Government of Saskatchewan “Canada’s Constitution, The Saskatchewan Position.” (13 March, 1981)
Document Information
Date: 1981-03-13
By: Government of Saskatchewan, Premier Allan Blakeney
Citation: TBA
Other formats: Click here to view the original document (PDF).
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“That this Assembly opposes the current attempt by the federal government to patriate and amend the Constitution of Canada, believing that the unilateral nature of the process is incompatible with the fundamental principles of Canadian federalism, that constitutional changes must have a broad basis of support among Canadians, and that the proposals, if implemented, would upset the balance of Canada’s federal system.”
-Resolution passed unanimously by Saskatchewan legislature, March 3, 1981.
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INTRODUCTION BY PREMIER BLAKENEY
No one was more disturbed than I when the Prime Minister last October abandoned discussions with the provinces and moved to patriate the constitution unilaterally. Not only that, but to impose constitutional changes in areas beyond the jurisdicton of the federal government.
I was disturbed because I felt his action would widen the divisions in Canada.
When the Prime Minister announced his plans in October, my political instincts told me to come out fighting, as some other provinces did.
But there seemed to me to be a more useful course to follow, a more practical one if you will, one which I felt would better serve the country. As I outlined in a statement on October 9th, I believed strongly that patriation of the constitution should,
“bind the nation more closely together in a unity of purpose. . . In short, it must be an act that further unites Canada, not divides it.”
The way to achieve that goal seemed to be to attempt to change the proposal so the package would be more broadly acceptable to Canadians.
To avoid compounding division with division, I argued against an all-out battle with the federal government and urged others to join me in trying to improve the package.
Over a period of several weeks, Saskatchewan tried hard to achieve that objective. We put forward specific proposals for consideration by the federal government. I appeared before the Parliamentary Committee on December 19, to put Saskatchewan’s position as clearly and as persuasively as I could.
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The federal government responded partially to our proposals. But they left at least two key issues unresolved: the amending formula and provincial control of resources destined for export from Canada.
In addition to the lack of movement in these two vital areas, the federal government also introduced a new element into the debate. It had a sudden change of mind about limiting the power of the Senate over constitutional amendments, as had been proposed in the original resolution.
Clearly, taken together, the federal proposals were insufficient. They were insufficient to overcome an increasing division in Canada, an increasing unease among Canadians that the whole resolution was ill-conceived, and they were insufficient to meet concerns directly related to Saskatchewan.
We had no choice, then, but to oppose the constitutional resolution. It was with regret that we took that decision, but in the interests of the people of Saskatchewan, we could not do otherwise. We were heartened when our position received the unanimous support of the Saskatchewan legislature.
This document reviews briefly some of the fundamental characteristics of our federal system, because I believe that such a review is essential to an understanding of the issues before us. It discusses the conventions which have governed constitutional amendment in Canada for the last half century. It stresses the need for constitutional renewal and outlines the progress made in federal-provincial negotiations. Finally, it explains why Saskatchewan is now opposed to the federal resolution.
Allan Blakeney Premier of Saskatchewan
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In 1867, with the passage of the British North America Act by the British Parliament, Canada was created as a federal state.
A federal state has two orders of government: a national government to pursue goals common to all; and provincial or state governments to reflect and preserve the distinctive characteristics of the constituent units, of the regions.
In 1867, it was recognized that, in a country like Canada, only a federal form of government could work. Some may have desired a unitary state, but they knew it was not possible. Only a federal system could achieve union, while accommodating the great distances, the fierce regional loyalties, the linguistic and cultural differences, and the distinctive economies of the four uniting colonies. Only a federal system could achieve unity without imposing a totally unacceptable uniformity.
Lord Watson put it well, in an 1892 judgement of the Judicial Committee of the Privy Council:
The object of the (British North America) Act was neither to weld the provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal government in which they should all be repre- sented, entrusted with the exclusive admin- istration of affairs in which they had a common interest, each province retaining its independence and autonomy . . . in so far as regards those matters which, by section 92, are specially reserved for provincial legis- lation, the legislation of each province continues to be free from the control of the Dominion, and as supreme as it was before the forming of the Act.
