Document Information

Date: 1978-08-09
By: Gerald Regan
Citation: 19th Annual Premiers’ Conference, Constitutional Reform, Excerpts of Remarks by the Hon. Gerald A. Regan, Q.C., Doc 850-10/015 (Regina/Waskesiu: 9-12 August 1978).
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DOCUMENT: 850-10/015

19th ANNUAL PREMIERS’ CONFERENCE

Constitutional Reform

Excerpts of Remarks by the
Hon. Gerald Regan, Q.C.
Premier of Nova Scotia

Regina/Waskesiu
August 9-12. 1978

PREMIERS’ MEETING

CONSTITUTIONAL REFORM
POSITION PAPER

NOVA SCOTIA

FELLOW PREMIERS

ONCE AGAIN WE ARE ASSEMBLED IN A FORUM TO DISCUSS AND DEFINE THE VERY CONCEPT AND NATURE OF CANADA. NOVA SCOTIANS AS MANY OTHER CANADIANS PERCEIVE THE NEED FOR REFORM TO OUR PRESENT SYSTEM. THE COMPLEXITY AND IMPORTANCE OF THIS ISSUE WARRANTS THAT WE APPROACH THIS MATTER WITH CARE AND RESTRAINT.

TIME WILL BE NEEDED TO EVALUATE THE SIGNIFICANCE AND IMPACT OF ANY OF THE CHANGES WE UNDERTAKE IN THE CONSTITUTION OF OUR COUNTRY. OFTEN, THE UNINTENDED RESULTS OF CONSTITUTIONAL CHANGE ARE OF GREATER IMPACT THAN THOSE THAT WERE SOUGHT. THEREFORE, THE RESPONSIBLE REFORM OF OUR INSTITUTIONS MUST BUILD UPON OUR ACQUIRED EXPERIENCE AND PROCEED INCREMENTALLY. IT MAY WELL BE DESIRABLE FOR US TO BRING ABOUT CHANGE; NOT IN EVERY ASPECT OF THE PRESENT CONSTITUTION WHICH GOVERNS US, BUT IN A RESTRICTED NUMBER OF AREAS OF GENERAL CONCERN TO ALL, CONCERNING OURSELVES WITH THE CREATION OF MECHANISMS FOR MEASURED CHANGE.

A VERY WISE MAN WHO ONCE WAS DEAN OF DALHOUSIE LAW, JUDGE VINCENT MACDONALD, SAID “WE DO NOT ENACT GOOD LAWS, WE GROW THEM.” HE HAD IN MIND BOTH THE PROCESS OF CONTINUING LEGISLATIVE AMENDMENT AND THE GROWTH INVOLVED IN PROGRESSIVE JUDICIAL INTERPRETATION.

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THIS MUST BE EVEN MORE VALID IN RELATION TO CONSTITUTIONAL LAW. IT IS THE FUNDAMENTAL UNDERSTANDING FROM WHICH WE SHOULD PROCEED IN CAUTION TO EXERCISE CONSTITUTIONAL AMENDMENT.

PLEASE DO NOT MISUNDERSTAND ME. WE IN NOVA SCOTIA BELIEVE THAT THE NEED FOR FAR REACHING CHANGES IN OUR CONSTITUTION IS VERY REAL. HE DO NOT BELIEVE THAT THE MATTER CAN BE PUT OFF FOR SOME FUTURE TIME, BUT NEITHER DO WE BELIEVE THAT WE SHOULD LABOUR UNDER DEADLINES THAT URGE HASTY DECISIONS OR INCOMPLETE CONSIDERATIONS.

MAY I NOW TURN TO SOME OF THE SPECIFIC REPRESENTATIONS THAT NOVA SCOTIA WOULD LIKE TO MAKE. WE IN NOVA SCOTIA ARE SYMPATHETIC TO THE ASPIRATIONS OF THE FRENCH CANADIAN PEOPLE TO PROTECT THE EXISTENCE OF THE UNIQUE AND BEAUTIFUL CULTURE WHICH IS THEIRS. WE RECOGNIZE THAT THE PROCESS OF CONSTITUTIONAL CHANGE CAN EITHER HELP ACHIEVE OR DENY THAT GOAL.

