Special of the week; Issue 4-71 "The Constitution of Canada" (Reel 1)

NDE are the national educational radio network presents special of the week. The Constitution of Canada a two part series produced by Canadians for special of the week and any are the first such contribution to this series of programs by a Canadian university radio station from C.J. us FM. The University of Saskatchewan at Saskatoon over the past many years it has become increasingly apparent that the root of many are our problems in this country both economic and social problems lies in a constitution that is well defined and in many ways outdated. In this special two part series of programs we have Dr. Mark MacGregor an Member of Parliament for Windsor Rockefeller joint chairman of the special joint committee of the Senate and of the House of Commons on the Constitution of Canada. And Sen. Eugene Ferdie distinguished Canadian educator and specialist on labor problems. A member of that committee talking with Dr. Norman Wright and Dr.

David E. Smith of the Department of Political Science at the University of Saskatchewan and Dr. Douglas Schneider professor in a Tollefson of the College of Law. The chairman of the discussion here is Dr roared Dr. McGinn introduces the problem by explaining a little of the history of constitutional revision in this country. You recall that in the fall of the 1967 Prima rights of Ontario held a conference which he called Confederation for tomorrow. I see that he's recently denied that this was a constitutional conference and perhaps it wasn't. But in any event it was there that the discussions began about amending the constitution and there seemed to be a consensus among the provincial governments that all attended all but one attended this into a consensus at that time that the new constitution at least greatly revised constitution was necessary. Well that after that informal start the government of Canada summoned the official federal provincial conference for February a nine hundred sixty eight. And since February 68

creamers of the provinces the prime minister of Canada have been meeting in these formal federal provincial conferences some of which have been open to the public and some of which have been closed. Well perhaps it was partly out of frustration at the slowness. The action that the federal provincial conferences perhaps it was for a number of other reasons. One of them being pressure from the opposition parties. But I Robert myself inclined to think that the basic reason was a desire to give the people of Canada a forum in this field. But the government of Canada decided. Little more than a year ago to set up a constitution committee of the Senate and House of Commons. The motion was brought in earlier this year the committee membership was named in March and it began its hearings and may now this committee is composed of 20 members of the House of Commons and 10 senators. Because we never get that kind of numbers at our meetings but we always have a very respectable quorum and we

hold hearings. Both in Ottawa and throughout the various parts of the country. The Ottawa hearings are more technical although we do of course hear some technical others as we go around the country as well. The committee will be visiting some 50 centers across Canada between where we began last September between our beginning in September and the end of next June. Roughly a week a month will be spent in travelling. These are these hearings in the various parts of the country are primarily intended to give the people of Canada an opportunity to express their views on constitutional review. And I suppose we should also frankly recognize the fact that they're intended as well to have some educational value. The committee members in their questioning tried to make those who present briefs see that. There are certain limitations to the recommendations they're making. And this is felt to be especially important if it's felt that the witnesses themselves may not see these limitations so you get some recommendations which are pretty unrealistic so witnesses want to abolish all the provinces.

You know what if you had suggested abolishing the cities but some have suggested curtailing them and we get quite a variety of suggestions of that kind and the committee does its best I think to be an educational force in the communities in which it's present as well as receiving the views of the people who are there. So in summary I think that's a rough idea what the committee is about. When you talk about the slowness of this constitutional review and mention 67 68 is the beginning of this particular part of the process I think it's important to make clear that the actual process is a good one. Deal older than that in fact was back several decades. I don't recall the first year in which either the repatriation of the bodies guard America Act or its amendment came up but it was seriously requested I was called back to the late 20s I think it was I think 26 or 27. It was making 27 for the very first serious attempt at the end of the first conference was in the press we should discuss that a bit why do we talk about repatriating the act which is in a sense is a misnomer because I've never been here in the first place. But

why do we talk about Pete creating the act. I think perhaps your listeners might like to know why the British North America Act is not in fact available within Canada for amending or treating in any way at all. One of you lawyer gentlemen should be the obvious one to answer. Excuse me while the Act is of course a an act of the Imperial Parliament of Great Britain and therefore any amendment of the act must be done by the Imperial Parliament in the past of course the Imperial problem has been quite willing to accept any suggested amendments which have been put forward by the federal government but nevertheless we have to go through the formalities and this seems to be beneath the dignity of the sovereign state at least in the eyes of some people. In the eyes of others I suppose it might be regarded as one of those formalities which doesn't really bother anybody. And. Rather than worry about. The creation or repatriation we should be worried about the

substance of the act. But I'm a right I might just say that is base this week the governor says gradually as the way paid creation by the repatriation. So perhaps there's a new tendency to get it is it not a fact though that the existence of the British and America that it was a British statute mistakenly creates the impression in the minds of many people a kind of a still a colony. Do any of you have any thoughts on that. Well I certainly agree that it's an undesirable feature of our Constitution. I really don't think that you can say that people are independent and are free and are standing on their own feet when their constitutional structure is such that they themselves cannot I mean the basic constitutional framework of the country I think it is almost an insult to the integrity of Canadians to have that situation. It might only be technical but symbols amount to a great deal in the minds of many people and I think there's something very objectionable in the notion of one country going to another country to amend its own constitution.

