What Tomorrow, Canada?
The most important national issue that Canada has faced since Confederation is before us now: the consideration of the Constitution under which we shall continue to exist as a nation.
The Constitution is not a dry document of interest only to lawmakers, historians and the courts. It is a living document that affects the way in which we shall continue to be governed, and through which Canadians are served.
Because of this, the widest consultation is required, to ensure that all interested Canadians can have a say in the type of Constitution we should have.
In this booklet are a series of “propositions” that the Manitoba Government believes should be the basis of discussion for any new or amended Constitution. They were prepared for presentation. at the Constitutional Conference at Ottawa, February 10 to 12, 1969. Our purpose: to ensure equality of opportunity for all Canadians.
The revamping of our Constitution will take considerable time. However, at the outset of our detailed discussions, I want Manitoba’s proposals available to everyone. This booklet, in which the ideas of the Manitoba Government are advanced, is therefore being given wide distribution on request.
I hope that opinions of the readers regarding the “propositions,” and any other matters respecting our Constitution, are made known to the Manitoba Government, so we can have the broadest possible concensus.
The Constitution must reflect our hopes and aspirations for the second century of nationhood. In it lies our future.
Premier of Manitoba.
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WHAT TOMORROW, CANADA?
The Importance of the Constitution
A Constitution is of great importance to any country, particularly those of the democratic tradition because It enshrmes the principles and the pattern of government.
Some states attempt to capture this fundamental law in a written document. The most extensive constitutional documents, however, cannot contain all the principles or the entire framework of government.
Our Fathers of Confederation who assembled at Charlottetown in 1864 and again at Quebec in 1866 recognized the need for a principal document which would contain the fundamentals of government for the new country being created. In their wisdom, they did not attempt to include everything. In fact, they wanted the Canadian governmental system both in its principles and its institutional pattern to rest on several foundation stones. As a result, we have a primary constitutional source in The British North America Act. Those who seek the nature of the Canadian system must look far beyond this Act, however.
Part of our constitutional heritage is based on the simple practice of custom and tradition, developed in Canada over the last 100 years.
Some of our constitutional arrangements will be found in acts of parliament and decisions of courts.
Provincial constitutions without exception consists of a variety of documents, customary practice and legal decisions.
The multi-faceted constitutional picture of Canada and its provinces has been a fascinating source of study and comparison for foreign observers, and indeed our own students of law and politics.
The great strength of our constitutional character is that it has enabled the country to be governed nationally and provincially with tremendous flexibility. This flexibility, particularly in the highly delicate and crucial relations between the central government and the provinces, has enabled the country to grow dynamically and adjust positively to changing social conditions during 100 years of history.
Where The B.N.A. Act has been inadequate or silent, it has usually been possible to establish legal procedures to meet the needs of the Canadian people within defined principles. At the same time the basic document of 1867 together with its formal amendments has provided stability, direction and permanence where this has been required.
The unusual blend of these several components in the Canadian constitutional fabric has sometimes been confusing both to ourselves and to those who view us from outside, but it has been a positive benefit to the building of a great country because it has permitted a unique combination of change and permanence.
The Constitution and the First 100 Years
Canada has now experienced a century of unbroken constitutional evolution with a constitutional pattern that has altered remarkably little in its outward appearance in spite of our transformation from an agricultural to an industrial country, from colony to sovereign state, from horse and buggy to space vehicle and from the original four provinces to the present ten.
There has been a history of change, smoothly and gradually accomplished to meet the changing conditions of the Canadian society.
The principal early achievement of our Constitution was the consolidation of the vast North American territories formerly under British rule into a single state through a federal system which was designed to reconcile the desire of unity with the necessity for provincial individuality. This is no mean accomplishment. From it emerges a vast nation state “From Sea to Sea.”
The second great accomplishment of the first century has been the evolution of the federal system in such a way that a unique partnership developed between the provinces and the central government.
There are stresses and strains in the relationship. Sometimes there has been crisis and confrontation. This system in which there is a strong central government together with ten strong provincial governments has served the country very well, however.
