BRUCE HODGINS says: We’re bringing our constitution home—and locking Canada into a legal strait-jacket
THERE HAS NEVER been a time in our history when the need for constitutional change has been so widely discussed. There has never been a time when so many authorities have outlined so many plans for bringing our constitution into line with the needs of a modern bi-national state.
Yet at the same time — and this is an eminently Canadian paradox — we arc in the process of inaugurating a plan that will make constitutional changes more difficult to enact than ever before.
The plan is embodied in the socalled Fulton - Favreau formula for amending the Canadian constitution. The incredibly complicated legislation has been drafted by the minister of justice, and six provinces have already provided the necessary ratification. It is more than possible that, by the end of this year, Canada will at last be able to amend all parts of her own constitution without reference to the British parliament.
This may be grounds for satisfaction among hyper-nationalists who are anxious to eliminate the last vestiges of “colonialism” from our national structure. But if the Fulton-Favreau formula becomes law, it will also mean that we’ve been saddled with the most rigid amendment procedure of any federation in the world — at a time when we can least afford it.
Why all the sudden flurry about getting this bill into the statute books? Its supporters say that we can no longer endure the “humiliating” experience of asking Britain’s permission (which is automatically granted) every time we want to amend the British North America Act. I find this proposition highly dubious, because I can detect no great public outcry in favor of this particular solution. Indeed, it’s doubtful that the Fulton-Favreau formula could have come as far as it has if it weren’t for the massive public apathy that surrounds the issue. We should, of course, work calmly for a more flexible plan.
The bill's supporters say that it does nothing more than eliminate the reference to Westminster, and enact into law the amendment procedure that has long been followed in this country. As Prime Minister Pearson put it last November, the new formula “simply recognizes existing facts.” But a glance at the bill itself shows that it does a great deal more; far from codifying existing procedures, it contains many innovations. Nearly all of them, in my view, are undesirable.
The bill provides for five types of constitutional amendments: First, all fundamental changes, including those relating to the division of powers and bilingualism, require the approval of the legislatures of all ten provinces plus the federal parliament. Second, most changes in the structure of Ottawa’s governmental system require the approval of the Canadian parliament and of seven provincial legislatures representing at least half of Canada’s population. Third, changes involving individual provinces and the federal government require the approval only of parliament and the legislatures of the provinces concerned. Fourth, some matters that are of a purely central significance require only Ottawa’s approval. Finally, there is provision for the limited delegation of powers from Ottawa to the provinces, or vice versa. Delegated powers are always revocable and involve only those provinces agreeing to the delegation, though they must always number at least four.
The most dangerous innovation hidden in this legal thicket is the way in which the provinces will be required to authorize proposed constitutional amendments. In the past, whenever federal authorities wanted provincial assent to a proposed amendment, they
got it from the provincial governments — usually through fairly informal consultations with the premiers involved.
But under the Fulton-Favreau formula, every amendment requiring provincial assent will require full and formal debate in the provincial legislatures — a very radical departure from previous practice.
This change alone could vastly complicate the business of modernizing our constitution. But it is not the only one. Under the present system, the federal parliament can make constitutional changes concerning its own structure without reference to the provinces or to Britain. Under the new formula, however, most such changes will also require the approval of at least seven provincial legislatures. I hate to think how this will affect the prospects for Senate reform..
The bill’s supporters claim that an important element of flexibility has been introduced by the provisions making it possible to delegate various powers between the two levels of government. This is indeed the most redeeming feature of the whole plan; but does it go far enough?
Under the new formula, the provinces can delegate their law-making powers to the federal government only for specific acts in the fields of reformatories, local works, property and civil rights, and matters of a local or private nature in the province.
These are vitally important areas, but they do not include, for instance, the field of education — a field which many English-speaking Canadians believe should be delegated, at least in part by some provinces, to the federal government. If any changes in the educational field were to be made, the assent of all ten provinces would be required. On the other hand, the bill makes it possible for the federal government to delegate all its powers to the provinces — surely the ultimate in co-operative federalism.
The new formula isn’t concerned only with the BNA Act of 1867 and its subsequent amendments. Other laws — including the Statute of Westminster and the statutes that brought Manitoba and Saskatchewan into Confederation — are also listed as part of the “constitution of Canada.” Yet this list is given without the intention of “limiting the means of expression.” The effect of all this is that our courts will be in a position to declare many other British and Canadian laws as part of our constitution — thus expanding the areas of inflexibility.
But perhaps the formula’s most dangerous rigidity is in the field of language rights. Briefly, what it does is entrench the rights of the English and French languages as they now exist in the BNA Act.
This is probably the formula’s worst feature, because this is the field in which demands for constitutional change are most urgent. Even moderate French Canadians are dissatisfied with the language rights they now
enjoy under section 133 of the BNA Act.
If we wanted to extend those rights today, it might not be too difficult. A constitutional amendment would be required, but constitutional authorities disagree on what degree of provincial assent would be required to make the change.
Under the new formula, there is no doubt at all on the latter point. The assent of all provinces would be needed to effect any extension of language rights in Canada. This means that Newfoundland, say, could block an amendment guaranteeing the right to use French in certain provincial legislatures, or even the right to use French in all federal correspondence, or in the armed services.
We’re setting up a situation, in other words, in which one recalcitrant province — or even a bare majority of the MLAs in that province — could veto any move to extend bicultural rights in Canada. Sixteen members of PEI’s legislature, for instance, would have the power to veto an amendment that might be vital to the survival of Confederation. This is not my idea of flexibility.
And flexibility, in Canada’s present situation, is equivalent to national survival. When our leaders started worrying years ago about repatriating the constitution, their problem was to make it rigid enough to secure Quebec’s acceptance. That’s because, under Duplessis, Quebec was mainly concerned about preserving the constitutional status quo.
Today the situation is different. A dynamic, reform-minded Quebec is on the offensive. An inflexible constitution could undermine the position of moderate reformers in Quebec, and play into the hands of extremists. Many responsible observers in Quebec have noted this fact — and are alarmed. Professor Jacques-Yves Morin, in a recent issue of Cité Libre, notes that a formula originally designed as a special concession to Quebec would now work against French Canada.
All around us today in Canada, we hear talk of change. Yet in the Fulton-Favreau formula, we have a suggestion that would effectively block change.
And for all the patriotic breastbeating about “bringing the constitution home,” the Fulton-Favreau formula doesn’t even do that. The BNA acts, and many other parts of our “constitution” would remain British statutes unless they were individually or collectively re-enacted with the approval of all the provincial legislatures.
Finally, at a time when people are crying out for authoritative statements on the nature of the Canadian union, we are given a verbose, stolid, unpoetic document written in almost unintelligible prose. We search in vain for any underlying principle, unless it is that we have evolved from a British colony to an independent aberration.
The story you want is part of the Maclean’s Archives. To access it, log in here or sign up for your free 30-day trial.
Experience anything and everything Maclean's has ever published — over 3,500 issues and 150,000 articles, images and advertisements — since 1905. Browse on your own, or explore our curated collections and timely recommendations.WATCH THIS VIDEO for highlights of everything the Maclean's Archives has to offer.