Premiers Conference, The Constitution of Canada, A Background Paper, Government of Saskatchewan

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DOCUMENT: 850-10/005
19th ANNUAL PREMIERS’ CONFERENCE
THE CONSTITUTION OF CANADA
A Background Paper
Office of Intergovernmental Affairs,
Executive Council, Government of Saskatchewan,
August 1978
Regina/Waskesiu
August 9-12, 1978

This paper has been compiled by Saskatchewan’s
Office of Intergovernmental Affairs. The
commentary does not necessarily reflect the
official view of any government, nor does the
paper purport to be comprehensive in its review
of recent constitutional proposals.

This paper seeks to give a general description of
the existing constitution of Canada, and to put the present
proposals into their proper perspective, in particular in
relation to previous constitutional discussions.
THE CONSTITUTION OF CANADA
A constitution may be defined as the fundamental
law of a state, setting out the basic principles upon which
the government is founded, regulating the exercise of sovereign
powers, and directing to what bodies and persons those powers
shall be confided.
The Canadian “Constitution” is not to be found in
any one document. The British North America Act of l867 (an
Act of the Parliament of the United Kingdom) brought the
Canadian federation into existence on July l of that year. But
the B.N.A. Act of 1867, and later Acts amending it, do not
constitute the whole of the Canadian Constitution. Included
in the Constitution are other Acts of the United Kingdom and
Canadian Parliaments, constitutional custom and usage, common
law principles, certain Orders-in—Council, the rules and
privileges of Parliament, and judicial decisions on constitutional
matters. Some of these elements of our constitution are
“unwritten”, in that there is no one authoritative statement
of them, and are often not amenable to precise definition.
The B.N.A. Act itself incorporates this wider body
of constitutional doctrine in its reference, in the Preamble,
to a federal union with a “constitution similar in Principle
to that of the United Kingdom”.
While the Act of 1867 does not purport to be an
exhaustive written constitution, it does nevertheless set
out many of the vital rules respecting the functioning of
government in Canada —— the division of legislative powers
between the federal government and the provinces, the principles
of the executive and the judiciary, provision for the Parliament

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of Canada and for provincial legislatures, as well as numerous
items related to transition to the newly created federation.
Just as noteworthy are the matters not expressly dealt with
in the B.N.A. Act — general statements of aims of the federation,
fundamental rights and freedoms, the system of responsible
government and constitutional monarchy, federal-provincial
co-operation and agreements, and an entrenched Supreme Court.
FEDERATION AND THE DIVISION OF POWERS
In the Canadian federation it is now a settled con-
stitutional principle that power to make laws is, subject to
a few exceptions not relevant here, exhaustively divided between
the Parliament of Canada and the legislatures of the provinces.
(One of the usual features- of a federation is that each order
of government exercises power in its area of jurisdiction
without being subordinate or inferior to the other. To some
extent this feature is not fully present in Canada because of
the federal powers to disallow or reserve provincial legislation
The division of power in the Canadian constitution is
set out, primarily, in sections 91 and 92 of the B.N.A. Act.
The division of powers is an essential part of Canada’s system
of government, and serves to distinguish a federation from a
unitary state in which all power ultimately reposes in one
government. Which powers are allotted to which order of govern-
ment affects the balance between the two orders of government
and has an important impact on the daily lives of every
individual in the state.
In cases of controversy over the division of powers,
the courts are called upon to interpret the relevant constitut-
provisions.
The federal government does not intend to deal with
the division of powers in “Phase I” of its proposed course
of action for constitutional reform; it would leave this matter
open for discussion at a later time (“Phase II”). That is not

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to say, however, that there have not been proposals with
respect to this subject. A summary of some important recent
proposals on this topic is attached.
ENTRENCHED RIGHTS AND FREEDOMS
The B.N.A. Act is, with a few exceptions, such as
sections 93 and 133, silent on the question of constitutionally
guaranteed rights. There are federal and provincial Acts
dealing with rights and freedoms, as well as elements in the
unwritten Constitution and in the common law dealing with these
matters, but they do not, generally speaking, amount to entrenched
rights of such a nature that they may not be superseded by the
exercise of legislative power. Entrenched rights, by their
nature, imply a limitation of power to legislate which will be
overseen by the judiciary. The present federal proposals
include a Charter of Rights and Freedoms covering political,
legal and language rights. Somewhat similar proposals have
been made in the past, most notably in the Victoria Charter
of 1971. Commentators on these subjects have mounted substantial
arguments both for and against entrenched bills of rights.
FEDERAL INSTITUTIONS
The B.N.A. Act in Section 9 vests the executive
government of Canada in the Queen and provides in sections 10
to 57 for a Governor General, a Privy Council and a Parliament
consisting of the Senate and House of Commons. The details of
the monarchy and other institutions are not fully spelled out
in the Act itself, but are contained in other parts of the
Constitution.
The present federal proposals would change the status;
and role of the Queen and constitute the Governor General as
the repository nf executive government, on behalf of and in the
name of the Queen. The present Senate would be replaced by a
“House of the Federation”, selected in part by provincial