I think it needs to be similar if it's an insult of the Minnesota River that moved into ourselves because I think there's not the smallest doubt that any time within the last 30 years we could have got to them who many cruisers transferred again and then we could have agreed among ourselves. I hope nobody in this country is under the impression that that is do we get Mr. Wu sooner than we did Mr. Heath of the weekend ceramic Douglas Hume who has been hanging on diversion trying to prevent us from amending our Constitution I could imagine the British government and one of them couldn't care less. On this point and it seems that our first priority should be in Canada to agree upon amending formula in some ways it seems that the discussions of the last three years have been rather frustrating because well various proposals being put forward to alter the Constitution to change some of the basic institutions of Canada. All these will require an amendment to the British North America unless we can agree upon how we're going to amend the Act first in some ways it seems to propose as well as for me

I thought the present series of conferences really there really was a party at least over the fact that we had made repeated attempts winding up with a full fiver for middle which nearly succeeded. We made repeated attempts to get an amending formula and we couldn't. And the result was I think that the that the Haitian government arrived at the conclusion that we might have another go at the other end. Let's see what substantive changes we may be able to agree on and what kind of constitution we want a new constitutional right a constitution amended constitution and what not and then when we decide what we want perhaps it will be easier or I would amending formula. I think it's not clear that people have said. Let's get the substantive changes first. Good heavens we come to a real reform. Let's try the other end of the things we really get with that. Logically I think this this is a very good approach and

it's one that I supported myself. But the conference as of the last two years I think of Charlotte as long as there is a rule of unanimity which is being followed that it would be impossible to get unanimity from the various governments there on any substantive provision of the Constitution I think almost without exception. And therefore there is now a swing back to looking at amending formula which formula could be used for the conferences themselves if it were one which met with general agreement. The difficulty is that every every set of proposals for amending any part of the act immediately arouse the interest of those who have some special reason for wanting part of those proposals. He implemented but not the rest so that when for example the federal government in its White Paper 969 proposed that among other things the provinces be admitted somehow to the the selection of senators. This was part of the package proposal but most of the provinces seized upon this one thing and say yes they'd be glad to help select senators.

The fact that there were a lot of other things in their lives they weren't prepared to accept it would seem to enter into their rationale at all as of course everybody has to go back then to square one and start examining again what is involved in this that or the other thing in the provinces I presume or making counterproposals of counterproposal. It's an unbelievably slow and involved process in which the only progress one makes is I think that people still continue to talk about it. That actual fighting between the provinces in the Dominion is not yet broken out but the amount of pressure of progress that I have seen over the last several years is almost unbelievably small. But I think that's probably right but in turn I think there have been some tremendously good studies that have been done it's true they haven't been brought to a coordinated clearly but I'm very very impressed with the quality of the work that has been done. It has been rather difficult to separate the notion of dealing with an amending formula as opposed to the substantive changes because so often when the substantial changes were being considered the

provinces would take the position well we would consider this if we knew how we could get around it and that really didn't work. And in connection with entrenchment a fundamental rights again again the provinces have come back to the position that they cannot discuss that if something is so entrenched that there is no amendment process every lable. I think the sense of frustration that Dr. 4C described has now come back exactly in reverse. I think that right now most of the representatives at the federal provincial conference who have this great feeling of frustration that they are not a cold machine or anything and that they will last until they go back in fact to the amending formula. This position I think is generally shared by all provinces with the exception of that which seems to generally take the position that they do not want to deal with the amending formula without looking at what the full package will be when every discussion has rotated around the facet of discussing

Amendment only. The objection has always come back yes but we want to see what might happen if the amending formula were changed and and until we understand that as a total package we don't want to deal with amending although my own assessment is that nothing will ever come of the whole constitutional revision process until we do agree on the amending formula. First of all go back I think at the last conference agreed at least for study purposes to allow the amending from going to be talked about again in the years by the printers to scratch one through the attorney general made very understand comments to America ready this week in our hearings with John A. None of these comments was to the effect that the government of Scotch wine which is often appeared the most intransigent with respect to constitutional changes is not really that intransigent opcode remarkably with actors at its hundred first priority list of a hundred. As explained by Mr Hero appearing for the government to merely to mean a totally new

