Constitutional Conference, Federalism for the Future (5-7 February 1968)
Citation: Constitutional Conference, Federalism for the Future (Ottawa: 5-7 February 1968).
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FEDERALISM FOR THE FUTURE
A statement of Policy by
the Government of Canada
THE CONSTITUTIONAL CONFERENCE, 1968
Ottawa, February 5, 6 and 7
It is most appropriate, in these opening months of Canada’s second century as a federation, that the Prime Minister of Canada and the first ministers of the ten provinces should meet to consider the measures that can be taken to make the achievements of our second century even greater and richer than the first.
It is fitting to say “even” greater for we must not be unaware of the enormous strides that Canada has made since the meetings of 1864 and 1866, when men with similar responsibilities to those at the present Conference sought to devise the means by which they could make a better and more abundant life for the people they represented. With ingenuity, determination and courage—and with a faith in the capacity of people of different places and origins to work together for larger purposes of common good—they devised arrangements that they thought would best achieve those ends. And they did their work well. We are aware of the imperfections of the British North America Act, but in the context of the time its accomplishment was an act of great statesmanship. No one can be sure what the fate of the colonies would have been had they not federated. But one thing we can be sure of : divided, small, exposed and weak they could never have achieved what we enjoy today.
The arrangements by which a new political entity was established and embodied in the British North America Act, undoubtedly were not perfect even for that day. Over the years, as they were translated into action and practice, deficiencies were bound to be revealed, and new problems were certain to arise. The one that has assumed the greatest dimension is the dissatisfaction of the people of Canada of the French language and culture with the relative positions of the two linguistic groups within our Confederation.
This page is the French translation of the English text. Please consult the French version for odd-numbered pages.
There is little point in becoming involved in arguments as to what was or was not intended in 1867, how far particular provisions were meant to go, or in all the other aspects of a dispute that tends to become academic. We—like those before us—should start with the facts of Canadian life as we find them, not with recriminations over what was intended or what should have been. There are two facts which cannot be denied by anyone who fairly considers the situation. One is that the people of French language and culture do not have the same opportunities as do those of the English language to live their lives, to raise their children or to realize their own potential and that of their offspring, in their own language in all parts of Canada. The second fact that seems equally clear is that we have not, in Canada, within the last hundred years considered seriously enough what we might do—through law and policy, and through individual endeavour—to make equality of economic and cultural opportunity as real and as meaningful for Canadians of French origin as it is for English-speaking Canadians. The consequences of not doing so now could be serious.
There are other problems in our federation, too. In spite of a development which has brought benefit to all, regional disparities in Canada remain substantial. The economic prospects of Canadians of certain regions remain more limited than those of people in other regions. If the Canada of the Second Century is to serve the legitimate aims and aspirations of its people, our objective must be to make equality of opportunity real and meaningful. Only through that sense of equality—equality in the opportunities open to all Canadians, whatever their language or cultural heritage, and wherever they may choose to live or move—can we give a purpose to Canada that will meet the proper expectations of our people. And only through measures that will carry this conviction—that we intend to make equality of opportunity an achievement as well as a goal—can we preserve the unity of the country.
Constitutions and the Facts of Life
It is the intention of the Government of Canada, with which it hopes the governments of the provinces will concur, that this Conference of February 1968 should mark the beginning of a process of constitutional review that will be both broad and deep. If we are to be sure that we have the best arrangements we can devise to order and to govern the relationships between Canadians in the Canada of the future we must be willing and concerned to examine all of the facets of our legal framework. The Government of Canada is ready to undertake such a total review.
In embarking on a constitutional re-assessment we must not, however, allow ourselves to make the mistake of assuming that a changed constitution is a form of magic that can be a substitute for change in attitude and action. Nor should we assume that we must await constitu-
This page is the French translation of the English text. Please consult the French version for odd-numbered pages.
tional changes before undertaking some of the vitally important adjustments needed today.
Change in our Constitution will not relieve us of the need to make Chengee In the”way we treat and regard other Canadians, in fact, in our daily life. If the “letter killeth but the spirit giveth life”, so the legal clauses of ‘the constitution can be only the verbal reflection of new facts of relationship that we are prepared to accept and to apply.
Nor should our decision to embark upon a review of the Constitution suggest that everything that is vital and urgent must await a change in the wording of our fundamental law. Realization of this is especially important when considering measures to adjust the current inequality in the treatment of English and French-speaking Canadians. The Royal Commission on Bilingualism and Biculturalism, in its Book I, has provided positive recommendations that, in its judgement, would render more fair and equal the position of Canadians of French language and culture In Canada. Only two of these involve constitutional change and in no single case does the substance of action have to wait upon a change in the Constitution. The Conference could best demonstrate the urgency and importance that it attaches to measures to meet the central problem by accepting now the objectives which the Royal Commission has set out in its recommendations, and by agreeing that the substance of action on the recommendations should not have to wait upon whatever delays there might be in constitutional change.
The Process of Constitutional Review
The review of Canada’s Constitution should take place in this spirit and in this context. It must take place, too, in the context of the substantial adaptations that have occurred over the years in the facts of constitutional arrangements in Canada. Our Constitution is not a rigid one, nor has it been interpreted rigidly: it has provided the kind of flexibility that is essential if the role of government in relation to the citizen and if the relationships between the two orders of government in our country are to be accommodated to the needs of the times. This quality of flexibility must not be lost from our Constitution; nor must we think of change only in formal constitutional terms. Nevertheless, we are now at a point where a review of the expression in the fundamental law of the constitutional arrangements which exist or ought to exist is called for.
