First Ministers Constitutional Conference — Propositions on the Constitution Submitted by the Province of Manitoba
PROPOSITIONS ON THE CONSTITUTION: MANITOBA
The following Propositions are advanced on the basis that the existing constitutional principles of Canada and the Provinces, both written and conventional, shall continue exuept in those areas covered by the Propositions. The existing Constitution must be the starting point and the onus of proving the need for change must be on the proposer of the change.
SUBJECT: Object of the review,
THE CANADIAN CONSTITUTION, B TH WRITTEN AND CONVENTIONAL, SHOULD BE EXAMINED WITH A VIEW TO ITS BEING ADAPTED TO THE BROAD ECONOMIC, SOCIAL AND CULTURAL REQUIREMENTS OF CANADA’S SECOND CENTURY. THIS EXAMINATION MUST BE GUIDED, IN PART, BY THE PRINCIPLE THAT THE CONTINUATION OF CONVENTION AND UNWRITTEN LAW AS AN INHERENT PART OF THE CONSTITUTION IS THE BEST GUARANTEE OF ADAPTABILITY TO NEW OR CHANGING CIRCUMSTANCES.
1. No written Constitution, however detailed, can cover all existing circumstances or anticipate all those that will arise. While recognizing that the B. N. A. Act is in need of revision, we must remember that with it as a basis for government, Canada has developed into one of the most prosperous and free nations of the world.
SUBJECT: Object of Review.
THE FIRST OBJECT MUST BE TO REACH CONSENSUS ON AN AMENDMENT FORMULA THEREBY ENSURING THAT FUTTRE AMENDMENTS TO THE CONSTITUTION WILL BE ENACTED IN CANADA,
1. A review of the Constitution in the manner and to the extent apparently contemplated by the Federal Government will necessarily take much time. In the meanwhile, it may be necessary or desirable to make pro tempore amendment in one or more spheres, Thus, the amending procedure should first be agreec upon and steps taken to enable any amendment to be made by Canadian legislative bodies in accordance with the agreed procedure.
2. There has been enough delay already on the so-called “repatriation” of the Constitution. The review should not result in a further delay well into the next decade.
3. In seeking consensus on an amendment formula a useful starting point may be the formula generally referred to as the “Fulton-Favreau Formula” in view of the general agreement once given to it.
SUBJECT: Objectives of Confederation
THE OBJECT OF CONFEDERATION IS TO PRESERVE THE IDENTITY, SPIRIT AND INDIVIDUALITY OF THE CANADIAN NATION AND TO PROVIDE FOR ALL ITS PEOPLES EQUALITY OF OPPORTUNITY AND PROMOTE FOR THEM ECONOMIC, SOCIAL AND CULTURAL DEVELOPMENT;
1. The preservation of existing virtues of the Canadian nation is an essential object of the continuation of Confederation.
2. The provision of equality of opportunity is the basic element in the just society endorsed by the Canadian people.
SUBJECT: Objectives of Confederation.
INHERENT IN THE CONCEPT OF CONFEDERATION IS THE REMOVAL OF ECONOMIC AND SOCIAL DISPARITIES BETWEEN THE DEVERSE REGIONS AND PEOPLE OF CANADA AND THE UNIVERSAL AVAILABILITY OF PERSONAL OPPORTUNITY. ATTAINMENT OF THIS OBJECTIVE IS POSSIBLE WITHIN THE FRAMEWORK OF THE EXISTING CONSTITUTION, BUT MUST BE GIVEN HIGHER PRIORITY THAN HITHERTO.
1. Fundamental to meaningful Confederation is the promotion of greater national unity. Substantial and persistent income and employment disparities between regions in Canada have limited the effectiveness of efforts directed toward such unity. There is, therefore, an urgent need to reduce these disparities,
2. An undue concentration of the wealth of our prosperous nation in some regions tends to weaken national unity and works against overall prosperity.
3. Initiation of better co-ordinated programs to achieve balanced economic and social dezelopment throughout Canada, possible within the existing Coxstitution, will more effectively promote national unity and naintain the Canadian identity than rewriting the Constitution. While recognizing that improvement is always possible it is not so much a new Constitution which is required but a willingness by all to make the existing association of Canadian peoples work for the advancement of all.
