Document Information

Date: 1981-11-02
By: Allan Blakeney
Citation: First Ministers’ Conference on the Constitution, Notes for an Opening Statement by Premier Allan Blakeney, Doc 800-15/005 (Ottawa: 2-5 November 1981).
Other formats: Click here to view the original document (PDF).

DOCUMENT: 850-15/005

FEDERAL-PROVINCIAL CONFERENCE
OF
FIRST MINISTERS ON THE CONSTITUTION

Notes for an Opening Statement
by Premier Allan Blakeney

Saskatchewan

Ottawa
November 1981

NOTES FOR AN OPENING STATEMENT
PREMIER ALLAN BLAKENEY
FIRST MINISTERS’CONFERENCE ON THE CONSTITUTION
OTTAWA, NOVEMBER 2nd, 1981

Mr. Prime Minister. Fellow Premiers.

This conference presents all of us with an important
opportunity. The decisions we make may well determine how this
country will govern itself for a century to come.

It is fourteen months since we last met in this room: to,
consider how we as Canadians could patriate our constitution, and
how we could amend it after patriation.

Saskatchewan’s position was stated clearly at that meeting:
we said that any constitutional change affecting federal or
provincial legislative power, if it was to be made in accordance
with law and precedent, required a double majority.

A majority of Canadians, as represented by approval of the
House of Commons. A majority in the regions of Canada, as
represented by a consensus of the provinces.

A double majority is necessary because Canada is a federal
state. To proceed without it endangers the very foundations of
federalism.

So, if our actions are to be constitutionally correct, the
approval of both the Central government and the regional
governments—the provinces—is necessary.

Constitutional change of the kind we discussed last
September, and will be discussing today, cannot properly be made
by the House of Commons alone, even though all Canadians are
represented there.

Nor could it be done by all the provincial and territorial
legislatures acting together—without parliament—even though
all Canadians are represented in those legislatures.

Neither of these approaches meet the test of the double
majority.

However, let me make one point very clear.

-2-

While we say that such changes require a consensus of the
provinces, we do not suggest that they require the unanimous
consent of the provinces.

Put another way:

Unilateral action by one government, or unanimous consent by
all governments, are not the only options.

The best option, the constitutionally correct option, is a
patriation package acceptable both to the House of Commons and a
consensus of the provinces.

To do otherwise is to act in an unconstitutional way.

The Supreme Court makes that clear. In the majority judgement
which found the federal resolution unconstitutional, the justices
say:

” We have reached the conclusion that the agreement of the
provinces of Canada, no views being expressed as to its
quantification, is constitutionally required for the passing of
the ” Proposed Resolution for a joint Address to Her Majesty
respecting the Constitution of Canada “, and that the passing of
this resolution without such agreement would be unconstitutional
in the conventional sense “. (Page 41)

Further the justices say:

” It is true that Canada would remain a federation if the
proposed amendments became law. But it would be a different
federation made different at the instance of a majorty in the
Houses of the federal Parliament acting alone. It is this process
itself which offends the federal principle.(Pages40-41)

However, they did not agree that constitutional practice
requires the unanimous consent of the provinces.

On that point the Supreme Court says:

” The convention relating to provincial consents is that less
than unanimous consent is required “.

It may be argued that the Supreme Court said it was legal
for the House of Commons and the Senate to pass the resolution now
before them.

To that I say that it would be equally legal for the
Legislature of Saskatchewan or British Columbia or Prince Edward

-3-

Island to pass a resolution to send to the Imperial Parliament,
calling for a totally different patriation package.

You will say – ah – but the Imperial Parliament would not
lggally have to pay any attention to a resolution from a
provincial legislature.

Correct.

But it is equally correct that the Imperial Parliament would
not,legally, have to pay any attention to a resolution of the
Canadian House of Commons.

The Supreme Court has made that clear.

The court rejected the suggestion of some provinces that the
Imperial Parliament had certain legal obligations as a result of
the Statute of Westminster.

The court said: ” Whatever the statute may import as to
intra-Canadian conventional procedures, there is nothing in it or
in the proceedings leading up to it that casts doubt in law as to
the undiminished authority of the Parliament of the United Kingdom
over the British North America Act “.

Leaving aside the law, it may be argued that there is a
constitutional convention that the Imperial Parliament always acts
on resolutions of the Canadian Parliament, and never acts on
resolutions from provincial governments.

The simple answer to that is the one given by the Supreme
Court.

No resolution of the kind before parliament has ever been
forwarded to the Imperial Parliament, without the approval of a
consensus of the provinces.

For this type of action there is simply no precedent and
accordingly no constitutional convention.

In 1931, when the Statute of Westminster was passed, it was
recognized that Canadians did not want the Federal Parliament to
have the unilateral right to change the constitution.

