Correspondence Between Minister of Justice and Attorney General of Saskatchewan
OFFICE OF ATTORNEY GENERAL
REGINA, Saskatchewan, June 12, 1961.
The Hon. E.D. Fulton, Q.C.,P.C.,M.P.
Minister of Justice,
Department of Justice,.
Dear Mr. Fulton:
Re: Constitutional Amendment
I am pleased to enclose herewith three copies
of a memorandum which sets out Saskatchewan’s position
with respect to the draft Constitutional Amendment Act
and related matters. I am sending a copy of this
memorandum to each of the other Attorneys General for
With reference to your letter of June 8, the
dates of September 11-l2 which you propose for a
further meeting in Ottawa would be suitable to me,
subject to the coments in part C of the enclosed
June 6, 1961
GOVERNMENT OF SASKATCHEWAN
Memorandum on Constitutional Amendment
A. Comments on draft Constitutional Amendment Act
The views of this government on the draft Act,
as forwarded with Mr. Driedger’s letter of February
4, will be set out with reference to each section
of the said draft.
Section 1 – This section is acceptable.
Section 2 – The Government of Saskatchewan cannot
concur in paragraph (a) of section 2, which en-
trenches all powers of the Legislatures to make
laws. This government is opposed to the total
entrenchment of provincial powers, and it is felt
that under no circumstances could this government
accept the entrenchment of section 92, head 13 of
the British North America Act, 1867. The rest of
section 2 is acceptable.
Section 3 – This section is acceptable.
Section A – This section is acceptable.
Section 5 – This section is acceptable, with the
above noted reservation with respect to section 2.
It is the view of this government that many of the
provisions of the Constitution of Canada, which,
by the terms of the draft, would be amendable
under section 2, should instead be amendable
under section 5.
Section 6 – This section is acceptable. It is
assumed that this preserves Parliament’s power
under section 91, head 1 of the British North
America Act, 1867, as amended.
Section 7 – This section is acceptable. It is
assumed that Section 7(1) of the Statute of
Westminster, 1931, would be repealed as well,
either by the Parliament of the United Kingdom
or by the Parliament of Canada pursuant to this
Section 8 – This section is acceptable
Section 9 – With respect to the proposed new
section 9h of the B.N.A. Act, 1867, the Government
of Saskatchewan concurs in subsections (1) and (3).
However, subsection (2) is completely unacceptable
because of the requirement that four provinces must
consent before there can be delegation either by a
Legislature to Parliament or by Parliament to a
Legislature. In the view of this government such
a restriction on the power of delegation is
completely unnecessary and would in effect destroy
the measure of flexibility which could be achieved
by such a power.
The extent to which this draft goes in making
delegation impossible may be seen particularly in
the last six lines of section 94(2), where it is
provided that a legislature can not exercise a
delegated power by statute unless the statute “has
been enacted” by at least four provinces. Apart
from the legal questions as to whether four
provinces can “enact” a statute (as opposed to
each enacting identical statutes), the practical
difficulties in achieving agreement among four
provinces on identical legislation are overwhelming.
This is particularly true where the legislation
would, as is expected, be concerned with pressing
social or economic problems which might involve
different concepts and approaches in different
provinces. It is assumed that delegation from
Dominion to province would occur where a problem
could better be dealt with on a provincial rather
than on a national basis. The draft Act, however,
precludes individual provincial exercise of such
The same objection would apply where there
is proposed delegation with respect to a matter
which is of concern to one or two provinces only.
For example, delegation of powers either way with
respect to grain marketing, or development of an
interprovincial river flowing through two or three
provinces, would be of concern to fewer than four
provinces. The other provinces would have no
interest either in granting or withholding consent
for delegation from province to Dominion. Whether
consent was or was not given could depend on
various factors having nothing to do with the
merits of the proposed delegation. Similarly,
a strange situation would obtain in certain
instances of delegation from Dominion to province.
Suppose that delegation of certain federal powers
over navigation to the province of Saskatchewan
were deemed desirable in connection with the
South Saskatchewan River Development.
Saskatchewan would enact a statute to exercise
this delegated power in relation to that project,
but such statute would be of no effect unless it
was “enacted” by at least three other provinces.
would the legislatures of e.g. Quebec or Prince
Edward Island be asked solemnly to enact legis-
lation governing navigation within Saskatchewan
on the South Saskatchewan River?
Because of the various restrictions attached
to the exercise of delegated powers by the draft,
it is our view that no government which seriously
advocates delegation can accept this proposal.
This government finds the draft to be in-
adequate because there is no provision for
initiation of amendments. Presumably under the
present draft only the federal government could
initiate amendments by introduction in Parliament.
In our view there should be provision for:
(a) initiation by one or a specified number of
provinces, involving expression of consent
to a specific amendment. The federal
government would then be obliged to introduce
the amendment in Parliament within a specified
time – e.g. one year, and the other provinces
would then be obliged to express their consent
or dissent within a specified period, assuming
Parliament adopted the amendment; and
(b) in all cases where Parliament has enacted an
amendment whether on federal or provincial
initiative, the provinces should be required
to consent or dissent within a certain period,
e.g. one or two years. This could be enforced
by a requirement that failure to dissent
within the period fixed would be deemed to
B. Coments on section 91, head 1 of the British North
America Act, 1867
The Government of Saskatchewan advocates
that section 91, head 1 as amended remain in its
C. Comments on future constitutional conferences
This government has consistently opposed the
excessive entrenchment of provincial powers.
However, we have maintained throughout that the
amendment procedure itself must be entrenched.
If this is not entrenched, there is no real
guarantee for those parts of the constitution
which are made subject to change only by una-
nimous consent. We understand that there is
general agreement that any amending formula
adopted will be entrenched, and this is provided
for in section 2 of the draft Act.
It must logically follow from this that no
new amending procedure should be adopted without
the unanimous agreement of the provinces and the
federal government. This government therefore
views with surprise and concern the suggestion
made at the January conference that a
recommendation could be submitted by the
conference on the basis of a majority-rather than
a unanimous-agreement among the provinces. we
are participating in further discussions on the
assumption that no amending formula will be
adopted without the unanimous consent of the
provinces and the federal government. If this
assumption is not shared by the federal govern-
ment we would be pleased to be advised at once.
This government also wishes to re-assert its
views that before any final recommendation is
made, members of the public should be allowed to
E A express their opinions on this matter. By the
terms of the resolution passed unanimously by the
legislature of Saskatchewan on March 28, 1961
(copies of which have been sent to the Minister
of Justice and to all of the other Attorneys
General) we are bound to insist that this be