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legislatures and in part by the federal government,
The new upper house would have somewhat different powers
from the Senate; the principle of regional representation
in the upper house would be retained.
” ~ Further, certain constitutional conventions
respecting the Cabinet would be codified.
These proposals have not previously been the subject
of substantial intergovernmental discussion.
The Senate was intended, by the Fathers of Confed-
eration, to be a safeguard for regional interests; that is
reflected in the provision for fixed representation from the
regions. For that reason, some commentators have argued
that the agreement of the provinces would be required before
changes could be made to the Senate. Similarly, any change
in the role of the monarchy, it is argued, would directly
affect the provinces and their internal constitutions and
could, therefore, be made only with their concurrence. (The
present procedure for amending the constitution is dealt
with below.)
THE SUPREME COURT
The Supreme Court of Canada is now constituted under
an Act of Parliament pursuant to the authority given to
Parliament in section 101 of the B.N.A. Act to establish a
General Court of Appeal for Canada. Parliament established
the Court in 1876, but it was not until 1949 that it became
the court of last resort in Canada. Cases prior to 1949
could be appealed to the Judicial Committee of the Privy Council
in the United Kingdom. With the abolition of appeals to the
Privy Council, the Supreme Court became the final arbiter of
constitutional cases involving, among other things, the division
of powers between the federal government and the provinces.
For that reason, it has been suggested that the provinces
should have a substantial role in the process of appointment

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to the Court.
The Supreme Court Act now provides for nine judges,
three of whom must by law be appointed from Quebec. (The
practice has developed of appointing three judges from
Ontario, two from the Western provinces and one from the
Atlantic provinces.) The present federal proposals would
expand the Court to eleven judges, with four from Quebec
and the rest from the other regions. An elaborate procedure
is proposed for provincial involvement in the appointment
process, and for affirmation of appointments by the House of
the Federation.
It may be noted that the entrenchment of rights
and freedoms proposed by the federal government, W0uld Sub-
stantially enhance the role of the Supreme Court as final
arbiter on constitutional matters.
PATRIATION AND AN AMENDING FORMULA
The B.N.A. Act, 1867, did not contain any provision
for the amendment of the Constitution other than section 91(1),
which allows a provincial legislature to amend the provincial
constitution except as regards the office of Lieutenant Governor.
In 1949 the U.K. Parliament, at Canada’s request, passed an
amendment to the Act allowing the Canadian Parliament to amend
the Constitution, except for those parts relating to the
distribution of powers, the rights of the legislature of a
province, certain rights in relation to denominational schooling,
use of language, and certain requirements for sittings of the
House of Commons. In those cases, amendments would require
legislation by the U.K. Parliament.
The constitutional convention that has developed for
such amendments is summarized in the following extract from
The Amendment of the Constitution of Canada, a federal government
paper published in 1965, under the name of the Honourable Guy
Favreau, then Minister of Justice:

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The first general principle that emerges in the
foregoing resume is that although an enactment by
the United Kingdom is necessary to amend the British
North America Act, such action is taken only upon
formal request from Canada. No Act of the United
Kingdom Parliament affecting Canada is therefore
passed unless it is requested and consented to by
Canada. Conversely, every amendment requested by
Canada in the past has been enacted.
The second general principle is that the sanction
of Parliament is required for a request to the British
Parliament for an amendment to the British North
America Act. This principle was established early in
the history of Canada’s constitutional amendments, and A
has not been violated since 1895. The procedure invar-
iably is to seek amendments by a joint Address of the
Canadian House of Commons and Senate to the Crown.
The third general principle is that no amendment
to Canada’s Constitution will be made by the British
Parliament merely upon the request of a Canadian
province. A number of attempts to secure such amend-
ments have been made, but none has been successful.
The first such attempt was made as early as 1868, by
a province which was at that time dissatisfied with
the terms of Confederation. This was followed by
other attempts in 1869, 1874 and 1887. The British
Government refused in all cases to act on provincial
government representations on the grounds that it
should not intervene in the affairs of Canada except
at the request of the federal government representing
all of Canada.
The fourth general principle is that the Canadian
Parliament will not request an amendment directly
affecting federal-provincial relationships without
prior consultation and agreement with the provinces.
This principle did not emerge as early as others but
since 1907, and particularly since 1930, has gained
increasing recognition and acceptance. The nature
and the degree of provincial participation in the ff
amending process, however, have not lent themselves %,
to easy definition. M
There have been five instances – 1907, 1940, 1951,
1960 and 1964 – of federal consultation with all provinces
on matters of direct concern to all of them. There
has been only one instance up to the present time
in which an amendment was sought after consultation
with only those provinces directly affected by it.
This was the amendment of 1930, which transferred to
the Western provinces natural resources that had been
under the control of the federal government since their
admission to Confederation. There have been ten instances
[l87l, 1875, 1886, 1895, l9l5, 1916, 1943, 1946, 1949
and 1949(2)] of amendments to the Constitution without
prior consultation with the provinces on matters that
the federal government considered were of exclusive
federal concern. In the last four of these, one or two
provinces protested that federal-provincial consultations
should have taken place prior to action by Parliament.
Provincial views were not sought for a 1965 amendment
respecting the age of retirement for senators, nor was there
consultation with the provinces on a recent amendment increasing
the size of the House of Commons.

