Robert Lewis June 16 1980


Robert Lewis June 16 1980



Robert Lewis

It was 82 years after the American Declaration of Independence, and 324 years after this country was explored by Jacques Cartier, that a political elite in the colony of Canada decided to form a nation. There were no alarums, no shots in anger, no heroic fortresses to be built. Instead, a Canadian committee quietly besought the imperial powers in London to sanction a meeting. The basis for the union, the Canadians wrote in 1858, “differs from that of the United States” and “does not profess to be derived from the people.”

The people have been feeling left out ever since. Modern-day political leaders flit before the cameras in their threepiece suits and one-dimensional masks, talking in tongues. They conjure up visions of mystical gravediggers with their chants of “entrenchment.” Like plaintiffs at a celestial custody suit, they demand “patriation” forever. Like a travelling band of religious supplicants, they ride the Victoria Charter, venerate the memory of the Bill of Rights and take energy from something that sounds like a new product from Purina, the “Fulton-Favreau formula.”

The arcane terms and the politicians’ retreat to Hansardese whenever the constitution comes up for discussion are only superficial reasons for the glazing of eyes in the land. So, too, are the incontestible facts that the leaders were all over the lot on specific proposals for change as they sat down for this week’s exercise in re-confederation (see chart), or that the debate has sputtered on for the past 12 years. The real reason that many Canadians couldn’t care less about the talks is their gut sense that, in daily life, the constitution simply doesn’t matter. There are better things to do, like growing up, falling in love, studying or coping with work and the trials of life. If voters think at all about federalism, they are more taken by home truths than by homilies. Reed Andrew, a 24-year-old farmer just north of Regina, evokes the bitter sense that “the West has been paying both ways for years” with freight rates on grain going east and tariffs on cars shipped west. “The whole economy,” he says, “is geared to the East.”

Harvey Trimble, 43, manages a herd of 500 purebred Charoláis cattle in Okotoks, 20 miles southwest of Calgary, and he’s frustrated by the lack of elected western representation in the Trudeau government. He disdains the trainedseal principle of party-line voting in the House of Commons. He believes the way to establish a strong regional voice in the federal capital is with an Americanstyle elected Senate, with equal representation from each province.

For Jim Evans, a 22-year-old anthropology student at the University of Toronto, there is no manifest urgency for a new pact of union. As for Ontario’s slide to eighth place among provinces in spending per university student—it was second in 1971—he observes: “Changing the constitution isn’t necessary to change education funding.” In fact it is, since part of the constitution determines the level of federal and provincial spending on universities and, therefore, is indirectly responsible for U of T’s projected 14.6-per-cent tuition increase next year.

Canada’s constitution—actually a combination of the 1867 British North America Act, certain statutes of Parliament and legislatures and unwritten traditions—is inextricably linked to the concerns of Trimble in Alberta and Andrew in Saskatchewan, not to mention the Newfoundland welder, the francophone Quebecker, the doctor in Ontario, the poor in Vancouver. The constitution is the instrument that makes way for building schools, paving highways, laying track, renting housing, inspecting food, setting the price of gasoline and grain, ensuring flight safety, providing pensions, banning films and caring for the sick.

The problems in Canada today flow not from what the constitution achieves but from what it does not do. For instance, there is no clear definition as to which level of government is responsible for many issues, a fact that makes the so-called division of powers and a made-in-Canada constitution the equivalent of the water jump in the steeplechase—of all the hurdles, the one where the runners are most likely to get trampled. Unlike the American system, Canada’s constitution offers no guarantees for human rights—to study in French in Vancouver, to receive tax forms in English in Quebec, to call a lawyer from jail, to avoid unnecessary search or seizure by police. With Liberals strong in the East and Conservatives supreme in Western Canada, there is no forum to ensure that at all times all regions participate in central decisions—from metric conversion and language laws to foreign investment and the appointment of the Supreme Court.

“Canada and its constitution,” the task force on national unity warned last year, “is in a protracted crisis; the primary, but not the only challenge, comes from Quebec.”

