First Ministers Constitutional Conference- Proposals of the Province of British Columbia on the Constitution- Prepared for the Presentation

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Proposals of the
Province of British Columbia
on the Constitution of Canada

Submitted by

Premier and Minister of Finance of British Columbia

Prepared for presentation to the Constitutional Conference
set for December 16, 17, and 18, 1968, at Ottawa
but postponed.


Premier and Minister of Finance

Attorney-General and Minister of Labour

Deputy Minister of Finance

Deputy Attorney-General

Assistant General Solicitor

British Columbia




Official Languages Bill 5



1. General Principles 11
2. Fiscal Capacity 11






British Columbia welcomes this further opportunity to meet with
representatives of the other governments of Canada to continue dis-
cussions on the review of the Constitution of Canada.

British Columbia takes the view that our Constitution has, by and
large, served us well and has shown itself to be a viable and flexible
document capable of adjusting and coping with the growing-pains of
nationhood. We in British Columbia, however, do not hold sacred
or sacrosanct the British North America Act, but as one of the senior
surviving constitutions among the western democracies we say it has
proved its worth. With alterations–perhaps major ones, particu-
larly in the area of fiscal capacity–together with the patriation to
Canada of the power of amendment, to which I will make further
reference shortly, it can continue to be the Constitution for Canada’s
great future.

For let no one be mistaken, Canada–from Newfoundland to the
Yukon Territory–has a bright future indeed, and British Columbia
anticipates sharing in it and contributing towards it.

We believe the future can best be realized under a federal
system of government with the Queen as head of state and predicated
upon the equal and fair treatment of all Canada’s citizens, irrespective
of their racial origin, culture, religion, or economic status. With the
diversity of the culture and ethnic origins of all its people, Canada
can look forward to a nation’s future truly rich in its heritage.



British Columbia recognizes that the English and French cultures
and languages are the predominant ones in Canadian society today,
and every effort should be made to encourage, cultivate, and foster
them — not from the point of view that Confederation consisted of a
union of two founding races or cultures, because British Columbia
does not believe history supports that view, but rather because fo
their intrinsic worth and the benefits to nationhood to be gained
by doing so. Having said that, we also recognize that there are six
million Canadians whose ethnic origin is neither English nor French.*
We do not intend to see these people made second-class citizens by
constitutional means.

The question, then, is: What are the best means to foster and
develop those ethnic and cultural diversities with which Canada is
blessed? The cold legal language of a constitution would not, in
British Columbia’s opinion, be the means at all. In point of fact, the
constitution has little effect on how people live in so far as language
and culture are concerned. Our linguistic and cultural attitudes are
tempered not by legal considerations embodied in a constitution, but
in the final analysis reflect the persona habits, attitudes, and practical
necessities of the population of the nation. To the extent the first
report of the Royal Commission on Bilingualism and Biculturalism
reflects these attitudes, we are in agreement with it.

Canada is a large country with major centres of one language and
culture or another. The sparsity of French-speaking Canadians in
many parts of Canada makes it inapporpriate for a constitution to
require equality of language and culture rights in every corner of the
nation. The Commission on Bilingualism and Biculturalism appreci-
ated this fact, and the action the Commission recommended in the first
report was not, for the most part, to take the form of constitutional
amendment, but rather was to take the form of legislative action in

*See Appendix 1.

those particular jurisdiction in which the number of French speaking
Canadians made action appropriate. In British Columbia there are
fewer citizens per capita whose mother tongue is French now than there
were when British Columbia entered Confederation in 1871. There are
other Provinces in similar circumstances. To provide as a constitutional
guarantee the right to speak English and French is as inappropriate
in those parts of Canada as to have a requirement that all Canadians
speak the language of the native Indians, who were the original
founders of the country.

I say again, we in British Columbia are prepared to encourage to
the full the development of the culture and language of both the
predominant cultural and language communities in Canada commen-
surate with the practicalities of population but with regard also to the
Canadians whose mother tongue is neither English nor French. It is
when individuals, encouraged by their governments, come to realize
the worth of another language and culture on their own mertis–it is
in that climate that culture and language will flourish and Canada’s
heritage will be enriched.