4. If a recognizably Canadian life-style is to emerge with which all Canadians can identify and which reflects the best of the British, French and other cultures presently enriching Canada, there must exist not only equal opportunities for all but universal availability of opportunities regardless of location.
5. Formulation of regional priorities and the variation in the techniques to bring about development of different areas must be achieved with maximum federal-provincial co-operation and more effective means to ensure this will be proposed.
SUBJECT: Basic Principles.
THE CONSTITUTION SHOULD PROVIDE THAT THE TEN PROVINCES AND TWO TERRITORIES CONTINUE AS ONE REALM UNDER THE NAME OF CANADA.
1. Must sovereign states are recognized by an official under the name of Canada.
as well as a common name. Thus the United Kingdom of Great Britain and Northern Ireland, the United States of America and the Union of Soviet Socialist Republics. The B. N. A. Act provides for the formation of one Dominion The term “Dominion” has largely fallen into disuse and is to some unsatisfactory. Some new name should thus be found.
“Realm” is chosen as it reflects Canada’s historical origin, its continued monarchial system and is used in the Queen’s official title as describing Canada (Elizabeth II by the Grace of God of the United Kingdom, her other realms and territories, Queen). Furthermore the word has an exact equivalent in French.
SUBJECT: Basic principles.
THE CONSTITUTION SHOULD PROVIDE FOR THE CONTINUATION OF THE PRESENT SYSTEM OF GOVERNMENT WITH SUCH AMENDMENT AS MAY SEEM APPROPRIATE.
1. Propositions submitted by other governments refer to the establishment of certain systems. It is submitted that what should be provided for is a continuation of what exists to the extent that this has prozed workable and acceptable during the first 100 years and subject to amendment in those areas where improvement is possible.
2. As well as a specific provision for continuation of the present system of government a first preamble to any new constitutional act might read: “Whereas the peoples of the realm of Canada desire to continue to be united in sovereign self government under a Constitution similar in principle to that heretofore had and enjoyed by them.”
SUBJECT: Basic Principles.
CANADA IS A SOVEREIGN STATE, THE EXECUTIVE GOVERNMENT AND AUTHORITY OF AND OVER WHICH IS CONTINUED IN THE QUEEN OF CANADA
1. This makes it clear that Canada is a sovereign nation with a monarchial system of government.
2. The constitutional monarchy has worked well under Canadian conditions and should he continued. The monarch being above political considerations can best symbolize the unity of the diverse regions and peoples of Canada.
3. Reference is to “The Queen of Canada” to emphasize that Canadians approve her constitutional position as Head of State of Canada.
SUBJECT: Basic Principles
CANADA SHOULD CONTINUE TO BE A PARLIAMENTARY DEMOCRACY.
1. While flaws in the constitution of the Upper Chamber of Parliament may exist and are dealt with under the subject “Constitution of the Central Government” it is basic that a parliamentary system of government as distinct from a congressional system continue. The parliamentary system, evolved over centuries of political experience, is more flexible than the I abstractly conceived congressional system which overemphasizes the virtues of separation of power without recognizing the practical advantages inherent in the parliamentary system with its blending of powers.
SUBJECT: Basic Principles.
THERE MUST BE MAINTAINED A STRONG FEDERAL GOVERNMENT WHICH SHALL BE REPRESENTATIVE OF ALL THE PEOPLE OF CANADA AND ALONE SHALL ACT ON THEIR BEHALF TO DEFINE AND TO ACHIEVE NATIONAL PURPOSES AT HOME AND ABROAD.
1. There can be no question of a Canada of associated states delegating limited power; to a Federal Government but rather a united nation governed on a national basis by a central Government and in matters of local and regional interest, including culture, by regional or provincial governments.
SUBJECT: Basic Principles.
THE CONSTITUTION SHOULD PROVIDE FOR TNE PROMOTION OF CO-ORDINATION AND CO-OPERATION BETWEEN THE FEDERAL AND PROVINCIAL GOVERNMENTS.
This as a basic principle should be readily acceptable. The details are dealt with under “Machinery for Inter-Governmental Relations”.
SUBJECT: Basic Principles.
THE PRESENT CONSTITUTIONAL PROVISIONS AND PRACTICES WITH RESPECT TO LANGUAGES SHOULD BE CONTINUED
1. At present the B. N. A. Act provides for the use of both official languages in the Parliament of Canada, the Legislature of Quebec, and Supreme and Exchequer Courts of Canada and Courts of Quebec.
