Document Information

Date: 1969-12-08
By: John P. Robarts
Citation: Federal-Provincial Conference, Notes for Remarks by the Honourable John P. Robarts, Prime Minister of Ontario (Ottawa: 8-10 December 1969).
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I THE SCOPE OF THE PROBLEM

BEFORE WE GET INTO THE SPECIFICS OF THE INTERESTING PAPER wurcn THE GOVERNMENT OF CANADA PLACED BEFORE US LAST WEEK, I BELIEVE WE OUGHT FIRST TO DISCUSS SOME’OF THE BROADER PRINCIPLES AND ISSUES WHICH UNDERLIE THIS EXTREMELY COMPLEX SUBJECT OF INCOME SECURITY AND SOCIAL SERVICES. AFTER ALL, THERE EXISTS NOW IN CANADA AN ENORMOUS NUMER OF PROGRAMS IN THIF AREA, ALL OF WHICH INVOLVE LARGE EXPENDITURES OF PUBLIC FUNDS. WHAT ARE WE REALLY TRYING TO DO IN THIS WHOLE ENDEAVOUR? ARE WE SPENDING OUR TAX DOLLARS IN THIS FIELD IN A SUFFICIENTLY WISE AND EFFICIENT MANNER? DO WE NEED MORE SOCIAL SECURITY PROGRAMS OR LESS? ARE THE PRESENT PROGRAMS REALLY SERVING THE PEOPLE OF CANADA WHO MOST NEED THIS ASSISTANCE? CAN WE AFFORD T0 KEEP ON REDISTRIBUTION OUR WEALTH BEFORE WE HAVE ACTUALLY CREATED THAT WEALTH?

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ARE WE TAKING THE FUTURE SUFFICIENTLY INTO ACCOUNT IN OUR PRESENT PROPOSALS OR, TO USE A WELL-KNOWN PHRASE, ARE WE PLANNING TO FIGHT THE LAST WAR?

IF THESE QUESTIONS HAVE THE RING ABOUT THEM OF “HAVE YOU STOPPED BEATING YOUR WIFE?”, THEY ARE NOT INTENDED THAT WAY. RATHER WHAT I HAVE IN MIND IS THAT IN OUR APPROACH TO THE IMPORTANT ISSUE OF SOCIAL SECURITY, AS INDEED TO ALL ISSUES IN THIS CONSTITUTIONAL REVIEW WE SHOULD IN MY OPINION DEBATE THE FUNDAMENTALS AND BE FLUID_IN OUR ATTITUDES BEFORE WE ARRIVE AT FINAL POSITIONS AS WE MUST DO ULTIMATELY. WHAT WORRIES ME HERE, AND WHAT HAS CONCERNED ME OVER THE PAST FEW DAYS, AS I READ THE FEDERAL GOVERNMNT’S DOCUMENT WHICH WE NOW HAVE BEFORE US, IS THAT I SENSE WE ARE STRIKING CONCLUSIONS BEFORE WE HAVE SURVEYED AND UNDERSTOOD WHAT THE PROBLEM IS ALL ABOUT AND IN WHAT DIRECTION WE SHOULD BE PROCEEDING.

THEREFORE, IN MY PRELIMINARY REMARKS THIS MORNING, I SHOULD LIKE TO TOUCH BRIEFLY ON A FEW THEMES WHICH I THINK

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SHOULD PREOCCUPY US BEFORE WE BECOM TOO MIRED IN DETAILED AND IMMEDIATE PROPOSALS. FOR EXAMPLE, THE GOVERNMENT OF CANADA IN ITS MOST RECENT SPEECH FROM THE THRONE REFERRED TO ITS INTENTION TO PUBLISH A WHITE PAPER COVERING THE WHOLE FIELD OF SOCIAL SECURITY. THIS IS LIKELY TO BE A MOST IMPORTANT DOCUMENT, AND I WOULD VERY MUCH HOPE THAT ITS RAMIFICATIONS AND SUGGESTIONS CAN BE WOVEN INTO OUR CURRENT DISCUSSION OF THE CONSTITUTIONAL ASPECTS OF SOCIAL SECURITY. TN FACT, INSOFAR AS THE FEDERAL GOVERNMENT PROPOSES THAT MUCH OF THE SOCIAL SECURITY REALM SHOULD BE A CONCURRENT JURISDICTION, IT WILL BE NECESSARY TO COMPARE THE LONG-TERM OBJECTIVES OF THE FEDERAL GOVERNMENT WITH OUR OWN IN ORDER TO ARRIVE AT AN AGREED DISTRIBUTION OF RESPONSIBILITIES IN THIS FIELD.

THEREFORE, CONSIDERATION OF THE CONSTITUTIONAL ASPECTS OF SOCIAL SECURITY MUST TAKE INTO ACCOUNT THE WIDE-RANCING

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DEBATE NOW TAKING PLACE IN MANY COUNTRIES ABOUT THE DIRECTION IN WHICH FUTURE DEVELOPMENTS IN THIS FIELD SHOULD GO. THIS DEBATE HAS NOT BEEN CONFINED TO ACADEMIC OR GOVERNMENTAL CIRCLES, BUT HAS NOW BECOME A SUBJECT OF WIDE DISCUSSION IN THE NEWSPAPERS AND OTHER COMUNICATIONS MEDIA.

SOME CANADIANS MAINTAIN THAT WE HAVE REACHED A POINT WHERE THE BASIC OBJECTIVES OF SOCIAL SECURITY MEASURES HAVE NOW BEEN LARGELY ATTAINED. THEY SAY THAT THE PRESENT TASK IS NOT TO INTRODUCE FURTHER LARGE-SCALE GOVERNMENT PROGRAMS. THEY ARGUE THAT FURTHER PROGRAMS ARE BOTH UNNECESSARY AND UNDESIRABLE, AND THAT IT WOULD BE PREFERABLE TO CONSOLIDATE AND RATIONALIZE THE EXISTING WEB OF PROGRAMS TO ENSURE THAT THEY MEET THE OBJECTIVES FOR WHICH THEY WERE ORIGINALLY INTENDED. THESE CANADIANS ARE CHALLENGING THE EFFECTIVENESS OF THE PRESENT PROGRAMS, AND SOM HAVE EVEN CALLED INTO QUESTION THE VALIDITY OF THE BASIC OBJECTIVES.