Official Languages Bill

On October 17, 1968, without consultation with the Provinces, the
Federal Government introduced into the House of Commons Bill
C-120, The Official Languages Act. Section 2 of the Bill declares
that the “English and French languages are the official languages of
Canada for all purposes of the Parliament and Government of Can-
ada.” At first blush these words would seem to indicate the matters
covered by the Bill have little to do with the Provinces, but are purely
matters of exclusive concern to the Federal Government. A closer
examination, however, indicates otherwise. The Bill would permit a
person charged with a crime, or his counsel, to be heard in a Provin-
cial Court in either French or English and, at the option of the Court,
to have the entire proceedings conducted in either language. Has the


Federal Government considered the practical implications of this on
some of the Provinces? For example, out of approximately forty
Superior and County Court Judges in our Province I doubt whether
any could conduct a trial in French, and out of a practising, legal pro-
fession of fifteen hundred, not more than a handful could plead their
case in French. Moreover, the lack of sufficient interpreters is also
a very real problem. And yet, without prior consultation with the
Provinces, the Federal Government has introduced this Bill.

British Columbia is concerned about other implications of the Bill.
We fear that its provisions will “close the door” to unilingual English-
speaking Canadians from entry into the Federal Civil Servicen and its
agencies and considerably curtail the promotion possibilities of present-
day unilingual English-speaking Civil Servants. It is perhaps too early
to support those fears with firm statistics, but it is reported from the
statistics that are available that there has been a sharp increase in the
number of bilingual appointments at the upper levels of the Civil Ser-
vice. For example, among a sample of 401 Civil Service appointments
in the $10,000 to $15,000 range last year, the percentage of bilingual
appointments was 24 per cent. So far this year the percentage is 31
per cent. Above $15,000 the percentage has jumped from 25 per cent
last year to 33 per cent this year. A much more significant trend is
visible among “administrative trainees,” usually university graduates,
in training for senior positions in the government service. In 1965,
out of 108 such trainees hired, only 17 per cent were bilingual, whereas
so far this year, 171, or 46 per cent, are bilingual. Since the majority
of the residents of Western Canada do not speak French, nor do they
have the opportunity to do so, it is obvious that they are placed at a
decided disadvantage from entry into the Federal Civil Service.

Moreover, there are very strong doubts as to the Bill’s constitu-
tional validity. It certainly represents an extension of section 133 of
the British North America Act, and, if it is not unconstitutional on
that account, it may well be unconstitutional in its attempt to make


Provincial Courts bilingual, bearing in mind that the “constitution,
maintenance, and organization of Provincial Courts, both of civil and
of criminal jurisdiction “is vested exclusively in the Provinces by head
14 of section 92 of the British North America Act.

It seems inappropriate for the Federal Government to introduce
legislation of this kind on a matter which is viewed by British
olumbia as being akin to, if not in fact, constitutional amendment
at a time when the whole exercise of a thorough constitutional review
is under way.


A few days prior to the Constitutional Conference in February of
this year, the Federal Government circulated a background paper and
accompanying proposal that a Bill of Rights be entrenched within the
Constitution of Canada. Because of the shortness of time prior to the
February meeting for study by Provincial officials of the implications
of the proposal, British Columbia reserved its position on the principle
of entrenchment. British Columbia is now in a position to make the
following observations:–

The proposed Bill of Rights is divided into five parts:–

Political rights,
Legal rights,
Egalitarian rights,
Linguistic rights,
Economic rights.

For the reasons which I have already referred to, British Columbia
would not support a Bill of Rights which would entrench linguistic
rights. Moreover, linguistic rights are not the kind of natural rights
which traditionally have been the subject of constitutional protection
in those jurisdictions that have enacted Bill of Rights.


As far as fundamental rights are concerned, let me make it abun-
dantly clear at the outset that the Government of British Columbia
is firmly committed to the proposition of the fair and impartial treat-
ment under law of all its citizens and the citizens of Canada. In that
sense we completely support the expression in law of a person’s funda-
mental rights. The question is: Can these best be insured by an
entrenched Bill of Rights as is suggested? Before that question can
properly be answered, we must have the fullest discussion on the
implications of entrenchment. Like so many other proposals being
put forward in the course of this constitutional review, the implications
are being underplayed. Let us have the implications on the table
before us so intelligent choices can be made.

The first implication of an entrenched Bill of Rights is that it
amounts to a restriction on the principle of legislative supremacy,
which has been the underlying philosophy of our parliamentary system.
Are we now in a position in Canada to depart from the principle of
parliamentary supermacy which has guided us so well in our first one
hundred years? Moreover, such a restriction on legislative supremacy
would to a greater extent be at the expense of Provincial jurisdictions
rather than the Federal jurisdiction, for it is the Provincial Legis-
latures that have legislative competence over property and civil rights
within a province.

