"WHAT'S WRONG WITH CANADA'S CONSTITUTION"
An Address by HON. DANA PORTER, K.C.
Attorney-General of Ontario
Thursday, October 4, 1951
CHAIRMAN: The President, Mr. D. H. Gibson.
Mr. GIBSON: Coming to our subject and our Speaker, "WHAT IS WRONG WITH THE CANADIAN CONSTITUTION", and our Speaker the Hon. Dana Porter, well known to all of us in Toronto, highly esteemed and regarded not altogether for his political affiliations.
Born in Toronto, January 14th, 1901, Mr. Porter was educated at U.T.S. and the University of Toronto, at Oxford and Osgoode Hall. It is a great tribute to Mr. Porter and I know he denied himself a brilliant career in Law, in order to serve his fellow citizens, for which we are profoundly grateful.
He was called to the Bar in 1926 and is a King's Counsel.
After practicing law for sixteen years he was elected to the Ontario Legislature as a Progressive-Conservative Member in August, 1943. In his career many outstanding Acts have been put through. He is a man of action. During the first session of the new government, an Act was passed establishing a Department of Planning and Development. Mr. Porter was appointed the first Minister of this Department. The purpose of the Department was to deal with post-war problems. And then that grand piece of work, The Teachers' Superannuation Act, which provided for increased pensions for school teachers. And other great tributes fall at the feet of this esteemed member of the Club.
We frequently turn our minds to Gray's Inn, that Temple of Her Majesty's Judges, Lords of Appeal. In 1608, Sir Francis Bacon was Treasurer of Gray's Inn, and commented that men:
"Create good precedents and follow them, and always remember to seek counsel of both times. Of the ancient time what is best, and of the latter time what is fittest."
As Attorney-General, Hon. Dana Porter has attended the Series of Dominion-Provincial Conferences which have been held to consider means of amending the Canadian Constitution.
Mr. Porter is a Past President of the Empire Club and a member of the National and Albany Clubs and the Canadian Institute of International Affairs.
MR. PORTER: Much as I regret having to part with that magnificent Department of Education, nevertheless nothing has pleased me more than that Mr. Dunlop has agreed to accept the responsibility of guiding the destinies of that Department, I hope for many years to come, and that means, if the newspapers at noon are correct, my hopes are in common with his.
I remember so well, about eighteen years ago, when I was Chairman of this Club, I think that was the last time I stood at this podium, and all the great problems we have of getting people to speak, and wondering what they were going to say, and I wish you, Mr. Chairman, a most successful year as Chairman of this Empire Club, with its great traditions, with what, in many respects, is unique in the City of Toronto.
Today I thought that, knowing that I would no longer be associated with the Department of Education which always had so much rich material for speeches, I thought that I had better confine myself to my own business, and I decided that dry as the subject may appear to be, that some consideration dealing with the Constitution of Canada may be of interest to the Empire Club. I think it is something which we all know about in a vague way. We accept the fact that there is a Constitution somewhere in the distance, that in a rough and ready way guides our destinies, but I think we have all taken it for granted, and may not realize the issue that is shaping up with reference to that Constitution.
Sir Wilfrid Laurier once predicted that the Twentieth Century would be Canada's century. Since the early decades of the 1900's we have witnessed vast changes in almost every direction. We have seen the steady development of raw materials, the expansion of industry, the progress of agriculture, the increasing productivity of labour, and with all these, the awakening of a Canadian culture. We have survived participation in two world wars. We have gone through times of prosperity. We have emerged from a deep economic depression, when the lights seemed to be going out all over the world. And now, as we cross the half-way mark of this Twentieth Century, the earlier prediction seems almost about to be true. We are a nation. We live under a constitution that has served us well. Through our federal system of government we manage our own affairs-without interference, without restriction from any outside authority-and as we view the world today where else can we see the same combination of new and extending frontiers for development along with a people who are free and conditioned to the pursuit of the possibilities that lie before us?