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Our federal system has been tested many times. There have been periodic shifts in the balance between the two orders of government. But we have resisted the excessive centralization which has afflicted many states, just as we have resisted the decentralization which has crippled others. The Fathers of Confederation built, and their successors have preserved, a federation which is uniquely adapted to Canadian realities.
The wisdom of those early builders is perhaps even more apparent today than it was in 1867. The distances separating us have increased dramatically as Canada has grown from four provinces to ten. The linguistic duality evident in 1867 is still very much with us. Our cultural and ethnic diversity has grown enormously with the arrival of new Canadians from all over the world.
Now, more than ever, Canada needs to preserve and strengthen its federal system. We need a strong central government to define and pursue national goals, to manage the national economy, to redistribute wealth among regions and individuals, and to promote Canada’s interests abroad. We also need strong provincial governments, to respond to the distinctive needs, to meet the distinctive challenges, and to seize the distinctive opportunities of each province.
The rules which govern our federation are in need of adjustment, of updating, of renewal. But the purpose of renewal should not be to weaken either the federal government or the provinces. It should not be to establish the dominance of either over the other. It should be, rather, to strike a new balance more useful to contemporary Canadian society, a balance better able to preserve and build the unity of this country.
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CONSTITUTIONAL AMENDMENT IN CANADA
The essential feature of a federal state is the division of powers between the central government, on the one hand, and the states or provinces, on the other. And, to cite the words of the great English constitutional lawyer, A. V. Dicey, “It is not intended that the central government should have the opportunity of encroaching upon the rights retained by the states. . . .” The procedures for effecting changes in Canada’s constitution have respected Dicey’s interdiction against the central government encroaching on provincial rights.
Appendix A gives a brief history and analysis of amendments to the B.N.A. Act. Certainly, some of these amendments have not involved provincial consultation or provincial consent. But those have dealt almost exclusively with matters of concern only to the federal government, matters which since 1949 have been amendable by the federal government alone under section 91.1.
From the earliest days of Confederation, amendments which affected the rights and powers of provincial legislatures have been subject to provincial consent. There may be one exception to this rule: the amendment of 1871 which dealt with the creation of new provinces and the procedure for changing provincial boundaries. But this was the first amendment to the B.N.A. Act, and it took place before any firm conventions had had time to develop. All later amendments affecting federal-provincial relationships have been subject to provincial consent.
If historical precedents tell us anything, it is that unilateral action has in the past been used to effect amendments of concern to the federal government alone. And amendments affecting both federal and provincial governments have, as an almost invariable rule, been subject to provincial consultation and provincial consent.
By 1931, the convention of provincial consent had become so firmly established that failure to reach agreement on
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an amending formula prevented patriation of the B.N.A. Act. Under the terms of the Statute of Westminster, which was designed to terminate the colonial relationship of the Dominions, the power to amend the B.N.A. Act was left with the Parliament of the United Kingdom. To transfer the power of amendment to Canada in the absence of an agreed formula would have placed it in the hands of the central government. And that was acknowledged by all parties to be a violation of Canadian constitutional principles.
Great concern was shown at the time the Statute of Westminster was drafted to ensure that it did not upset Canada’s federal arrangements. The statute’s provisions were extended to provincial jurisdiction only with the consent of the provinces. Provincial consent was secured to the wording of section 7 of the Statute, a section which is at the core of the patriation exercise, and which the federal government now proposes to repeal without the consent of the provinces.
The clear understanding about the immunity of provincial rights from unilateral federal initiatives has been confirmed by all amendments since 1931.
It has also been formally acknowledged in a paper on constitutional amendment published by the federal government in 1965. (See Appendix B.) That paper, published under the authority of the Honourable Guy Favreau, then Minister of Justice, identified four general principles or conventions governing constitutional amendment. These conventions, while “not constitutionally binding in any strict sense”, had nevertheless “come to be recognized and accepted as part of the amendment process”. The fourth and most important principle was:
the Canadian Parliament will not request an amendment directly affecting federal- provincial relationships without prior consultation and agreement with the provinces.