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SCHEME FOR PROVIDING A GUARANTEED MINIMUM INCOME OR FOR A NEGATIVE INCOME TAX ARE BEING PROPOSED, ALTHOUGH THEIR ADVOCATES ARE DIVIDED OVER THE EXTENT TO WHICH SUCH PROGRAMS SHOULD REPLACE ALL OR PART OF EXISTING SOCIAL SECURITY PROGRAMS , OR THE EXTENT TO WHICH GOVERNMENTS HAVE THE EINANCIAL CAPACITY TO INTRODUCE PROGRAMS OF THIS MAGNITUDE. OTHERS ARE COMING FORWARD WITH FAR MORE RADICAL PROPOSALS, ENVISAGING A TIME WHEN TECHNOLOGICAL CHANGE WILL HAVE REVOLUTIONIZED THE RELATIONSHIPS BETWEEN WORK AND LEISURE, AND WHERE THE FIELD NOW KNOWN AS “SOCIAL SECURITY” WILL BE ONLY PART OF A LARGER FIELD OF PUBLIC ENDEAVOUR RELATED TO THE FULL DEVELOPMENT OF INDIVIDUALS. SUCH AN ENDEAVOUR WOULD ENCOMPASS MUCH OF WHAT IS NOW INCLUDED WITHIN EDUCATIONAL, CULTURAL, RECREATIONAL, ECONOMIC AND TAXATION PROGRAMS.

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WITH THIS WIDE VARIETY OF POSSIBILITIES AVAILABLE TO US IN THE FUTURE, PROPOSALS FOR CONSTITUTIONAL CHANGE IN THIS AREA MUST SURELY PROVIDE OUR FEDERAL SYSTEM WITH SUFFICIENT FLEXIBILITY TO ADAPT TO FUTURE NEEDS. WE MUST BE EXTREMLY CAREFUL NOT TO ACCEPT A DISTRIBUTION OF RESPONSIBILITIES IN THIS FIELD OR A DEFINITION OF POWERS WITHIN IT WHICH IS BASED SIMPLY ON PRESENT NEEDS.

WE MIGHT HAVE CALLED OUR DISCUSSION TODAY “SOCIAL SECURITY” OR “SOCIAL WELFARE” INSTEAD OF “INCOME SECURITY AND SOCIAL SERVICES”. ANY OF THESE TERMS WOULD SERVE TO BRING TO MIND THE MANY PROGRAMS THAT ARE NOW BEING PROVIDED BY THE FEDERAL AND THE PROVINCIAL GOVERNMENTS IN CANADA. HOWEVER, MOST OF_US WOULD BE HARD-PRESSED TO PROVIDE A DEFINITION OF EXACTLY WHAT IS MEANT BY “SOCIAL SECURITY” OR “SOCIAL WELFARE”. WHICH PROGRAMS ARE SOCIAL SECURITY

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PROGRAMS?. WHICH ARE ECONOMIC OR INCOME SUPPORT PROGRAMS? INTO WHICH CATEGORY DOES A PROGRAM SUCH AS MANPOWER RETRAINING FIT? IS LEGAL AID AN INCOME SUPPORT PROGRAM OR AN ASPECT OF THE ADMINISTRATION OF JUSTICE?

DEFINITIONS ARE SOMEWHAT ARBITRARYY AND RUN THE RISK OF BEING SO GENERAL AS TO BE USELESS, OR SO PARTICULAR AS TO BE RESTRICTIVE. CARE MUST BE TAKEN THEREFORE, IN THIS FAST-CHANGING FIELD, TO ENSUREUTHAT WHATEVER DEFINITIONS WE CHOOSE PROVE FLEXIBLE ENOUGH TO ACCOMODATE FUTURE DEVELOPMENTS.

IN OUR OPINION, THIS SUBJECT DESERVES AND MUST RECEIVE A GREAT DEAL OF-THOUGHTFUL DISCUSSION BEFORE CONCLUSIONS ARE REACHED AND FIRM POSITIONS STRUCK. NOTHING COULD BE MORE DESTRUCTIVE OF OUR MUTUAL OBJECTIVES THAN THE PREMATURE ARRIVAL AT POSITIONS WHICH SERVE ONLY TO MAKE SENSIBLE

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DECISIONS MORE DIFFICULT TO REACH. SUCH POSITIONS FORCE US TO REGARD ONE ANOTHER AS ADVERSARIES, WHEN WHAT WE REQUIRE MOST IS AN EXAMINATION OF ALL THE POSSIBLE ALTERNATIVE APPROACHES AND THE BENEFIT OF ONE ANOTHER’S VIEWS. THIS IS NOT AN AREA OF AFFAIRS ON WHICH WE SHOULD BE TAKING ADVERSARY POSITIONS

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THE HON. J. ROBARTS
ONTARIO

II FEDERALISM

IT IS PARTICULARLY IMPORTANT DURING THE DISCUSSION OF THE SPECIFIC ITEMS UNDER THE GENERAL HEADING OF THE DISTRIBUTION OF POWERS THAT WE NOT LOSE SIGHT OF THE BASIC OBJECTIVES OF OUR CONFEDERATION. DURING THE CONFEDERATION OF TOMORROW CONFERENCE AND THE FIRST TWO MEETINGS OF THE CONSTITUTIONAL CONFERENCE, A GREAT DEAL OF TIME WAS DEVOTED, QUITE PROPERLY, TO A DISCUSSION OF THE KIND OF FEDERALISM THAT WE MIGHT AGREE UPON AS BEING MOST APPROPRIATE FOR CANADA IN THE LATTER PART OF THE 20TH CENTURY. IT IS WORTH REMINDING OURSELVES OF SOME OF THESE VIEWS IN THE CONTEXT OF THE PRESENT DISCUSSION.