For more than a century, the French have had to fight against what McGill University political scientist J. R. Mallory describes as “an element of deepseated Protestant suspicion of the Roman Catholic Church, a feeling that the French tongue is an anomaly in an English-speaking continent, a feeling that the French are ... an enemy to the forces of progress.” The striking part about French-Canadian rights and aspirations, adds Mallory, “is that the courts have played little or no role in protecting them.” Leaders like Maurice Duplessis, Daniel Johnson, Jean Lesage, Robert Bourassa, René Lévesque and Pierre Trudeau have, of course. They have consistently reflected the yearning in French Canada for “entrenched” rights by placing greater stress on a written constitution than do the English. Says New Brunswick’s Richard Hatfield: “The two levels of government now have sufficient power to discharge their responsibilities.” For English Canadians, secure with tradition and their majority, what matters is how the system works—or now, how it doesn’t. In the wake of the referendum in Quebec, the two great national streams have merged in the expressed desire for real change.

“There are still 40 per cent of the peopie [in Quebec] who voted for a different kind of Canada,” Alberta’s Premier Peter Lougheed observed after last month’s referendum victory by the “non” forces. “Canada has an obligation to come to grips with that problem” — but not at the cost of ignoring “the aspirations of the people of the Atlantic and western regions as well.”

Largely, those aspirations revolve around resources, which the Fathers of Confederation granted exclusively to the provinces. The catch is that the central government was charged with regulating international and interprovincial trade. Hence Lougheed insists on his right to get the best possible price for his province’s oil and gas. “Once the barrel of oil goes down the pipeline,” he observes, “it is gone forever.” The feds argue that once it is in the pipeline,

Ottawa has a responsibility to ensure a reasonable price to all Canadians. “No province,” insists Energy Minister Marc Lalonde, “has the right to dictate development outside its borders, and the federal government will fully defend the basic constitutional principle.” Ottawa’s argument, in effect, is that oil is special. Lalonde points out that in 1978 oil revenues per person in Alberta amounted to $1,900 while in Ontario the take from all resources was a paltry $14 per head. Last year Alberta oil and gas revenues totalled $3.3 billion, 30 per cent of which went into the super savings account known as the Alberta Heritage Fund, now brimming with six billion petrodollars. Sharing the wealth is the key issue in stalled talks on an energy price agreement which expires July 1. In constitutional lingo, the principle is called “equalization.” Newfoundland welder Allister Brinston, 31, is indirectly at the centre of an another unresolved constitutional trade issue—the right of a province to exclude outsiders from certain jobs. With unofficial unemployment running as high as 30 per cent in some parts of his province, Premier Brian Peckford enjoys wide support for regulations that give Newfoundlanders first priority on offshore oil rig jobs. Brinston, who was put out of work after the 1976 closure of the appropriately named Come-by-Chance refinery, now earns $30,000 a year servicing the rigs. Andrew Dobin, a welder also working at sea, says the regulations improved his chances of getting the job—but he doesn’t like the restrictions. “We can go elsewhere and work,” he notes, “and it should be no different here.”

Similar protectionist regulations have been introduced in Quebec, which barred some 3,000 Eastern Ontario laborers from construction sites, and in Nova Scotia, where Premier John Buchanan has introduced a bill to give provincial residents first call on civil-service jobs. Ironically, when Nova Scotiaborn Allan Blakeney, a strong provincial rightist, landed his first job, it was high in the Saskatchewan civil service.

Other interprovincial barriers to trade and commerce have been erected. Seven provinces buy first from local firms, even if the prices are lower outside their boundaries. With total government purchasing power estimated at $20 billion, that is some clout. Newfoundland is prevented from exporting its Labrador power across Quebec to U.S. markets because of the dispute between the two provinces on hydroelectricity. Newfoundland has banned Nova Scotia fishermen from catching cod off the northern coast.