Wide-ranging adaptations have been required. The role of the state has grown enormously—in scale and in scope—and government services have developed to give expression to this role. The potential for the state impinging upon the rights of the individual has increased correspondingly. The relationships between the federal and provincial governments have
This page is the French translation of the English text. Please consult the French version for odd-numbered pages.
multiplied as their policies and programmes have multiplied: an elaborate structure of federal-provincial conferences and committees, never contemplated in the Constitution, has developed to meet this need. The governments of the provinces have sought to meet the needs of their people in new ways, and in so doing to give expression to the differences in heritage and tradition to be found within their borders. Federal governments, in their turn, have assumed the responsibilities now characteristic of a flourishing modern state, and have sought in so doing both to renew the forces of unity in Canada, and to adapt their institutions and their policies to the diversity characteristic of the country. In the process the relative roles of the federal and provincial governments have gradually changed and their capacity to contribute to the unity or the diversity of Canada similarly has shifted.
The adaptations thus brought about in the functioning of federalism have been so great, particularly in the past few years when the pace of change has been so rapid, that there has been a growing belief that our basic constitutional arrangements requirement re-examination. The Confederation of Tomorrow Conference was a constructive and a helpful contribution toward this end; it focussed attention on the very goals of the Canadian federation. It is the hope of the Government of Canada that we shall be able at this Conference to take the next step: that the federal and provincial governments will now undertake together a positive and a constructive review of the kind of constitution which is called for by the goals that have been discussed.
If this Conference agrees to embark upon such an endeavour, we hope that we will be able at this meeting to decide on how we should proceed. In the view of the Government of Canada we should begin by identifying the principal elements of the Constitution, and agree on which of them are most urgently in need of review. We have already suggested to the governments of the provinces that first priority should be given to that part of the Constitution which should deal with the rights of the individual—both his rights as a citizen of a democratic federal state and his rights as a member of the linguistic community in which he has chosen to live. In agreeing to place this item first on our agenda the federal and provincial governments have in no way overlooked the critical importance of determining which of the functions of government should be assigned to the two orders of government in Canada. Rather we have proclaimed our belief that the rights of people must precede the rights of governments. Accordingly our discussions will begin with a consideration of “The Rights of Canadians”, under which heading we will discuss a proposed Charter of Human Rights, and the recommendations of the Royal Commission on Bilingualism and Biculturalism concerning linguistic rights.
The Government of Canada would further propose that, having agreed on the elements of the Constitution which ought to be reviewed, and those which should be considered first, this Conference should reach a
decision as to the machinery which ought to be established for proceeding with the further review of the Constitution. We shall later be advancing certain proposals to this end.
The Nature of the Canadian Federation
The Canadian people will expect us, as their political leaders, to approach this review of the Constitution with a full awareness of what Canada is, and what individual Canadians expect of their country. They will expect us to look to Canada’s future and to its potential for Canadians, not just to the theoretical or legalistic considerations which so often characterize constitutional discussions. For a constitution is more than a legal document; it is an expression of how the people within a state may achieve their social, economic and cultural aspirations through the exercise and control of political authority. We must look therefore to the essential nature of the Canadian federation in examining our Constitution.
Canadians are a free people ‘in a free society; determined to be equal in a community where opportunity is equal. Our systems of law and of government are as free as any in the world. Our country is not beset by the class divisions or the confining traditions to be found in so many countries. Our goal of individual self-realization has not had to compete against the impositions of an authoritarian government. The very fact that we are assembled to discuss the future of our country is the best demonstration which can be given of our freedom.
Canada is a country of two founding linguistic communities, enriched by many heritages, and characterized by several regional identities. Our country is not a North American “melting pot” in which the cultures and heritages of its people are expected to be lost. Nor is it a collection of separate states striving, as in Europe, to bring to an end the destructive wars of centuries, and to find a way of submerging differences in the interest of common economic and technological growth. Canada’s identity is its diversity and its unity: we lose ourselves if we lose our two linguistic communities, our diverse cultural heritages, or our several regional identities. We lose them all if we lose the Canada in which they have been able to exist and to develop.
But Canada is more than a collection of communities, heritages and traditions. There is a Canadian personality. We are not carbon-copy Englishmen, nor carbon-copy Frenchmen, nor carbon-copy Europeans. Each of the founding societies and each of the cultural groups in this country has achieved in different ways its independence from its past, and none really wants to go back. Nor do Canadians want to become
carbon-copy Americans, friendly and strong as our ties are With them. We have our own values, our own attitudes to life that are not British, nor French, nor American. We have only to travel in Britain or France or the United States to see the truth of this statement.
The existence of a Canadian community is manifest too in our common institutions: the Parliament of Canada, a common conception of public order, a single market depending on a united Canada, common commercial and financial institutions, the national railways and Air Canada, the C.B.C. and other national institutions. We now have in common our own flag and national anthem. We often take these manifestations of Canadianism for granted; but we will not permit them to be destroyed.
The existence of a Canadian community is to be found, too, in the concern that individual Canadians feel for one another. Caring for the less privileged, and the disadvantaged, no longer is a matter for the local community alone; for haphazard municipal or charitable relief. Canadians across the nation now contribute to sustain the income of their fellow citizens, wherever they may live, through old age security pensions, unemployment insurance payments, and family allowances. They contribute to finance equalization payments which enable the governments of lower income provinces to provide adequate levels of health, welfare, education and other public services to their people. Individual Canadians contribute, too, toward national programmes designed to increase the economic well-being of areas and regions that are poorer than their own. This is the sort of thing that happens when there is a sense of community. And the greater the sense of general community the greater the willingness of individuals to contribute to the welfare of others who are not members of the local or regional community.
The existence of a Canadian community is to be found even in—sometimes despite—an increasingly interdependent world. Over the years Canadian statesmen have insisted upon their right to negotiate as Canadians and to represent their country as Canadians. As individuals, the Canadian people have come to stand for freedom and equality, and many have paid dearly for it. Canada as a nation has brought its own particular contribution to world affairs—to the United Nations and to other international bodies and groupings. We have contributed to the peace, of the world, as Canadians, and to the welfare of the poorer nations, as Canadians.