THIS WE MUST KEEP VERY MUCH IN MIND IN THE COURSE OF OUR DELIBERATIONS.

IT IS SOMETIMES FORGOTTEN IN THIS COUNTRY THAT ENGLISH CANADA ALSO HAS A CULTURE THAT IT IS DETERMINED TO PRESERVE.

IT IS A CULTURE THAT DISTINGUISHES US FROM OUR AMERICAN COUSINS IN VERY REAL WAYS.

SOMETIMES IT SEEMS THAT EVERY ATTEMPT TO PRESERVE THE FRENCH CANADIAN CULTURE IS SEEN AS PATRIOTISM WITHIN QUEBEC AND AS A CONTRIBUTION TO NATIONAL UNITY ELSEWHERE WHILE EFFORTS TO SPEAK OF AN ENGLISH CANADIAN CULTURE LET ALONE PROTECT ITS EXISTENCE ARE PERCEIVED AS NARROW REACTIONARY BIAS.

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IN QUEBEC EVERY CHAPTER IN THE GLORIOUS HISTORY OF ITS PEOPLE IS CELEBRATED IN PROSE AND SONG WITHOUT EMBARRASSMENT OR HESITATION.

IN ENGLISH CANADA, IT IS NO LONGER CONSIDERED POLITE OR PATRIOTIC TO SPEAK OF THE EVENTS THAT LED TO THE BRITISH FLAG, BRITISH LAW AND PARLIAMENTARY INSTITUTIONS BEING ESTABLISHED IN THIS COUNTRY. FOR EXAMPLE, A MOVING ENGLISH CANADIAN SONG THAT WAS WIDELY SUNG IN OUR SCHOOLS UNTIL AFTER THE FORTIES “THE MAPLE LEAF FOREVER” HAS BEEN VIRTUALLY BANNED FROM THIS COUNTRY BECAUSE IT DEALS WITH THE CONQUEST OF QUEBEC.

MANY OF THE EXAMPLES, I MIGHT GIVE YOU OF THE ENGLISH CANADIAN CULTURE MIGHT SEEM IMPORTANT BUT I MOST SERIOUSLY SUGGEST THAT NATIONAL UNITY WOULD BE ACHIEVED SOONER IF THE SAME SENSITIVITY WAS SHOWN TO THE PRESERVATION OF ENGLISH CANADA’S CULTURE AS IS SHOWN TO QUEBEC’S.

THE DEPTH OF THE DETERMINATION OF A VERY LARGE PART OF ENGLISH CANADA THAT THE MONARCHY BE RETAINED IS AN IMPORTANT ILLUSTRATION OF OUR CULTURE.

WE REACT WITH CONCERN AND DETERMINATION WHEN WE SEE MEASURES PROPOSED THAT WOULD ERODE THE ROLE OF THE MONARCHY NIDNNN USEFUL PURPOSE IN FAVOUR OF SOME UNTRIED ARRANGEMENT. IF SOMETHING IS WORKING WELL, THEN LEAVE IT ALONE. THE MONARCHY HAS WORKED WELL FOR CANADA PROVIDING CONSTITUTIONAL STABILITY AND RESPECT WITHOUT INTRUSIVE OR PARTISAN PARTICIPATION IN NATIONAL DEBATE. THE RETENTION OF THE ADEEN IS A STARTING POINT FROM WHICH CONSTITUTIONAL REFORM CAN OCCUR AS FAR AS NOVA SCOTIA IS

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IT WELL MAY BE THAT THE CLAUSES IN THE PROPOSED FEDERAL BILL WHICH WOULD APPEAR TO DIMINISH THE ROLE OF THE MONARCHY ARE THE RESULT OF INADVERTANCE. IF SO, THEY SHOULD BE REMEDIED.

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REDISTRIBUTION OF POWERS HAS BEEN RECOGNIZED AS ONE OF THE MOST DIFFICULT ISSUES IN CONSTITUTIONAL RENEWAL. WE IN NOVA SCOTIA BELIEVE THAT A RE-EVALUATION OF FEDERAL AND PROVINCIAL POWERS WILL BE COMPLEX, AND THAT THE ACTUAL EFFECT OF CHANGES HARD TO DETERMINE IN ADVANCE. IT IS NOVA SCOTIA’S VIEW THAT A CAREFUL, RESPONSIBLE APPROACH WOULD BE TO CONSIDER MECHANISMS WHICH WILL PERMIT GRADUAL AND MEASURED CHANGE OR EXPERIMENTATION WHILE THE REVIEW OF THE DIVISION OF POWERS CONTINUES.