Marcel Cadieux, former Canadian ambassador to the European Community in Brussels, speculates that “there are now fewer barriers to trade among the countries of Europe than among the provinces of Canada.” In a speech last week, Ontario Industry Minister Larry Grossman lamented the “increasing Balkanization” of an already-small domestic market. Ottawa, he concluded, “has an important and crucial role to play as the ‘senior government’ and as the legitimate arbitrator that must act in the national interest.”

Pierre Trudeau agrees. When he last met the premiers in 1979, he offered to limit certain federal powers and to increase the provincial role in cultural fields. But he also put forth a list of seven areas where Ottawa needs the power “to manage the economy and to maintain an effective economic union.” The Fathers of Confederation thought they had settled the division of powers 113 years ago. As Sir John A. Macdonald declared at the Quebec Conference in 1864, “We should concentrate the power in the federal government and not adopt the decentralization of the United States.” Resolution 45, passed in Quebec City, reads: “The laws of the general Parliament shall control and supersede those made by the Local Legislature and the latter shall be void so far as they are repugnant to or inconsistent with the former.” A P.E.I. delegate moved that local legislatures be given the power to act in all areas not expressly granted to the central government, but after a vigorous debate the issue “was unanimously resolved in the negative,” according to the minutes of the meeting.


Entrenched language rights



Supreme Court

Immediate patriation

Federal role in vital resources

Shared jurisdiction over off-shore oil and gas

Federal spending in provincial fields

Somehow this reading is not shared by Newfoundland’s Peckford who, installing himself in front of the cameras outside the Commons on referendum night, opined that “the federal government has got to recognize that it is an agency of the provinces and not the other way around.” One reason for this extraordinary view is that the Fathers of Confederation—the state of cable television and off-shore oil being what they were in 1867—did not pronounce on the hot issues of 1980. A further complication has been that, until 1949, the resolution of constitutional appeals took place far away in the judicial committee of the Privy Council in London.

The lords sided mainly with the provinces in interpreting Sections 91 and 92 of the BN A Act, which list the exclusive powers of, respectively, Ottawa and the provinces. The act states that the federal list of 29 specific categories, including currency and coinage, defence and the postal service, was made only “for greater certainty and in no way so as to restrict.” But the lords took the narrower view that if Parliament’s will was frustrated by poor legal draftsmanship—or changing conditions like Hibernia—that wasn’t their problem. The result of the jurisprudence, constitutional scholar Frank Scott concluded in 1931, was that “it has now become impossible to justify any Dominion legislation unless it can be brought under one of the 29 specific headings. The Fathers of Confederation gave us a living and elastic principle fit for every emergency; the courts have made of it a dead and rigid list.”

Much of that has changed since 1949, especially since Trudeau appointed Bora Laskin to head the Supreme Court in 1973. The court has overturned portions of Quebec’s official language law, upheld Ottawa’s right to impose unilateral wage and price controls in 1975 and struck down a Saskatchewan tax on oil company profits in 1977. For this reason, most provinces are unhappy with the court and demand an active role in naming its judges. They want a similar role in appointing members of Crown corporations and federal agencies.

Sheer political expediency is the other reason Ottawa sometimes seems handcuffed in the face of nation-rending events. The BN A Act allows Ottawa to make laws for the “Peace, Order and good Government of Canada” (the socalled “emergency power”); to override provincial legislation (“reservation” and “disallowance”); and to take over provincial works, say a pipeline or a tarsands plant, “for the general advantage of Canada” (“declaratory power”).

But intervention on such a grand scale in the past has left bitter memories, ranging from the War Measures Act of 1970, still on the books, to controls in 1975. Sometimes federal intervention simply backfires. In 1974, thenfinance minister John Turner proposed to disallow as federal corporation tax deductions the royalty payments oil companies made to provinces. The foreign-dominated industry, in effect, went on strike by moving its operations elsewhere in the world and bringing production to a trickle. When the Quebec government abolished English as an official language in 1977, Trudeau rejected “disallowance” because he knew it would simply spur separatist sentiment, already inflamed by the dispute over two languages in the air lanes.