These are some of the things that Canada is. What of its potential? Its potential is to be found in its rich resources, human, natural and technological. The growth of our economy—already one of the richest in the world—will be limited only as we are limited, in energy, resourcefulness,
and imagination. Canada’s potential is to be found in its varied social fabric—a social fabric rich in diverse communities, each of them capable of contributing to one another and to the country as a whole. Canada’s potential is to be found in its cultural and technological promise and in the training and talents of its people. Our Centennial year, and Expo, have given us a glimpse of what we can do when we work together.
If Canada is a country of two founding linguistic communities, of diverse heritages, of many regions and traditions, then it will flourish only as these communities and heritages and regions flourish—economically, socially and culturally. And their full potential will be realized only as Canada realizes its potential.
We will not achieve this goal easily. We are a country troubled with frictions and misunderstandings, with problems which sometimes are the product of our own failures. We are introspective about our present and sometimes fearful of our future, and well we might be, for we are confronted with forces that would divide us.
We are exposed to world-wide forces, as well as to internal ones. Technological change has brought pervasive automation and instantaneous world communications. Economic change has exposed us to the interdependence of world markets and monetary systems, to the competition of international corporations and of increasingly productive nations. World political change has brought us into international organizations which exist to influence the activity of all nations—including our own—in the interest of world harmony. All this has limited our own freedom of action in economic policy, in trade policy and in foreign policy. We have long been a federation living beside a larger federation; we are now a federation living within an increasingly interdependent world.
If this limits our independence as a great continental federation how much more would it limit the independence of separated parts of Canada? In a world such as this it is not possible that the destiny of Canadians will be better realized by weakening our federation, any more than it is possible that our promise will be fulfilled by diminishing the diversity which is so much a part of our identity. Canada’s promise lies in the growth of the elements of which it is composed, and in the growth of a Canada which is greater than the sum of its parts. Only a narrow or static view of our country and of the world would lead one to believe that Canada can develop by the process of subtraction: that one linguistic community or region can grow by reducing the capacity of Canada, or that Canada can
grow by reducing the capacity of one or more of its communities or regions.
Federalism and Canada’s Goals
The Government of Canada believes, as we are sure virtually all Canadians do, that this country can achieve its goals only under a federal system. Pioneered on this continent, and increasingly accepted throughout the world, modern federalism is a system which enables small and exposed communities to combine into states for their mutual well-being and development—states which are large enough to exist and to flourish in today’s world, while at the same time preserving the integrity of their member communities. Federalism is Canada’s response more than ever before to the challenges of today, as the technology of scale and the limitations of interdependence have come increasingly to threaten the real freedom, the real independence of any community which is small or isolated or exposed. Only men who fail to perceive the compelling pressure upon our country of these external forces would advocate Canada’s dissolution in favour of smaller and more exposed entities.
The Government of Canada rejects both centralization and fragmentation as alternatives to federalism. Centralization, a trend toward a unitary state, would be inconsistent with Canada’s character—with its cultural diversity, with a geography which calls for the extensive decentralization of government, and with the freedom which is characteristic of states where the powers of government are not concentrated in the hands of a few.
The opposite course—a loose association of political units in which the effectiveness of the national government is dependent upon the will of provincial governments—is equally incompatible with Canada’s goals. It would jeopardize the ability of the federal government to contribute to rising living standards for the people of Canada; it would weaken the willingness of individual Canadians to contribute toward the well-being and progress of their fellow citizens in other provinces; and it would threaten the very existence of our country in a world where size as well as excellence count in the struggle for economic, technological and cultural achievement.
Canadian federalism must be a balance between these extremes, and we should expect to find this sense of balance expressed in our constitutional arrangements. We should expect to find a sense of balance in the constitutional guarantees of the rights of Canadian citizens including their linguistic rights—balanced as to the rights of individuals and their obligations to one another and to society, and balanced as to their rights as members of one of Canada’s linguistic communities and their concern for those who are members of the other. We should expect to find central institutions of Canadian federalism capable of ensuring a balanced repre-
sentation in the governing of the nation—representation on the basis of population where the general power to legislate is concerned, and representation related to Canada’s regions and linguistic groups where the power to legislate is particularly concerned with identity and the rights of these regions and groups. We should expect to find a balanced division of the power to govern between the federal and provincial governments—balanced in the powers it assigns to each and balanced in its concern for the needs of the present and those of the future.
Having formulated these goals and these guiding principles, the Government of Canada believes it is appropriate for it to present to the people, the Parliament and the Provinces of Canada its general views on Canada’s Constitution.
The Rights of Citizens and Canada’s Linguistic Duality
The first goal of the Canadian federation, in the opinion of the Government of Canada, is the protection of the rights of the individual. This means to begin with, the guarantee of individual human rights for all Canadians. This is a fundamental condition of nationhood: take these rights away and few Canadians would think their country was worth preserving. In a country such as ours, with its two founding linguistic groups, the preservation of individual rights also must mean the guarantee of the linguistic rights of both groups. For language is at once the extension of the individual personality and an indispensible tool of social organization: fail to recognize the linguistic rights of either French or English-speaking Canadians and their will to preserve Canada will be seriously weakened, if not destroyed.
The rights of the individual—human and linguistic—are so fundamental to the will of the nation to survive, that the Government of Canada suggests as the first step in reviewing Canada’s Constitution the guarantee of these rights in the fundamental law. For this purpose we propose the incorporation into Canada’s Constitution of a Charter of Human Rights as quickly as the federal and provincial governments and legislative bodies can agree. For the same purpose we propose that the recommendations in Book I of the Royal Commission on Bilingualism and Biculturalism be considered by this Conference, and that each government here represented agree now to the declarations of principle and of objectives set forth in the recommendations, and set in motion the machinery for realizing these goals as soon as possible.
