Why Confederation?
Publication:
The Empire Club of Canada Addresses (Toronto, Canada), 1 Dec 1966, p. 105-124


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Faribault, Marcel, Speaker
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Text
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Speeches
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A panel discussion led by Marcel Faribault, President, Trust Général du Canada.
Introduction to the panel discussion by Mr. Fowler, President, Canadian Pulp and Paper Association. The question for the panel discussion is: "If the federal and provincial governments are to look after their own affairs exclusively, why should not this principle be extended to municipalities so that the federal government would permit the deduction of municipal taxes?" Mr. Faribault responds with an initial "I see no reason why the federal government should not: It would certainly be an apt recognition of the division of powers, since municipalities are the most important creation of the provinces." The discussion follows from that point, involving Mr. Fowler, Mr. Hanson, Mr. Cranfield, Mr. Palmer Kent, Mr. Potts, and Mr. Faribault.
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1 Dec 1966
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English
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The speeches are free of charge but please note that the Empire Club of Canada retains copyright. Neither the speeches themselves nor any part of their content may be used for any purpose other than personal interest or research without the explicit permission of the Empire Club of Canada.
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Full Text
DECEMBER 1,1966
Why Confederation?
A PANEL DISCUSSION LED BY OUR GUEST SPEAKERS
Marcel Faribault, PRESIDENT TRUST GENERAL DU CANADA
Robert M. Fowler, PRESIDENT, CANADIAN PULP AND PAPER ASSOCIATION
CHAIRMAN, The President, R. Bredin Stapells, Q.c.

MR. STAPELLS:

We are fortunate and most honoured to have with us today, two distinguished Canadians, both Doctors of Laws, who have grappled with the constitutional question and have put forward a Canadian Constitution in their jointly authored book "Ten to One--The Confederation Wager" published last year.

M. Marcel Faribault is President of two companies--General Trust of Canada and Sherbrooke Trust Company--and a Notary in his firm Deroux, Faribault et Leroux of Montreal. He is an active director of sixteen companies, a Fellow of the Royal Society of Canada, a sometime professor at the University of Montreal, a writer and, in a word, a broadly experienced leader in our society.

Mr. Robert M. Fowler is President of two associations, the Canadian Pulp and Paper Association and the Newsprint Association of Canada and a lawyer in his firm Gowling, MacTavish, Osborne and Henderson of Ottawa. He is an active director of three companies, Co-Chairman of the Canada--U.S. Committee, Governor of the Royal Victoria Hospital of Montreal and a Member of Canada's Economic Council, former President of the Canadian Institute of International Affairs and Chairman of the Executive Council of the Canadian Chamber of Commerce and, finally, was on the Staff of the pre-war Rowell-Sirois Commission on DominionProvincial Relations and has conducted two enquiries into the C.B.C. He is thus an equally experienced leader in our community.

These two well-qualified gentlemen have agreed to make opening statements on their "Confederation Wager" and then they will answer questions from the floor.

Our procedure today, therefore, will be a little unusual for this Club. Our guests and myself will remain seated at our microphones and I would ask those who wish to ask a question of our guests to proceed to one of the two microphones on the floor, give your name when recognized by the chair, and then ask your question.

As this type of discussion could go beyond our normal period, I advise you now that we will adjourn at 2 p.m. sharp. I will now call upon Mr. Robert Fowler to make his opening statement.

MR. FOWLER:

Mr. Chairman, honoured guests, gentlemen. For me, it is a very special pleasure to return to Toronto, where I lived and worked for many happy years and where I have many friends. I have lived now for over twenty years in Montreal and naturally have not seen at close hand the great and rapid changes that have occurred here in Toronto, nor indeed been able to keep in close touch as I would like with my friends in this city. For this reason, I greatly appreciated your invitation to come today and quickly accepted it.

I must say--with no disrespect or criticism of Toronto--that I have greatly enjoyed living in Montreal for these twenty-odd years. It is a vital and exciting city in which to live-as I hope many of you will be able to see for yourselves next summer. Montreal is in many ways the focal point for many Canadian problems and if you happen to be interested in Canada as a nation, Montreal is a good vantage point from which to observe what is going on in this country. Admittedly, it does not give one a complete picture of Canadian opinion, but Montreal is the place where the two national languages and cultures meet more completely than in any other city in Canada. It is also the place where most easily an English-Canadian can form friendships with French-Canadians, and none has been for me more rewarding than that I have enjoyed with Marcel Faribault for the past 15 years.