At the last constitutional talks among first ministers, in February, 1979, Trudeau proposed to keep the emergency power but to abolish the reservation and disallowance provisions of the BN A Act if the provinces agreed to a bill of human rights limiting government power over the lives of individuals. He also offered to restrict the declaratory power, that is, to seek provincial approval for any take-over in the resource field only in cases of “compelling national interest.” When it was all over, Trudeau fretted that he had “given up the shop.” Not at all, came the chorus from the provinces, we want more. No,. Trudeau retorted, until the provinces guarantee Ottawa sufficient power to manage the Canadian common market. In return, he offered the provinces a voice in the central government, through a revised Senate.

There the matter rested, unresolved, as Canadians headed into two elections and the referendum in Quebec. There was no suggestion that this Monday’s meeting at 24 Sussex Drive would even begin to resolve the issue of power. Unlike the bipartisan sessions in the 1860s, the role in talks of Opposition leader Joe Clark, if any, and NDP’s Ed Broadbent has not yet been resolved. Each provincial leader has his own shopping list and many leaders want those disputes resolved before they agree to bring home (“patriate”) the constitution from the British Parliament, which now must grant approval for amendments. But the premiers were aware that they had to set an agenda for talks, with a deadline imposed by a new reality: René Lévesque’s plan to make discredited federalism the issue during a Quebec election expected next year.

The circumstances are reminiscent of the first exercise at constitution-making. Although the Fathers took three years at meetings in Charlottetown, Quebec City and London, anti-Confederationists in Nova Scotia and New Brunswick lent a sense of urgency to the cause. Even after the new deal was struck, Nova Scotia’s Joseph Howe campaigned openly for repeal, winning a majority in the province. It took a masterful display of stickhandling by Macdonald and a touring campaign of the province by unionists from all parties to defeat Howe. The money Ottawa agreed to pay Nova Scotia to stay in didn’t hurt either.

It will take more than cold cash to resolve things this time around. At the core of the debate are two divergent views about the future—a conflict, as Queen’s constitutional expert Richard Simeon sees it, “between a provincebuilding and a country-building view of the character of the Canadian political community.” Even the province-firsters reflect the ambiguity. Peckford demands control of the Newfoundland fishery, but at the same time is pleading before the Supreme Court its case against a disastrous hydroelectric contract that supplies overly cheap energy to Quebec. Nova Scotia wants jurisdiction over off-shore gas, but also a firm federal hand on the fishing front with Newfoundland. British Columbia’s Bill Bennett says Ottawa is out of touch, but he wants money from the federal treasury for image-burnishing development projects.

Ottawa, to listen to some politicians and their cheering sections in provincial press galleries, has never done anything right. Yet during the years when the federal government has been denounced as rigid and insensitive, the nation has arguably become more decentralized than any federation except Switzerland. There is a pervasive view that governments closest to the people can best decide for their citizens—a principle that, to be sure, has many evident virtues, but that has also resulted in actions such as the dubious banning of the film The Tin Drum in Ontario, an unfortunate series of investment decisions in the Newfoundland resource sector and a squeeze on services for retarded people in Alberta. At the grassroots in B.C., NDP MLA Charles Barber, architect of a successful hostel for transients funded by Ottawa, admits: “If we’d had to deal with a reactionary provincial government [W.A.C. Bennett’s] we would never have got off the ground.”

But the time for more provincial power has clearly come in the cyclical ebb and flow that has marked Canadian history. The danger is that in the unblinking plunge into the new tide, the merits of the old bathwater will be ignored. The people, however, are marching with their feet, no matter what politicians or pundits say. Alberta and British Columbia last year had big net population increases, while Quebec and Ontario had substantial losses. The fittest are claiming their right to the good life, but will they be the only ones to thrive?

With files from Mark Budgen in Vancouver, Gillian Steward in Calgary, Dale Eisler in Regina, Matthew Teitelbaum in Toronto and Geoff Hunt in St. John’s.