A Canadian Charter of Human Rights
An important forward step was taken when the Parliament of Canada enacted in 1960 a Bill of Rights which guaranteed the rights of Canadians,
to the extent that Parliament could do so by statute. The same can be said about the provincial enactments which guaranteed some of the rights of the citizens in certain of the provinces of Canada, again to the extent that such guarantees can be given by statute. But we do not yet have in this country a comprehensive Charter of Human Rights which assures to Canadians all of the rights they believe to be fundamental, nor do we have a Charter which would prevent these rights from being infringed by the legislative bodies of Canada. This can be achieved only by placing a Charter of Human Rights in the Constitution of our country. Such a Charter, unlike most proposed constitutional amendments, would not involve a transfer of legislative power from one government to another. It would not, for instance, affect provincial jurisdiction over property and civil rights any more than federal jurisdiction over criminal law and procedure in criminal matters. Instead, it would involve a common agreement to restrict the power of all governments.
The Government of Canada proposes such a Charter of Human Rights and suggests that it consist of four parts. The first would guarantee to all Canadians freedom of speech, freedom of conscience and religion, freedom of assembly and association, and freedom of the press. It would assure the right of every individual to life, liberty, security of person and enjoyment of property, and would guarantee to every individual equality before the law and equal protection of the law.
The second part of the Charter of Human Rights would prevent the federal Parliament and the provincial legislatures from depriving the individual of the remedy of habeas corpus, and would assure such rights as the presumption that a person is innocent until proved guilty, the right to be represented by counsel, and the right to a fair hearing.
The third part of the Charter of Human Rights would prohibit discrimination, whether by reason of sex, race, national or ethnic origin, colour or religion. This prohibition would apply both to private conduct and to actions of the state, whether federal or provincial.
The Government of Canada is proposing, finally, that the Charter of Human Rights contain a fourth part designed to protect those linguistic rights identified by the Royal Commission on Bilingualism and Biculturalism in Book I of its Report.
The Government of Canada invites the governments of the provinces to begin the consideration of such a Charter. The broad outlines of our proposal have been discussed with the Premiers in advance of this Conference so as to facilitate such consideration. Agreement on a Canadian Charter of Human Rights would be a stirring beginning to our second century; it would also be an appropriate action for 1968 which has been
declared by the General Assembly of the United Nations to be International Human Rights Year. The Government of Canada is prepared to proceed at once.
Our second proposal is that the governments represented at this Conference should accept the recommendations of the Royal Commission on Bilingualism and Biculturalism. The urgency of this action should now be manifest to all Canadians. French-speaking Canadians do not feel that sense of partnership which is a condition of Confederation ; this must be remedied if the basis of Canadian unity is to be strengthened. The success of our endeavours depends ultimately, of course, on our actions as individual human beings, but we must do all we can, as soon as we can, by legislation and through institutions created by government, to achieve this goal.
The Government of Canada for its part proposes to recommend to Parliament, at its next Session, an Official Languages Bill that will formally declare English and French to be “the oflicial languages of the Parliament of Canada, of the federal courts, of the federal government, and of the federal administration”. We also propose to appoint under the authority of that Act “a Commissioner of Official Languages charged with ensuring respect for the status of French and English in Canada”. To this end a plan of action is now being prepared to bring into full realization the objectives which have been set by the Royal Commission for the Government of Canada, objectives which we welcome and accept.
The Royal Commission has directed the balance of its recommendations to the provincial governments, or to the federal and provincial governments together. The Provinces of Ontario and New Brunswick, in particular, have been called upon to take the same action as the Parliament of Canada; to declare in an Oflicial Languages Act that they recognize English and French as oflicial languages. These provinces and Quebec have been asked to appoint a Commissioner of Oflicial Languages “charged with ensuring respect for the status of French and English” so far as their jurisdiction extends. As part of this programme for linguistic equality the provinces would recognize the right of parents to have their children educated in the official language of their choice. The provinces have been called upon to declare that both French and English may be used in the debates in their legislatures, while the Prairie Provinces, Nova Scotia, and Prince Edward Island have been called upon, in addition, to recognize both languages in districts where ten per cent of the population speaks the other official language. These bilingual districts would be established
through federal-provincial negotiations: the Royal Commission did not expect any would be formed in British Columbia or Newfoundland. Those provinces where bilingual districts were established would be asked to provide in such districts for the education of children in either English or French. The acceptance of these recommendations depends upon action by the provincial governments, not by the federal government, but if they do accept them, as we hope they will, the Government of Canada will be prepared to help in the implementation of these proposals if we are asked to do so. We will be glad to join with provincial governments in devising the methods by which our assistance could be made most effective.
We recognize that the guarantee of language rights in Canada will for a time present real and practical difficulties to many governments, particularly those of Canada, Ontario and New Brunswick. And we realize, unhappily, that there will be some people who will oppose the very principle of granting to French Canadians in English-speaking Canada the rights which English-speaking Canadians enjoy in Quebec. But if we, the first ministers of this country, would lead Canada, if we would do what we can to preserve and strengthen our nation, we must show the way to the adoption of a policy of linguistic equality.
Central Institutions of Canadian Federalism
The guarantee of the rights of individual Canadians, including linguistic rights, would be the first step in adapting Canada’s constitutional and governmental arrangements so as better to achieve the goals of our federation. The second step, in our view, would be the adaptation of our national institutions of government so as to ensure that they too were making their most effective contribution toward the realization of these goals.
The Government of Canada believes that the central institutions of government must be designed to ensure that the essential character of the country is preserved. Federalism is not just a matter of dividing up the powers of government between the federal and provincial governments in the hope of achieving an appropriate balance between the forces of unity and diversity in the nation. The division of powers is, of course, a central element of federalism, and it must be fully considered at the Conferences which are to follow. But it should not be finally decided until the central institutions of federalism provided for in the Constitution have been re-examined.