AT THE EARLIER METINGS OF THE CONSTITUTIONAL CONFERENCE, ALL GOVERNMENTS REAFFIRMED THEIR BELIEF THAT FEDERALISM WAS AND IS THE ONLY WORKABLE FORM OF GOVERNMENT FOR CANADA. IT WAS RECOGNIZED THAT FEDERALISM HAS PERMITTED US TO

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MAINTAIN OUR REGIONAL IDENTITIES WHILE STRIVING TO BUILD A SINGLE COUNTRY. MOREOVER, IT WAS REALIZED THAT DIVERSITY, WHILE ONE OF THE SOURCES OF TENSION IN OUR FEDERATION, IS ALSO ONE OF THE SOURCES OF ITS STRENGTH AND VITALITY.

IN A MORE FORMAL SENSE, FEDERALISM MEANS THAT THERE ARE TWO ORDERS OF GOVERNMENT, EACH WITH ITS OWN SET OF RESPONSIBILITIES. TAKEN TOGETHER, THESE TWO ORDERS OF GOVERNMENT HAVE ASSUMED THOSE’GOVERNMENT RESPONSIBILITIES THAT ARE EXERCISED LARGELY BY ONLY ONE GOVERNMENT IN A UNITARY STATE. IN A UNITARY STATE, THE NATIONAL INTEREST IS MAINLY EXPRESSED BY THE ONE NATIONAL GOVERNMENT THAT THE PEOPLE HAVE PLACED IN CHARGE OF THEIR AFFAIRS. IN A FEDERAL STATE, SUCH AS CANADA, HOWEVER, THERE IS NO ONE GOVERNMENT THAT CAN EXPRESS THE NATIONAL INTEREST.

FEDERALISM MEANS THAT RESPONSIBILITIES HAVE BEEN AND ARE

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DIVIDED AMONG THE FEDERAL GOVERNMENT AND THE PROVINCIAL GOVERNMENTS. THEREFORE, IT IS ONLY TOGETHER THAT ALL THESE GOVERNMENTS CAN EXPRESS THE NATIONAL INTEREST. TIMES HAVE CHANGED AND, TO PUT IT AS BLUNTLY AS WE KNOW HOW, FEDERALISM IS NOT CENTRALISM. OUR FEDERAL SYSTEM CANNOT ALLOW ONE GOVERNMENT TELLING THE OTHERS WHAT TO DO, WHEN TO DO IT, AND HOW TO DO IT. FEDERALISM IS PARTNERSHIP, AND GENUINE PARTNERS CONSULT AND CONDUCT THEIR AFFAIRS TOGETHER.

I MIGHT ALSO SAY THAT OUR AIM IN ONTARIO IS, INCREASINGLY, TO INTRODUCE A MORE GENUINELY CO-OPERATIVE RELATIONSHIP IN THE PROVINCIAL-MUNICIPAL FIELD. WE HAVE COMMENCED A PROGRAM TO PROMOTE A GREATER DEGREE OF ADMINISTRATIVE DECENTRALIZATION TO OUR MUNICIPALITIES THROUGH THE CREATION OF VIABLE REGIONAL GOVERNMENTS AND THE CONSOLIDATION OF SMALLER MUNICIPALITIES.

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THIS PROGRAM OF INSTITUTING STRONG AND EFFECTIVE LOCAL GOVERNMENTS INVOLVES A REVIEW OF THE PROVINCIAL— MUNICIPAL RELATIONSHIP IN ORDER TO ENSURE THAT OUR LOCAL GOVERNMENTS HAVE THE RESOURCES TO BE MORE GENUINELY RESPONSIBLE IN THE PROVISION OF LOCAL SERVICES. IN A NUMBER OF WAYS, OUR APPROACH IN PROVINCIAL-MUNICIPAL RELATIONSHIPS IS SIMILAR TO OUR APPROACH IN FEDERAL- PROVINCIAL RELATIONSHIPS. WE ARE, FOR EXAMPLE, REVIEWING THOSE SERVICES NOW BEING PROVIDED BY THE PROVINCES TO ASCERTAIN WHICH COULD MORE EFFICIENTLY BE PROVIDED BY MUNICIPAL GOVERNMENTS. WE ARE REVIEWING THE STRUCTURE OF PROVINCIAL-MUNICIPAL GRANTS TO SEE HOW MANY CAN BE ELIMINATED AND REPLACED BY UNCONDITIONAL TRANSFERS.

JUST AS ONTARIO IS SUGGESTING THAT SHARED-COST PROGRAMS IN THE FEDERAL-PROVINCIAL FIELD TEND TO DISTORT PROVINCIAL SPENDING PRIORITIES, SO DO PROVINCIAL CONDITIONAL GRANTS

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TO MUNICIPALITIES TEND TO DIRECT MUNICIPAL EXPENDITURES TO WHAT MAY WELL BE NON-PRIORITY AREAS. AND PRIORITIES ARE DIFFERENT AMONG DIFFERENT MUNICIPALITIES IN ONTARIO, JUST AS THEY ARE AMONG THE TEN PROVINCES.

WE INTEND TO BROADEN THE.MUNICIPAL REVENUE BASE. FOR EXAMPLE, WE FEEL THAT THERE ARE TOO MANY PROPERTIES EXEMPT FROM MUNICIPAL TAXES, SUCH AS CROWN PROPERTIES, HOSPITALS, UNIVERSITIES, ETC- WE ALSO INTEND TO MOVE TOWARDS A SYSTEM OF UNCONDITIONAL GRANTS.

THROUGH OUR REGIONAL GOVERNMENT AND REGIONAL DEVELOPMENT PROGRAMS, WE ARE ENCOURAGING A COORDINATED APPROACH TO THE PREPARATION AND IMPLEMENTATION OF PLANS FOR THE RATIONAL DEVELOPMENT OF BOTH URBAN AND RURAL AREAS OF THE PROVINCE. ABOVE ALL, WE RECOGNIZE THE VITAL ROLE OUR MUNICIPALITIES WILL HAVE IN FACING THE MANY-SIDED CHALLENGES OF AN INCREASINGLY URBAN SOCIETY.