THERE IS LACKING FROM OUR CONSTITUTION A PROVISION THAT EXISTS IN OTHER FEDERAL COUNTRIES SUCH AS AUSTRALIA, INDIA AND MALAYSIA. I REFER TO A POWER TO DELEGATE LEGISLATIVE AUTHORITY OF A PARTICULAR SUBJECT MATTER THAT CONSTITUTIONALLY EXISTS AT ONE LEVEL OF GOVERNMENT TO ANOTHER LEVEL OF GOVERNMENT.

A POWER OF DELEGATION WOULD BE OF GREATER USE IN CANADA THAN IT HAS BEEN IN THE OTHER FEDERAL STATES THAT I HAVE MENTIONED BECAUSE OF THE RIGIDITY PROVIDED BY OUR SYSTEM OF EXCLUSIVE POWERS AT BOTH THE FEDERAL AND PROVINCIAL LEVELS.

A POWER OF DELEGATION WAS SUGGESTED AS A USEFUL MECHANISM FOR CANADA BY THE ROWELL-SIROIS REPORT ON DOMINION-PROVINCIAL RELATIONS NEARLY FIFTY YEARS AGO. IT APPEARS UNFORTUNATE THAT THIS RECOMMENDATION WAS NOT ACTED ON AT THAT TIME.

I PROPOSE THAT THE INCLUSION OF A CLAUSE PROVIDING FOR TWO-WAY FEDERAL-PROVINCIAL POWERS OF DELEGATION WOULD BE A WORTHWHILE ADDITION PHASE I OR THE SO-CALLED FIRST PACKAGE OF OUR CONSTITUTIONAL PROCESS.

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IT WOULD THEN ENABLE GOVERNMENTS TO EXPERIMENT WITH THE TRANSFER OF PORTIONS OF LEGISLATIVE AUTHORITY FOR STATED PERIODS OF TIME. SINGE SUCH A POWER IS MERELY PERMISSIVE IT TAKES NDTHING AWAY FRDM THE PRESENT AUTHORITY OF EITHER LEVEL OF GOVERNMENT.

IN THE MODERN COMPLEXITY OF GOVERNMENTAL INVOLVEMENT THERE ARE RESPONSIBILITIES, THAT IT IS VIRTUALLY IMPOSSIBLE TO DETERMINE AS EITHER FEDERAL DR PROVINCIAL WITHOUT THE CONSIDERABLE TROUBLE DF A SUPREME COURT REFERENCE. A POWER OF DELEGATION WOULD ENABLE SUCH MATTERS TO BE RESOLVED WITH DISPATCH.

IN NOVA SCOTIA WE BELIEVE THAT IF THE POWER OF DELEGATION EXISTED WE WOULD BE ABLE TD CONVINCE OTTAWA TO ALLOW US TO EXERCISE JURISDICTION OVER CERTAIN ASPECTS OF FISHERIES WHICH CAN BE BETTER DEALT WITH AT THE PROVINCIAL LEVEL.

I USE THAT AS ONE EXAMPLE BUT THERE ARE COUNTLESS WAYS IN WHICH POWER OF DELEGATIDN WOULD BE USEFUL WHILE NEGOTIATIONS ON PERMANENT DIVISION OF POWERS CONTINUES.

A NOTE OF CAUTION MUST BE REPEATED WHEN WE CONSIDER A REFORM OF THE UPPER HDUSE. THE CANADIAN UPPER HOUSE WAS CONCEIVED TO AND MUST CONTINUE TO FULFILL TWO ESSENTIAL ROLES. ITS FIRST FUNCTION IS TO PRDVIDE A CHAMBER FDR SOBER SECDND THOUGHT. TO PROVIDE FOR BALANCE AND CONTINUITY, ITS MEMBERS CANNOT BE DEPENDENT DN THE CHANGING WHIMS OF GOVERNMENT BUT MUST BE APPOINTED FOR A FIXED TERM WITH THE POSSIBILITY OF REAPPOINTMENT. THIS TERM SHDULD BE DF SUFFICIENT LENGTH — PERHAPS TEN YEARS — TO ENABLE CITIZENS OF ABILITY TO LEAVE THEIR LIVELIHODDS WITHOUT SERIOUSLY IMPAIRING THE FUTURE ECONOMIC SECURITY OF THEIR FAMILIES.