Constitutional arrangements in and outside of The B.N.A. Act have created a country based on co-operative federalism. This has been achieved by endowing the central government with power to represent all the people of Canada and to define national purposes at home and abroad, and by endowing the provinces with powers to determine the course that each can chart within the context of Confederation.
This process of working out the relationship between the provinces and the central government is one in which there has been considerable change and achievement. There is a positive result which marks the long development. A federal system of equal partners has emerged, a system in which co-operative federalism has worked. Great sacrifice and compromise on the part of both levels of government has often been necessary to make the partnership function successfully.
Our federal system has served us well in another way in that it has permitted, in fact encouraged, the continuation of cultural plurality and the preservation of language rights.
There is another landmark of the first century. Within the constitutional framework which has evolved since 1867 Canada has moved from colonial status to complete independence.
The process, typical of our constitutional development, has been one of gradual change. There are several milestones, including The Statute of Westminster of 1931 and the second amendment to The B.N.A. Act of 1949 which transferred certain powers from the British Parliament to Canada.
Although there are certain anomalies which still remain in The B.N.A. Act regarding our sovereignty, there is no doubt at home or abroad regarding our complete independence. Finally, in attempting to highlight the first 100 years of constitutional development one is impressed by the orderly building of Canadian society and the corresponding development of our economic power. This development is in part a result of the flexible characteristic of our Constitution which has provided an easy climate for dynamic growth.
As Canada moved into the decades beyond the First World War there has been a tremendous expansion in government activity at all levels. Potential stress and strain in this mushrooming process has been minimized by the flexibility provided in our constitutional pattern.
The result of this parallel activity has been a creative partnership between society and the provincial and federal governments—a partnership that has worked, that will work, granted goodwill and understanding exists between the partners.
The Constitution in Contemporary Canada
Our constitutional framework has served us well in the first century. We are now at a cross roads as we look to the second century.
The process of re-examining the principles and practice of our Constitution is already underway in the continuing Constitutional Conference, first called to meet in Ottawa, in February, 1968.
As we re-assess and re-examine, some will call for radical change and re~direction; others will emphasise the desirability of retaining the fundamental patterns as established since 1867 with change as required.
It is the belief of the Manitoba Government that our Canadian Constitution has been an excellent servant of the Canadian people. We acknowledge the need for change but we afiirm our desire to carry out that change within the context of the present constitutional structure.
It is desirable to examine the fundamental institutions of the federal system and of the central government. It will be useful to extend this examination into the area of provincial governments and their framework.
We are of the opinion that such examinations must be conducted with the purpose of changing only that which requires alteration to meet the changed circumstances of contemporary Canada.
The Manitoba proposals to the Constitutional Conference are self-explanatory. Through them we indicate where change may be desirable or possible.
In them we affirm our allegiance to the fundamental principles and pattern.
The crucial area which requires re-definition and reform is regional development, together with that of dominion-provincial financial arrangements and joint programs. It is in this area that the present policies are inadequate and where there must be priority negotiation.
The great hope of Confederation must be re-stated as we begin our second century.
That hope was for a united country in which all parts might progress with reasonable equality, socially, culturally and economically. That hope will be thwarted and frustrated 100 years beyond Confederation if we are not able to work out—and work out soon—priority programs and co-operative measures for the sharing and development of our economic resources.
Institutional arrangements are of secondary importance to the maintenance of a harmonious, equally-sustained partnership of the regions, the individual provinces and the central government.
Regional development and economic co-operation are therefore essential to the maintenance of our partnership in the federal system. Equality of opportunity for all Canadians has its basis in this principle. Manitoba places primary emphasis on these questions in any discussion of constitutional change.
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 except 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, both 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 the review.