IT IS FOR THESE REASONS THAT WE HAVE AS PART OF OUR DELEGATION PROMINENT REPRESENTATIVES OF THE MUNICIPALITIES

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OF THE PROVINCE.

THE EXPLICIT RECOGNITION OF THE PRINCIPLE OF FEDERAL PARTNERSHIP IN OUR DISCUSSION OF THE DISTRIBUTION OF POWERS AND IN THE PRACTICAL, DAY-TO-DAY OPERATION OF THE FEDERATION WOULD, IN MY OPINION, GO FAR TOWARDS MINIMIZING THE SOURCE OF MANY OF OUR CONTEMPORARY FEDERAL-PROVINCIAL CONFLICTS. WE HAVE NOTED THAT THE GOVERNMENT OF CANADA IN ITS PAPER “FEDERAL-PROVINCIAL GRANTS AND THE SPENDING POWER OF PARLIAMENT” EXPRESSED AGREEMENT THAT IT SHOULD NOT UNILATERALLY ESTABLISH AND IMPOSE SHARED-COST PROGRAMS IN AREAS OF EXCLUSIVE PROVINCIAL JURISDICTION.

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THE HONOURABLE J. ROBARTS ONTARIO

III THE DEVELOPMENT OF THE PRESENT JURISDICTION OVER SOCIAL SECURITY

THE CONCEPT OF SOCIAL SECURITY IS ONE THAT THE FATHERS OF CONFEDERATION DID NOT DEAL WITH IN DESIGNING OUR CONSTITUTION. THEY SIMPLY DID NOT CONSIDER THAT THIS FIELD WAS OR SHOULD DE A PRIME SUBJECT OF GOVERNMNTAL RESPONSIBILITY AND CONCERN. THIS OMISSION WAS NOT ONE OF IGNORANCE, BUT WAS PLAINLY A PRODUCT OF THE THINKING OF THE TIME. AS A RESULT, THERE WAS AND IS NO SUBSTANTIAL MENTION OF THIS SUBJECT IN THE BRITISH NORTH AMRICA ACT, AND NEITHER ORDER OF GOVERNMENT WAS ASSIGNED JURISDICTION OVER IT. RELIANCE FOR SOCIAL SERVICES WAS PLACED ON PRIVATE INSTITUTIONS AND CHARITIES, WHILE GOVERNMENT INVOLVEMENT WAS SEEN TO BE MAINLY, IF NOT ENTIRELY, AT THE LOCAL OR MUNICIPAL LEVEL. THE FEDERAL AND PROVINCIAL GOVERNMENTS WERE ONLY INVOLVED UNDER SPECIAL AND WELL- DEFINED CIRCUMSTANCES. FOR EXAMPLE, IN SECTION 91 (11)

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OF THE BRITISH NORTH AMERICA ACT, THERE 18 MENTION OF FEDERAL RESPONSIBILITY FOR QUARANTINE AND FOR HOSPITALS FOR FOREIGN SAILORS. IN SECTION 92(7), THERE IS REFERENCE TO PROVINCIAL RESPONSIBILITY FOR ALL OTHER HOSPITALS, AND FOR ASYLUMS, CHARITIES, AND INSTITUTIONS FOR THE POOR.

EARLY IN THE TWENTIETH CENTURY, THERE EMERGED THE BEGINNING OF WHAT IS NOW IN RETROSPECT A DRAMATIC CHANGE IN SOCIAL ATTITUDES REGARDING THE ROLE OF GOVERNMENT IN PROVIDING SOCIAL SECURITY AS THERE WERE NO SPECIFIC SECTIONS IN THE BRITISH NORTH AMRICA ACT ASSIGNING JURISDICTION IN THIS FIELD, THE ACTIONS OF THE FEDERAL AND PROVINCIAL GOVERNMENTS WERE PRAGMATIC RESPONSES TO THE SHIFT IN PUBLIC EXPECTATIONS AND DEMANDS. PROVINCIAL GOVERNMENTS BASED THEIR CLAIM TO THE FIELD ON THE SPECIFIC RESPONSIBILITIES ENUMERATED IN SECTION 92(7), AND ON THEIR GENERAL RESPONSIBILITIES FOR PROPERTY AND CIVIL RIGHTS AND OVER LOCAL MATTERS. THEY WERE CONFIRMED IN THIS CLAIM

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BY THE COURTS. THE FEDERAL GOVERNMENT ALSO SOUGHT JURISDICTION IN THIS FIELD, BASING ITS CLAIM ON SUCH ENUMERATED HEADS AS CRIMINAL LAW AND ON ITS GENERAL RESPONSIBILITY FOR THE PEACE, ORDER AND GOOD GOVERNMENT OF CANADA. ALTHOUGH THE COURTS UPHELD SOME FEDERAL SOCIAL SECURITY PROGRAMS, THE FIELD WAS MAINLY RECOGNIZED AS A PROVINCIAL RESPONSIBILITY. AS A RESULT, THE FEDERAL GOVERNMENT INCREASINGLY USED.ITS CONSTITUTIONALLY UNLIMITED SPENDING POWER TO ACT IN THIS FIELD.

IN THE 1930’S, THE DEPRESSION PUT THIS DISTRIBUTION OF RESPONSIBILITIES TO A SEVERE TEST. WHILE THE PROVINCES HAD THE MAJOR SHARE OF THE JURISDICTION, THEY DID NOT HAVE SUFFICIENT REVENUE TO MEET THE HEAVY DEMANDS THAT WERE PLACED ON THEM. IN ORDER TO REMEDY THIS IMBALANCE, A FORMAL CONSTITUTIONAL CHANGE WAS MADE IN 1940, BY AGREEMENT WITH THE PROVINCES, BY WHICH UNEMPLOYMENT INSURANCE WAS PLACED UNDER EXCLUSIVE FEDERAL JURISDICTION.

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FURTHER CONSTITUTIONAL AMENDMENTS IN THIS FIELD WERE MADE IN 1951 AND 1964, ALSO BY AGREEMENT THESE AMENDMENTS MOVED OLD AGE PENSIONS AND SUPPLEMENTARY BENEFITS RESPECTIVELY FROM EXCLUSIVE PROVINCIAL JURISDICTION TO CONCURRENT JURISDICTION, BUT PARAMOUNTCY REMAINED WITH THE PROVINCES.

