subject
of the constitutional aspects of regional disparities is being
dealt with. It seems clear that final conclusions on the
constitutional treatment of this subject can only be reached
in the light of the outcome of other aspects of the con-
stitutional review.

It has already been accepted by the First Ministers (see
the conclusions of December 1969) that both levels of govern-
ment have a responsibility for the achievement of the goal of
reducing disparities, and that each government should have
appropriate powers to carry out its responsibilities in this
regard. Conclusions concerning the allocation and statement
of powers in a new or revised constitution will therefore have
a bearing on the nautre of constitutional provisions dealing
specifically with regional disparities. For example, one
delegation has indicated that it could find a statement of
purpose and principle regarding regional disparities to be
sufficient, assuming an appropriate distribution of powers,
if there were a firm provision concerning federal equalization
responsibilities in the substantive part of the constitution.

It would seem also that the inclusion of a statement of
purposes and principles in the Consitution could depend, in
the last analysis, on what else might be proposed to go into
such a statement.

In view of such considerations, the Continuing Committee
suggests that further examination of the constitutional aspects
of regional disparities should proceed at a later stage of the
constitutional review, when actual drafting of provisions may
be considered in the light of the outcome of other parts of
the review.