We have reached this point through many moments of uncertainty, and doubt, and bitter controversy. We have maintained a steadiness of purpose, and a will to move forward, and a vision of the future, not merely as an isolated unit in a turbulent world, but as a member of the most durable society of free nations that has ever existed upon the face of the earth. We have prospered as a free Canada within a united Empire. From this relationship we have inherited many traditions, we have gained assistance and support, and also on the other hand, to this relationship we have made our many contributions. Therein lies the secret of so many of the characteristics of our people--therein lies much of the explanation of our growing strength.
There is one peculiarity about our position, however, that raises a fundamental and exceedingly difficult problem. We have arrived at our present status of autonomy and we have succeeded in working out our multitudinous problems of government on every level, whether it be federal, provincial or municipal, within the confines of a constitution that legally we cannot change. It is a matter of fact a tribute to the Fathers of Confederation that we have been able to proceed so far and so successfully within the limits of the constitution, the terms of which they so wisely settled eighty-four years ago. The British North America Act was conceived with such vision and fashioned with such skill that for almost a century this country has been able to accomplish substantially what our people desired to be done, whether in peace or in war. Throughout the controversies of the past this constitution has stood the test. Even in the expanding and changing days in which we live, any widespread popular demand for immediate drastic revision is non-existent. Yet, as we look forward into the future and attempt to visualize the nature of some of the problems that may have to be faced, we cannot escape the conclusion that some generally acceptable procedure for constitutional amendment within our own country is vitally essential. The lack of such procedure is an anomaly. In this respect we are unique in comparison with all other free countries of the world, in comparison with other partners in the British Commonwealth and Empire. The time has undoubtedy come when the foundations should be laid for the correction of this short-coming.
From what I have already said, it should not be assumed that the Constitution of Canada has not been amended, nor that amendment is impossible-such, of course, is not so. The constitution is embodied in the British North America Act of 1867. This, of course, is an Act of the Imperial Parliament, passed at Westminster at that time. As such, it may legally be amended at any time by the Imperial Parliament sitting at Westminster. As such, indeed, legally, it could be repealed by that same Parliament, although the chance of that is about as remote as anything that we could imagine but it is true in this country that the source of legal solidity flows from the Imperial Parliament at Westminster, and the Act under which we conduct all our affairs of government is an Act which is in a sense domiciled over there. In fact, the Constitution has on a number of occasions during the last eighty-four years been amended by act of that Parliament. There have been amendments as to the boundaries between provinces; there have been amendments as to some fairly minor changes in the Constitution of the Canadian Parliament; there have been statutes passed introducing into this Federation, provinces that were formerly territories beyond our borders. One of these amendments of great importance was passed as recently as 1949, and another was passed in this year of 1951. The amendments come about quickly and A-th no difficulty at all. In the past, with one possible exception, they have been beyond any public controversy of any major scale. In this respect, we might also be tempted to boast that for all practical purposes this method of amendment is a convenient one. It has proved to be simpler and more effective than any to be found elsewhere, because in Australia and in most of the other dominions a most elaborate system of amendment has been provided, and the process of bringing about any change in the Constitution is so difficult that often it is considered impossible. At least it may be said that in the past, at any rate, this rather peculiar method of relying on the Parliament of Great Britain to pass amendments to the constitution of Canada has satisfactorily met the necessities of the situations that have arisen up to the present time. That, however, does not face the real difficulties of the problem, nor the possible situations that may arise in the future, because most of those amendments have dealt with matters of limited importance, in relation to the nation as a whole. Most of them have not touched upon the extremely delicate question of division of powers as between the Federal and the provincial governments. In any consideration of amending procedure this becomes inevitably the crux of the whole situation. For the constitution of Canada is a Federal constitution. It specifies what powers shall be allotted to the Federal Parliament and what powers to the provincial legislatures. Generally, the Federal Parliament may legislate on matters that are national in scope, the provinces on matters of a more local concern. Where is overlapping, as often occurs, or where there is doubt, the issue is decided by the Courts. And, in addition to this, there are certain guarantees in the British North America Act of rights with respect to denominational schools and with respect to language, that none of the law-making bodies in Canada, Federal or Provincial, may legislate away. Within their own spheres of legislation, however, as laid down by the Act the Federal Parliament and the Provincial legislatures respectively exercise their powers, generally speaking, without restriction. Within their own spheres they have the attributes of sovereign lawmaking bodies. The members who run for election in our Provincial Election which happens once in a while are elected to a certain type of job--The different sort of work that we do is different work involving different powers, a different scope of activity than the sort of thing that is done in the Parliament of Canada. And so it follows that just because some political party happens to be in power in Ottawa, the same people who voted that Party in, might decide that a government in a province was doing such a good job that it should not be disturbed. Any amendment that may be proposed affecting this division of powers might seriously alter the Federal Structure. For instance, if an amendment were made that took the subject of education away from the Provinces and turned it over to the Federal authorities, then my Colleague would be out of a job. But that is just a sample of the sort of problem that might arise if there is ever to be considered any transfer from one field to the other.
