THE EMPIRE, CANADA AND THE PROVINCES, 1949
AN ADDRESS BY
HONOURABLE STUART S. GARSON, K.C. MINISTER OF JUSTICE AND ATTORNEY GENERAL OF CANADA
Chairman: The President, Mr. H. G. Colebrook
Thursday, January 19th, 1950
Your Worship--Honourable Sirs--Honoured Guests and Gentlemen
The title of our Distinguished Guest's address--"THE EMPIRE, CANADA AND THE PROVINCES, 1949"--is one of compelling interest to all in these critical days in which we live.
Our Guest's background, as described on your notice cards, fully illustrates his qualifications to deal with such a momentous subject--more particularly as it was he who prepared and presented the Manitoba Treasury Brief to Rowell-Sirois Commission on Dominion-Provincial Relations at Winnipeg in 1937 and at Ottawa in 1938.
In 1943, he became Premier and Minister of Dominion-Provincial Relations for that Province.
In 1948, upon resigning from the Premiership, he was appointed to the very high office which he now holds--I have very great pleasure in introducing to you
THE HONOURABLE STUART SINCLAIR GARSON, Minister of Justice and Attorney General of Canada.
In a democratic state it is the votes of the people, directed by the will of the people, governed by the contents of the mind of the people,--public opinion if you like--which in the last analysis determine the personnel, and to a large extent, the policies of government. This being so, few things are more important than the state of public opinion with respect to the major issues of the day. One of these major issues is the relationship of the federal and provincial governments to one another, towards our constitution, and towards its amendment.
Thus, when I have received from so distinguished an organization as your own an invitation to address it, it is perhaps not inappropriate to place before you some of the background of facts and law of this issue.
The Dominion of Canada was created as a self-governing, but not completely sovereign, dominion of the British Empire, by the Imperial Parliament at Westminster. It was that body which passed the British North America Act to unite the territory and the people of the colonies of Canada and New Brunswick and Nova Scotia into this new dominion. Canada was created a federal state like the U.S.A. rather than a unitary state like the United Kingdom. For this purpose the entire powers of government in Canada had to be divided into two parts. To the national government were assigned all national functions such as defence, tariff, trade and commerce, monetary and foreign policy and the like. To the provinces were assigned local functions such as property and civil rights, education, health, social services and charities, municipalities, roads and drainage, etc.
To support provincial functions of government which then cost very little the provinces were limited in their taxing powers to direct taxation within the province for provincial purpose.
To support what were then its more costly functions, the Federal Government was given unlimited power of taxation. The Federal Government's unlimited power of taxation-is a gauge which we can apply to demonstrate the inaccuracy of statements which we hear from time to time, even in the House of Commons. The first is that in imposing any federal tax, the Federal Government is invading the provincial field of taxation. This is obviously incorrect. For when a government with unlimited taxing powers imposes any tax whatever, it is acting within its own powers. A government with unlimited taxing powers cannot encroach upon the tax fields of other governments. The second inaccurate statement is that the Federal Government and Parliament might take advantage of a new method to amend the constitution, in order to increase its own taxing powers at the expense of provincial taxing powers. This is also quite impossible; for obviously neither a new method of amending the constitution nor action of the Federal Parliament there--under could increase federal taxing powers which are already unlimited.
In passing I should like to point out that the municipal governments of cities, towns, rural municipalities of our country are created by the province. They thus can have no greater taxation or other powers than the province has the right to convey to them; and usually have less powers than the provinces which create them.
A great many of the Dominion, Provincial and Municipal fiscal problems have arisen, because this 1867 division of legislative functions and taxing powers is still in effect today in 1950 in spite of the fact that economic and social conditions have changed enormously in the intervening 83 years. It is not this fiscal problem itself with which I am dealing today, but the related problem of how the Federal Government and ten Provincial Governments of Canada are to work out together a method whereby we in Canada can amend our constitution so that it will be in accord with the facts of life in the era in which it has to operate. This is no abstract theoretical problem. We have national unemployment insurance today because of the constitutional amendment of 1940. Similarly, a national contributory old age pension scheme--a national health plan, and adequate marketing facilities for agricultural and other products, are examples of national benefits which may depend upon our ability to devise a workable method of amending our constitution.