The Parliament of Canada. The first such institution is the Parliament of Canada. The Constitution provides for two kinds of representation in Parliament; representation on the basis of population in the House of Commons, and representation on a regional basis in the Senate. But because Canadians gradually have come to believe that the Senate should not be able to overrule the will of a popularly elected body, the House
of Commons, the Upper House has almost ceased to use its right of veto. This has imposed an effective limitation on its exercise of legislative power.
There are of course other important if informal methods by which Canada’s diversity is represented in the national organs of government. We refer to the representation in federal cabinets of the several provinces of Canada, of both of the country’s basic linguistic groups, and of much of the diversity in religion and culture in the nation. Similarly the major political parties in the House of Commons have organized so as to ensure in their caucuses and otherwise that these interests are adequately represented.
We believe, however, that the role and the powers of the Senate should be reviewed. It might well be reconstituted so as to enable it to play a new role in representing the federal character of our country. It might, for example, be called upon to make a special contribution in securing the rights of Canadians and in protecting the bilingual character of Canada. It might also be expected to reflect better than it does now the regional interests of our country.
If the role and the powers of the Senate were to be changed, it would also be appropriate, in the judgement of the Government of Canada, to consider changes in the method of appointment. For the method of selecting Senators clearly should be related to the particular role and functions of an Upper House in a federal form of government.
Our proposals for a controlled development of the Constitution do not envisage a discussion at this meeting of Senate reform. But we did want to make known the Government’s view that the Senate can be made a more effective institution of federalism, and our willingness to discuss at subsequent conferences this aspect of Canada’s Constitution.
The Supreme Court. Another essential element of federalism is the system under which disputes as to the meaning or application of the Constitution are adjudicated. There have been serious discussions in Canada concerning the composition, jurisdiction and procedures of our final constitutional court, the Supreme Court of Canada; these properly should be considered in any review of the Constitution. For example, the Supreme Court both as a general court of appeal and the final court in constitutional matters now operates under an ordinary statute of the Parliament of Canada. It has been urged that its Constitution and role should be set forth in the fundamental law.
The Government of Canada will be prepared to discuss questions such as these at the constitutional meetings to follow. At this time, however, we would set forth the fundamental principles which in our view should guide us in such discussions. First, there is a functional need, in a federal
system such as ours, for a body to settle the jurisdictional conflicts and uncertainties to which all federal Constitutions inevitably give rise. Secondly, if such a body is to enjoy the respect and authority which it needs in order properly to discharge its functions, it must retain a judicial character and be able to perform its functions impartially. Thirdly, the independence of the judiciary is a fundamental principle of the Constitution which must be protected accordingly.
These principles, we acknowledge, are self-evident; they are essential if Canada is to continue to be governed by the rule of law. Unquestionably they would guide both federal and provincial governments in their review of the Supreme Court of Canada.
The Public Service of Canada. The public service of Canada should also be looked upon as one of the institutions of federalism. This means, as the Royal Commission on Bilingualism and Biculturalism has said, that English and French must be the languages of work in the federal public service, particularly in Ottawa and other areas where both languages are spoken. It also means that in its composition the public service should in a general way reflect the character of the nation.
The fact that the Government recognizes the public service as an institution of federalism was evident in its announcement almost two years ago of its intention to make the public service progressively bilingual, and its determination to increase the numbers of French-Canadians in the service. A great deal of progress has been made in this direction, and more can be expected as our capacity for language instruction improves, and as our ability to attract to the public service French-Canadians, and Canadians from all regions and walks of life in the country, increases. The problems we face are not constitutional; they are very practical. Canada’s public servants are the products of Canada’s educational systems, and if the educational systems have not produced bilingual graduates public servants cannot be expected to be bilingual. There are therefore very difficult problems of adjustment, for the Government and for the public servants. We intend protecting as a matter of justice civil servants who have rights to security and expectations for advancement under past language practices. But we are resolved, while according such protection, to make the required changes. To this end we are providing extensive language training facilities for civil servants who are not bilingual. For the future, it is the provincial governments which can contribute most to this change by making available to all students the opportunity of learning to speak French as well as English.
The National Capital
If the organs of government in Ottawa should reflect the federal character of the country, the nation’s Capital should be a symbol of Canada. Ottawa and the Capital region should be a model of what we think Canada should be—in particular, as our capital, it should be a model of bilingualism and biculturalism. The Government of Canada has begun discussions with the Provinces of Ontario and Quebec under whose jurisdiction the Ottawa/ Hull area falls, on arrangements which could be made to achieve this goal. These discussions will have to take into account both the jurisdictional and the municipal interests which are the proper concern of the Provinces of Ontario and Quebec. We are pleased that the Prime Ministers of these Provinces have been so ready to discuss this question with the Government of Canada.
These are the Government’s general views on this second element of Canada’s constitutional and governmental arrangements. The central organs of government and the guarantees of the rights of the individual and of linguistic duality in Canada, are important instruments of federalism. The Federal-Provincial Conference should consider how they could be made most effective in serving Canada’s second century.
Canada in the World
Before turning to the third element of Canada’s Constitution which we would expect to discuss in the series of constitutional conferences we have proposed, the Government of Canada feels special mention should be made of Canada’s international presence.
Canada can have only one international personality. We think that Canadians generally want and expect their country to be seen abroad as a single united country—as Canada. This requires, in our view, that the Government of Canada continue to have full responsibility for Canada’s foreign policy and for the representation abroad of Canada’s interests.
