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Current Discussions on Constitutional Reform

by The Honourable G. W. J. (Gerry) Mercier QC,
Attorney-General, Minister of Municipal and Urban Affairs

MHS Transactions, Series 3, Number 35, 1978-79 season

MHS Transactions were originally published by the Manitoba Historical Society on the above date. We make online versions available as a free, public service. As an historical document, Transactions may contain language that is no longer in common use and which may offend some readers. They should not be construed to represent the views of today’s Manitoba Historical Society.

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Officers of the Manitoba Historical Society, members and guests, ladies and gentlemen, I am honoured to join you here this evening on the occasion of the 11th Annual Macdonald Day Dinner of the Historical and Scientific Society of Manitoba and to come representing Premier Lyon who sincerely regrets that he was unable to be here with you this evening. As the society was incorporated in 1879, I understand that this dinner marks the opening of your centennial year, and that by fortunate coincidence, this dinner will not only be the first event of this centennial year but this date also marks the exact anniversary of the first meeting of the Manitoba Historical and Scientific Society on the 20th of January, 1879. I am delighted to extend my congratulations to you on this important occasion.

On reviewing the Transactions of the Society which have been published since your incorporation, I find that in addressing you here this evening I join speakers of notable distinction in the field of Canadian politics and history. I must admit that I am somewhat awed at being given this opportunity and for these reasons, it is indeed a privilege to be with you here this evening.

Over the past few months, I have had the good fortune of being a representative of the government of the province of Manitoba in the current discussions on constitutional reform. The opportunity to participate in these discussions that may ultimately result in changes in the constitution of our country has been for me a most challenging and exciting role.

Since the beginning of these constitutional discussions, I have again reviewed Canada's constitutional history and I am, therefore, appreciative of the important work that the Historical Society performs in our community as it is indeed one of your functions to remind members of the government and the public alike of the lessons of our past. It is our responsibility to take heed of these lessons as it is from there that we will decide and build upon for our future.

This dinner serves the purpose of commemorating the work of Sir John A. Macdonald and the Fathers of Confederation. I therefore note that Canadian constitutional negotiations are traditionally carried on between the political leaders and representatives of existing governments, and involve intensive bargaining with respect to proposed adjustments in the nature and degree of co-ordination and co-operation between them. The particular combination of visionary statesmanship and pragmatic bargaining ability which Sir John A. Macdonald brought to the task of nation building over a century ago is precisely what is required for the success of the constitutional negotiations underway today.

It may, therefore, be appropriate to refer to the constitutional activities of successors of the Fathers of Confederation, the present first ministers of the federal government and provincial governments. At the conclusion of their meeting in Ottawa at the beginning of November, the first ministers established a continuing committee of ministers on the constitution, consisting of attorneys-general and ministers of inter-governmental affairs, and instructed the committee to review and report on the prospects for agreement on constitutional change. Since then, we have already had two three-day meetings interspersed with meetings of officials and tomorrow I will leave for Vancouver for a final three-day meeting of ministers in preparation for the First Ministers Conference on February 5th and 6th.

I would now like to comment generally on some of the issues with which we are dealing.

Resource Ownership and Inter-Provincial Trade

This is the most complicated subject because of the related issues of ownership, control, processing, management, taxation and trade, the possible application of a new provincial indirect taxation power, the existing federal and commerce power, the peace order and good government and declaratory powers, the definition of renewable and unrenewable resources, the natural resources transfer agreements, and revenue sharing in the "national" interest. This subject is of major concern to Alberta because of gas and oil, to Saskatchewan because of potash and to Manitoba because of hydro-electric power. Certainly, a fair share of the benefits from natural resources should accrue to the people of the province where they are found but without depriving other Canadians of a reasonable share of the benefits. In addition, indirect taxes imposed by a province should not fall on persons resident in other provinces. Because of the complexity of this subject, consensus may be difficult to obtain by early February.