AS A RESULT OF THE EXPERIENCE OF THE DEPRESSION AND OF OTTAWA’S ASSESSMENT OF THE NEEDS OF THE IMMEDIATE POST-WAR PERIOD, THE FEDERAL GOVERNMENT OF THE DAY UNDERTOOK TO ADAPT CANADA TO THE REQUIREMENTS OF AN INDUSTRIALIZED STATE. PART OF THIS ENDEAVOUR INVOLVED THE COMENCEMENT OF WHAT IS NOW A LARGE AND COMPLEX PROGRAM OF SOCIAL SECURITY FOR ALL CITIZENS. LACKING COMPREHENSIVE JURISDICTION OVER SOCIAL SECURITY MATTERS, PARLIAMENT MADE EXTENSIVE USE OF ITS SPENDING POWER TO MAKE PAYMNTS DIRECTLY TO INDIVIDUALS. THE BEST EXAMPLE OF THIS IS FAMILY ALLOWANCES. THE GOVERNMENT OF CANADA ALSO CONCLUDED A WIDE VARIETY OF CONDITIONAL GRANT AGREEMENTS WITH PROVINCIAL GOVERNMNTS.

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IN RECENT YEARS, THESE CONDITIONAL GRANT PROGRAMS HAVE INCLUDED SUCH MAJOR SCHEMES AS THE CANADA ASSISTANCE PLAN, HOSPITAL INSURANCE AND MEDICARE. EFFORTS WERE MADE TO REDISTRIBUTE INCOME BETWEEN RICHER AND POORER INDIVIDUALS, AND BETWEEN RICHER AND POORER REGIONS OF THE COUNTRY, AND A MINIMUM STANDARD OF SOCIAL SERVICES WAS SOUGHT FOR THE WHOLE COUNTRY. IN INTRODUCING THESE PROGRAMS, THE FEDERAL GOVERNMENT TOOK THE VIEW THAT THIS ACTION WAS IN THE NATIONAL INTEREST. IT ARGUED, AND RIGHTLY SO, THAT IN THE EARLY POST-WAR YEARS THE FAILURE OF THE FEDERAL GOVERNMENT TO ACT WOULD HAVE MEANT AN ALMOST COMPLETE LACK OF ACTION IN THIS AREA. THE PROVINCES SIMFLY DID NOT HAVE THE NECESSARY REVENUES, AND WITHOUT ADDED FINANCIAL RESOURCES THEY COULD NOT EVEN AFFORD THE PERSONNEL OR THE PLANNING SKILLS THAT WERE NECESSARY TO BRING SUCH PROGRAMS INTO BEING.

THE SITUATION IS VERY DIFFERENT TODAY. THE PHENOMENAL

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GROWTH IN THE DEMANDS MADE ON THE PROVINCIAL-MUNICIPAL SECTOR OF GOVERNMENT ACTIVITY DURING THE LAST TWENTY YEARS HAS NECESSITATED, AND HERE I CAN ONLY SPEAK FOR ONTARIO, THE DEVELOPMENT OF COMPETENT AND EXPERT ADVISORS AND ADMINISTRATORS AT THE PROVINCIAL LEVEL. THROUGHOUT THIS PERIOD, THE PROVINCIAL GOVERNMENTS HAVE ALSO INTRODUCED A SUBSTANTIAL RANGE OF SOCIAL SECURITY MASURES.

SPECIALIZED PUBLIC HEALTH PROGRAMS, HOSPITAL CONSTRUCTION, PERSONALIZED WELFARE PROGRAMS, AND MANY OTHER PROJECTS WERE UNDERTAKEN. MORE RECENTLY, SUCH MODERN CONCEPTS AS LEGAL AID AND THE PROVISION OF HOUSING GEARED TO INCOME HAVE BEEN TRANSLATED INTO PROGRAMS AND ADDED TO THE SOCIAL SECURITY SERVICES PROVIDED BY ONTARIO.

IN THE YEARS AFTER WORLD WAR II, THE FEDERAL GOVERNMENT WAS FORCED TO USE ITS SPENDING POWER IN AREAS OF PROVINCIAL JURISDICTION IN ORDER THAT THE NATIONAL INTEREST BE SERVED.

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SUCH IS NO LONGER THE CASE. WHAT HAS BECOME AN INCREASING SOURCE OF CONFLICT IN FEDERAL-PROVINCIAL RELATIONS IS THE FACT THAT WE NO LONGER ACCEPT THE RIGHT OF THE FEDERAL GOVERNMENT ALONE TO DEFINE THE NATIONAL INTEREST AS IT RELATES TO AREAS OF PROVINCIAL JURISDICTION. THAT ONE GOVERNMENT ALONE SHOULD BE ABLE TO DETERMINE AND DECIDE WHAT IS AND WHAT IS NOT IN THE NATIONAL INTEREST IS INCONSISTENT WITH THE KIND OFJFEDERALISM THAT WE BELIEVE IS REQUIRED IN THE CANADA OF TODAY.

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THE HONORABLE J. ROBARTS – ONTARIO

IV CURRENT PROBLEMS

ONTARIO’S DISAGREEMENTS WITH THE FEDERAL GOVERNMENT OVER SOCIAL SECURITY IN RECENT YEARS HAVE NOT PRIMARILY BEEN OVER JURISDICTION, BUT OVER THE MANNER IN WHICH THE CONSTITUTIONALLY UNLIMITED FEDERAL SPENDING POWER HAS BEEN EMPLOYED 7 BOTH FOR PAYMENTS TO INDIVIDUALS AND FOR SHARED- COST PROGRAMS WITH THE PROVINCES. THE VIEWS OF THE GOVERNMENT OF ONTARIO ON THISUISSUE WERE EXPRESSED IN OUR PAPER OF LAST JUNE, “THE ONTARIO POSITION ON THE SPENDING POWER”. IN THIS PAPER, ONTARIO ARGUED THAT THE FEDERAL POWER TO INITIATE, CHANGE OR TERMINATE SHARED-COST PROGRAMS IN AREAS OF PROVINCIAL JURISDICTION SHOULD BE LIMITED TO INSTANCES WHEN A NATIONAL CONSENSUS HAS DETERMINED THAT THE POWER SHOULD BE EXERCISED. THE FEDERAL PAPER, “FEDERAL- PROVINCIAL GRANTS AND-THE SPENDING POWER OF PARLIAMENT”, ACCEPTED THIS VIEW. WITH REGARD TO THE FEDERAL SPENDING POWER AND PAYMENTS TO INDIVIDUALS, THE ONTARIO PAPER

