ONTARIO
AMENDING FORMULA
STATEMENT BY THE HONOURABLE WILLIAM G. DAVIS
PREMIER OF ONTARIO
TO THE
FEDERAL-PROVINCIAL CONFERENCE OF FIRST MINISTERS
ON THE CONSITUTION
OTTAWA, ONTARIO
TUESDAY, OCTOBER 31, 1978

AMENDING FORMULA
WHILE THE AMENDING FORMULA IS NOT OFFICIALLY ow THE
AGENDA, IT IS NONETHELESS A CRUCIAL MATTER TO BE RESOLVED AND
IT IS IMPERATIVE WE TURN OUR ATTENTION TO IT-
WE NOTE THE FEDERAL GOVERNMENT HAS INDICATED THAT
IT SHARES THIS POINT OF VIEW AND WE LOOK TO ITS INCLUSION
EARLY IN OUR DISCUSSIONS-
AGREEMENT ON AN AMENDING FORMULA WILL INFLUENCE THE
DISCUSSION ON IMPORTANT ASPECTS OF THE CONSTITUTION- WITHOUT
SUCH A FORMULA, AGREEMENT ON THE TOTAL PACKAGE OF
CONSTITUTIONAL REFORMS IS FAR LESS LIKELY- WE; FOR ONE, HAVE
GREAT RELUCTANCE IN GOING THROUGH THE DIFFICULT PROCESS OF
CONSTITUTIONAL NEGOTIATIONS, AGREEING, AND THEN FINDING ALL
IS WASTED BECAUSE WE ARE UNABLE TO FIND A WAY TO TURN OUR
HARD WON AGREEMENT INTO A RESULT-
UNTARIO HAS ALWAYS ARGUED THAT CERTAIN
CHARACTERISTICS OR PRINCIPLES MUST CHARACTERIZE ANY AMENDING
FORMULA CANADA ADOPTS~

2.
AN AMENDING FORMULA SHOULD RESPOND TO THE NEED FOR
A BLEND OF RIGIDITY AND FLEXIBILITY- RIGIDITY ENSURES
STABILITY AND CONTINUITY, AND DEFINES THE LIMITS OF DIFFERING
LEVELS OF GOVERNMENT- IT ENSURES BASIC ASSUMPTIONS REGARDING
THE CONSTITUTIONAL BALANCE OF POWER IN THE COUNTRY IS
RESPECTED- FLEXIBILITY ALLOWS ORDERLY CONSTITUTIONAL
DEVELOPMENT IN RESPONSE TO CHANGING NATIONAL AND
INTERNATIONAL CIRCUMSTANCES-
ABOVE ALL AN AMENDING FORMULA MUST ENSURE A
LARGE DEGREE OF ACCEPTANCE AND SUPPORT OF THE CANADIAN
POPULATION IN ALL PARTS OF THE COUNTRY-
UNTARIO WOULD REGARD AN AMENDING FORMULA THAT
CALLED FOR “UNANIMOUS PROVINCIAL AGREEMENT” FOR ANY CHANGE TO
THE CONSTITUTION AS A RETREAT TO UNREALITY- IT WOULD
PERPETUATE THE VIRTUAL IMPOSSIBILITY OF CONSTITUTIONAL
CHANGE- IT WOULD MAKE US WARY OF MAKING ANY CONSTITUTIONAL
CHANGES-
IT WOULD EFFECTIVELY FREEZE THE DISTRIBUTION OF
POWERS, SINCE UNANIMOUS AGREEMENT WOULD BE ALMOST IMPOSSIBLE
TO SECURE- THERE ARE FEW MATTERS SO SACRED IN THE
CONSTITUTION AS TO REQUIRE UNANIMOUS CONSENT- IT WOULD OPEN
THE DOOR TO SUCH COMPLEX AND UNSATISFACTORY
FEDERAL“PROVINCIAL ARRANGEMENTS AND ACCOMMODATION, THAT WE
WOULD BE PROPELLED INTO THE VERY SITUATION THAT HAS
PRECIPITATED THE EXISTING CONFUSION, ENTANGLEMENT AND EROSION
OF RESPONSIBILITIES-