2. Drastic extension of language privileges by legislation must fail in its objective and divide rather than unify the nation. More effective is the extension of those privileges by the process of gradualism which is occurring as witnessed by the amendment ta Manitoba’s Public Schools Act permitting the use of the French language as a language of instruction.
3. Contemporary opinion favours extension of language privileges, but to do so by compulsion is to contravene the fundamental rule of parliamentary democracy which requires Parliament not to outstep public opinion unduly.
4. Real and meaningful extension of language privileges will be brought about by the process of gradualism which should be encouraged and continued. Such process has tke advantage of acceptance by the people of all provinces and a substantially reduced cost of implementation.
SUBJECT: Basic Principles,
THE CONSTITUTION SHOULO CONFIRM THE CONSTITUTIONAL EQUALITY OF ALL THE PROVINCES WHILE ENABLING EACH TO MAKE ITS OWN SPECIAL CONTRIBUTION TO THE ECONOMIC, SOCIAL AND CULTURAL DEVELOPMENT OF CANADA
1. While is it an historical fact that the provinces are not true equals alike in all respects, they must continue to enjoy equality of powers. It may be recognized, however, that not all will exercise every power bestowed.
2. It may also be recognized that each influences the development of Canada in a different way, enriching our multi-cultured nation tenfold.
3. In particular, it may be recognized that Quebec is a province PAS COMME LES AUTRES. It is officially bilingual and has its own law and principal culture. This is not to confer special status on Quebec but rather recognizes the difference of one girl from her brothers in a family of ten, She enjoys the same rights and owes the same obligations but is shown special considerations while making a unique contribution to family life.
4. Provincial development of economic, social and cultural resources contributes to development as a country and should be encouraged by as flexible a distribution of powers as is consistent with federal responsibilities over matters which are of common interest to all Canadians.
SUBJECT: Fundamental Rights.
THE BASIC RIGHTS AND FREEDOMS OF CANADIANS NEED NOT BE ENSHRINED BY ABSTRACT PRINCIPLES STATED IN A CONSTITUTIONAL DOCUMENT BECAUSE THEY ARE DEEPLY EMBEDDED IN THE LAW INHERITED AND DEVELOPED IN CANADA OVER THE LAST 100 YEARS.
1. The inheritance of a basic human rights from a long standing tradition and acceptance may be of more value than abstract statements open to unintended interpretation by the dourts,
2. Freedom is earned by eternal vigilance and cannot by enactment be guaranteed EB; time immemorial.
3. Defining rights tends to restrict them and is no guarantee against their abuse.
4. Human rights are not static but are always in the process of evolution. This is particularly evidenced in the growth of administrative law. If rights are entrenched there is a tendency for the evolution process to be stultifled.
SUBJECT: Constitution of the Central Government.
THE CONSTITUTION OF THE CENTRAL GOVERNMENT AND THE CONVENTIONS WHICH GOVERN IT SHOULD REMAIN AS HITHERTO SAVE THAT CONSIDERATION SHOULD BE GIVEN T0 REFORMING THE SENATE.
1. With the exception of the Senate, the Constitution of the Central Government is satisfactory.
2. The conventions should continue without being incorporated into a formal written document, thereby maintaining maximum flexibility.
SUBJECT: Constitution of the Central Government (Senate)
THE SENATE SHOULD BE RECONSTITUTED TO REFLECT MORE ACCURATELY THE OPINIONS AND INTERESTS OF THE PROVINCES AND TO THAT END EACH PROVINCE SHOULD HAVE EQUAL REPRESENTATION WITHIN IT.
1. The continuation of an upper chamber of Parliament is desirable, but, withoup increasing the power enjoyed by the existing Senate to disallow legislation passed by the Commons, its role in the Central Government might be broadened.
2. The “new” Senate might serve to make more prominent provincial and regional considerations in the legislative process of Canada. This might be accomplished by permitting each Provincial Government to nominate for appointment an agreed number of Senators.
3. Federal appointees might be chosen to represent different aspects of Canadian life and from citizens winh a real contribution to make to the deliberative processes of Parliament.
4. Representation in second chambers in Federal governments is not ordinarily based on population but to promote equality amongst the constituent states, Provincial interests may be promoted by equality of representation.