Over two years ago-one evening when we were together in Texas (of all places!) we considered writing a small book together--which is surely a severe test of a friendship. We followed the ancient Persian practice that anything decided late in the evening should be reviewed in the cold and sober light of morning, but next day the project of a book on the Canadian constitution seemed equally worthwhile, and we set to work on it. That experience over the following six or seven months was a rewarding and, at times, exciting one. We had monumental arguments on many points and found that the issues involved were more numerous and more complex than we had imagined. But, in the end, we reached full and complete agreement on all points; there were no basic matters on which we had to compromise or evade a decision. When we had finished the book, we wondered if two such different authors--different in background, race, religion and politics--could reach such complete agreement, why Canadians generally could not reach agreement on their constitutional problems or at least try to do so.

In the year and a half since the book was published we have met m_ any times and reviewed our conclusions. Wehave been quite ready to change our minds, but on all the basic ideas have found little reason to do so. This proposal for a new Canadian constitution--and the way to go about getting it--seems, taken as a whole, a workable proposition from which to start public discussion--and that is all we ever intended for it.

The one thing I would do differently if we were writing the book now (I don't know if Mr. Faribault will agree with this) would be to try to dig deeper and explain some of the proposals more fully. We produced a political essay at a time when we were both very busy, in less than seven months and on a number of points, may not have developed the detailed arguments to support our proposals.

In the limited time available in this opening statement, I can deal with just one point, on which I think we could have been more specific. In the first chapter we suggest that a new constitution "would provide a basis for the development of a renewed partnership between the two founding races"--that it "would aid the development of a sense of national purpose and identity among all Canadians". We went on to say that the task was an urgent one--that constitutional change in Canada had been too long delayed--and that a strong vital and respected constitution is essential if we are to have a strong nation. But we did not explain why it is urgent to press forward and to create a modern constitution as a sound foundation for the Canadian nation.

In some of the reviews and comments since the book appeared, doubt has been raised about the wisdom of trying to get a new constitution immediately or at an early date. They argue that a new constitution will be a difficult business and may stir up one unholy row, when we have already a number of threats to Canadian unity and internal peace. It is, they say, better to sweep this problem under the rug.

We both have little patience with this timid approach. We do not believe we should let matters drift, patch up our constitutional arrangements here and there, accept a series of ad hoc solutions and develop working arrangements in a haphazard way--and then, when we have taken a lot of unrelated steps, and the issue is no longer a burning one, get around at leisure to writing a new constitution. We think a new constitution is a necessary first step in the building of a Canadian nation--a point of departure for the future of this country.

At the moment, no one is satisfied with the constitution we have. It is obsolete in many ways. It does not face and meet the needs of a modern industrial society. It retains vestiges of colonialism and imperialism that no one thinks appropriate. And it is insufferably dull and uninspiring. We want something new and modern that speaks to Canadians in 1966--and 1967--in words they can understand and from which they can draw inspiration.

There is a major difference of opinion on this point between French and English attitudes. In nearly all the comments I have seen, French Canadian spokesmen regard a new constitution as urgent and want to get on with it immediately. In English Canada many commentators--perhaps the majority--think we should let the system develop in practice, by unwritten rules and conventions, and only after new constitutional relationships have in fact been created--and perhaps not even then--bother to write it out. This difference between English and French Canadian views on this subject may spring from the different approaches of the common law and the civil law--or from the difference between the pragmatic English mind that is content to be governed by rather vague precedents and the, more precise French mind that likes to have its rules written out clearly and definitely. Whatever the reasons, I think it important that people in English Canada should know that many French Canadians who are active supporters of a strong Canadian nation, feel that a new constitution is urgently necessary. This is an active issue in Quebec, and a failure in English Canada to respond to it in a positive way will not only be a rebuff to our friends, but may lead to constitutional proposals worked out unilaterally in Quebec, which will be less acceptable and less adequate to meet the future needs of the whole community. Mr. Faribault and I believe that a new constitution must come, and that it is likely to be a more complete and satisfactory one if it is developed by all Canadians working together.

We do not believe it is an insuperable, or even a very difficult task. There is a wide consensus as to the kind of federal system we want. We are not starting afresh with nothing, but have a constitution that has served us reasonably well for 100 years. It needs to be made more modern, more flexible to meet today's and tomorrow's needs, and freed of outworn and obsolete provisions. Above all, it needs to speak to the people it will govern with some inspiration and even emotion, to provide a solid constitutional base on which a nation can be built.

Let us get on with it! As Mr. Justice Holmes put it: -

"One is daily annoyed by some little corner that needs cleaning up and when, by accident, one is at last stirred to do the needful, one wonders why one stood the annoyance so long when such a little effort would have done away with it. Moral--when in doubt, do it."

MR. STAPELLS:

Now gentlemen, I have pleasure in introducing Mr. Faribault.

MR. FARIBAULT:

Mr. Chairman, distinguished guests, gentlemen, I am sorry I am not like Mr. Fowler, I am quite sure if I had the privilege of living in Toronto in the last 20 years I would become very much attached to it.