The most far-reaching implication of the proposal is that it would
have the effect of giving the Courts, rather than Parliament and the
Legislatures, the final word on basic policy issues. The point has been
ably stated by Profesor D.A. Schmeiser, of the College of Law of the
University of Saskatchewan, in an address given to the Canadian Bar
Association at Vancouver on September 3, 1968, when he stated as

The most difficult aspect of entrenchment is that the Courts, through the
power of judicial review, rather than Parliament, have the final word on basic
policy issues. The possible solutions in any social dispute are political de-


cisions, not typically judicial decisions, and the question must be faced
whether such decision should be made by legislators, who are accountable
to the people, or by Judges, who are not so accountable. Should five men
on the Supreme Court of Canada be able to overrule the wishes of the elected
representatives of the people, or is this not a negation of democracy? For
example, let us borrow the American problem of criminal procedure. Which
body in society determines how a criminal matter should be dealt with?
Again, I would suggest that the present Canadian formula of having Parlia-
ment decide is better than the American position.

The assumption underlying judicial review of legislation is that Courts
will do better that government, that they will act more in the interests of
the people. The difficulty with the assumption is that legal practice and old
age can produce conservative persons who are suspicious of social change.
In the Great Depression, the American Supreme Court used its judicial review
power to block urgently needed social reform. The Canadian judicial atti-
tude to administrative tribunals and to statutory interpretation also reveals a
lack of awareness on occasion of social needs. An entrenched Bill of Rights
can enable the Courts to block political reform. When the Courts do make
wrong policy decisions, judicial independence and authority are seriously

There are more significant ways to effectively ensure that our laws
do not offend basic human rights and are kept up to date and in
keeping with our ideals of justice and freedom. One is through the
use of Law Reform Commissions.

As I observed in February, there is not at the doors of the National
or Provincial Parliaments of this country a public outcry that the
matters proposed for entrenchment have been neglected either by the
developing common law or legislative or parliamentary enactments
thus far made.

This Federal proposal appears to conflict with the plea for unity in
diversity, which has such importance in parts of Canada, and, more-
over, to place these rights beyond the reach of the parliamentary insti-
tutions of the country by entrenchment is to argue for more rigidity
rather than less in the constitutional arrangements by which Canadians
govern themselves.



An examination of those sections of the British North America Act
to do with the constitution of the Senate of Canada indicates it was
intended the Senate would represent the various regions of Canada
and thereby bring to bear upon the Federal legislative making process
the legitimate needs of those regions.

The economic realities of today indicate there are five regions of
Canada, the fifth being British Columbia. The Federal Government
has recognized this fact, for the records of the Dominion Bureau of
Statistics* and other publications of the Federal Government show the
economic regions to be as follows:–

(1) Atlantic,
(2) Quebec,
(3) Ontario,
(4) The Prairies,
(5) British Columbia.

With the population of British Columbia growing at twice the rate
of the rest of Canada, the presence of British Columbia as an economic
region of its own is more obvious as each day passes.

If the Senate of Canada is to continue to exist, then British Co-
lumbia calls for the redistribution of its seats based on today’s realities
so that British Columbia as one economic area would have equal
representation with each of the other four.

Moreover, in order to increase interregional co-operation and to
ensure the Senate will be more effective in the future in reflecting the
legitimate aspirations of the various regions, British Columbia calls
for the appointment of Senators by the Provincial Governments, such
appointments to be for a number of years certain.

*See Appendix II.



1. General Principles

British Columbia recognizes there can only be one government
in Canada to represent the interests of all Canadians, To the extent
it is necessary for the Federal Government to have the jurisdiction
and capacity to represent the collective interests of Canada as a whole,
British Columbia is agreeable to that necessity being met. We con-
sider that the enumerated classes of subjects set out in section 91 of
the British North America Act is more than sufficient for the Federal
Government to effectively fulfil its role. We do not agree that the
power to legislate on those residual matters not presently within the
enumerated heads of sections 92 should also rest with the Federal Gov-
ernment. The power to legislate on all residual matters should be
given to the Provinces in addition to the enumerated subjects set out
in section 92 and “all matters of a merely local or private nature in
the Province.”