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The strength of this convention, the illegitimacy of unilateral amendment by the federal government, has been recognized by Canada’s political leaders for decades. Appendix C contains relevant quotations from Louis St. Laurent, Mackenzie King, Arthur Meighen, and others.
Yet now the federal government proposes to act unilaterally, in breach of the firmly established constitutional convention. What it proposes may be legally possible. It is constitutionally wrong, It is not federalism. It is not Canadian.
For our part, we share the view of the French political theorist, Denis de Rougemont; who wrote:
It is easier to enact measures in one clean sweep, to simplify realities by a stroke of the pen, to draw plans with a ruler in an office and then to enforce their exe- cution by crushing whatever resists . . . A federalist policy careful to moulding itself to an always complex reality requires infinitely more pains, more technical ingenuity and more understanding of the people it governs. It demands much more real political sense. (Some) methods are anti-political by definition, they consist simply in suppressing diversities through incapacity to fashion them into a living, organic whole.
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THE NEED FOR CONSTITUTIONAL REFORM
We in Saskatchewan are anxious to complete the work of building a constitution for Canada.
Canada is a mature and independent federal state. Yet our constitution does not fully reflect this fact. It contains no provision for amendment of essential features. It contains no provision for a supreme judicial authority for its final interpretation. It contains provisions for regional representation in central parliamentary institutions which, by general consent, have been ineffective for that purpose.
No federation in the world operates with these constitutional defects. Clearly, the task of constitution-making in Canada must address this unfinished business, must put in place these basic building-blocks of a constitution for a federal state.
But it must do more than that. Constitutional renewal must also respond to accumulated pressures for change.
To the long-standing and deeply-held aspirations of Quebeckers. To the aspirations and needs of the new West, a West that is increasingly confident and assertive, and anxious to become a full and equal partner in Confederation. To the needs of the Atlantic provinces and the northern Territories. To the special concerns of Canada’s Indian and native peoples.
Canada’s eleven governments have tried hard to reach agreement on a package of constitutional changes that would address both needs: the need to complete unfinished business and the need to renew and revise our constitution in response to pressures for change.
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FEDERAL-PROVINCIAL NEGOTIATIONS: TOWARDS CONSENSUS
Admittedly, the federal-provincial negotiations have been tough. But as Henry Wise Wood, a distinguished Western Canadian and President of the United Farmers of Alberta, wrote in 1919:
True progress can come only as the result of thoughtful, continuous, co-operative effort. This progress will necessarily be slow, but it must be continuous. Nothing can hinder it more than the mistakes of thoughtless impatience.
Our attempts to reach agreement on new constitutional arrangements have not yet succeeded. But we have made good progress.
In the past decade or so, there have been two major attempts at rewriting Canada’s constitution.
The first, which culminated in the Victoria Conference in 1971, was very nearly successful. In the end, agreement was not reached because, for Quebec at least, the proposed package of constitutional measures was too limited in scope.
We learned from the Victoria experience. We learned that constitutional negotiations, to be successful, must produce a broad package of reforms which would address the concerns and hopes of every region and province.
Our second attempt began in earnest in 1976. We all knew the task would be difficult and complex, as indeed it was. And yet we made good progress, despite the interruptions caused by two federal elections, several provincial elections, and the Quebec referendum.
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By September of 1980, after intensive negotiations, Canada’s eleven governments had reached a significant measure of consensus on even the most contentious constitutional issues. A negotiated agreement was within our grasp, and could have been achieved — with more time, with flexibility, and with goodwill on all sides. In deciding to proceed unilaterally, the federal government has brought an end to the process of federal-provincial negotiation. And it has done so not at a time when those negotiations were hopelessly bogged down, but at a time when progress had been made and might have been continued.