I would like to preface my remarks by the statement that, whatever you may have read or heard, I am neither anti-federalist, nor a member of the power elite, nor Emi nence Grise to anybody. I have, indeed, criticized the federal government. I would be quite ready to extol it, should it fulfill its true function of being the tying thread of the Canadian fabric without its trying to change or to mend it alone, thus becoming so predominant that the fabric would lose at one and the same time its very pattern, its flexibility and its pleasantness, as Mr. Fowler has said.

Some people are afraid that a new constitution would destroy the present one. Actually, it would consolidate it. There is no question in my mind that generally speaking the distribution of specific powers between the two orders of government is good and this was the basic agreement of 1867. I am no less sure that some of the provisions in the B.N.A. Act ought to be deleted and new ones added. This,. I think, would be better accomplished through a rewriting of the constitution done as a joint effort by the Provinces and by Ottawa at the same time it is repatriated from Westminster. I submit there is no better way of providing for a renewal of consent and consensus by the three main sectors, each one representing a trend of thought to be found in Canada, namely the 43% of British origin, the 30% of French descent and the 27% of other extractions, always. keeping in mind that each and everyone of them is or desires, to be truly Canadian.

One often hears that the British genius is one of accommodation, common law, empirical and pragmatic approach_ and therefore that any constitutional modifications should be. adopted piecemeal, without too much fuss and over a term, of years. One could retort that the French genius looks at it. the other way around and works by definitions, agreements, and instruments. I prefer to point out that present day, employees insist on collective bargaining and will not work without a contract. One may not ignore in the name of genius that there is turmoil outside the ivory tower. When, we are told that the British are illogical, always muddle through or win the last battle or again that all Frenchmen are models of clarity, politeness and love making, such statements are humorous and pleasant so long as nobody believes them. When taken seriously by the listener they are still humorous but less pleasant. But when taken seriously by the, speaker, they become the saddest thing on earth. I submit therefore that any stand which makes of a constitutional grievance a minor matter, which makes the actual provisions of the constitution something of less importance than the practices claimed or derived thereunder and makes of constitutional amendments a pure question of majority or might is unworthy of Canada and Canadians. As to which the Neo Canadians might very well sit in judgment over us. For they have not come to Canada in the expectancy of such discussions. They were and are quite ready to accept the political creed of Canada provided we formulate it for them in an understandable and modem language, while at the present time the Canadian brand of federalism is abysmally difficult to understand and has stumped practically all writers on the subject. One of the latest, Professor Strong of London, England, could write in 1964:

"In general, the Commonwealth of Australia is far more federal than is the Dominion of Canada, or, to put it the other way, Canada approaches much nearer to the type of state called unitary than does Australia. Thus in spite of Canada's proximity to the United States and the remoteness of Australia from America, the federalism of Australia resembles that of the United States, in every particular, far more closely than does that of Canada."

Canada would be well advised to stop ascribing its loss of brain power to the United States to a pure question of economics. This loss will only stop when people select Canada as the elected land of their own children because it has borrowed and adapted from our neighbours all those principles of freedom, equality and initiative which attract people, encourage them and make them proud. Canada lacks neither dimension, nor natural resources, nor ingenuity, nor expertise. It sadly lacks broadmindedness, a universal view of history, an actual philosophy of life and a generosity of approach without which it will shrink instead of developing. Let no one deceive himself. Canada will remain independent from the United States to the extent it will be able to develop its inner resources in men, in ideas and in ideals. It cannot afford to lose one fourth of its territory but it will do so unless it is willing to talk to the inhabitants of this portion of its land and it will not be speaking if it merely tries to indoctrinate them or make them believe that salvation is from outside. Similarly Quebec cannot afford to leave Canada, but it is not consistent with her dignity that her proposals be disposed of in a summary way or merely brushed aside without being discussed on their merits and balanced against other alternatives. It is impossible for Neo Canadians to be proud of their new country unless they find therein some of the values to which they aspired when they forsook their homes and habits for the pursuit of happiness and in relief of some obsolete social structures. In such a scale of values they might choose for themselves immediate economic objectives; for their children they are bound to look to the intellectual and moral ones. The writing of a new constitution will not accomplish everything but it would, I am sure, be a particularly apt beginning if such new constitution would affirm these values after which each man yearns in his heart: truth which alone shall make him free, justice which alone shall make him safe, strength which alone shall make him great, moderation which alone shall make him good and respect of others which alone shall make him wise.

Here then are seven points which to me seem fundamental:

1) The ascribing of the residuary powers to the Provinces or at least their removal from federal jurisdiction;

2) The deletion of the federal power of veto over provincial legislation and of the federal appointment of provincial judges;

3) The reformation of the Senate into a Chamber where provinces have the appointment of at least half the Senators and the participation of the same Provinces to such bodies as the Economic Council, a Bank of Development, a Fiscal Commission and a Constitutional Court of last resort.