Communications

This is a most important subject with a large potential impact on provincial governments. Forecasts indicate a major increase in telecommunications activity which is already a very important Canadian industry. Recent and future technological developments in this area are complex and were not envisaged in our present constitution. In general, provinces have substantial interest in the telecommunications carrier systems operating within their borders, including both telephone and cable, while there is a common Canadian interest in aspects of interprovincial telecommunication services. There is also evident a shared concern that the broadcasting system should strengthen the cultural and social aspects of the country but there are differences of view concerning the jurisdiction required of each level of government to protect those aspects which most appropriately relate to those levels.

Family law

At the First Ministers' Conference in October, 1978, the Prime Minister proposed that the first ministers agree to remove constitutional impediments to the unification of family law under provincial jurisdiction. Rather than develop a system of 10 separate jurisdictions for dealing with separation and divorce matters, it appears to me that when the mobility of Canadians has greatly increased as in the past years and large numbers of people move from one province to another, whether for job opportunities or educational opportunities, change of climate, or whatever reason, I would suggest that it would be more appropriate that the present federal jurisdiction in divorce remain unimpaired and be enhanced with additional concurrent and paramount jurisdiction to deal with property and rights between married couples. Thus, we would have uniform grounds for separation, uniform grounds for divorce and uniform corollary relief upon marriage breakdown.

The Supreme Court of Canada

Presently, under Section 101 of the B.N.A. Act, Parliament may provide for a General Court of Appeal for Canada and by the Supreme Court Act, Parliament established this court. The federal government has proposed that there be a larger supreme court with a revised jurisdiction and a new method of appointments involving consultation with the provinces, selection and recommendations by a nominating council and affirmation by the House of Federation. Generally, I am satisfied with the existing size of the Supreme Court. I would reject out of hand any suggestion that appointments to the Supreme Court be ratified through the Senate or a second chamber as well the suggestion that judges should be formally selected on the basis of regional representation. Judges should be selected on the basis of their ability to decide cases, not to represent regional interests. I would also suggest that a constitutional court should not be seriously considered as we already have a well established body of precedent in case law which would not be applicable to the kinds of constitutional courts that have been suggested. Furthermore, constitutional cases usually involve matters other than just constitutional questions and it is, therefore, more appropriate that the Supreme Court retain jurisdiction over these matters.

Senate

The federal government's proposals for a House of Federation (members would obviously be called "fedoras") has been almost universally rejected as unworkable. I believe, however, it would be worthwhile to increase provincial and regional participation in the exercise of the Senate's powers and to provide a forum at the federal level for the expression of provincial viewpoints. I have, therefore, suggested as a possibility that a significant number of members of the Senate be appointed by provincial governments. Senators could be appointed for a fixed term of eight years with initial appointments of one half of the Senators for four years so that, thereafter, there would be some overlap in appointments and some continuity in membership, or, alternatively, Senators could be appointed for the life of the provincial legislature or parliament according to the government which appointment them. In order to reflect current populations and distribute seats more equally between the provinces, the allocation of seats might be as follows:

Newfoundland

8

Nova Scotia

8

New Brunswick

8

Prince Edward Island

4

Quebec

16

Ontario

16

Manitoba

8

Saskatchewan

8

Alberta

8

British Columbia

12

Yukon

2

One of each to be a
Federal appointment
and the other by the
council of the territory

NWT

2

TOTAL

100

With respect to the Senate's powers, I would like to suggest that since the federal government cannot be assured of a majority in the Senate, some limit on the Senate's ability to defeat legislation passed by the House of Commons would have to be considered, the suspensive veto should be overridden by the Commons passing the same law again at its next session or after, say, six months have elapsed, whichever comes first. The defeat in the Senate of a government bill would not undermine the authority of the governing party in the House of Commons.