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CAUTIONED THAT THE RIGHT TO MAKE SUCH PAYMENTS SHOULD NOT CARRY WITH_IT THE RIGHT TO DISTORT OR CIRCUMVENT THE DISTRIBUTION OF POWERS OR PROVINCIAL FINANCIAL AND PROGRAM PRIORITIES. NOR SHOULD FEDERAL PROGRAMS HAVE THESE CONSEQUENCES. IN OTHER WORDS, ONTARIO DOES NOT WANT THE FEDERAL GOVERNMENT TO SUBSTITUTE A PROGRAM OF DIRECT PAYMENTS TO INDIVIDUALS,IN INSTANCES WHEN THERE IS NO NATIONAL CONSENSUS FOR A SHARED-COST PROGRAM.

ONTARIO’S DISAGREEMENT WITH THE FEDERAL GOVERNMENT IN THE FIELD OF SOCIAL SECURITY ALSO HAS ITS SOURCE IN THE UNWILLINGNESS OF THE FEDERAL GOVERNMENT TO ACCEPT THE PRINCIPLE THAT REVENUES SHOULD BE SUFFICIENT TO MEET EXPENDITURE RESPONSIBILITIES. THE FEDERAL GOVERNMNT HAS REPEATEDLY REFUSED TO PERMIT THE PROVINCES MORE ROOM IN THE HIGH GROWTH TAX FIELDS. AS A RESULT, THE PROVINCES CANNOT OBTAIN THE NECESSARY REVENUE TO MEET THEIR EXPENDITURE RESPONSIBILITIES UNDER THE CONSTITUTION,

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WITHOUT RAISING THE TOTAL TAX BURDEN ON THE INDIVIDUAL CANADIAN TAXPAYER. WHILE TAX-SHARING IS NOT STRICTLY A SUBJECT OF CONSTITUTIONAL DISCUSSION, IT IS INDISPUTABLY ONE THAT UNDERLIES MOST OF THE CURRENT DIFFICULTIES. IT IS THE ROOT OF MOST OF ONTARIO’S OBJECTIONS IN MANY AREAS OF THE DISTRIBUTION OF POWERS. IT IS ALSO THE SOURCE OF MANY OF THE PRESENT TENSIONS IN OUR FEDERATION.

SEVERAL YEARS ACO THE FEDERAL-PROVINCIAL TAX STRUCTURE COMMITTEE, AFTER A MOST CAREFUL STUDY, DEVELOPED FORECASTS SHOWING THAT UNDER PRESENT ARRANGEMNTS THE REVENUES OF THE FEDERAL GOVERNMENT WILL GROW MUCH FASTER THAN THE REVENUES OF PROVINCIAL AND LOCAL GOVERNMENTS. INDEED, THE FORECAST SHOWS THAT THE FEDERAL GOVERNMENT WILL ENJOY A GROWING SURPLUS OF REVENUE AFTER DISCHARGING ITS EXPENDITURE COMMITMENTS. ALL OUR SUBSEQUENT STUDIES AND FORECASTS SUBSTANTIATE THIS CONCLUSION. SIMULTANEOUSLY,

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HOWEVER, THE FORECASTS SHOW THAT THIS GROWTH IN COSTS OF PROVINCIAL AND MUNICIPAL PROGRAMS GREATLY OUTPACES THE INCREASES IN REVENUES THAT THESE LEVELS OF GOVERNMENT CAN EXPECT FROM THEIR PRESENT SOURCES. UNTIL NOW, THE FEDERAL RESPONSE TO OUR PLEA FOR A RECOGNITION OF THIS INBALANCE BETWEEN REVENUE AND RESPONSIBILITIES HAS BEEN THE SUGGESTION THAT THE PROVINCES SHOULD RAISE THEIR OWN TAXES. SUCH ADVICE IGNORES THE BASIC FACT THAT THERE IS ONLY ONE TAXPAYER WHO MUST PAY FEDERAL, PROVINCIAL AND MUNICIPAL TAXES. IF THE PROVINCES ACCEPTED THE FEDERAL ADVICE, THE TOTAL TAX BURDEN OF THE INDIVIDUAL CANADIAN TAXPAYER WOULD BE INCREASED TO AN UNACCEPTABLE LEVEL.

THE UNWILLINGNESS OF THE FEDERAL GOVERNMENT TO COOPERATE IN PROVIDING PROVINCIAL GOVERNMENTS WITH SUFFICIENT REVENUES TO MEET THEIR RESPONSIBILITIES RELUCTANTLY FORCES US TO ONE CONCLUSION: THE FEDERAL GOVERNMENT WOULD PREFER THESE RESPONSIBILITIES EITHER NOT TO BE MET OR TO BE TRANSFERRED

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TO FEDERAL JURISDICTION. THE FINAL RESULT WILL, THEREFORE, BE THAT THE FEDERAL GOVERNMENT WILL HAVE BOTH THE REVENUES AND THE RESPONSIBILITIES. IS THIS-THE TREND THE FEDERAL GOVERNMENT WISHES TO PROMOTE? IF SO, I BELIEVE THIS APPROACH IS MORE CONSISTENT WITH CENTRALISM THAN IT IS WITH FEDERALISM.