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THE SASKATCHEWAN APPROACH
Saskatchewan is convinced that constitutional renewal is necessary. Real constitutional renewal, however, can be achieved only by consensus among governments. To reach consensus will require flexibility and patience. It will require a determined effort to devise a package which accommodates, as far as possible, the legitimate aspirations of each province and region, while maintaining an appropriate balance between the two orders of government.
Canada can work neither as a centralized state, nor as ten principalities. One defies our diversity, the other our common goals. Canada can work only as a balanced federation. United but not uniform. Respectful of regional diversity, linguistic duality, cultural pluralism. With a workable and efficient division of powers. Sharing fundamental values.
It is our hope that governments will return soon to the negotiating table, to complete the work that has been interrupted, the work of building the new Canada. In the meantime, however, we have before us the federal government’s resolution which seeks, unilaterally, to patriate and amend the constitution.
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FEDERAL RESOLUTION ON THE CONSTITUTION: THE PROCESS
Will the federal resolution contribute to the building of the new Canada? Will the process help or hinder the attainment of that goal? We fear the latter. The divi-sions created by unilateral action can only delay the real process of constitutional renewal.
Unilateral action strikes at the very heart of Canadian federalism. It defies the partnership upon which Canada is based — the partnership between orders of government, the bargain among cultures and regions.
Unilateral action also defies the constitutional conventions which have, for at least fifty years, governed the procedures for amending the B.N.A. Act. These conventions developed for a good reason. They responded to the essential requirements of a federal state. They respected the federal-provincial partnership. They ensured that constitutional changes affecting the rights of the provinces would have provincial consent.
Perhaps these conventions were too inflexible; perhaps we should develop better rules. But surely, in a federal state, that is not the prerogative of the central government alone.
Saskatchewan has objected strenuously to the kind of unilateral action which the federal government is undertaking by means of this resolution. It is an action that seeks not only to patriate the constitution, but to amend it. To amend it in ways that go beyond federal jurisdiction, in ways that affect the rights and powers of the provinces, in ways that affect the balance so critical in a federal system.
What can be the justification for unilateral action? Many are offered. Most rely upon the failure of governments to reach agreement respecting patriation after repeated attempts since 1927.
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But the idea of entrenching a Charter of Rights was not discussed in 1927; it did not emerge until 40 years later. Some of the provisions of the particular Charter contained in the resolution appeared only last summer; others were revealed for the first time in October, 1980; still others were added haphazardly only a few weeks ago. Clearly, many of these provisions have not been subjected to any substantial period of public scrutiny. Similarly, the proposal for an amending formula involving a referendum has not been under discussion for 50 years; indeed, it has never been discussed at a federal-provincial meeting.
So the 50-year deadlock alone provides no justification for proceeding with this particular package, the implications of which are not yet fully appreciated.
In our federal state, unilateral action of the kind proposed clearly defies the constitutional agreements by which we have lived for more than a century. The federal action may or may not be legal — the courts are being called upon to make that determination. But it is clearly corrosive of the basic principles of federalism.
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FEDERAL RESOLUTION ON THE CONSTITUTION: THE CONTENT
Given the federal government’s obvious determination to press ahead on its unilateral course of action, the Government of Saskatchewan was faced with three options.
One option was simply to support the package in its original form, as did two provinces, Ontario and New Brunswick. Saskatchewan rejected this option out of hand because of major flaws in the resolution.
Our second option was to oppose the action outright and to try to stop it, using whatever legal and political instruments were available to us. -Six provinces chose this course. We were reluctant to take this path, notwithstanding our objection to unilateral action. We were reluctant because we believed that a prolonged constitutional crisis at this juncture in our history could be damaging to the fabric of our national life and, accordingly, that every opportunity to avoid such a head-on confrontation should be pursued and exhausted before a policy of total opposition was embarked upon.
The third option — and the one Saskatchewan pursued diligently — was to try, by negotiation and persuasion, to have the contents of the resolution changed — to remove its most glaring inequities and to make it more broadly acceptable to all Canadians.
Saskatchewan tried hard to improve the contents of the resolution. Ours was a sincere attempt to create a broader base of support in Canada for the federal government’s constitutional package.