constitution that he said that as far as certain amendments are concerned the gradual government gives them a very high priority would be among the highest priorities and he also added that the stature one would like to have another go at the lending formula in terms of the problem of agreement but would like a much more flexible amending point rather was recommended at that time I thought these were very considerable contributions to the constitutional dialogue. Yes I think it's true it is a fact historically that the scratcher one's opposition to. Something like the Fulton Favro formula actually predates Quebec's by a considerable number of years he was a nine hundred thirty seven or eight the Scotchman first made clear that it could not accept. Any amending formula that required the unanimous consent of all the provinces for certain kinds of changes and at the very point in time almost in which this got to a decided that it could agree to this. That was when Quebec backtracked on the phone for every formula. I think perhaps for our listeners sake we ought to explain what the foton Feverel formula is. We've used the term a

good many times and I let me begin by saying that it would take its name from two successive ministers of justice serving two seperate prime ministers Mr full serving Mr Deacon Baker and Mr five rows over Mr. Pearson. The formula itself. Consist as I recall it of two basic elements one of which concerns the distribution of powers between the Dominion and the provinces which can be amended except in certain specified areas by a vote of. The dominion of provincial governments which includes half the provinces whose population exceeds. What is a two thirds or the other way around to the root of the problem two things the provinces including half the population of Canada. And there is a second and quite different proviso whereby four provinces can arrange with the Dominion for the delegation of powers in either direction from the province of the dominion over the Dominion to the provinces.

The delegation of certain Brummie certain probably right women do you know any diminutive right. The rigidity of this which which Mr McGregor mentioned I think it turns on the fact that that in essence the iPhone 5 are a formula for amending the constitution still requires the unanimous consent of the provinces for the most difficult parts of the of the act which is the the same ancient show in which all these discussions have always counted because it means that in in fact. The province of Prince Edward Island with a smaller population than most of our major cities could veto something required by the other nine provinces including over twenty two million people are pretty close to 22 million people so that any provincial veto. Breaks down on this consideration of the different size and influence of the provinces. This in itself raises an element in the constitutional amending procedure which is very difficult for Canadians to cope with I think is that it would based on the fact that our provinces do vary so enormously in size that to treat them as as individual units the way nations are

treated at the United Nations. This particular fact is one of the reasons why it has taken so long to come. Even to the present stage of discussion of amendment of the British North America Act to treat each province as a unit regardless of size or influence. It is really the core of our problem here. I think something like The problem with the very notion of you know has this similar diversity and power and size of its members. When is there any solution to this. I mean can you in fact create say Prince Edward Island as a province has been of less significance when casting a vote at the Dominion Provincial Conference then you can treat just catch one or British Columbia or for that matter Quebec or Terry do you have to treat the problems as one casting one. Remember the proposals which have been advanced by various constitutional matters would merge some of the provinces for certain purposes the federal report as well as the exercise of this

federal power to spend money. Whether or not this money is spent in pursuance of an acknowledged federal power even the president of a provincial park. It's now been suggested that this power should be limited and that the formula which has been suggested would require the consent of three Senate areas the Senate being set up to represent roughly 4 regions of Canada with Newfoundland tacked on because of its later adherence to confederation. And I think it's possible to use that precedent and the fact that I don't believe it's been attacked on that basis at least I don't recall it having been attacked on that basis by the smaller provinces which were grouped together. I think that this might be a useful precedent to use for a general amending formula that would group together the Portlandia provinces and the four western provinces British Columbia I suppose would be the most likely province to object to this type of arrangement because it's the most powerful of the four western provinces and might like a voice of its own. They probably would want the region on their own.

So that wasn't a green on was it by a comet no one was even in regard to the spending it wasn't agreed on but my recollection is that I saw the graph in my usual capacity on the Ontario Advisory Committee on I saw the graph of a countable government of Ontario. Whether it's ever been presented I don't know but I want to get the government of Ontario was not necessarily prepared to accept the proposal the government accountable. You have the advantage of having better prevention advisor and seeing these confidential documents which aren't available to the rest which I can't see what and what was in it. I don't even know what it would present moment if they didn't. It left on my mind the impression that Ontario was still taking another look at this thing I'm not prepared to take it. My recollection is that the objections that were being made revolved around the payment formula in case a province would not enter into an agreement which would use the federal spending power the prose of the federal government was that in a case where problems didn't enter into into the agreement that the money that certain monies would be paid to the problems but it wouldn't go to the government but the people of that province and through some specified means of the problems were very

upset about the suggestion. Yes I think some don't. As far as I can get some doubt. And the Ontario government about whether the particular form of the Santorum areas was altogether satisfactory I simply didn't want to leave the idea of the listeners of the problem to the already agreed to this even about bending forward it was like I think it's still in the air but what about it Mr. Bennett has publicly stated going to British Columbia has claimed to become a senatorial division in its own right just as he had which means 24 senators that have sent British Columbia which I presume is 24 for the Prairie who get will get six Marcello's only wish you may get it. I will tell you that I think the problem can be looked at in terms of a different dimension than a problem of 1 province 1 vote and I think one could be prepared to accept that as long as you didn't also have a unanimity requirement I don't think that there would be any great problem in a in an amending formula. If you had a rule of one province. One vote. I think the difficulty