Considerations of amending procedure must take this into view, for this is the sixty-four dollar question.
Most of the amendments in the past have not touched substantially upon this delicate question of division of powers. That is why the attitude of the British Parliament has been so acceptable. The problem has not yet arisen in a major form. However, there have been two amendments that have definitely done so. In 1940 the power to legislate for "Unemployment Insurance" was added to the Federal Parliament as one of their exclusive powers. Unemployment insurance up to that time was regarded to be under the general heading of Property and Civil Rights, which is in the exclusive provincial field of legislation.
Now this amendment was passed by the Imperial Parliament simply at the request of the Government of Canada, after the Government of Canada had consulted the heads of all the Provincial governments of the day. The procedure was marked by the greatest informality. Since the measure met with general popular approval at the time, it resulted in no controversy. It was what the general public of this country, whether they thought in terms of provincial or federal legislation, it was something they wanted to do, to have an Unemployment Insurance Act, which would be national in scope, the same for those who lived in one part of the country as for those who lived in another.
In this year of 1951, the Federal Government requested the Imperial Parliament to amend, for the purpose of national old age pension legislation, to provide pensions to all persons of 70 years of age and over. As a result of this, we had a special session of the Legislature a few days ago to confirm some of the other legislation that flowed from that. This request followed a Dominion-Provincial conference where the Premiers of all the Provinces were present along with the Prime Minister of Canada, to discuss the whole matter of Social Security, and in addition to that, the other matter of constitutional amendments. And this was approved by all the ten provincial governments. There was unanimity on the part of all governments that are partners in Confederation to the amendment of the constitution that was passed a few weeks ago by the Imperial Parliament.
But there was a third amendment, passed in 1949, of a somewhat different nature, and this raises many questions. This gave to the Federal Parliament the power to amend its own constitution, that is to amend the constitution of the House of Commons and the Senate and the way of doing business in that Assembly; and this brought into focus the dangers of our present position in no uncertain way. For this amendment was passed at the request of the Federal Government only, without any consultation of the provinces at all. Now the danger was this-the Federal Parliament, both as to the House of Commons and the Senate, was originally designed, to some extent at least, to reflect the Federal principle. There is provision for a measure of representation in both the Senate and the House of Commons, from all the provinces of Canada, and if an amendment is made that will leave the Federal Parliament free to do anything it likes without any restriction upon the readjustment of representation, it might violate the original principle that was involved in constituting the Senate and the House of Commons in the way they were constituted in the British North America Act, and the provinces might have some interest in an amendment proposed. And this amendment of 1949 left the matter fairly wide open.
If the Federal Parliament could, by a single request, to the Parliament of Westminster (which under the present practice is never denied) if it could vest itself with power to change-this whole aspect of its own constitution, and cease to reflect any Federal principle at all, it might conceivably go even further and ask for something else from the Parliament of Great Britain, which would very dangerously encroach upon Provincial powers. It might request a direct encroachment upon provincial powers, and whether that encroachment might be a sound one or whether it would be an unsound one, would be determined entirely by the one body which was elected by the people to do the job, which is described now by the British North America Act. So long as the Imperial Parliament acts merely upon the request of the Federal Government in questions of this kind, the real power of amendment lies in the hands of the Federal Parliament alone, and the Federal principle underlying our constitution may become insecure.