The specific improvements which Saskatchewan proposed were based on three general principles:
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the substance of the unilaterally-enacted changes must leave intact the essential features of Canadian federalism;
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the changes must be accomplished in such a way that unilateral action can never be repeated;
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the changes must address some of the real concerns of all regions.
If the federal government had moved along these lines sufficiently to secure a broad base of support for its constitutional package, we could perhaps have accepted it, despite our objection to the process. The last thing we wanted was a destructive confrontation.
The federal government has made some changes to its resolution. But not enough. Not enough for Saskatchewan. Not enough for Canada. Measured against our three principles, the contents of the package remain unacceptable. In particular, we continue to have serious concerns with the new resources provision, the amending formula, and the Charter of Rights. In addition, Saskatchewan finds unacceptable a last minute change to the resolution which greatly increases the powers of the Senate.
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RESOURCES
First, some background to the resources issue for Saskatchewan and Alberta.
In 1905, when Saskatchewan and Alberta became provinces, the federal government withheld from them the ownership of Crown natural resources which the original provinces had acquired in 1867 under section 109 of the B.N.A. Act. It was not until 1930, after vigorous political agitation, that Saskatchewan and Alberta were put on the same footing as the original provinces. In that year, the Natural Resources Transfer Agreements Act transferred Crown lands and minerals to the prairie provinces.
When the resource transfer was made it was with the clear understanding that revenue from resources would become a cornerstone of provincial finance. They would help to diversify our economy, and compensate for our boom and bust agricultural cycles.
In short, resource development and resource revenues are essential to our future prosperity and we cannot in good conscience allow them to be eroded.
In recent years, however, notwithstanding the 1930 acts, we have witnessed a vigorous and systematic attack by the federal government on provincial powers to manage and tax resources. Until 1974, the rules of the game seemed clear but then those rules began to change. The federal government moved in two ways to challenge provincial control. First, by using federal powers — mainly tax and trade and commerce powers — to pursue specific policy objectives at the expense of what we had understood to be provincial jurisdiction. Second, by challenging provincial control of resources through continued intervention in the courts in support of constitutional attacks on provincial resource laws.
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It is not surprising, therefore, that for Saskatchewan, for the western provinces generally, a clarification and confirmation of provincial powers to manage and tax resources was the number one constitutional issue.
In the 1978-79 negotiations, the federal government — to its credit — took a very positive approach on resources, and this approach resulted in substantial progress. We came very close to agreement on the basis of what is called the “best efforts draft” on resource ownership and interprovincial trade.
This draft was recognized as a significant start at reconciling divergent interests.
First, the draft would have confirmed exclusive provincial jurisdiction over the management of resources.
Second, it would have permitted provinces to legislate with respect to the export of resource production from the province. In the case of interprovincial trade, provincial laws would be paramount over federal laws, in the event of conflict, except in cases of “compelling national interest”; with respect to international trade, federal laws would take precedence over provincial laws.
Third, it would have allowed provinces to impose any sort of tax on resources, direct or indirect, whether the resources were exported or not.
The 1979 draft proposal was not without its problems, for us and for others. Nevertheless we thought the proposal represented significant progress toward a generally acceptable compromise.
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In the summer of 1980, after the Quebec referendum, we were eager to resume negotiations, thinking that the remaining problems could be resolved. As long as everyone and every government showed – continued to show – good will and a sincere willingness to compromise.
But when we got together, we found that attitudes had changed. Agreements were no longer agreements. In 1979 the federal government had agreed that a province could legislate with respect to the export of resources from the province, whether the resources went to another province or outside Canada. In 1980, half that offer was withdrawn; Ottawa was no longer willing to give the provinces any protection in respect of resources going into world markets. In 1979, Ottawa had agreed that provincial laws should prevail over federal laws, in the event of conflict, with respect to interprovincial trade: in 1980, Ottawa insisted on unqualified federal paramountcy. In 1979, the federal government had offered virtually to give up the so-called “declaratory power” as it applies to resources; in 1980, that offer was withdrawn.