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“Patriation” of the Constitution – making the
constitution a Canadian document, not requiring intervention
by the United Kingdom for its amendment – requires agreement
on a formula for amending it by action of Canada’s federal-
provincial governments. There have been a number of attempts over
the past fifty years to find an acceptable amending formula,
beginning with a Federal-Provincial Conference in 1927.
Governments have not yet been able to reach agreement on a
formula that would combine the necessary protection for all
provinces, in areas of critical importance, with the desired
degree of flexibility.
Agreement was almost reached at the time of the
Victoria Conference in 1971, and the Victoria formula formed
the basis for the federal proposal of 1975. In 1976 the
provincial Premiers agreed that patriation should not be
undertaken without agreement on a list of matters relating
to the institutions of federalism, the division of powers, and
other issues.
The most recent federal proposal does not deal directly
with either patriation or the amending formula.

APPENDIX
CHRONOLOGY OF SOME IMPORTANT
CONSTITUTIONAL DEVELOPMENTS, 1971 to 1978
VICTORIA CHARTER, 1971
Agreed to by all provinces except Quebec and
Saskatchewan. (An election campaign and change of government
in Saskatchewan interrupted that province’s involvement in
the negotiations.)
1. General Amending Formula: Amendment would require approval
of Commons and Senate and a majority of the provinces,
including:
(a) every province which at any time has had 25% of the
population of Canada;
(b) two of the Atlantic provinces;
(c) two of the Western provinces with at least 50% of
western population.
2. Regional Disparities: Declaration of intent (not binding)
which asserts commitment to reducing inequalities.
3. Distribution of Powers: Avoided, though provision made
for provincial consultation in Health and Welfare legislation
4. Language Rights: Similar to the Official Languages Act.
5. Senate: No new proposal.
6. Supreme Court: Appointment procedure requiring Attorney
General of Canada to make “all reasonable efforts” to reach
agreement with Attorney General for the relevant Province
in the choice of an individual for the court. In the
absence of a reply within 30 days, the Attorney General
for Canada would select unilaterally. Should agreement be
impossible, mechanism for a nominating committee is provided.
The only regional stipulation is that three judges must be
from Quebec.

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THRONE SPEECH, OCTOBER 2, 1974 — MR. TRUDEAU
Indicating intention to resume constitutional talks:
“I am confident that the people of Canada will agree with
whatever action is required to settle this question once and
for all.
The subject was raised again at a dinner for First
Ministers, which was followed by Mr. Trudeau’s letter of
April 19, 1975, suggesting that governments proceed with
patriation on the basis of the Victoria amending formula.
COMMUNIQUE OF ST. JOHN’S PREMIERS’ CONFERENCE, AUGUST, 1975
The Premiers felt that (patriation) was a
desirable objective and felt that the issue should
be dealt with in the context of a general review of
the distribution of powers, control of resources,
duplication of programs and other related matters.
This was a clear indication by Premiers that they were prepared
to proceed, but wished to include a number of substantive
concerns as part of the discussions.
LETTER OF MARCH 31, 1976 — MR. TRUDEAU
Implied that Premiers had given a commitment on
patriation with amending formula and no “substantive changes”.
Three options presented:

1. Patriation alone.
2. Patriation with Victoria amending formula, perhaps with modi-
fications for Western provinces.
3. Patriation with Victoria amending formula and other issues,
embodied in a “Draft Proclamation” enclosed.
The “Draft Proclamation” included the following:
(a) Preamble
(b) Part I – Amending Formula (Victoria Charter)
(c) Part II – Supreme Court Provisions (Victoria Charter)
(d) Part III – Language Rights (modified Victoria Charter)
(e) Part IV – Guarantee designed to protect French language