An increase in powers for the Senate could be given consideration as follows:

  1. Measures to regulate inter-provincial trade declared to be essential for the management of national or international trade could require two-thirds majority of the upper house.
  2. General economic objective binding on the provinces could require the assent of a two-thirds majority of the upper house and be subject to review yearly.
  3. A declaration that the work is for the general advantage of Canada could require a two-thirds majority of the upper house unless the province concerned agreed.
  4. Support of the majority of the upper house could be required for the use of the emergency power in matters other than war, invasion or insurrection.
  5. The consent of the upper house could be required for the ratification of treaties respecting matters predominantly within provincial legislative authority and multi-lateral trade treaties.

The above suggestion would satisfy concerns of regional alienation. For example, British Columbia would maintain the federal interest by their power to appoint members and would insure that provincial interests are considered by the House of Commons.

Fisheries

The federal government want a continuation of legislative jurisdiction over all fisheries, and certainly control of international and inter-provincial trade in fish is a federal function and should continue to reside with the federal government. While this is an issue of greater importance to provinces on the east and west coasts, the fisheries in Manitoba are largely self-contained and I would suggest that the constitution could be amended to give Manitoba legislative jurisdiction over Manitoba fisheries in the same manner as Manitoba now has legislative authority over other resources such as crown lands, mines, minerals, forests and wildlife (with some exceptions).

Equalization and Regional Development

Manitoba supports the position that constitutional provision should be made to give Parliament specific power to make provision for the reduction of disparities between provinces in respect to levels of public services and to the levels of taxation necessary to finance those services. At the same time, it would be inappropriate to attempt to embody a specific equalization formula in the constitution or to provide for a full-time agency to gather data and to make recommendations concerning equalization and regional development. Alternatively, Statistics Canada should be required to publish comparable data on service and taxation levels to permit an assessment of the effectiveness of programs which may develop from time to time as a result of this constitutional mandate and a First Ministers' Conference should be held on a regular basis, perhaps every five years, to review legislation and programs provided under this power.

This principle of equalization and regional development is unique to confederations and is most important in maintaining the unity and strength of our country.

Patriation and Amending Formula

This is perhaps the area where there is the greatest difficulty in my view. The province of British Columbia has publicly rejected the regional approach taken in the Victoria Charter and indicated that it favoured a revised Victoria formula providing for approval of amendments by five regions of which B.C. would be the fifth region. The province of Alberta objects to this approach and favours the view which was endorsed by the Alberta legislature in November, 1976, as follows:

The government of Alberta believes in the principle of the equality of all provinces and not the equality of regions. A constitutional amending formula should not permit an amendment that would take away rights, proprietary interests and jurisdiction from any province without the concurrence of that province (example, section 92, 93, 94(A) and 109 of the B.N.A. Act.)

Meanwhile, the province of Quebec refuses to discuss an amending formula until agreement is reached on a redistribution of powers.

I believe that a balance should be struck between the need for stability and flexibility in the provision for amendment of the constitution. The object of amending formula should not be to make amendment so difficult that improvements cannot occur, while preventing frequent change not the subject of a proper consensus between components of confederation.

Monarchy

The federal government takes the position that the constitutional amendment Bill C-60 proposals do not change the status of the Crown or the role of the monarch at the federal level, but merely recognized the "current realities" in practice. I have rejected this position on the basis that whatever the present practice or "current realities" may be, the proposed changes to the monarchy do in fact alter its legal position in both form and substance. I have not accepted any demotion or reduction in the status of the monarchy whose status and role should not be diminished by enhancing the status and role of the Governor General in "the Constitution of Canada." I should point out this position was taken prior to knowing who the next Governor General of Canada would be. I would further submit that the Governor General should continue in all respects to represent the Queen and to act in her name and on her behalf, including the assent to bills. The continuance of a constitutional monarchy is supportable not only on sentimental and traditional grounds but also as a safeguard against the exercise of arbitrary power. There is no demand by the people of Canada for change in the monarchy nor for the recognition of the "current realities" by substituting the Governor General for the Queen. What must be avoided is a head of state appointed by the first minister when the head of state is responsible for the appointment of the first minister. This would lead to the ultimate constitutional power being vested in a head of state who would be answerable to the first minister, and not to the people.