5. The proportion of appointments to be made by each level of government must be decided but prima facie each should appoint one half of the number.
SUBJECT: Constitution of the Central Government (Senate).
IN ADDITION TO THE POWERS IT NOW P0SSESSES, THE SENATE SHOULD HAVE THE FOLLOWING FUNCTIONS AND POWERS:
(A) TO NOMINATE FROM ITS MEMBERS A JUDICIAL COMMITTEE WITN ORIGINAL JURISDICTION ON CONSTITUTIONAL QUESTIONS BY REFERENCE AND FINAL APPELLATE JURISDICTION 0N SUCH QUESTIONS FROM THE SUPREME COURT OF CANADA;
(B) THE RATIFICATION OF ALL INTERNATIONAL TREATIES AND AGREEMENTS;
(C) THE POWER TO INVALIDATE BY DECLARATION A SUSPENSION or THE CONSTITUTION BY THE FEDERAL EXECUTIVE IN TIMES OF NATIONAL EMERGENCY;
(D) ADVISING THE GOVERNOR GENERAL ON THE EXERCISE OF THE PREROGATIVE OF MERCY;
(E) THE EXAMINATION OF ALLEGED INFRINGEMENTS OF FUNDAMENTAL RIGHTS BY GOVERNMENTAL AGENCIES (i.e. THE “OMBUDSMAN FUNCTION”).
1. One senator from each Province, duly qualified as a lawyer of senior standing, would be designated as a law senator and a member of the Judicial Committee.Such senators might be appointed alternately by the Federal and Provincial Governments.
2. The advantages of a Judicial Committee of the Senate having jurisdietion on Constitutional questions rather than the Supreme Court of Canada are:
(i) the “Judges” would not be solely Federal nominees;
(ii) it enables the appointment to the bench of the Supreme Court of lawyers knowledgeable of the law without regard to consideration of their viewpoint on Constitutional questions;
(iii)it provides the Senate in its deliberations with expertise in the workings of the constitution.
3. The other powers conferred on the Senate consist of necessary checks on the executive (B, C and E) and relieving the executive of an area of decision which can better be made without direct political implications (D).
SUBJECT: Constitutions of Provincial Governments.
THE INTERNAL CONSTITUTION OF EACH PROVINCE SHOULD REMAIN CAPABLE OF AMENDMENT BY THAT PROVINCE PROVIDED THE AMENDMENT IS NOT REPUGNANT TO THE PROVISIONS OR SPIRIT OF THE CONSTITUTION OF TRE REALM AND DOES NOT INFRINGE OUR TRADITIONAL FUNDAMENTAL RIGHTS.
1. Each Province should be master of its internal Constitution subject to the limitation that a Province cannot amend its Constitution in such a way that it becomes repugnant to the provisions of the Constitution of the country as a whole. Furthermore, a Province cannot by itself infringe upon those fundamental rights of Canadians which are an inherent part of the Constitution of Canada.
2. This ensures the maximum autonomy possible for each Province within the framework of the concept of a single realm with guaranteed rights for all its peoples.
3. Thus, for example, a Province should be free to choose between a bicameral or unicameral legislature while being required to maintain a parliamentary form of government with the Queen’s representative as the executive authority.
SUBJECT: The Constitution of the Judicial System.
THE CONSTITUTION SHOULD CONTINUE THE SUPREME COURT OF CANADA AS A GENERAL COURT OF APPEAL FOR CANADA WHICH SHOULD HAVE APPELLATE JURISDICTIOH IN SUCH CIVIL AND CRIMINAL MATTERS AS MAY BE DETERMINED BY LEGISLATION OF THE PARLIAMENT OF CANADA SUBJECT TO A FURTHER RIGHT OF APPEAL TO THE JUDICIAL COMMITTEE OF THE SENATE ON A CONSTITUTIONAL QUESTION.
1. This continues the Supreme Court of.Canada as a final Court of Appeal with such appellate jurisdiction as may be determined by the Parliament of Canada.
2. The Court’s appellate jurisdiction should not be limited to the interpretation of Federal statutes because
(a) uniformity of interpretation of similar provincial legislation is desirable; and
(b) many cases involve interpretation of both Provincial and Federal legislation,
It should not be left to a Province to decide when its Law should be open or closed to interpretation by the Supreme Court of the land.