3.
A RIGID AMENDING FORMULA WOULD INCREASINGLY
TRANSFER THE RESPONSIBILITY FOR CONSTITUTIONAL AMENDMENT FROM
ELECTED REPRESENTATIVES To THE JUDICIARY, PARTICULARLY THE
SUPREME COURT- THIS HAS BEEN THE EXPERIENCE IN THE UNITED
STATES WHERE THE SUPREME COURT PLAYS A VERY SIGNIFICANT ROLE
IN CONSTITUTIONAL ADJUSTMENT- ONTARID FOR ONE WOULD NoT
FAVOUR A SITUATION WHERE THE INTERPRETATION OF THE COURTS
RATHER THAN THE DECISION OF ELECTED REPRESENTATIVES IS THE
PRIMARY GUIDE TO THE DEVELOPMENT OF OUR CONSTITUTION-
TO GIVE THE PRINCIPLE OF UNANIMITY CONSTITUTIONAL
RECOGNITION WOULD MAKE ANY FUTURE ALTERATION TO THE AMENDING
FORMULA ITSELF ALMOST IMPOSSIBLE AT ANY TIME IN THE FUTURE-
SURELY OUR PAST AND PRESENT EXPERIENCE WITH
UNANIMITY SHOULD MAKE us STOP SHORT THIS TIME OF A SIMILAR
MADE-IN~CANADA PRESCRIPTION FOR UNFORESEEN SITUATIONS THAT
COULD ARISE A0 OR 50 YEARS HENcE-
TO PURSUE UNANIMITY IS TO PURSUE AN UNREALISTIC
LEVEL OF NATIONAL AGREEMENT, WITH THE LIKELY OUTCOME OF THE
LOWEST COMMON DENOMINATOR ON EVERYTHING OR NO CHANGE AT ALL-
UNANIMITY WOULD BE A DIFFICULT, CUMBERSOME
TIME’CONSUMING, VIRTUALLY IMPOSSIBLE WAY OF ADJUSTING
FEDERAL”PROVINCIAL RELATIONS- IMAGINE THE DIFFICULTY OF
ASSEMBLING THE APPROVAL OF ELEVEN GOVERNMENTS “ MERELY LOOK
AT THE LIMITED SCOPE OF SUCCESS WE HAVE HAD TO DATE- THERE
HAvE BEEN EIGHT ATTEMPTS SINCE 1927 TO FIND AN AMENDING
FORMULA FOR THE CONSTITUTION-

L}.
NO OTHER FEDERATION INSISTS ON UNANIMOUS APPROVAL
OF ALL GOVERNMENTS FOR ALTERING RESPONSIBILITIES OR THE
DISTRIBUTION OF POWERS- SURELY WE SHOULD BE ABLE TO FIND A
FORMULA WHICH TREATS THE MINORITY AS WELL AS THE MAJORITY
FAIRLY-
THOSE WHO ADVOCATE THE RULE OF UNANIMITY DO SO ON
THE ASSERTION THAT ALL PROVINCES HAVE AN EQUAL VOICE IN
CONFEDERATION- WHAT THEY OVERLOOK IS THAT THAT PRINCIPLE
MUST BE ACCOMMODATED TO THE PRINCIPLE OF DEMOCRATIC
GOVERNMENT AND MAJORITY RULE-
THE BALANCE BETWEEN THESE TWO PRINCIPLES CAN BE
SEEN IN THE VICTORIA FORMULA- UNDER THAT FORMULA, FOR ANY
AMENDMENT TO PASS, THE APPROVAL OF THE FEDERAL GOVERNMENT AND
AT LEAST 5 PROVINCES REPRESENTING 80 PER CENT OF THE
POPULATION OF CANADA WAS REQUIRED- IF AN AMENDMENT WAS
UNABLE TO GARNER THIS SUPPORT, THEN I WOULD THINK THE MERITS
OF_THE PROPOSAL WOULD BE QUESTIONABLE-
ON THE OTHER HAND, IF AN AMENDMENT DID HAVE THIS
SUPPORT, THEN THE SUPPORT FROM ALL PARTS OF THE COUNTRY WOULD
BE OVERWHELMING- IT WOULD BE UNFORTUNATE IF THIS COULD BE
BLOCKED BY ONE PROVINCE-

5.
AN IMPORTANT FEATURE OF GOVERNMENTAL RELATIONS IN
CANADA HAS BEEN AN ATTEMPT TO WORK TOWARD CONSENSUS, BUT TO
PROVIDE FOR THE EXPRESSION OF DISTINCT INTERESTS WITHIN THE
FEDERATI0N- I STRONGLY BELIEVE THIs wAs THE APPEAL OF THE
AMENDING FORMULA DEVELOPED DURING THE 1968 – 1971
CONSTITUTIONAL REVIEW EXERCISE, DUBBED THE VICTORIA FORMULA-
ONTARIG Is NOT WEDDED TO EVERY DETAIL OF THIS
FGRMDLA, AS LONG AS ITs ESSENTIAL AND FLEXIBLE ELEMENTS ARE
RETAINED- HOWEVER, AS THE SENATE”HOUSE CGMMITTEE CONCLUDED
IN 1972, IT MAY PROVE DIFFICULT To SUBSTANTIALLY IMPROVE ON
THE GENERAL TERMS OF THE VICTORIA FORMULA-
BUT IT IS IMPERATIVE WE SECURE AGREEMENT ON AN
AMENDING FORMULA THIS TIME AROUND, A FORMULA THAT WILL ENABLE
US TO RESPOND TO FUTURE NATIONAL AND INTERNATIONAL
CIRCUMSTANCES-

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