These, then, are some of the issues presently being discussed, in preparation for the First Ministers' Conference. I would emphasize that they are not resolved but will be considered at the First Ministers' forthcoming constitutional conference.

Conclusion

Considering the constitution of Canada generally, Canada is, of course, a federation of interdependent governments, with the federal and provincial governments elected independently to carry out specific responsibilities within the framework of the constitution. It is not the unitary government which Sir John A. Macdonald would have preferred, nor is it a confederation of sovereign states which he abhorred. The federal form of government created by the British North America Act was a uniquely Canadian compromise developed in response to the practical realities of the Canadian society, economy and polity. The obvious challenge to the federal form of government is coming from the province of Quebec, whose government seeks sovereign status and economic association with the remainder of Canada. Other challenges which are less obvious are coming from many provinces which are concerned with the ownership and control of resources and are seeking a shift in powers from the federal to the provincial governments in this field. British Columbia has advanced a different set of proposals, designed to increase provincially-based representation in federal government institutions as an alternative too the transfer of federal powers to the provinces; Manitoba is firmly of the view that the federal form of government is as appropriate today as it was a century ago. While changing circumstances require adjustments, particularly in regard to the division of powers between the federal and provincial governments, Manitoba continues to take the position that the federal government must be accorded those powers within the constitution to enable it to carry out the accepted responsibilities of a national government.

The existing constitution of Canada has permitted Canada to operate nationally and provincially under a system of democratic parliamentary government for more than 100 years. With some exceptions, the constitution has proved adaptable to changing times and the institutions continue to fill the functions required of them. In some instances, amendment is required to recognize the changing responsibilities of government arising, in part, from the technological age and to restore balance between national and local interests.

The strength of the constitution lies in its flexibility which is due mainly to the system of democratic parliamentary government and to the fact that the constitution is not wholly written but part convention following simply upon the stated intention in the B.N.A. Act to provide Canada with a constitution similar in principle to the United Kingdom. No wholly written constitution, however detailed, can cover all existing requirements, far less anticipate all those that will arise. The supremacy of parliament or the legislatures within their respective fields enables change to be effected according to the requirements for change and the wishes of the people.

The constitution should provide the means of guaranteeing fundamental rights, and not attempt to fetter the ability of legislative bodies democratically elected from determining what is fundamental to the rights of its constituents at the time and in the circumstances that legislative action is considered.

The constitution should remain partly unwritten and should do more than provide the framework for the government of the nation and its provinces.

It is fundamental to Manitoba's position that the present constitution should continue except in those areas where demonstrated need for change can be established. The onus of demonstrating the need for change must lie with the person propounding change.

Therefore, in considering all proposals for change, Manitoba will look for the defect in the present constitution, and only agree to remedial change.

Constitutional reform, however, must not be undertaken by unilateral action by the federal government lacking any mandate in its waning days of office. It must be accomplished through full and adequate consultation with all provincial governments and the citizens of Canada.

Tonight, Mr. Chairman, I thought it perhaps fitting that I should discuss these matters and affairs with you. You will appreciate the history of our constitution, our country and attempts at constitutional reform in the past. I hope that I have been able to bring you up-to-date on these very important discussions which are once again taking place. I should like to close with a quotation from a speech Sir John A. Macdonald made in 1861:

If I had any influence over the minds of the people of Canada, any power over their intellect, I would leave them this legacy: 'Whatever you do, adhere to the union. We are a great country. and shall become one of the greatest in the universe if we preserve it; we shall sink into insignificance and adversity if we suffer it to be broken.' God and nature have made the two Canada's one let no factious men be allowed to put them asunder.

Page revised: 22 May 2010

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