Document Information

Date: 1950-11-16
By: R.G. Robertson
Citation: Memorandum from R.G. Robertson (16 November 1950).
Other formats: Click here to view the original document (PDF).

Nov. 16/50

Confidential

Establishment of the Canadian Constitution as
a Canadian document

I. Position at the Constitutional Conference

After initial suggestions by New Brunswick
and Quebec in January, 1950, there appears now to be
general agreement among the provincial premiers that
it would be desirable to establish the constitution
in Canada. The federal government’s position has been
that it, too, would favour such a plan as the ultimate
objective but that the first task is to secure agree-
ment on an amending procedure.

II. Problems connected with the transfer of the constitution
to Canada

(1) To achieve the transfer it is necessary to
have the B.N.A. Acts and other constitutional legisla-
tion of Canada repealed as U.K. statutes and replaced
by constitutional measures established by some other
means than U.K. legislation. Unless there is to be a
constitutional vacuum for a period, this assumes that
the repeal and substitution take place simultaneously.

(2) The question arises as to the way the documents
which are to be substituted for the B.N.A. Acts, etc.,
are to be established. Simple legislation by the Par-
liament of Canada would almost certainly not be satis-
factory to the provincial governments even if it took
place under some specific and special form of authority
given for the single purpose by the British Parliament.
A constituent convention, which was the device used by
India and now being used by Pakistan, and which is the
normal device used in establishing new systems of govern-
ment, appears to be extremely undesirable. It would open
debate on a vast range of questions and would unsettle
many workable compromises and arrangements in the national
structure that have been achieved after years of trial
and experience. There would be no way of limting
discussion or of ensuring that great damage would not
result to the country as a whole. Other possible lines
of action might be by some form of simultaneous federal
and provincial legislation, a federal-provincial treaty
procedure, or a referendum.

(3) The question of the content of any new con-
stitutional measures raises many problems. The only
procedure that would be likely to give any hope of action
within a reasonable time would be to have the new pro-
vision set forth the provisions of the present B.N.A. Act,
etc., either in their present form or with some revision
and consolidation, plus an agreed amending procedure. This
work and it would eliminate most of the thorny questions
that would arise if an entire new constitution were to be
devised. On the other hand, it would mean that the new
constitutional provisions would contain many archaic
portions and the opportunity would be missed to devise a
new document more comprehensible to the public and more
accurately descriptive of our government as it actually
operates.

(4) A problem also arises as to whether there should
be any statement by the U.K Parliament renouncing any
right to legislate in future for Canada or any treaty
entered into between the United Kingdom and Canada to
provide for renunciation of jurisdiction by the U.K.
government, etc.

III. Action by the U.K. Parliament

(1) Action on India

In the Independence of India Act, 1947 the
following provisions are included:

Section 1(1)

As from August 15, 1947 “two independent dominions
shall be set up in India, to be known respectively
as India and Pakistan”.

Section 7(1)

As from the appointed day the U.K. Government is
to have “no responsibility as respects the government
of any of the territories which, immediately
before that day, were included in British
India”.

Section 8(1)

“In the case of each of the new dominions,
the powers of the legislature of the dominion
shall, for the purpose of making provisions
as to the constitution of the dominion, be
exercisable in the first instance by the
constituent assembly of that dominion, and
references in this act to the legislature of
the dominion shall be construed accordingly”.

Subject to the provisions of the constituent
assembly the two dominions were to be governed “as
nearly as may be” in accordance with the Government of
India Act, 1935.

The substance of the legislation thus is that
the basic system of government is to continue as an
interim arrangement with power vested in a constituent
assembly to establish any constitution it sees fit.

(2) Proposal by Mr. Driedger of September, 1950

Mr. Driedger’s suggestion was that U.K. legis-
lation should be passed stating that “it shall be competent
for the Parliament of Canada to enact the constitution
of Canada as set out in the first schedule to this act…”
The first schedule would then set out a revised and
consolidated version of the B.N.A. Acts and other basic
legislation. It is submitted that this plan would not be
satisfactory since it would pass to Canadian agencies
simply a specific and limited authority – that of enacting
only the constitution set forth in the schedule. The
legislation for India and Pakistan was much broader. More-
over, it would make the basic constitution an enactment
of the Parliament of Canada and this would probably not be
acceptable to a good many of the provinces. The resulting
position would be one in which the only limitation on
the capacity of the Parliament of Canada to amend the
new constitutional provisions in any manner it saw fit
would be the provisions of the U.K. enactment. In
short the U.K. Act would continue to be a basic portion –
in fact the most essential item – in the constitution
of Canada as the guarantee provision for the amending
procedure.

(3) On the whole, it appears that the most satis-
factory situation would be one in which the B.N.A. Acts,
etc., were repealed by the U.K. Parliament with the
repeal to be effective on request from Canada and with
provision for the simultaneous substitution of constitutional
instruments passed in Canada by a means other than action
of the Parliament of Canada alone and not subject to any
specific limitation by the U.K. Parliament as to content
or character.