In discussing methods of amendment, I first would like to establish some fundamental points. A unitary state like the United Kingdom, having no provinces, has no problem of dividing and keeping divided, powers of government and fields of taxation, between a central government and a number of provincial governments. It can get along, and has got along very well, with a less sharply defined constitution which in large part is not in writing at all. But the constitution of Canada--a federal state--must not only create this division of powers in the first place, but if Canada is to maintain its federal character, must make adequate provision for the protection of provincial powers against the encroachment by the federal authorities, and vice versa. Thus, it must necessarily be more definite and more in writing than that of a unitary state. Yet it should not be so rigid as to prevent the growth and development of the nation within the limits of the constitution; and this is particularly true of a young, dynamic, and therefore changing nation like Canada.
The British North America Act of 1867 was the first measure to be passed in the British Empire, to raise a colony to the status of a dominion. Canada was the first British colony to be so raised. One of the results of this fact was that Canada today alone amongst the British dominions has no power to amend its own constitutional act within its own boundaries and without legislation by the Parliament of the United Kingdom. The full implication of the change in status from colony to self-governing dominion were not appreciated in 1867. Before that time the British Parliament had passed several constitutional statutes relating to Canada as a colony. None of them contained any provisions for amendment. It was the normal thing at that time to have constitution statutes for the colonies and their amendments passed by the Imperial Parliament at Westminster. Thus, it was natural to assume that in passing the British North America Act it also, like the earlier statutes, could be amended whenever necessary by the Imperial Parliament of Westminster.
The other British colonies which acquired dominion status later have profited by our pioneering in this field. When their constitutional acts were passed by the British Parliament, they saw to it that their statutes, unlike Canada's, provided for their own amendment. The Australian Constitutional Act of 1900, the South African Act of 1909, and the New Zealand Act, all have provision for their own amendment.
Now you may ask, seeing that we cannot ourselves amend our Canadian constitution, how in the past have we gone about the business of securing the amendments to our constitution which we required from time to time? Until the year 1949 we had ten amendments to the British North America Act. In three cases provincial interests were involved. In one case in 1930 involving the transfer of the natural resources of the three prairie provinces, only the provinces immediately affected by the amendment were consulted and all three agreed to the amendment. In two other cases all nine of the provinces were affected. In one, in 1907, involving the amount of the provincial subsidies, all of the provinces were consulted; eight approved and one, British Columbia, strongly disapproved. Yet, despite this disapproval, the amendment was granted by the Imperial Parliament without any question. In 1940 it was desired to transfer unemployment insurance from provincial jurisdiction to federal jurisdiction. All of the provinces were concerned, all were consulted, all agreed, and the amendment went through accordingly.
In the other seven of these cases provincial interests were not involved. In these seven cases the provinces, therefore, were not consulted; and the amendments were secured from time to time over a period of some eighty-odd years by joint Addresses passed by the House of Commons and the Senate of our own Canadian Parliament, upon the strength of which the Imperial Parliament passed the amendment which the joint Addresses requested.
In the meantime, a very great change had taken place in the British Empire itself. As I have pointed out, Canada was created by an Act of the Imperial Parliament at Westminster. All of these amendments that I have referred to were enacted by Imperial legislative power exercised by the Parliament of Westminster in passing laws in London which were to have effect in different parts of the Empire. One of such laws was the Colonial Laws Validity Act which provided that no law passed by the Parliament of any colony or self-governing dominion was to have any effect to the extent that it conflicted with Imperial Statutes in force in such colony or self-governing dominion. This gave the Parliament at Westminster an overriding legislative authority over all parts of the British Empire.
But in the course of the evolution of that Empire the Imperial Conference of 1926 passed what has usually been called the Balfour, Declaration that
"They (that is the various British Dominions) are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or internal affairs, though united by a common allegiance to the Crown and freely associated as members of the British Commonwealth."
The Imperial Statute of Westminster in 1931 gave legislative effect to this Declaration, by providing that the Colonial Laws Validity Act should not apply to any law made after the Statute of Westminster by the Parliament of a Dominion; that the Parliament of a Dominion shall have full powers to make laws having extraterritorial operation, that is to say, having effect beyond the boundaries of the Dominion itself; and that no Act of Parliament of the United Kingdom passed after the Statute of Westminster should extend to a Dominion as part of the law of that Dominion unless the Dominion has requested and consented to the enactment thereof. Thus, the British Parliament by passing the Statute of Westminster, 1931, to give legislative effect to the Balfour Declaration, made the various self-governing dominions completely sovereign and autonomous. In relation to them it divested itself of its imperial legislative authority. One of the significant exceptions of this Statute of Westminster, however, was Section 7 which provided that nothing in the Statute of Westminster shall be deemed to apply to the repeal, amendment or alteration of the British North America Act. In other words, since by 1931 when the Statute of Westminster was passed, we Canadians had not worked out a method whereby we could amend our constitution ourselves, it was necessary for the British Parliament by this Section 7 to retain its power to do so. We must realize that this situation in which the British Parliament is called upon to rubberstamp with legislation, the joint Address of the Canadian Parliament requesting amendments to our Canadian Constitution, is anomalous and embarrassing under the best of circumstances. It could become acutely so if any serious controversy between the provinces and Canada should develop with regard to a certain amendment which the Canadian Parliament was asking the British Parliament to provide.