arises because of the rigidity of the formula. For example if we had a rule in constitutional amendment that two thirds of the provinces were required to consent to an amendment. And I don't think I would be unusually alarmed at the fact that the province of Prince Edward Island would have one vote in that context but what concerns me is when you have the unanimity requirement and then have one province exercising the veto power I think the basic problem is not one province one vote but any notion of unanimity in constitutional amendment. Generally I think this is where the whole system breaks down. But this is the problem when it comes to bringing the reasoner of America back to Canada as it presently exists presently as the everybody thinks that unanimous consent is needed. So it's as if people need to begin to attach conditions to the unanimous consent. It would be difficult to imagine a British North America Act brought to Canada for amendment against the wishes. I have a problem. I find this very easy to contemplate and I've already stated this publicly in one of the earlier committee sessions it seems to me that if there isn't agreement within the next year or so with

that out of the provinces that the federal government will have to act unilaterally and using the power of the Federal Parliament to make that address both houses to the British Parliament that the British Parliament would surely adopt any request made by our federal parliament even if the provinces actively lobbied in Britain and among members the British Parliament to have the British parliament last follow the recommendations of our party. Yeah I agree with you on that point I think that. The simple act of bringing the act to Canada could be done unilaterally it wouldn't solve any other problem. But I wasn't thinking just to bring it to Canada or the whole thing might be done as as a federal package against the will of the provinces I don't think that's being done. Well there isn't some solution. I don't actually think it could be done against the will of some of the provinces. Let's be frank about it I don't think it will be done at all the liver strenuous protests of the problems a bit I think you will have right some kind of out. We sing about degree of agreement sure saving the problems I don't think to do anything of this sort. It one of the difficulties that

arose I think about the about the very reform here was that on second thoughts the problems of the big said Well in effect this we want. All of the things we have now guaranteed as and therefore subject to are we or the police's way of saying that was something that we don't have any proper unanimity weapon and that means us we've got to consent but we also want to have a constitution flexible enough so that they don't have to be unanimous consent to give Quebec extra powers we want unanimous consent to protect what we've got and in order to get where we want less than unanimous consent it was a lot of two way street. We will go back I did then simply what we had we hope we will get your minute we were acquiring a man it was condemned that we leave broken English kind of a good thing we. But then with the Quiet Revolution you got these new not merely defensive that you still are finding what the ancient rights still demanding unanimous consent for anything but we want

more. And for that we want flexibility. And there's more inevitably involves weakening the Dominion doesn't it. It's not it's not only that Quebec particularly which is larger provincial powers it wishes as part of that same package if you were Dominion Power. Well that will be almost inevitable I say I'm not always certain myself which it is called Back in this particular connection really want stronger positive powers of its own or fewer powers on my own in the Dominion though of that I guess it probably depends on who is speaking for a call back as it got Ryan who was I don't like the spokesman for the back. Or is it the government of Quebec and of course if you say a government that gives that which government because they have the attitudes of the various governments that go back to various Premier's it's better on the bright side have varied very considerably. I feel that with the chorus we can really have meaningful negotiations he's not concerned about the form we would for instance if it were now were to come

to some agreement on the trading card or representation abroad for the provinces. We would know that the present government of Quebec would not be using this as an attempt to get international recognition of Quebec as a separate state they would be doing this for more pragmatic purposes just as I'm sure of that. We want you nobody has really any sure Egypt you know we don't we are really quite scratch one as a matter of fact this is guys when I was in London and several of the other provinces I'm sure think nothing of entering into agreements with other foreign per party is a party to a contract. In our particular case the Scotch when I was active very like a diplomatic agency a facility that bringing together the schoolteachers of these the Medicare crisis doctors that it's not I think there's a general feeling abroad and certainly people I know the promises ought not to have any kind of extra who really this has never been so well know really and truly as you have heard Dr. Marc MacGregor chairman of the

special joint committee of the Senate and of the House of Commons on the Constitution of Canada and Senator Eugene foresee a member of that committee talking with Norman road David E. Smith Douglas Wiser and a total of seven professors at the University of Saskatchewan. The second part of that conversation will be heard next week at the same time on this station. And at that time that bug bear entrenchment of rights in the Constitution rears its head. Who invited you to join us again then. Technical operations were handled by Les Reynolds and Michael Pollock for this special presentation which was produced by Ken Gordon for C.J. us FM the noncommercial radio station of the University of Saskatchewan. Sounds good to NPR's special of the week thanks. C.J. U.S. Saskatoon for the recording of this program. Part two next week. This is ANY our of the national educational radio network.