This is not to deny the interest that provincial governments have in international matters which touch upon their own jurisdiction. This interest can be recognized and protected by ensuring that the Government of Canada exercises its international responsibilities in the proper manner, and by co-operative arrangements between the federal and provincial governments in international matters of mutual concern. There is no evident need to provide the Provinces with special powers in this field. Indeed no federal state has found it necessary or desirable to confer independent treaty-making powers on its provinces or states, or, with the single exception of two of the republics of the USSR for very special reasons in 1945, to allow for a separate presence in international bodies or independent diplomatic representation. The reason is obvious. Such powers or representa-
tion would divide or fragment a federal union into separate international entities. In Canada’s case, it would destroy our influence and our presence abroad, and undermine our unity at home.
This would not only be tragic; it would be unnecessary. The Government of Canada has been seeking progressively to ensure—in its foreign policy and in all its actions abroad—that it reflects the bilingual character of the country and that it takes into account the proper and developing interests of the Canadian provinces in various international activities. For example, delegations to international conferences where provincial interests are affected increasingly contain a provincial component; provincial desires to benefit from co-operation and interchanges with foreign states are fully recognized and assisted; the provincial governments can, where it is necessary, make agreements with other jurisdictions, with Federal Government agreement; and provincial interests in other forms of international co-operation are also facilitated. Indeed any provincial requirement that calls for some international action can be met by the federal government, save of course for actions which would undermine the ability of the Government of Canada to represent the country abroad. The Government intends, in full co-operation with the provinces, to continue to pursue and develop this policy.
Canadians will understand that talk of separate international personalities or a divided presence abroad is not just academic talk of interest to constitutional lawyers. It strikes at the roots of our existence as a country. Indeed the achievement of independent status for Canada rested a great deal on gaining for our country a separate international voice. To extend this right and power to the provincial governments could mean the same result for them: separate foreign policies, separate relations with other states, separate representation in the U.N. and other agencies, and separate ambassadors and embassies. But it would mean more than that. Separatism abroad would lead to separatism at home. We should make no mistake about it.
The Division of Powers
The third important aspect of Canada’s Constitution which should be reviewed is the division of the powers of government between the federal and provincial governments. It is the part of the Constitution over which most differences between governments arise; inevitably it will occupy a major part of our attention in the course of the constitutional conferences we have suggested.
This is understandable and desirable. It is understandable because of the enormous growth in the role of government, federal, provincial and
municipal. As the scale of government has increased, the tendency of governments to propose policies or undertake measures which affect the policies or measures of other governments also has increased. Concern as to whether governments’ taxing powers match their spending responsibilities has increased correspondingly. And as the range of government activities and programme planning has widened, there has been a growing tendency on the part of governments to extend their planning to cover the activities of other governments operating in the same area.
It is important that the federal and provincial governments review seriously the consequences of proposed constitutional adjustments in this field, in view of the differences which currently divide them. We should be frank about these differences. The governments of theprovinces believe that their powers of taxation are too limited; the federal government believes that provincial taxing powers are virtually as great as its own. The governments of some provinces do not believe the Parliament of Canada should use the spending power in the way it has; but in fact, the use of this power has been responsible for much of Canada’s social and economic progress. There have been demands for wholesale transfers of taxing and spending powers from the Parliament of Canada; the federal government has replied that transfers to the provinces of powers of such magnitudes would make it impossible for it to discharge its responsibilities for the whole country.
All of these differences are serious. And all of them stem from genuine differences of opinion over how the powers of government are or ought to be divided between the Parliament of Canada and the legislative assemblies of the provinces. The Government of Canada has concluded that the point has been reached where the federal and provincial governments should meet to discuss, formally and fully, the whole question as to how the powers of government should be divided in Canada. We should examine the claims that are made for the transfer or the clarification of powers, and the consequences of these claims. These meetings would, of course, involve difficult discussions of complex and sensitive questions, including the division of powers, the spending power, the residual power, and the power of delegation. But meetings on these questions would be preferable, in our opinion, to dealing with forever recurring disputes over particular powers, in a partial or a piecemeal fashion.
Discussions on the division of powers should take place, in the opinion of the Government of Canada, after the constitutional conferences have considered the other principal elements of the Constitution—the rights of individual Canadians, including linguistic rights, and the central institu-
tions of federalism. We say this because provincial interests and the interests of Canada’s two linguistic groups are not and cannot be represented simply through the device of transferring powers from the federal government to provincial governments. These interests are and must be reflected as well in constitutional guarantees and in the central institutions of federalism. It follows that a balanced judgement as to the powers required by the provincial governments for the primary purpose of protecting linguistic or provincial interests can only be made in the perspective of the constitutional guarantees and the representation of such interests in the central organs of government. To jeopardize the capacity of the federal government to act for Canada, in the name of protecting linguistic and provincial rights, when what is essential could be accomplished through constitutional guarantees and the institutions of federalism, would be to serve Canadians badly. Furthermore, the division of powers between orders of government should be guided by principles of functionalism, and not by ethnic considerations. Such principles can best be applied after issues concerning the protection of linguistic rights have been settled.
The Government of Canada would propose, therefore, that discussions on the division of powers take place at subsequent conferences. However, in anticipation of these discussions, and as a guide to the direction of the Government’s thinking we believe we should place before the Conference some of the principles by which we feel we would have to be guided.
First, we are committed to the View that Canada requires both a strong federal government and strong provincial governments. The field of government now is so wide, and the problems of government are so many, that it is not a contradiction to speak in these terms. Governments themselves confirmthis view when they argue that their spending responsibilities exceed their ability to raise revenues. There is another reason for achieving a balance between the powers of the federal and provincial governments: the freedom of the individual is more likely to be safeguarded if neither order of government is able to acquire a preponderant power over the citizen.