British Columbia suggestes there are, in addition, certain matters
of mutual concern for which there should be concurrent constitutional
jurisdiction and shared responsibility.

Superimposed upon the distribution of powers as we would en-
visage them, we are of the view there is a need to have within the
Constitution the machinery to permit the delegation of jurisdiction
between the Federal and Provincial Governments. Such a device,
which is presently lacking in the Constitution, would add an element
of flexibility and accomodation.

2. Fiscal Capacity

It is almost trite to mention that the capacity of each Government
to tax must be sufficient for each Government to effectively discharge
its constitutional obligations. And yet the experience of the tax-
sharing arrangements over the past years has shown this is a principle
that seemingly is often lost sight of, much less subscribed to.


In the light of burgeoning Provincial responsibilities, particularly
in the fields of education, health, and welfare, British Columbia can
see no other alternative if Provincial responsibilities are to be met
than for the Federal Government to withdraw from the direct tax fields
of personal and corporate income taxes and succession or estate taxes.

When those changes have been made, it is our view the Consti-
tution should restrict the spending power of the Federal Government
to those matters under its jurisdiction.


I want to emphasize that the stresses within the nation at the
present time are primarily economic and financial in nature. If we
are to achieve that high destiny to which I am sure all of us around
this table believe Canada is called, then we must do more to bring
about economic opportunity for all citizens in all regions of Canada.
I want to underscore so much of what was said on this subject at the
Constitutional Conference of February last. Unless the problems of
the glaring discrepancies in standards of living and economic opportuni-
ties for low-income citizens wherever they may be found in Canada
are met, then the consideration of many of the matters which are
being discussed during these days may prove to be little more than
academic. I am not minimizing the importance of such matters as
language, culture, and constitutional review generally. But I am
saying, that if we are to have and develop the kind of Canada we all
unquestionably desire, then the scope of our vision must embrace the
economic facts of life in Canada, which call for a frank appraisal of
what National policy should be adopted to improve the situation.
British Columbia believes the solution lies in direct assistance to per-
sons of low income rather than through large unconditional payments
to certain Provincial Governments. Naturally, any policies to raise
the standard of living of all low-income persons will benefit most those
areas with the highest incidence of inadequate income. But no matter
what government policies of special help to individuals are involved,


no real solution will come until we leave more uniform wage rates
across Canada. Governments should start by introducing uniform
minimum wage rates by comparable industry in all of Canada.

Further in this connection, I believe the time has come to recognize
that in the interests of economic realities the boundaries of some of
the Provinces will have to be altered and the separate existence of
some other Provinces will have to be abolished so as to provide five
viable and effective political units consonant and in conformity with
the five economic regions of Canada. Imagine the increased efficiency
and resultant substantial savings to the Canadian taxpayer that would

In keeping with the principle of political units conforming with
economic regions of Canada, British Columbia calls for the Federal
Government to extend by legislation the boundaries of each of the
applicable Provinces northward to the northern limits of continental
Canada. Furthermore, the topogaphical characterists support com-
munication links and trade patterns running north and south rather
than east and west.

For example, in British Columbia, the extension of the Pacific
Great Eastern Railway to Fort Nelson and beyond, the construction
of the Stewart-Watson Lake Highway with connecting link to the
Alaska Highway, and the Alaska Highway itself provide the communi-
cation links between British Columbia and the Yukon–the kind of
links which are so essential to the economic development of Canada’s
northern regions. In the light of the tremendous development now
taking place in the northern half of British Columbia, sparked by the
Peace River power project, now in operation, and the lines of com-
munication to which I have already made reference, it is not only
geographically and economically logical, but it would be mutually
advantageous for this northern area to be added to the Province so
that an integrated development plan could be made to realize to the
full the great potential of the whole area.*

*See Appendix III


Ample precedent can be found for the extension of Provincial
boundaries northward in the cases of Manitoba, Ontario, and Quebec
by legislation of the Parliament of Canada in the years 1912 and 1930.


Throughout the course of the first one hundred years the British
North America Act has, as the need arose, been subject to amendment
by one means or another, at least a score of times. British Columbia,
however, is not satisfied with the vagaries of the present method of
amendment. I recall that over an extended period of years, culmi-
nating in an agreement in Charlottetown in 1961, all Governments
participated in a series of meetings called for the purpose of agreeing
upon a formula of how to amend the Constitution in Canada. British
Columbia was one of the contributors to the solution then reached.
And yet, in spite of unanimous agreement at the time, subsequent
events prevented the formula being implemented.