I HAVE SAID IT BEFORE AND I SHALL SAY IT AGAIN: IF WE DO NOT COME TO GRIPS WITH THE ISSUE OF REVENUE CENTRALIZATION AND IF THERE IS N0 CHANGE IN CURRENT ATTITUDES, THEN WE WILL CHANGE THE FACE OF OUR FEDERALISM AND THE SUBSTANCE OF OUR CONSTITUTION FAR MORE DRAMATICALLY THAN ANY FORMAL RE-WRITING COULD ACHIEVE. LET US NOT, IN THIS CONNECTION, FORGET THE APPALLING PROBLEMS OF THE AMERICAN CITIES – PROBLEMS WHICH HAVE BEEN EXACERBATED LARGELY BECAUSE OF THE REVENUE IMBALANCE IN THE AMERICAN FEDERAL STATE. THEIR EXAMPLE IS AN OBJECT LESSON WHICH WE WOULD DO WELL TO PONDER, SO THAT WE DO NOT FIND OURSELVES IN THE SAME TRAGIC SITUATION. THE PROVINCES

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MUST HAVE FUNDS TO SUSTAIN THEIR HIGH-GROWTH, WEALTH-GENERATING CITIES BECAUSE IT IS FROM THESE URBAN CONCENTRATIONS, IF THEY ARE KEPT HEALTHY AND ALLOWED TO INNOVATE, THAT THE LESS FORTUNATE PARTS OF OUR COUNTRY WILL BENEFIT.

THUS, AS ALWAYS I SUPPOSE, WE COME BACK TO MONEY. WE NEED NOT, HOWEVER, BE DESTRUCTIVE OF ONE ANOTHER IN OUR ATTITUDE ABOUT IT. AS FAR AS ONTARIO IS CONCERNED, THE CURRENT SITUATION COULD BE IMPROVED BY A FORMAL AGREEMENT REGARDING THE GROUND RULES THAT WILL GOVERN THE USE OF THE FEDERAL SPENDING POWER, AND THE PRINCIPLES THAT WILL GOVERN THE OCCUPANCY OF THE JOINT TAX FIELDS. CO-OPERATION COULD ALSO BE IMPROVED WITH THE DEVELOPMENT OF A MORE FORMAL STRUCTURE OF INTERGOVERNMENTAL MACHINERY. SUCH MACHINERY WOULD HELP TO ENSURE THAT FULL CONSULTATION ON IMPORTANT ISSUES TAKES PLACE BETWEEN THE TWO ORDERS OF GOVERNMENT, SO THAT ONE GOVERNMENT DOES NOT DECIDE UNILATERALLY ON A GIVEN COURSE OF ACTION, AND SO THAT A

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GENUINE FEDERAL PARTNERSHIP IS MAINTAINED IN, THEORY AS WELL AS IN PRACTICE.

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THE HON. JOHN ROBARTS
ONTARIO

V ALTERNATIVE PRINCIPLES FOR DISTRIBUTING JURISDICTION IN THIS FIELD

BECAUSE OF THE VARIOUS DEVELOPMENTS THAT ARE TAKING PLACE IN THE RAPIDLY CHANGING FIELD OF SOCIAL SECURITY AND BECAUSE OF THE SCOPE OF POSSIBLE CHANGES IN THE FUTURE, IT WOULD BE UNWISE TO SUGGEST A DISTRIBUTION OF JURISDICTION IN THIS FIELD WHICH IS TOO CLOSELY TIED TO THE PRESENT SITUATION. AT THIS TIME, IT WOULD BE PREFERABLE TO STUDY TOGETHER THE VARIOUS OPTIONS THAT ARE OPEN TO US. WHAT WE MUST STRIVE TO FIND IS A SET OF PRINCIPLES ON WHICH A DISTRIBUTION OF POWERS IN THE SOCIAL SECURITY FIELD COULD BE BASED WHICH WILL PROVIDE US WITH SUFFICIENT FLEXIBILITY TO COPE WITH FUTURE CHANGE, AND YET BE PRECISE ENOUGH TO ALLOW US TO DETERMINE WHICH’ORDER OF GOVERNMNT SHOULD HAVE THE RESPONSIBILITY FOR INITIATING OR CARRYING OUT A PARTICULAR KIND OF PROGRAM.

IN SUGGESTING THIS APPROACH, MY INTENTION IS NOT TO IMPLY REJECTION OF THE CONCLUSIONS REACHED IN THE FEDERAL

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PAPER SUBMITTED TO THIS CONFERENCE. ON THE CONTRARY, WHAT I AM SUGGESTING IS THAT THE JOINT CHARACTER OF THIS EXERCISE SHOULD BE EMPHASIZED AND THAT WE SHOULD TOGETHER UNDERTAKE THE PROCESS OF REASONING THAT LED TO THESE CONCLUSIONS. IT MAY BE THAT TOGETHER WE WILL COME TO DIFFERENT CONCLUSIONS OR THAT WE WILL REAFFIRM WHAT IS BEFORE US NOW. WHAT IS IMPORTANT, HOWEVER, IS THAT THE SEARCH FOR A REVISED DISTRIBUTION OF POWERS BE A JOINT ONE.

FOR SOME TIME NOW, WE HAVE ARGUED THAT THE ONLY WAY IN WHICH WE WILL SUCCESSFULLY CONDUCT THIS EXERCISE OF CONSTITUTIONAL REVIEW IS TO DISCUSS ISSUES TOGETHER BEFORE WE ARRIVE AT CONCLUSIONS AND FIRM POSITIONS. ONLY IN MANNER, IN OUR VIEW, WILL WE BE ABLE TO ACHIEVE THE THISMEETING OF MINDS THAT IS SO VITAL IN A PROCESS OF THIS KIND.

THERE ARE MANY QUESTIONS THAT WE SHOULD CONSIDER IN THIS REGARD. WE MIGHT BEGIN BY ASKING OURSELVES:

– IN A FEDERATION, WHAT RESPONSIBILITY SHOULD THE FEDERAL GOVERNMENT HAVE FOR MEASURES OF OF INCOME REDISTRIBUTION?

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– WHAT SHOULD BE THE RESPONSIBILITY OF THE PROVINCIAL GOVERNMENTS IN THIS REGARD?

– WHICH LEVEL OF GOVERNMENT SHOULD HAVE THE MAIN RESPONSIBILITY FOR PROVIDING SERVICES THAT REQUIRE DIRECT CONTACT WITH THE CITIZEN?