Thus, at the beginning of 1949, we Canadians still fell short of exercising full nationhood and sovereignty in only two respects. The first was that we had to petition the United Kingdom Parliament to pass the United Kingdom Statute which alone can amend our Canadian constitution. The second was that the ultimate interpretation of Canadian statutes and other laws was the responsibility of the judicial Committee of the Privy Council, a United Kingdom Court.
It was for the purpose of removing these last two impediments to our full sovereignty that the Canadian Parliament this past Autumn did two things. First, it passed a Statute amending the Supreme Court Act and abolishing appeals to the Privy Council. In this step it was exercising legislative powers affirmed by the Privy Council itself. Second, it passed a joint Address requesting the United Kingdom Parliament to pass an amendment to the British North America Act (which that Parliament passed in due course as requested) empowering the Canadian Parliament to amend our constitution in respect of those matters in it which are of purely federal concern.
Ever since the British North America Act was first passed in 1867 the Provinces had always had the right to amend the B.N.A. Act in regard to matters of purely provincial concern.
Thus, the present position is that the provincial legislatures can amend concerning matters of provincial concern, the federal Parliament can amend concerning matters of federal concern, but we still have to go to the British Parliament to secure amendments concerning matters of joint concern such as historic minority rights and the distribution of legislative powers between the federal and provincial governments.
The Canadian Parliament formally recognized provincial autonomy and minority rights when this past autumn in passing a joint Address seeking powers to amend the constitution as regards matters of purely federal concern, it expressly excepted:
(1) matters assigned exclusively to the legislatures of the Provinces by the B.N.A. Act, 1867;
(2) rights or privileges granted or secured to the legislature or government of a province by any constitutional act;
(3) rights or privileges granted or secured by the constitution to any class of persons with respect to schools;
(4) constitutional provisions regarding the use of the English and the French languages; and
(5) constitutional requirements that a session of Parliament be held once a year and that the life of the House of Commons be limited to five years, with a provision for a possible longer continuance in cases of real or apprehended war.
This reference in Parliament's joint Address to these historic minority rights was the first occasion on which any legislature in Canada has formally affirmed that these minority rights should specially be safeguarded by our constitution. By this reference we of the federal government and parliament have gone as far as we can go by ourselves in safeguarding these minority rights. But it must be obvious that in order to be completely effective the safeguards of these rights must be accepted by the provincial authorities and incorporated into a specially entrenched part of the constitution itself. For all of these reasons it followed logically that the next step in the process of working out a method of amending the constitution was to confer with the provinces.
Accordingly the Prime Minister invited the provincial Premiers to send a delegation to a Dominion-Provincial Conference at Ottawa on January 10th to ascertain whether an agreement would be reached upon the method by which our constitution could be amended within Canada as regards these matters of joint federal and provincial concern.
We made it clear at the outset we had not drawn up a cut and dried plan for amending the constitution that we wanted the provinces to rubber-stamp for us. On the contrary, we had deliberately come to the Conference without any preconceptions in this regard at all. In view of the provinces' great interest in these matters, we felt that any plan which emerged from the Conference had to be the product entirely of the Conference itself, and not the result of any pre-judgment of the issues by the Federal Government alone before the Conference started. We pointed out, however, that since any further constitutional amendment which the Conference might agree upon would have to be obtained from the British Parliament as a result of a joint Address presented by the House of Commons and the Senate of Canada, we would have to know what method of amendment the provinces would agree with us to support, before we as a Government could secure from the Canadian Parliament and pass c n to 'the British Parliament the joint Address which would be required in order to carry out such agreement. For that reason, we invited from the Provinces their ideas in this connection.