Secondly, the Government of Canada believes that there are certain areas of responsibility which must remain with the federal government if our country is to prosper in the modern world. The Parliament of Canada-must have responsibility for the major and inextricably inter-related instruments of economic policy if it is to stimulate employment and control inflation. It must have control over monetary and credit policy, the balance-wheel role in fiscal policy, tariff policy, and balance of payments policy. It must be responsible for interprovincial and international trade. It must be able to undertake measures for stimulating the growth of the economy, some of which inevitably and some of which intentionally will affect
regional economic growth. Without such powers Canada’s federal government would be unable to contribute to many of the central objectives of federalism, including the reduction of regional disparity.
We believe that the Government of Canada must have the power to redistribute income, between persons and between provinces, if it is to equalize opportunity across the country. This would involve, as it does now, the rights to make payments to individuals, for the purpose of supporting their income levels—old age security pensions, unemployment insurance, family allowances—and the right to make payments to provinces, for the purpose of equalizing the level of provincial government services. It must involve, too, the powers of taxation which would enable the federal government to tax these best able to contribute to these equalization measures. Only in this way can the national government contribute to the equalization of opportunity in Canada, and thus supplement and support provincial measures to this end.
The Government of Canada believes it must be able to speak for Canada, internationally, and that it must be able to act for Canada in strengthening the bonds of nationhood. We have said what we think this implies in international matters. Internally it seems to us to imply an active federal role in the cultural and technological developments which so characterize the 20th century. We acknowledge, of course, that the nourishment of Canada’s cultural diversity requires imaginative provincial programmes, as well as federal ones. But there is a role for the Government of Canada, too; indeed cultural and technological developments across the country are as essential to nationhood today as tariffs and railways were one hundred years ago.
These are central areas of responsibility essential to the apparatus of the modern sovereign state—economic policy, the equalization of opportunity, technological and cultural development, and international affairs. There are among these, of course, areas of responsibility which are shared with the provinces—including cultural matters, regional economic policy, and social security measures. However to catalogue these new, or federal powers generally, would be to depart from a statement of guiding principles and to anticipate the discussions of future conferences.
The third principle which would guide the Government of Canada in discussions concerning the division of powers is that most services involving the most immediate contact between the citizen and the government, and those which contribute most directly to the traditions and heritages which are uniquely provincial, should generally be provided by Canada’s provincial governments. Strong provincial governments, able to adapt public services to the particular needs of their people, are as essential to meet the
facts Of diversity in Canada as a strong federal government is to the preservation of Canadian unity.
The governments of the provinces have responsibility for education, and their own power to support technological and cultural development—so often associated with educational institutions. These powers play an important part in the flourishing of Canada’s linguistic groups, and of the diverse traditions to be found in our country. We acknowledge, of course, that many of the institutions involved serve the nation as well as the province, but this fact should not be allowed to diminish the capacity of the provinces to perform their role.
The Government of Canada believes that the provinces must have the power to provide health and welfare services. For instance, the provincial governments rather than the federal government should operate hospitals or public health clinics and determine the needs of persons requiring social assistance. Provincial administration of services such as these makes possible the variation of levels of service to accord with local priorities. The role of the federal government should be to provide for those transfers of income between people and between provinces which generally support the incomes of people and the services of governments in the different provinces.
The Government of Canada recognizes too that the provinces should continue to have the constitutional powers required to enable them to embark upon regional economic development programmes. Provincial programmes inevitably will aifect national policies for economic growth, and vice versa, and the programmes of the several provinces may well be competitive with one another. But the aims and the expectations of people in the several provinces should find expression in provincial as well as federal economic measures. The provinces must continue, too, to have responsibility for the many intra-provincial matters which call for local rather than national action.
The Government of Canada holds the view that in the exercise of these responsibilities—which under the present division of powers are at least as wide ranging as those of the federal government—each province should be able to develop its own unique approach. The range of powers we would expect the provinces to have would extend, as they do now, into the areas which are vital to the preservation of Canada’s several cultural and regional identities.
We believe, finally, that the provincial governments like the federal government must have taxing powers sufficient to enable them to finance their responsibilities. However, we suspect that in assigning to governments the power of taxation—the capacity for financing public services in Canada—the principle of access to tax powers will supersede the principle
of an exact division of tax fields. We would do well to remember that it is as difficult to predict what technological or social or international changes will have increased the role of the provincial or federal governments in 30 years as it would have been to predict the changes between 1938 and 1968.
The fourth generalization we would advance concerning the division of powers has to do with the effect each government’s activities inevitably will have upon the activities of the others. This applies both to individual programmes and to the totality of government activity. For example, federal income redistribution measures inevitably have an effect upon provincial social welfare programmes and provincial resource development policies inevitably affect the rate of growth of the nation’s economy. Similarly the aggregate use by the provinces of their spending and borrowing powers inevitably affects federal fiscal, and monetary and balance of payments policies, and the use of the federal spending power affects provincial policies in different ways. Obviously the total volume of spending by each order of government affects the priorities of the other.
We question whether it is any longer realistic to expect that some neat compartmentalization of powers can be found to avoid this. Instead we suspect that the answer is to be found in the processes by which governments consult one another and by which they seek to influence each other before decisions are finally taken. This remedy has been prescribed so often as to appear commonplace. But there is much to be done even in coming to understand the processes of intergovernmental influence, to say nothing of perfecting the machinery by which intergovernmental consultation takes place. Nor will we find the “participation” of provincial governments in federal government decisions, and vice versa, to be an easy answer to the problems of consultation. The federal government must remain responsible to Parliament, and the provincial governments to their legislatures: federal-provincial conferences must, it seems to us, occupy themselves with the art of influence rather than the power of decision- making.