The first object must be to reach consensus on an amendment formula thereby ensuring that future 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 agreed 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 diverse 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 programmes to achieve balanced economic and social development throughout Canada, possible within the existing Constitution, will more effectively promote national unity and maintain 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 lifestyle 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. Most sovereign states are recognized by an official 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 under the name of Canada. The term “Dominion” has largely fallen into disuse and is to some unsatisfactory. Some new name should thus be found.
2. “Realm” is chosen as it reflects Canada’s historical origin, its continued monarchial system and is used in The Queeii’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 amendments 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 proved 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 be 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 abstractly-conceived congressional system which over-emphasizes 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 arid abroad.
1. There can be no question of a Canada of associated states delegating limited powers 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 the 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 to 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 the advantage of acceptance by the people of all Provinces and a substantially reduced cost of implementation.
SUBJECT: Basic Principles.
The Constitution should 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 it is 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 right from a long standing tradition and acceptance may be of more value than abstract statements open to unintended interpretation by the Courts.
2. Freedom is earned by eternal vigilance and cannot by enactment be guaranteed for 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 stultified.
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 to 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, without 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 with 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 possesses, the Senate should have the following functions and powers:
(A) To nominate from its members a judicial committee with original jurisdiction on constitutional questions by reference and final appellate jurisdiction on 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 of 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 jurisdiction 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.
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 Gevernments.
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 the 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 jurisdiction 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 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 of the provincial legislature, the legislature can amend its legislation. Thus, no Province need feel 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 absence 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 programmes to meet national and regional priorities;
(B) effective consultation at the ministerial level.
1. Ad hoc programmes hastily devised i.n 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 government is such as to require co-ordination of programmes to ensure that those most needed 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 responsibilities of the other level of government only after 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 amanner 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 judically 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 owers 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 formulafor 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 reflect provincial individuality.
To classifications 2 and 4:
Those powers which are both national and local in effect, with allocation determined by whether the subject matter is essentially 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 than public revenues are raised according 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 Confederation 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 governmental 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.
Manitoba Proposition No. 251 Page 21
WHAT TOMORROW, CANADA?
Proposition 23 should read:
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.
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 transfer 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.
The Constitutional Review
The extensive examination and assessment of our Canadian Constitution which is presently under way requires great care and wisdom on the part of those charged with this heavy responsibility. Ultimately any significant change to the existing formula should be the responsibility of the Canadian people who are served by this body of fundamental principle and law.
Great care must be taken to ensure that the interests of the people are consulted and considered in the continuing debate.
Manitoba has chosen to present her propositions to the first ministers rather than to the Continuing Committee of Officials. The matter for us — that of considering the Constitution under which we shall continue to exist as a nation—is so vital that the many facets that will go into any new or amended Constitution should be dealt with directly at the decision-making level, by the senior elected representatives of the Canadian people.
Obviously, a staff of highly-qualified civil servants must continue to undertake research and generally to service the work of the constitutional review. But it is improper for them to make decisions in this area or indeed direct the research which must be the concern of the political leaders of the country.
The Manitoba Government therefore proposes, indeed urges, that a new continuing committee of cabinet ministers from each of the jurisdictions be created to direct the course of constitutional investigation on which we are engaged. This committee, representative as it should be of the elected governments in the Provinces and in Ottawa, will be in a better position to undertake the continuing process of examination and assessment.
This new committee should report to the first ministers and would be served by the present continuing committee of civil servants.
Whatever conclusion may result from the present constitutional examination, it will undoubtedly be a long process. Because of this, it would be advisable in the meantime to proceed with the implementation of an amendment formula The B.N.A. Act. Because the United Kingdom Parliament still has theoretical power to legislate for Canada this Parliament should be requested to abrogate its power to enact further legislation affecting Canada. Any new or revised Constitution would then be enacted by Canadian legislative bodies, which is only right and proper. In seeking consensus or 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.
The project of review is a task of great magnitude. We believe it should be worthy of care, caution, lengthy consideration and continual consultation with the people of Canada and other representatives.
– NOTES –
In the second sentence, second last paragraph, page 23 on “The Constitutional Review”, insert the word “for” before the words “The B.N.A. Act”.
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