It was for this very reason that the federal government and
all provincial governments unanimously asked the Imperial
Parliament to retain the legal right to change the B.N.A. Act.

-4-

To be, in a sense, the trustee of Canadian federalism.
And that is still the case today.

when the Imperial Parliament deals with this matter, it is
not dealing with a British matter but a Canadian matter.

The Imperial Parliament is discharging its trusteeship role
in Canada’s constitutional process. A role it assumed at the
request of the federal and all provincial governments in Canada.

So, unilateral action would be asking the Imperial Parliament
to turn back the clock.

To return to the days before the Statute of Westminster. And
to use its old colonial legal power to impose a Constitution on
Canada, in a way that is unprecedented and unconstitutional.

So, if the resolution goes from the House of Commons and the
Senate to the Imperial Parliament at London, Canadians will be
relying, in a legal sense, on the old colonial power of the
Imperial Parliament.

Because the Supreme Court said: all the legal power rests
with the Imperial Parliament in London, and anyone in Canada,
including the House of Commons, can pass any resolution they like
and it is not illegal.

That is the fact.

That is the law.

I suggest that the Imperial Parliament does not want to use
the old colonial powers to impose a Constitution on Canada.

I don’t want them to. And I don’t think most Canadians want
them to.

I believe Canadians want to amend our constitution according
to Canada’s rules—not the old colonial rules.

The Supreme Court did a superb job of articulating the basic
rule of constitutional change in Canada.

After explaining the importance of constitutional convention
vis-a-vis written law, the justices said:

-5-

” The foregoing may perhaps be sumarized in an equation:
constitutional conventions plus constitutional law equal the total
Constitution of the country “.

That is Saskatchewan’s position.

The equation articulated by the Supreme Court requires that
constitutional convention be respected.

Constitutional convention as defined by the Supreme Court
requires that any changes, of the type we will be discussing, meet
the test of the double majority.

So, changes proposed here will require the support of the
majority in the House of Commons, and the support of a consensus
of the provinces.

Now, what then are the substantive issues before this
conference, as we see them.

Issue #l- will Saskatchewan support a patriation package,
whatever its merits, that is not supported by a consensus of the
provinces?

The answer is no.

The Supreme Court has stated clearly that such action would
be unconstitutional. And we will not support a patriation package
which we believe to be unconstitutional.

Furthermore, we will feel free to oppose unconstitutional
action by whatever means may be available to us.

Issue #2- Will Saskatchewan participate in negotiations
designed to arrive at a patriation package acceptable to the House
of Commons and a consensus of the provinces?

The answer is yes.

We favour patriation.

We favour a flexible amending formula.

We support the eight province accord, because we prefer it to
the amending provisions before Parliament, with their elaborate
and one-sided referendum arrangement, and their perpetual veto for
the Senate.

-6-

A perpetual veto for the appointed Senate has been rejected
by every major study of our constitution:

– the federal government’s Favreau White Paper on the
Constitution in 1965.

– the discussions leading to the Victoria Charter in 1971.

– The Canadian Bar Association study.

– The Pepin-Robarts Report.

– Mr. Ryan’s Beige Paper in Quebec.

– The Ontario Advisory Committee Report.

– The federal government’s own Bill C-60 in 1978.

All of these rejected a perpetual Senate veto. We reject it
as well.

We are prepared to consider other proposals for amending the
Constitution. Our preferred amending formula is the one we set out
before the Parliamentary Committee last December.

However, we are flexible and prepared to consider many
options.

As to the other items, it is probably not too useful to
review them all here:

Language Rights- If the consensus is that these are good for
Canada we will agree. We do not insist.

Equalization, Resources, Fundamental Rights, Democratic
Rights and so on- On these items our views are well known.

On these issues too we come prepared to be flexible.

Issue #3- What should this conference be aiming for?

Saskatchewan believes we should be aiming for this as a
minimum: patriation and an amending formula.

An amending formula rigid enough to protect the regions; to
protect the essence of Canada as a federal state.

-7-

But flexible enough to allow Canadians to address the need
for changes in the immediate future and over the next century.

That is the minimum.

If we can agree on more than this minimum in a
constitutionally correct way—fine.

Clearly Saskatchewan has a particular interest in the
resources provisions.

Others may have a special interest in equalization or
language rights or legal rights or as the case may be.

We are prepared to discuss all those.

And we think that the Supreme Court’s ruling gives us an
unparalleled opportunity to succeed.

The ‘ tyranny of unanimity ‘ is but a ghost of conferences
past.

We come to this table with a whole new set of rules.

So, in conclusion, Saskatchewan believes that Canadians
expect us to agree on a patriation package.

To have a constitution which is Canada’s and Canada’s alone.
Shed of its colonial ties.

We believe that they expect us to do this in a way which
respects our constitution in all its parts.

We believe that with good will this can be done.

We are here to play our full part in achieving this
objective.