Both federal and provincial governments will recognize, too, the unresolved question as to whether there should be a federal government role when there is a “national interest” in provincial programmes (or the lack of them), or whether there should be a provincial government role when there is a “provincial interest” in national programmes (or the lack of them). Examples abound: What the provinces do or do not do about urban development unquestionably affects the national interest, and what the federal government does or does not do about tariff policy affects the
provincial interest. We have to consider seriously whether there should be a way for the federal government to seek to influence the provinces in cases where a national interest is involved, and a way for provincial governments to seek to influence the federal government when a provincial interest is involved.
There are, we think, no easy solutions. What is required is a comprehensive review of the federal-provincial conferences and committees which now exist, how they function, and how their work is co-ordinated. We must be prepared, it seems to the Government of Canada, to give more systematic recognition to these new forms of federalism.
We must be prepared to consider new methods for bringing provincial influence to bear on developing federal policies, and federal influence on developing provincial policies, before decisions have finally been taken. We must be prepared for innovations in the machinery of government which will enable us to preserve the essence of Canada’s two great governmental traditions—federalism and parliamentary government.
Procedure for the Review of the Constitution
If it is the decision of the Conference that Canada should embark upon a comprehensive re-assessment of the Constitution, it is most important to consider the manner and the sequence in which this can best be done. In doing so, two considerations must be carefully weighed.
First, any arrangements must be adequate to the gravity of the task being undertaken. The constitution is the basic framework within which the life of the country is ordered and regulated. If we change or adjust it without careful thought for the consequences, we can create serious injury to the whole scheme of relations that is central to the functioning of our government and laws. We are today aware of defects: we must not let them blind us to the existence of virtues, nor must we let them cause us to believe that any change will be an improvement. If a mistake is made in an ordinary statute, it can be remedied at a subsequent session of Parliament or the legislature. But a constitutional error may be almost irremediable and the consequences serious in the extreme. The fundamental law is indeed fundamental, and its examination and review must be so treated.
The second consideration is that the statement of the law, fundamental as it is, expresses in words the framework we want for political relationships within the Canadian community: the relationship of individuals to their governments and, since ours is a federation, the relationship of the different orders of government to one another. The adjustment of these relationships, within an established system of government—which we are seeking to improve rather than to establish on a wholly new basis—is one that must be
undertaken by those who represent the people and who head our governments. This does not mean—it cannot mean—that the Prime Minister of Canada and the first ministers of the provinces must undertake the whole task. But it does, we think, mean that the discussions must be conducted and controlled by governments at all stages, and that the decisions as to the changes to be initiated in institutions or in political relationships must be taken by governments in a way that will enjoy the support of their legislative bodies.
In the light of these considerations, it is the view of the Government of Canada that a comprehensive review must involve the willingness of the heads of government to meet in Federal-Provincial Conferences at relatively frequent intervals over the next two or three years to guide and control the process of review. This may seem an arduous schedule, but we must remember that it took two to three years to write the original Constitution. Such a continuing Constitutional Conference, of which this would be the first meeting, would undoubtedly from time to time establish special committees to undertake the study of particular questions: these might be committees of Ministers or of oflicials as seemed best. The Conference might also wish to establish a Continuing Committee of officials, responsible to it, to facilitate discussions by examining in a preliminary way policy questions referred to them by the Prime Minister and Premiers, to co-ordinate research and the preparation of material for the Conference, and in other ways to facilitate the ministerial discussions.
Undoubtedly each government would want to consider, too, the means by which it could receive the views of individuals, organizations and groups, and the advice of experts, as the process of review proceeded, so that these could contribute to the total consideration of the problems. Conclusions reached at the continuing Constitutional Conference would have to be referred back to the governments concerned for concurrence before they were implemented as constitutional amendments or as parts of a new constitution. These questions of method might vary depending on the matter in issue. In all cases, however, it would have to be a matter for each government to determine, as in the case of previous amendments, the precise method by which concurrence would be expressed. As for the Government of Canada, we propose to submit to Parliament for consideration and approval all changes in the Constitution to which we agree.
In addition to agreeing on the procedure for the constitutional review, it would be necessary to determine the most constructive sequence in which to deal with the Constitution. It is the view of the Government of Canada, as we have said, that it would be best to begin with the rights of individuals
in Canada. We are hoping that this Conference will make substantial progress in this task. The logical next step would be to consider some of the central organs or institutions of government that have a particular relevance to the nature of our federalism: the Supreme Court and the Senate would seem to us to be of first importance in the constitutional review. In the light of these considerations, and perhaps of a study of the basic objectives of our federation that might be incorporated in our Constitution, the Conference could move on to attempt to remove what is out-dated in the Constitution, and to give a more modern statement to those aspects which clearly can be modified. Subsequently, we suggest, should come the examination of the relations of governments and the statement of their powers. It seems to us proper to put this item as a later one for the reasons we have expressed. The powers of government and their allocation can be considered with confidence only when one has determined the substance of the rights, objectives and relationships within which and for which the governments should operate. Another reason for keeping that aspect for a later stage is that the Conference will, in the earlier stages of its discussions, inevitably identify and clarify many of the problems that must be taken into account when one comes to adjusting the powers of government as between the federal and provincial governments. The Conference will be able to work with more certainty and make adjustments with more confidence once it has carefully discussed the many problems that will be found to lie in a re-statement of the relationships and purposes we want to embody in our Constitution today.
This is the kind of framework and the kind of sequence that we would propose as appropriate if it is agreed that a comprehensive constitutional review should be undertaken. Every government represented at this Conference will recognize the importance of approaching these discussions with understanding and with a common concern for Canada’s future. Our responsibility will be to represent Canada. In any differences we may have over the jurisdiction of governments we must not forget that we are all here to serve Canadians. Each citizen of Canada is represented by two governments, the federal and the provincial. Both governments speak for the same citizens in each province. Our objective will be to develop constitutional arrangements which will not only protect the rights of individual Canadians but will enable governments, who share the responsibility of governing, to act in the best interests of all Canadians in whatever part of this country they have the privilege to live.
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