Of course we have also this situation. Very recently appeals to the Privy Council were abolished by Act of the Federal Parliament, and now the sole body to determine questions of overlapping powers between the Federal and the Provincial Governments is the Supreme Court of Canada, which, of course, is appointed by the Federal Parliament. Personally I have no fears that any danger will become of that situation, because I thing that in this country we have reached a point of maturity where we can trust the Bench to decide on judicial questions without fear or favour, and without allowing themselves to suffer from any political influence, no matter from what direction it may come. And much as we may regret the abolition of appeals to the Privy Council, which stood as an arbitrator of our affairs for many years, and won such respect from our own people, nevertheless, I think the stage has been reached where the Supreme Court of Canada may not only be allowed, not only by law but by the sentiment of the people, as the arbiter of all disputes which come up.
It was under the disturbing cloud of this measure, that the Dominion-Provincial Conference met in January, 1950, to consider the broad question of constitutional amendment. Fortunately, an atmosphere of compromise replaced the preliminary tension, because there was no doubt that many Provincial Premiers there thought that the passing of that Act immediately before the Conference was an unwise -and rather dangerous thing to do, but nevertheless, as the result of the deliberations, confidence became established very soon.
In the deliberations that ensued, all possibilities were examined, and fully discussed. The general possibilities seem to be narrowing down to rather a few simple points. First, it is generally recognized and agreed that certain fundamental provisions of the constitution should be entrenched, that is that no changes should be made unless there was unanimity as between the Federal Parliament and all Provincial Governments. The guarantees as to schools and language is the prime example of this. It was generally agreed that they should not be subject to amendment except with the unanimous approval of the Federal Parliament and the Provincial Legislatures. Secondly, there may be cases where the amendment may affect the Federal Parliament and perhaps only one province or two or three provinces. It was generally decided that an amendment could be made affecting that group where those Legislatures directly concerned approve. It would be unnecessary to call in all the others to deliberate on something that in a sense was not of their business.
And in the third place-and I may say this of the British North America Act, whereas it lays down general constitution principles and allots certain powers, it contains a great many other sections of a detailed nature dealing with questions of a local nature that were in evidence at the time the Act was passed and at the present day do not concern us. But in the third place, where an amendment affects only the constitution of the Federal Parliament, without interfering with the powers of the legislatures, or with the established Federal principle, if they want to decide on some of their own procedure and change the nature of their own procedure as laid down in the British North America Act, nobody would have any objection to the Federal Parliament to amend that sort of thing themselves. Under our present constitution, provincial' legislatures have power to amend the constitutions of their own Legislative Assemblies.
Fourthly, (and this is where the controversy arises) all other amendments it was thought should be possible by enactment of the Federal Parliament along with some adequate majority of the provincial legislatures. The one suggestion that appears to come closest to general acceptance, is a majority of two-thirds of the Provincial Legislatures of provinces having an aggregate population of at least a majority of the total population of Canada. That simply means that a province of small population, or a group of provinces that presently have a small population, even though there might be a majority of the provinces, would not be able to bring about an amendment which would vitally affect some of the provinces with vastly greater populations-that it should be two-thirds of a majority of the legislatures, so long as there was two-thirds of the legislature, representing at least a majority of the total population of Canada. As to all the nine common-law provinces, this proposal, or something very near to it, might gain approval. I think it would, I am sure we would be in favor of that ourselves. There is, however, the special position of Quebec that raises certain important questions as to the application for such a formula.