A-3
and culture against adverse action by Parliament
(new article)
(f) Part V – Regional Disparities (similar to Victoria
Charter)
(g) Part VI – Federal-Provincial Agreements (new article)
WESTERN PREMIERS’ CONFERENCE, APRIL 1976

1. Decided to defer discussion on amending formula and other
aspects of the Prime Minister’s proposal.
2. Set up Western Premiers’ Task Force on Constitutional Trends
which has so far issued two reports (May 1977 and April 1978)
PREMIERS’ MEETINGS, AUGUST 1976 (EDMONTON AND BANFF) and
OCTOBER 1976 (TORONTO)
The Premiers in 1976 reached a number of agreements,
as reported in Premier Lougheed’s letter to the Prime Minister,
October 14, 1976.
1. Patriation desirable.
2. Stipulations: .
(a) greater provincial involvement in immigration;
(b) confirmation of language rights on lines of Victoria;
(c) strengthen provincial jurisdiction in taxation of
natural resources;
(d) declaratory power to be exercised only when province
concurs;
(e) constitutional provision for an annual Conference of
First Ministers;
(f) creation of new provinces subject to amending formula
consensus.
3. Victoria amending formula acceptable to all except Alberta
7 and British Columbia.
4. Saw definite need for expansion of provincial jurisdiction,
and disussions with federal government, in areas of:

A-4
– Culture
– Communications
– Supreme Court
– Spending Power
– Senate Representation
– Regional Disparities and Equalization.
TRUDEAU TELEX, JANUARY 20, 1977
1. Prime Minister said he was prepared to embark on extensive
constitutional review, if the Premiers so wished.
2. Included a revised Draft Proclamation which met some points
made in Premier Lougheed’s letter, but avoided matters
relating to distribution of powers
Premiers Prime Minister’s Response
1. Amending Formula – 8 provinces
accept, but not B.C. or Alberta
Victoria Formula, but
Western provinces may choose
Atlantic formula
2. Immigration – greater provincial
involvement
Consultation through joint
commission
3. Language Rights – on Victoria lines
Accepted
4. Resource Taxation – greater prov-
incial jurisdiction
No (distribution of powers)
5. Declaratory Power – only with
provincial concurrence
Consultation
6. Annual First Ministers’ Conference
Accepted
7. Creation of New Provinces – in
accordance with amending formula
Consultation
8. Culture – greater provincial control
Consultation
9. Communications – greater provincial
control
Consultation
10. Supreme Court – greater provincial
role in appointments
Possibility of agreement
11. Federal Spending Power – subject to
provincial concurrence
No (distribution of powers)
12. Senate – increased B.C. represen-
tation
Accepted
13. Regional Disparities and
Equalization
New draft same as previous

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CANADA WEST FOUNDATION DISCUSSION PAPER “ALTERNATIVES”, MARCH 1978
l. House of Provinces: Similar to Ontario Advisory proposal.
“Ordinary” legislation subject only to delay by this House,
whereas legislation about grants, provincial proprietary
interests, etc., subject to veto. A joint session of both
Houses to resolve conflict. Special Quebec veto for linguistic
and cultural legislation.
2. Supreme Court: 15 judges — 6 of whom would comprise a
constitutional court and the remaining 8 the regular appeal
court, the Chief Justice being Chairman of each.
3. Division of Powers: Same as B.N.A. Act but transportation,
communication, banking, education, health and social welfare
to be concurrent powers.
4. Amending Formula: Same as Victoria, except each province
with more than 20% of total population now or in the future is
to have a veto. In case of deadlock in a particular region
a referendum in that region might be called.
5. Provincial Constitutions: Lieutenant Governors to be
appointed by Prime Minister and ratified by a majority of
legislature of province concerned. Provinces to appoint
judges to provincial courts.
6. Abolition of federal powers of reservation and disallowance.
FIRST REPORT OF ONTARIO ADVISORY COMMITTEE ON CONFEDERATION,
APRIL 1978
This report supported the principle of a strong
central government, with provision for consultation with the
provinces. The main proposals were:
1. House of Provinces: Members would be appointed at the
pleasure of the Lieutenant Governor in Council. They
would be chosen so as to reflect geographic and population
criteria. Members of the provincial governments could be

A-6
assigned to participate in debates. Powers to include
suspensive veto for one year, approval of appointment of
judges to Supreme Court and federal regulatory bodies.
2. Supreme Court: 9 judges – 3 from Quebec. House of
Provinces to approve appointments.
3. Fundamental Rights: As in Victoria. An emergency power
applicable for six months at a time before review.
4. Language Rights: Constitutional entrenchment. Education
in either English or French where numbers warrant.
5. Amending Formula: As in Victoria Charter

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