3. If, in the exercise of its appellate jurisdiction, the supreme Court interprets a provincial statute in a manner contrary to the real intent or the provincial legislature, the legislature can amend its legislation. Thus, no Province need reel that a Federal Court can by interpretation frustrate the intentions of a Province in matters within the Province’s jurisdiction.
4. The further right to appeal to the Judicial Committee of the Senate would arise on constitutional questions declared to be such by either the supreme Court of Canada or a quorum of the Judicial Committee of the Senate.
SUBJECT: The Constitution of the Judicial System.
THE SUPREME COURT OF CANADA AND THE JUDICIAL COMMITTEE OF THE SENATE SHOULD CONTINUE TO BE BOUND IN ALL MATTERS BY THE DOCTRINE OF STARE DECISIS.
1. A fundamental concept of common law which is the law of 9 of the 10 Canadian Provinces is that a Court is bound by its own precedents. This principle is too basic to be departed from.
2. The doctrine of stare decisis is founded on the need for certainty of law so that individuals may embark on a course of action knowing that such course of action is within the law. A reversal of this doctrine would leave the law uncertain in the absenze of a codified system which is foreign to the jurisprudence of 9 of the 10 provinces.
3. The tendency to rigidity which may result from this system is overcome by the power of Parliament in the case of Federal laws and the Legislatures in the case of Provincial laws to amend the Law in the light of any judicial interpretation which is contrary to the wishes of the law making body concerned.
SUBJECT: The Constitution of the Judicial System.
SUPERIOR, DISTRICT AND COUNTY COURT JUDGES SHOULD CONTINUE TO BE APPOINTED, BY THE FEDERAL GOVERNMENT.
SUBJECT: The Machinery of Inter-Governmental Relations.
PERMANENT MACHINERY SHOULD BE ESTABLISHED TO ENSURE
(A) CO-ORDINATION OF FEDERAL AND PROVINCIAL PROGRAMS TO MEET NATIONAL AND REGIONAL PRIORITIES;
(B) EFFECTIVE CONSULTATION AT THE MINISTERIAL LEVEL.
1. Ad hoc programs hastily devised in Ottawa in response to specific short-term pressures, without reference to differing provincial circumstances, should be a thing of the past.
2. The distribution of powers and responsibilities between the levels of governmert is such as to requira co-ordination of programs to ensure that those most naeded in a particular region are implemented first, others being postponed until they can be implemented within the total tolerable tax load.
3. Consultation between levels of government must be more than a mere formality: consistent with the responsibility of each government to its citizens; governments should initiate, amend or terminate arrangements affecting the powers and resnonsibilities of the other level of government only atter effective ministerial consultation resulting in a reasonable national consensus.
4. While the requirements of co-ordination and effective consultation are necessary to the government of a federal state, the bodies effecting them must not be elevated to a decision-making status, creating in effect a third level of government.
SUBJECT: Distribution of Powers (Basis for distribution).
THE MOST CRITICAL ASPECT OF CONSTITUTIONAL REVIEW IS THE DISTRIBUTION OF LEGISLATIVE POWERS IN A MANNER WHICH WILL ENSURE A BALANCE BETWEEN REVENUE AND RESPONSIBILITY AS WELL AS THE MAINTENANCE OF NATIONAL UNITY. THE PRESENT DISTRIBUTION AS INTERPRETED BY THE COURTS MUST NOT BE IGNORED, BUT A FORMULA SHOULD BE SOUGHT WHICH WILL PERMIT A MORE FLEXIBLE EXERCISE OF POWERS WHICH ARE BOTH NATIONAL AND LOCAL IN EFFECT, INVOLVE MATTERS OF TRULY COMMON CONCERN OR, BEING TOO BROADLY EXPRESSED, REQUIRE RECONSIDERATION IN LIGHT OF CHANGING CIRCUMSTANCES.
1. The root of dissension between the two levels of Government in Canada is the imbalance between responsibilities and revenue. Without rectification this could disrupt national unity and must be given first priority in Constitutional review.
2. National unity is threatened as much by an overgenerous allocation of power to the Provinces as by the present allocation to the Federal Parliament. A flexible balance consistent with the functions essential to each must be provided for in any reallocation.
3. The present distribution as enacted and judicially interpreted has in most areas provided Canada with a stable and equitable government. This should not be abandoned, but areas of inflexibility examined for solution.