We of the common-law provinces share the inheritance of the English Common Law, of the English Civil Equity. The term "Equity and Civil Rights" that appears in the British North America Act, and in our minds in Ontario, and in the other Common Law Provinces, is something that we think of amongst ourselves very much in a similar way. The people out West and the people down East, and ourselves, think alike as to property and civil rights, because our system of Law is very much the same. We do not perhaps regard any prospect of amendment that might transfer some portion of this sphere of jurisdiction to the Federal Parliament for some purpose that we may consider to be in the national interest, to raise any serious danger. In Quebec, however, the viewpoint is quite different. It is of vital importance that we in Ontario and in the other provinces, should understand this viewpoint, and appreciate it. In Quebec they do not take the prospect of constitutional change lightly. They regard the British North America Act as a guarantee of certain fundamental rights that should not be violated by any majority of the other provinces, because it was upon the faith of this that Quebec agreed to enter Confederation, because they believed that property and civil rights, which to them was one of the fundamental rights, was so bound up with the Quebec civil law and their way of life, would be assured to them. They believed that the British North America Act assured this to them. If, then, a majority of the provinces, even representing a majority of a majority of the whole population of Canada might conceivably consent to a change designed to take away any of these rights which they regard as fundamental, such a procedure would not be acceptable. Quebec, on the other hand, is fully aware of the necessity of some step that will "domicile" (which is the word that has been used in this connection) our constitution in Canada, so that we will have complete control of amendments under some procedure to be set. Quebec fully appreciates the desirability of some procedure for amendment. Indeed, Quebec agreed to the last amendment of 1951, providing for national old age pensions, and there are other amendments which Quebec has not objected to at all. Quebec is not unalterably opposed to amendment, but Quebec is somewhat cautious of what amendment should be allowed, this was in spite of the fact that some encroachment on property and civil rights, was because the old age pension is a contributory scheme, and to that extent an infringement on property and civil rights, but Premier Duplessis also is fully aware of the far-reaching importance of any commitment to a procedure that might render the constitution too flexible for safety. Although a procedure for change must come, and although the procedure should be flexible enough so as to have some practical value when a change is desired by the vast majority of our people, constitutional change should not be made too easy. This is especially so in Canada, where our constitution has stood the test for so many years and has proved reasonably flexible within itself without the necessity of more than a handful of relatively minor amendments. Major changes should not be made unless all governments have had full opportunity of considering them, and the opposition to them is relatively small. The caution with which Quebec approaches the constitutional question is in many respects a sound and admirable caution. Let us not hastily make it possible too easily to damage, even with the best intent, the well tried instrument that we already have. For although the British North America Statute was the legal device whereby it became effective. As a constitution it is and always has been a Canadian free negotiations of Canadians in Canada. The Imperial Act is an Imperial Statute, its terms were settled by the constitution. If we are to ask ourselves "what's wrong with it?" the only answer is, we have devised no fully satisfactory way of amending it ourselves. If we can achieve this we shall have cured its only major defect. For if there are other defects, by amendment we shall have the power to cure them also.
When we review the events of the last eighty-four years, we may marvel at the extraordinary phenomenon of this Dominion steadily going forward into the front rank of nations. For we have accomplished those things that we have set out to do under a statute passed by the Imperial Parliament in 1867. We have governed ourselves through free institutions under the authority of a statute that we have no legal power to change. When changes have been made, we have sought further statutes from the Imperial Parliament, and they have been passed, without question, and without controversy. The time has now come when some more final solution of this peculiar situation must be found. Yet, there are very few people in this Province who regard the position worth more than a passing thought. It is true, nevertheless, that the position is an anomolous one. It is true that it is not a wholly satisfactory one. It is right that we should continue to negotiate with caution and with foresight towards a sound formula for settlement. Yet, as we look back upon the life of our nation in relation to the fundamental law of our constitution, we see revealed a supreme example of political genius. Before this constitution was adopted we were divided-we are now one nation. Before, we were weak and the future was uncertain. We now are strong and the future is bright. Whatever may be the many contributing causes of our progress, one is the wisdom and the common sense that produced the British North America Act. Another is the wisdom and the common sense of the Imperial Parliament in dealing with amendments as they came forward from time to time. Truly may it be said that the sufficiency of our constitution for the last eighty-four years is in no small measure due to the fact that we remain Canada within a united Empire.
THANKS OF THE MEETING were expressed by Major Gladstone Murray.