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IN ANY EVENT IT IS IMPORTANT THAT THEY NOT BE APPOINTED FOR THE LIFE OF A PARLIAMENT OR A PROVINCIAL GOVERNMENT.

SUCH TENURE WOULD PLACE ON THEM ALL OF THE PRESSURES FROM WHICH A CHAMBER OF SOBER SECOND THOUGHT MUST BE IMMUNE.

THE SECOND FUNCTION OF THE CANADIAN UPPER HOUSE IS TO PRDVIDE FDR REGIONAL REPRESENTATION IN THE PARLIAMENT DF CANADA.

THERE IS MERIT IN THE SUGGESTION OF THE GOVERNMENT OF CANADA THAT AT LEAST SOME DF THE SENATORS SHOULD BE APPOINTED BY THE PROVINCES.

IT MUST ALSO BE RECOGNIZED THAT THE PROVINCES ARE AND WILL REMAIN THE REPOSITORIES OF PROVINCIAL INTERESTS AND THAT THERE IS A NEED FOR THE INSTITUTIONALIZATION OF FEDERAL- PROVINCIAL CONSULTATION AND CO-OPERATIVE ADMINISTRATION.

ANY CONSTITUTION MUST INCLUDE AN AMENDING PROCEDURE. SUCH A FORMULA MUST NOT PERMIT ANY UNDUE OBSTRUCTION BY A SMALL MINORITY DF THE CONSTITUENTS OF THE CDNFEDERATIDN BUT MUST FULLY RECOGNIZE THE TOTAL CONSTITUTIONAL EQUALITY AMONG PROVINCES. NOVA SCOTIA WILL NOT AND CAN NOT SUPPORT ANY MECHANISM WHICH WDULD CREATE TWO CLASSES OF PROVINCES. NOVA SCOTIA ALSO MAINTAINS THAT PATRIATION DF THE CONSTITUTION CANNOT AND SHOULD NOT OCCUR UNTIL ALL PHASES DF THE REFORM ARE AGREED TO. GIVEN THE FLEXIBILITY FOR GOVERNMENTS TO RESPOND TO THE EVOLVING REALITIES AROUND THEM THROUGH THE MECHANISM DF DELEGATION AND THE EVDLUTION OF LAW THROUGH JUDICIAL INTERPRETATIDN SOME CONSIDERABLE DEGREE DF RIGIDITY IN THE AMENDING FORMULA WOULD APPEAR TD BE DESIRABLE THEREAFTER.

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SUCH A FORMULA MIGHT SPECIFY AREAS OF THE CONSTITUTION WHICH WOULD REQUIRE UNANIMOUS CONSENT AND OTHER AREAS WHERE A DOUBLE MAJORITY WDULD BE REQUIRED (THE CONSENT OF AT LEAST SEVEN PROVINCES REPRESENTING AT LEAST 80% OF THE CANADIAN POPULATION).

IN ANY EVENT IT IS THE CONSIDERED OPINION OF THE GOVERNMENT OF NOVA SCOTIA THAT WE CANNOT AGREE TO ANY AMENDING FORMULA SUCH AS CONSIDERED AT VICTORIA WHICH ESTABLISHES TWO CLASSES OF PROVINCES BY GIVING THE POWER OF VETO TO SOME AND NOT TO OTHERS.

EITHER WE ARE A FEDERATION OR WE ARE NOT. IF WE ARE A FEDERATIDN ALL PROVINCES MUST BE TREATED EQUALLY REGARDLESS OF POPULATION AS IS THE SITUATION IN THE UNITED STATES.

NOVA SCOTIA DOES NOT BELIEVE THAT THE MAINTENANCE OF THE CONSTITUTIONAL STATUS QUO IS A VIABLE ALTERNATIVE FOR CANADA BUT WE DO BELIEVE THAT REFORM SHOULD BE INCREMENTAL AND MEASURED.