– WHAT SHOULD BE THE RELATIONSHIP BETWEEN RESPONSIBILITY FOR THESE SERVICES AND THE FINANCING OF SUCH SERVICES?

– WHAT BALANCE IS REQUIRED BETWEEN A NATIONAL STANDARD-OF SERVICES AND THE EXPRESSION OF REGIONAL DIFFERENCES?

-ARE THERE ANY PROGRAMS WITH SUCH PARTICULAR CHARACTERISTICS THAT THEY SHOULD BE EXCEPTED FROM THE GENERAL PRINCIPLES THAT ARE AGREED UPON?

WHAT I WOULD LIKE TO DO NOW IS SUGGEST A FEW PRINCIPLES WHICH MIGHT BE CONSIDERED AS WE SEARCH FOR AN ANSWER TO SOME OF THESE QUESTIONS

IN THE ONTARIO LEGISLATURE THIS LAST YEAR, A LARGE PORTION OF THE DEBATES WERE TAKEN UP BY CASES OF INDIVIDUALS

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AND THEIR EXPERIENCES IN FACING THE COMPLEXITIES OF MODERN GOVERNMENT. I CITE THIS AS AN EXAMPLE OF THE CRY WE HEAR FROM ALL SIDES ABOUT THE NEED TO KEEP THE RELATIONSHIP BETWEEN PEOPLE AND GOVERNMENTS AS PERSONAL AS POSSIBLE. PERHAPS THE MOST EFFECTIVE WAY OF DOING THIS IS BY STRENGTHENING THE LEVELS OF GOVERNMENT CLOSEST TO THE PEOPLE.

THE SMITH COMMITTEE ON-THKATION IN ONTARIO DEVOTED ONE OF THE MOST IMPORTANT SECTIONS OF ITS REPORT TO THIS VERY QUESTION. HOW DO YOU BALANCE A CLOSER PERSONAL RELATIONSHIP TO GOVERNMENT WITH EFFICIENCY IN THE PROVISION OF GOVERNMENT SERVICES? THE SMITH COMITTEE’S ANSWER TO THIS QUESTION WAS TO RECOMEND A GREAT STRENGTHENING OF THE INSTITUTIONS OF LOCAL GOVERNMENT IN ONTARIO. THE COMMITTEE CONCLUDED THAT THIS WOULD BE PREFERABLE TO CENTRALIZING MANY LOCAL RESPONSIBILITIES IN THE PROVINCIAL GOVERNMENT. THE ONTARIO GOVERNMENT FULLY ACCEPTS THIS PRINCIPLE AND SUGGESTS THAT IT

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UNDERLY OUR APPROACH TO THE EXAMINATION OF THE DISTRIBUTION OF POWERS BETWEEN THE FEDERAL AND PROVINCIAL GOVERNMENTS.

WE SHOULD BEGIN, THEN, WITH THE PREMISE THAT THE LEVEL OF GOVERNMNT NEAREST THE PEOPLE SHOULD PROVIDE AS MANY SERVICES AS CAN REASONABLY BE PERFORMED BY IT. IS IT NOT REASONABLE THEN TO SUGGEST THAT SERVICES INVOLVING DIRECT CONTACT WITH PEOPLE – CASE WORK, COUNSELLING AND OTHER ASSISTANCE – SHOULD BE’HANDLED BY PROVINCIAL OR LOCAL GOVERNMENTS? SIMILARLY, THOSE PROGRAMS WHICH INVOLVE THE DIRECT PROVISION OF SERVICES THROUGH INSTITUTIONS F SUCH AS HOSPITAL CARE, DAY NURSERIES AND HOMES FOR THE AGED – MIGHT ALSO BE PROVINCIAL OR LOCAL IN RESPONSIBILITY. IT WOULD SEEM REASONABLE THAT SCHEMES FOR DIRECTLY FINANCING THESE SERVICES, SUCH AS MDICAL AND HOSPITAL INSURANCE, SHOULD BE ENTRUSTED TO THE SAME LEVEL OF GOVERNMENT. I WOULD THINK THAT IN TIME AREAS SUCH AS THE PROVISION OF SERVICES TO INDIANS AND VETERANS, WHICH FOR SPECIFIC REASONS

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HAVE BEEN FEDERAL RESPONSIBILITIES, SHOULD ALSO BE HANDLED THROUGH THE PROVINCIAL OR LOCAL FACILITIES, ALTHOUGH HERE SPECIAL ARRANGEMENTS MAY HAVE TO BE MADE FOR FINANCING.

OBVIOUSLY THERE ARE SOME SERVICES OF A MORE IMPERSONAL NATURE WHICH MIGHT BETTER BE HANDLED FROM A CENTRAL POINT. IN THE FIELD WE ARE DISCUSSING TODAY, WOULD IT NOT BE REASONABLE THAT THE FEDERAL GOVERNMNT’S MAIN ROLE MIGHT BE IN THE REDISTRIBUTION OF INCOME OR THE PROVISION OF AN INCOME FLOOR TO ALL CANADIANS OR TO CERTAIN CATEGORIES OF THEM, SUCH AS THE AGED OR THE UNEMPLOYED? IF THIS PRINCIPLE IS ACCEPTED, HOWEVER, IT MAKES SENSE TO ME THAT SUCH A FLOOR SHOULD NOT BE SO HIGH THAT IT JEOPARDIZES THE GOALS OF PROVINCIAL PROGRAMS. PROVINCIAL AND LOCAL GOVERNMENTS SHOULD, I THINK, HAVE AMPLE OPPORTUNITY TO ADD TO SUCH A FLOOR SO THAT THEY COULD EXPRESS THE PECULIAR NEEDS, CHARACTERISTICS, SOCIAL PHILOSOPHIES AND LEVELS OF EXPECTATION

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OF DIFFERENT REGIONS.

IN MY VIEW, THIS IS THE KIND OF APPROACH THAT WE SHALL HAVE TO TAKE IN DISCUSSING NOT ONLY SOCIAL SECURITY, BUT MANY ASPECTS OF THE DISTRIBUTION OF POWERS.