We are now embarked upon what has been described as a “total
review of the Constitution.” The substance of constitutional review
is infinitely more complicated and much less likely to be the subject
of agreement than the relatively simple question of determining a
method to amend the Constitution in Canada. And yet if we are
unable to bring to fruition extensive efforts that were expended in
that more simple exercise, then the question that comes to my mind
is: Are we now embarked on a task utterly incapable of fulfilment,
having regard to the differences of opinion that do exist between us
on matters of substance?

As an indicator of our good intentions in respect of the total
review now under way, I call upon all Governments to readdress them-
selves to the fundamental proposition of how to amend the Consti-
tution in Canada, taking on from the point of earlier agreement and
making such adaptations to the formula as would make possible its
unanimous acceptance in 1968.



Appendix 1
Dominion Bureau of Statistics, “Canada Year Book, 1968.”

Subsection 7.–Ethnic Groups and Birthplaces

Ethnic Groups–A population made up of diverse ethnic groups gives rise to political,
social and economic problems quite different in nature from those of one with a more homo-
geneous ethnic composition. These problems are mitigated, however, to the extent that certain
groups are more easily integrated than others. It is equally true that the different backgrounds
of various ethnic groups lend variety and diversity to the national life.

The two basic groups in the Canadian population are the French and British Isles ethnic
groups. The influence of the French in Canada covers a longer period and, with the exception
of the 1921 Census, this group has always exceeded in number any of the components of the
British Isles ethnic group.

In 1961, each person was asked the question: “To what ethnic or cultural group did you
or your ancestor (on the male side) belong on coming to this Continent?” The language spoken
at the time by the person, or his paternal ancestor, was listed as an aid in determining the per-
son’s ethnic group. The classification is given for 1961 in Table 1 with comparative figures for
1951 and 1941. Information on ethnic group was not collected in the 1956 or 1966 Censuses.

15.–Distribution of the Population by Ethnic Group, Census Years 1941, 1951 and 1961

*See PDF for table.


Subsection 9–Languages and Mother Tongues

The term “official language” used by the census refers only to the English and French
languages.* “Mother tongue” is the lnguage a person first learned in childhood and still
understands. It should be noted that persons indicated as speaking “English only” or “French
only” with respect to official language may also speak other languages and have a mother tongue
other than English or French. The use of the English and French languages in Canada at the
time of the 1961 Census is discussed in a special article appearing in the 1965 Year Book at
pp. 180-184. Table 19 gives the numerical and percentage distribution of official language by
province in 1961; this information was not collected in the 1966 Census.

*The British North America Act, 1867 (Sect. 133) makes provision for the use of the English and French languages as follows:–

“Either the English or the French Language may be used by any Person in the Debates of the Houses
of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages
shall be used in the respective Records and Journals of those Houses; and either of those Languages may
be used by any Person or in any Pleading or Process in our issuing from any Court of Canada established
under this Act, and in or from all or any of the Courts of Quebec.
The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published
in both those Languages.”

19.–Numerical and Percentage Distribution of the Population Speaking One, Both or
Neither of the “Official” Languages, by Province, Census 1961

NOTE–See text and footnote above re the term “official language.”

*See PDF for table.

Mother tongues of the population are shown in Table 20. The proportion reporting Eng-
lis as their mother tongue in 1961 was 58.5 p.c. (compared with 59.1 p.c. in 1951), French
28.1 p.c. (29.0 p.c. in 1951) and all other mother tongues 13.5 p.c. (11.8 p.c. in 1951).

20.–Mother Tongues of the Population, Census 1961

*See PDF for table.


Appendix II

Table 2.–Percentage Analysis of Cheques Cashed against Individual Accounts in 32
Clearing House Centres: Cheques Cashed Expressed in Terms of 1938

*See PDF for table.


Table 4.–Percentage Distribution of Families by Income Groups, Regions and
Metropolitan and Non-metropolitan Areas,1 1965

*See PDF for table

Table 5.–Percentage Distribution of Families and Unattached Individuals by
Income Groups and Regions, 1965

*See PDF for table


*See PDF for table.


Revenue Equalization Payments to Provinces
($ million)

*See PDF for table.

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