With respect to resources, what was fair in 1979 became unfair in 1980. The aspirations of the Western provinces, recognized as legitimate in 1979, suddenly became threats to Canadian unity, and Westerners suddenly became, or were described as, greedy and parochial. This was a serious blow to Western Canada.
When the federal government’s constitutional resolution was unveiled last October, it contained nothing on resources. Now, it goes part way toward the near-agreement of 1979. The new resolution, in fact, incorporates the federal offer of last summer. It gives provincial governments power to levy indirect resource taxes. And it gives provinces legislative access to the field of interprovincial trade in resources, subject to federal paramountcy. However, the agreement is silent on the capacity of provinces to pass legislation
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relating to resources leaving the country. In Saskatchewan, as in other provinces, almost all our resources are exported overseas or to the U.S. As a result, the omission of an international trade provision makes the new resources provision totally inadequate.
Saskatchewan does not seek the power to set Canada’s international trade policies or otherwise to interfere in legitimate areas of federal jurisdiction. Our proposal would let the federal Parliament override any provincial law that was inconsistent with Canadian policy.
All we seek is the assurance that we can manage the resources in our province, wherever they are ultimately sold. All we want is the federal offer of 1979.
And recent decisions by the Supreme Court of Canada have made it abundantly clear that failure to achieve what we seek in this area will leave our ability to control our resources under constant threat.
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AMENDING FORMULA
The proposed amending formula is the most unacceptable part of the federal resolution, the part which does most serious violence to the basic principles of federalism.
In a federal state, the procedure for amending the constitution is the most important part of the fundamental law. This was fully recognized by former Prime Minister Lester B. Pearson, the architect of modern co-operative federalism, who wrote:
“In any federation, the two most critical questions are the distribution of powers between the two levels of government and the manner in which the constitution can be changed. A federation is necessarily a delicate balance between conflicting considerations and interests. It is to be expected that the most delicate of all questions should be the way in which such a balance might be altered.”
The amending formula proposed in the federal resolution is so weighted in favour of the central government, so biased against the interests of the provinces, that it threatens to destroy the balance that is crucial to the maintenance of Canada as we now know it.
The resolution offers two methods for amending the constitution of Canada. The first, the legislative method, requires, as well as the consent of Parliament, the consent of Quebec and Ontario; the consent of two of the four Atlantic provinces; and the consent of two of the four Western provinces with 50% of that region’s population.
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This formula needs to be improved upon. For one thing, it gives, in legal terms, a perpetual veto to two provinces, Ontario and Quebec, irrespective of future shifts of population. By doing so, it lends support to those who attack the process, not only as unilateral but also as clearly aimed at curtailing the influence of the West regardless of its future growth.
Saskatchewan prefers and has proposed a variation of this formula, so that the formula would require, for provincial approval, the consent of a majority of the provinces representing 80% of the population of Canada, which majority must include two or more of the four Atlantic provinces and two or more of the four Western provinces representing 50% of the population of the West. The result would be the same for the foreseeable future, except that the constitution, in its terms, would not grant a continuing veto based on past rather than current circumstances.
We put this forward not as an ideal formula, but rather as an improvement over the formula proposed in the resolution, an improvement designed to meet one of the well-founded objections levelled against it. We are willing to consider others.
The second proposed method for amending the constitution does not involve the consent of provincial legislatures at all. It employs, instead, the technique of the referendum.
Much has been made of our 50 years of trying to get an amending formula. Yet, one can search this 50 years without finding any proposal for a referendum. It is a new proposal which Canadians have had no real opportunity to consider. It is a proposal for which no case has been made.
Our first preference would be for the referendum procedure to be dropped altogether, as a means of amending the constitution. We believe that the referendum provision is inappropriate and unwise in a strongly regional country such as Canada.
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Canada is composed of regions and cultures with different priorities and different points of view. Many of these divisions can only be healed by compromise. With a referendum there is no possibility of a compromise. Referendums pose simple questions in black and white terms. We believe that referendums are more likely to intensify divisions than to heal them.