All that we said with regard to the method of amendment was that in our view it should meet three tests First, it must preserve the federal character of the Can adian nation by preserving the autonomy of the Provincial Legislatures and of Parliament itself within their respective spheres; Second, it must have sufficient flexibility to enable Canada, with all the great human and natural resources of a dynamic nation, to develop unhampered by the rigid constitutional restrictions of a static nation; Third, it should protect minority rights absolutely.
Moreover, in order to remove all doubts we made it very clear at the outset of the Conference that the Federal Government was not seeking through the Conference to make any alteration at all in the existing distribution of powers. What we were asking the Provinces to consider was not what power the Dominion or the Provinces should have, but merely the manner or method of accomplishing any change in the distribution of powers which the changing needs of Canada might from time to time demonstrate to be necessary or desirable.
Moreover, we called this Conference with a very real desire to protect Provincial rights. As Premier McNair of New Brunswick pointed out in his opening speech at the Conference that:
"No one would be sanguine enough to suppose that the voices of the Provinces would be heard at Westminster in protest against any amendment of the B.N.A. Act proposed by the Canadian Parliament! ... If we should fail to impress our national legislators I conceive that the prospect of any protest having weight at Westminster would be most unlikely; in fact I believe the chances would be nil.
"With these thoughts in mind I submit that the Provinces, at this stage in our constitutional development face this situation. First, in the matter of constitutional amendments, the Parliament of Canada is in effect the judge--and the sole judge--as to whether provincial rights and privileges will be affected. Second, in consequence the only protection the Provinces have today against arbitrary invasion of their rights, powers and jurisdiction is the Parliament of Canada itself. Third, it is not inconceivable that some Canadian Parliament of the future might decide to request the Parliament of the United Kingdom to amend the constitution in most vital particulars affecting the Provinces and their autonomy, in utter defiance of them."
After making all allowances for any just difference of opinion, it is suggested that there is much food for thought in this quotation.
It is a source of very great gratification to all Canadians that the Conference was one of the most harmonious, the most successful and the most fruitful of any Dominion-Provincial Conference which has been held for many years. I was talking to an outstanding constitutional authority who had been in attendance at all of the Conferences for very many years, and he told me that he could not recall anything that matched it as far back as 1921. This was due, in my opinion, to the fact that the delegates, whether they represented the big provinces or the Federal Government, met as Canadians. The contributions made by your Ontario Premier and the Hon. Dana Porter, and by the Hon. Mr. Duplessis, who is his own Attorney-General, were very substantial, as indeed were those of all the Provincial representatives.
The Conference reached a certain important measure of agreement. It agreed
(1) That in respect of those provisions of the British North America Act which concerned Parliament only, the amendment should be made by an Act of Parliament.
(2) That in respect of those provisions which concerned the Provincial Legislatures only, the amendment should be made by an Act of the Provincial Legislature.
(3) That in respect of those provisions which concern Parliament and one or more, but not all of the Provincial Legislatures, the amendment should be made by an Act of Parliament and an Act of the Legislature of each of the Provinces affected.
(4) In respect of provisions which concern Parliament and all of the Provincial Legislatures, the amendment should be made by an Act of Parliament of Canada and Acts of such majority of the Legislatures and upon such additional conditions, if any, as might be decided upon.
(5) That provisions concerning fundamental rights (as for instance, but without restriction, education, language, solemnization of marriage, administration of justice, provincial property in lands, mines and other natural resources) and the amendment of the amending procedures should be made by an Act of the Parliament of Canada and Acts of the Legislatures of all of the Provinces.
It was further agreed that the process of amendment in respect of the last three above-mentioned groups of provisions and also those which should be repealed entirely, should be capable of being initiated by one or more of the Provincial Legislatures or by the Parliament of Canada. It was also agreed that the subject of the delegation of powers should be placed upon the agenda of the Conference.
The Conference also agreed to the appointment of a continuing Sub-Committee of all of the Attorneys-General of the various Provinces under myself as Chairman. To this Committee will be submitted briefs of the various Provincial Governments expressing their views as to which of the above headings, each section of the British North America Act and other Canadian constitutional statutes, should be allocated. When all of these briefs shall have been submitted, it will be the task of this continuing Sub-Committee to endeavour to reconcile any conflict of opinion that there might be. The Committee will report any residual difference of opinion to the main Conference itself for consideration and further final adjustment by that body. This is the present standing of an important problem which presents one of the greatest tests that the political capacity of Canadian public men has had to face.