4. Certain powers today have broader scope than when first defined and allocated. Thus education today may encompass educational television and manpower retraining which were scarcely envisaged in 1867. A breaking down of a power such as education into its components may be a first step to greater flexibility.
5. Communications vastly improved since 1867 have made practical discourse on an international level of matters of provincial concern such as education. A breakdown of external affairs into its components might remedy this inflexibility and enable Provinces to communicate without commitment, whilst reserving to the Federal Government alone the right to speak for Canada and to commit Canada to international obligation where in the national interest.
6. The need then is to find a formula distributing powers on a more flexible basis where functions overlap. In view of regional differences such a formula must provide some power of delegation.
7. As a contribution to the finding of such a formula Manitoba, without necessarily endorsing it, submits the following outline formula for serious study:
There should be 5 classifications of legislative power as follows:
1. Exclusively federal without power of delegation;
2. Federal with authority to delegate to one or more Provinces by ad hoc agreements;
3. Jointly Federal and Provincial, with provision for paramountcy of federal legislation;
4. Provincial with authority to one or more Provinces to delegate to Federal;
5. Exclusively Provincial without power of delegation.
Powers should be distributed to such classifications on the following basis:
To classification 1:
Those powers essential to truly national purposes, including powers necessary to ensure essential equality to all citizens.
To classification 5:
Those powers relating to matters of a purely local and private nature including matters which on the basis of efficiency or economy can best be administered Provincially or which involve cultural differences that
To classifications 2 and 4;
Those powers which are both national and local in effect, with allocation determined by whether the subject matter is ossentially national or regional.
To classification 3:
All matters of truly common concern.
8. An important advantage of a formula of the kind outlined is that the need for amendment would be minimal due to the inherent flexibility, thus minimizing. the difficulty of determining an acceptable amending formula.
SUBJECT: Distribution of Powers
DISTRIBUTION OF TAXING POWERS SHOULD BE EFFECTED BETWEEN THE FEDERAL AND PROVINCIAL GOVERNMENTS SO AS TO ENSURE THAT PUBLIC REVENUES ARE RAISED ACCORDING TO FISCAL CAPACITY BY THE MOST EFFECTIVE, ECONOMICAL AND EQUITABLE METHOD AND THAT FISCAL ARRANGEMENTS REFLECT THE CONSTITUTIONAL COMMITMENTS OF THE DIFFERENT LEVELS OF GOVERNMENT.
1. No single aspect of the relationship between the two levels of government in Canada requires more urgent or more effective attention in the Constitution than does the fiscal and financial relationship.
2. The tasks required to meet the objectives of Confederatior have enlarged and multiplied over 100 years. This has occurred with greatest impact at the Provincial level. The Provincial power of taxation must be reviewed in this context.
3. There is a need to reconcile the concentration of costs at the Provincial level with the concentration of fiscal capacity at the federal level: therefore the Constitution must make possible necessary arrangements between governments.
4. It is essential to support the distribution of powers by effective use of the taxing powers on behalf of all govenxmental responsibilities. This must be done by pooling tax resources raised within the total tolerable tax load and sharing them on agreed plans based on the priorities determined as best meeting the needs of the realm within the partnership of responsibility set out under the Constitution.
SUBJECT: Amendment Procedure.
A NEW AMENDMENT PROCEDURE SHOULD COME INTO FORCE ON JOINT PROCLAMATION OF THE GOVERNOR-GENERAL-IN-COUNCIL AND THE SEVERAL LIEUTENANT-GOVERNORS-IN-COUNCIL PURSUANT TO ACTS PASSED BY THE RESPECTIVE LEGISLATIVE BRANCHES OF THE SEVERAL GOVERNMENTS WITH SIMULTANEOUS TRANSFER OF POWER BY THE PARLIAMENT OF THE UNITED KINGDOM.
1. Only enactment by Canadian legislative assemblies of a Constitution is acceptable today, but as such assemblies may not enjoy jurisdiction, theoretically, repealing legislation in the United Kingdom is desirable.
2. The Parliament of the United Kingdom should transfur all authority for the Canadian Constitution to the Canadian Parliament and Legislatures to perfect the legal as well as the practical transfer;
3. Enactment of a new Constitution in Canada without this transfer denies the historical heritage which is an essential part of the Canadian fact.