Failing the complete removal of this method of amending the constitution, however, we have been insisting, as a minimum, on substantial changes to the referendum provision.
The original resolution provided that the federal government could call a referendum on a constitutional amendment without giving the provinces even the right to consider the matter — what we called the instant referendum. Because of our efforts, that provision has now been changed. Now a referendum can only be used in the event of a deadlock between governments. It is a method of last resort, which is a significant improvement over the original proposal.
Despite our strenuous objections, however, it remains a deadlock-breaking mechanism available only to the federal government. If the federal government cannot get provincial agreement on an amendment, it can appeal directly to the people. The provinces have no such option. Perhaps more than anything else in the resolution, this proposal symbolizes the shift of powers away from the provinces to the central government.
We had also said that provision must be made for impartial referendum rules developed and supervised by an appropriate referendum committee. In the original federal proposal, all the rules respecting referendums were to be solely within federal control, with none of the safeguards which have been established over the years to ensure, for example, fair federal elections. This clearly required some revision. What we proposed was a federal-provincial body to establish rules for a referendum.
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The federal government responded to this proposal in appearance only. The resolution now provides for a referendum rules commission — but it acts only in an advisory capacity. If the federal government does not like the rules developed by this federal-provincial body, it can simply ignore them and apply rules of its own choosing. This is unacceptable and unfair.
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CHARTER OF RIGHTS
The province of Saskatchewan, together with most of the other provinces of Canada, has opposed the inclusion of an entrenched Charter of Rights in the constitution.
Whether one believes the Charter itself is good or bad, it is clear that the entrenchment of a Charter of Rights will make fundamental and unpredictable changes in how Canadians are governed.
All eleven governments of Canada have recognized that there are important social and political values which warrant special legislative recognition. All the governments of Canada have enacted human rights legislation which identifies certain human rights of paramount importance and gives them protection against encroachment by private and public agencies.
In 1944, Saskatchewan became the first Canadian jurisdiction to pass a Bill of Rights. In our legislation, not only is equality given special protection, but so are freedom of speech, freedom of religion and freedom of association.
In Canada, however, we have not had a system whereby these human rights or fundamental values have been constitutionally entrenched — or placed beyond the reach of legislative bodies. But the federally-proposed Charter of Rights irretrievably assigns final authority over a wide range of social issues to the courts, and this changes dramatically the way in which we are governed.
In the administration of criminal justice, for example, new provisions relating to legal rights will be in force. But the language directing the courts how to apply the new standards is, perhaps unavoidably, lacking in specifics. Consider such phrases as “security against unreasonable search and seizure”, “arbitrary detention”, “trial within a reasonable time”, “reasonable bail”.
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The specific application of these rights is always a fine balance of individual rights and the interest of the community, and it is at least worth questioning whether the courts are better equipped than legislatures to achieve this balance.
In the area of equality rights, also, recent amendments to the charter have expanded the protection so that any classification in law is subject to judicial supervision to determine whether it denies equal protection. Since virtually all legislation employs classification in order to achieve social purposes, the result is that the court’s supervisory power under this section extends very widely. Again, it is not clear why these difficult policy judgements should be assigned to the courts.
Then there are the changes to the Charter relating to aboriginal and treaty rights of Indians and native peoples. Clearly, this also represents a large delegation of policy development to the courts. Both here and in the U.S., it has frequently been observed that Supreme Court decisions are not always the best means by which to resolve difficult and emotionally charged questions of public policy. As American Supreme Court Justice Abe Fortas noted in Avery v. Midland County, “Constitutional commandments are not surgical instruments. They have a tendency to hack deeply — to amputate”.
So it is our view that we are embarking on a course which will overburden the courts and involve them in decisions which they are ill equipped to make. The courts cannot set up task forces or commissions to find out what the problems are. Judges do not have the staff to enquire fully into tough and complex questions of public policy. And it may be unfair of us to expect judges to develop the expertise in the many and varied public issues that will confront them under the proposed charter.