IV. Establishment of the new constitutional provisions in Canada
(a) Referendum

There would be some advantages in having the
new provisions established as the result of a referendum.
On the other hand, the constitutional provisions would
inevitably be so complicated as not to be readily
comprehensible to the ordinary voter. A referendum would,
moreover, not appear to be a desirable procedure if the
purpose is to establish a constitution embodying no real
change from the present one. The B.N.A. Act in many
respects does not describe the realities of our government
and many provisions, if examined, would be misunderstood
and could easily be misinterpreted, deliberately or other-
wise.

(b) A treaty or contract procedure

A proposal that has been advanced by New
Brunswick and Quebec is that the constitution should be
established by a treaty with the ten provinces and the
federal government as parties. There appear to be many
objections to this. It suggests a degree of independence
and sovereignty on the part of the provinces and a degree
of separateness between the provincial governments and
between them and the federal government that it would be
understandable to recognize, directly or by implication. it
would undoubtedly give offence to many in Canada who
think that this country is far beyond the stage where
its basic constitution is a matter to be settled by any
form of treaty with the provinces.

(c) Concurrent federal and provincial resolutions

In view of the difficulties and disadvantages
attending other means of taking action in Canada the
most desirable course might be to have the B.N.A. Act,
etc., with whatever modification may be desired, embodied
in a resolution which would approve their adoption as
the basic constitutional provisions of Canada. The form
and character of such a resolution could be worked out
by the COnstitutional Conference of Federal and Provincial
Governments. The resolution could then be passed (as a
resolution and not as legislation) by the Parliament of
Canada and the legislature of each province. There appears
to be no reason why the U.K. legislation could not pro-
vide that the provisions approved in the resolution so
passed should form the constitution of Canada and have
the force of law in Canada. In effect, the Parliament and
provincial legislatures would collectively form a con-
stituent convention although they would never meet jointly
to act as such.

V. Renunciation of jurisdiction by the United Kingdom

Renunciation might be either a declaration of
renunciation of future legislative power by the British
Parliament or it might take the form of a treaty in which
the King in the Right of the United Kingdom recognized
that there was no future jurisdiction vested in the
Government or the Parliament of the United Kingdom in
relation to Canada.

A renunciation of future legislative power by
the U.K. Parliament would be meaningless legally and it is
hard to see how it could add anything to Section 4 of the
Statute of Westminster. On the whole, it might be best
not to go through what would really be an empty motion.

A treaty procedure would in a general sense be
based on the line followed when the independence of the
United States was recognized. Article I of the Treaty of
Paris of September 3, 1783 states that His Britannic
Majesty “acknowledges” the 13 United States “to be free,
sovereign and independent states; that he treats with
them as such, and for himself, his heirs and successors,
relinquishes all claims to the governing, propriety and
territorial rights of the same and every part thereof”.
A treaty in the case of Canada would, presumably, simply
say that the King in the Right of the United Kingdom
acknowledged that the Government and Parliament of the
United Kingdom had no further jurisdiction of any sort
in respect of Canada. There would seem to be no objection
to such a procedure, unless it might be thought to give
an impression of reluctance on the part of the United
Kingdom or distrust by Canada. At the same time there
appears to be no genuine need for any such treat form.

VI. Proposed procedure

On the basis of the above considerations, it
is suggested that a feasible procedure to achieve the
transfer of the constitution to Canada might be:

(1) to continue the present work in the Constitutional
Conference to reach agreement on an amending
provision;

(2) to seek agreement by the Constitutional Conference
on a resolution designed for passage by Parliament
and the provincial legislatures to the effect that
the B.N.A. Act as amended, the Ruperts Land Act,
etc., (or a revised and consolidated version of
them, such as Mr. Driedger’s draft, if one can
be agreed on) should constitute the basic
constitutional provisions of Canada, and also
agreements on a procedure which would include
the steps listed hereafter;

(3) submission to the King by the usual joint address
of a request that the U.K. Parliament enact
legislation which would provide:

(a) for the amendment of the B.N.A. Act to
insert whatever amending clause may have been
agreed on;

(b) for authorization to the Parliament of
Canada and the legislatures of the provinces
to approve by resolution such provisions as
they may see fit to constitute the basic con-
stitutional law of Canada upon the repeal of
the B.N.A. Act as amended, etc., such con-
stitutional provisions, upon the repeal of
the B.N.A. Acts, etc., to have full force
and effect as law in Canada;

(c) for the repeal of the B.N.A. Acts, as amended,
etc., on a date to be established in a proclama-
tion by the Governor General of Canada stating
that the Parliament of Canada and the legislatures
of all the provinces had passed resolutions as
provided for; and

(d) for the repeal of Section 7 of the Statute of
Westminster effective the same date as the
repeal of the B.N.A. Acts, etc.

(4) passage by Parliament and the provincial legis-
latures of the agreed resolution to establish
the provisions of the B.N.A. Acts, etc. (or some
revised and consolidated version) as the basic
constitutional law of Canada;

(5) proclamation of such passage and of the date
on which simultaneously:

(a) the B.N.A. Acts, etc. would be repealed;

(b) Section 7 of the Statute of Westminster
would be repealed; and

(c) the provisions covered by the resolutions
would have the force of law in Canada.

Privy Council Office,
November 16, 1950

R.G.R.