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Those who, like the federal government, believe that the Charter of Rights should deal with many of our major political issues are ignoring the beneficial and constructive aspects of political life. Politics is the way in which we, in this society, resolve conflicts of values. To remove these conflicts from politics and assign them to courts is to express a loss of faith in the efficacy and wisdom of the political process which has been used in Canada for many generations and which, we can say with pride, has worked well.
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SENATE
The Senate, was originally intended as a counterweight to the representation-by-population House of Commons, as a representative of regional interests in national policy-making. Today, hardly anyone would seriously argue that the Senate has fulfilled that role.
Saskatchewan has argued for the abolition of the Senate. It is a totally irrelevant and anachronistic institution which has never served its original purpose. We strongly object to an appointed body, with no electoral base, performing a legislative role and able to block the will of elected representatives of the people.
And this view is not held by Saskatchewan alone. Every recent constitutional proposal in this country has recommended radical transformation of the Senate. The Pepin-Robarts Task Force Report, the Canadian Bar Association Report, the Ontario Advisory Committee Report, the Ryan Beige Paper, and even the federal government’s own Bill C-60 all proposed major changes.
Ironically, the last in the series of proposals for Senate reform came just last November — and from the Senate itself A Senate Committee headed by Senator Goldenberg stated:
“We feel . . .the present absolute veto power is not necessary . . .we believe that a six months’ suspensive veto would give the Senate all the power it needs.”
In the face of what is clearly a national consensus, the federal government has now moved to give the Senate an absolute veto over constitutional change. In committee, Section 44 of the original resolution was deleted. Section 44 limited the power of the Senate, permitting it only to delay constitutional amendments. Deletion of that section gives it absolute veto power, an absolute veto over any and all constitutional amendments, including those relating to the Senate itself.
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This amendment does not just maintain the status quo. It enhances Senate power, perhaps for all time. At present Senate approval of constitutional amendments is a matter of convention rather than law. But the effect of the present proposal would be to enshrine that power in the constitution, to give it legally-binding effect, to preclude its circumvention in any way.
This flies in the face of as clear a consensus as any in Canadian political life. No one – with the exception, perhaps, of a few Senators – wants the Senate to have this kind of power.
The provincial governments certainly do not.
Since 1971 the governments of Canada have been agreed on the role of the Senate in constitutional matters. Since 1971 – and the Victoria Charter’s amending formula – governments have agreed that, with regard to constitutional amendments, the Senate should have only a suspensive veto, a power of delay. Appointed Senators should not be able to block constitutional amendments which have been agreed to by elected and responsible governments. Under the present proposal, the Senate will have that power.
In future the Senate will even be able to block an amendment desired by the people of Canada. Even the referendum amending procedure cannot be used without the Senate’s approval.
An appointed body will be able to block changes to the most fundamental law of the land – the constitution – over the heads of the House of Commons, the 10 provincial legislatures and the people of Canada.
In a country which has agreed that the Senate needs major reform, in a country whose demography demands strong, regional voices at the centre, this is unacceptable.
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CONCLUSION: THE CANADIAN WAY
The federal government is seeking to patriate and amend the Constitution without the necessary broad base of support among the provinces and people of Canada.
Only two provinces support the federal government. Latest polls show that 64% of Canadians oppose unilateral action.
Ottawa’s action is clearly divisive. Region is pitted against region, government against government.
Constitutional reform should unite Canadians, not drive us further apart.
Perhaps, even now, it is not too late for reason to prevail.
At the very least, the federal government should not transmit, and the U.K. Parliament should not grant, a request to amend the B.N.A. Act until the Supreme Court of Canada has rendered a definitive judgement on the constitutionality of the procedure being followed.
Better still, it may not be too much to hope that the federal government and the provinces could get together again to hammer out an agreement, to devise a package of constitutional changes that could command the support of at least a majority of the provincial governments.
Canadians, sitting down together — to strike a bargain, to compromise, to find accommodations, to reach a consensus.
That’s what built Canada. That’s what has left us strong and united.
Let’s continue to build on this great tradition. Let’s do it the Canadian way.