4) The adoption of an amending procedure which would recognize to the Provinces some possibility of initiative instead of their being made subservient to federal goodwill in such a fundamental matter;

5) The recognition of the right of the Provinces to all sources and systems of taxation on a par with the federal government subject only to such exclusive exceptions as result from the nature of things, such as customs to Ottawa and real estate to the Provinces;

6) The insertion in the constitution of a bill of rights for man and groups, inspired by the Universal Declaration of the United Nations;

7) And lastly some status for the French speaking inhabitants of Canada which might vary from Province to Province, but which must have some relation to their number, priority of establishment, their localization, their expressed desires and dignity, and which would prevent their being met in the federal capital of Ottawa, which is also theirs, in the same way I was met at the Canadian Embassy in Paris where the doorman could not speak French!

How many of these modifications could menace national unity is beyond me when they endanger unity neither in the United States, nor in the Soviet Union, nor in India, nor in Australia, nor in Germany. How they depart from the inner principles of British law and fairplay I cannot see when I read Magna Carta, the Bill of Rights, the Decisions of the law lords, the Quebec Act and the India Settlement. Why the future of Canada would be thereby made less brilliant, I am unable to conceive when I think of the Common Market, of the United Nations, of the discoveries of science, of the extension of education and of the impact of ideas over man. For to me such is the only way to peace, order and good government.

THE CHAIRMAN:

Gentlemen, at this point we are going to try and swing into a more informal method, and I now invite anyone who has a question to come to one of the two micro phones, give their name first, and then address your question to our distinguished panel. Now has anybody been stimulated?

DR. CRANFIELD:

Mr. Chairman, I hope that this question is not too diluted. I see that federal and provincial relationships are involved, and I think one phase of that takes it down to the municipal level, and the question is this: if the federal and provincial governments are to look after their own affairs exclusively, why should not this principle be extended to municipalities so that the federal government would permit the deduction of municipal taxes?

MR. FARIBAULT:

I see no reason why the federal government should not: It would certainly be an apt recognition of the division of powers, since municipalities are the most important creation of the provinces. Although therefore the deductibility might entail some modifications in federal finance, the true question is of what is the more important: to respect the logic of the constitution or to simplify the task of the federal government. In the last analysis, the question should be resolved by the citizens themselves, who are also the taxpayers and I venture to think they would support deductibility, and currently labour under a good deal of frustration for lack of it. We still think in categories developed before the urban explosion, although the change has been so vast that we have to revamp our building laws, our circulation by-laws, and all of our thinking; furthermore a similar change has occurred in taxation laws and what was a minor point at the beginning before income tax has now become very important. Finally such deduction would be another way of achieving what has been done in the United States where municipal finance is helped by the fact that municipal bonds are income tax free.

MR. FOWLER:

Mr. Chairman, may I add to that, that this proposal would not necessarily mean lower taxation. It might mean fairer taxation.

MR. HANSON:

Mr. Chairman, I have been impressed with the fact of the ability of the Canadians to be able to co-operate, one with another, which both speakers have mentioned. But I have noticed in the past few months a very definite lack of this ability in the federal and provincial conferences that have been going on. I have been wondering if there is any way they can help enlighten us as to how this ideal co-operation could come about so that we could have in the proposed constitution a joint federal-provincial fiscal commission which would be co-operative in the light of what is obviously a great difficulty that the provinces have in getting along one with another and with the federal government.

MR. FOWLER:

May I try that one. To begin I think that the two situations are, as we envisage them, quite different. The kind of institution for collaboration, particularly, in economic affairs that we suggest in the book is a continuing one, a calmer more steady approach. It will have a very much greater amount of solid work done in preparation, better statistics, better economics, and the like, and it will be on a continuing basis.

Part of the difficulty about periodic provincial conferences is that they are put together in a bit of a hurry sometimes. The preparation may not always be even, and when that happens each side is defending a position of power, their own individual power. They are asking for rights of the Province of Ontario or the Province of Quebec or the Federal Government or something of this sort which, generally speaking has nothing to do with the interests of the people of Canada.

to that?

THE CHAIRMAN:

Mr. Faribault, have you anything to add

MR. FARIBAULT: No, I agree.

MR. FOWLER:

I don't want to go off the question, but I would just like, at this time, to add on this subject there is a very great need for something of this sort to develop. The reason for it is the fact that the functions of government are totally changed today to what they were 100 years ago. You only have to think of such things as the growth of social services, and more recently the acceptance of the fact that governments are supposed to try and ensure a high level of employment, steady economic growth and so on. It is a totally different picture to what it was 100 years ago.

This whole participation in economic affairs we have not only wanted, and not only accepted, but it has actually been in response to wants not only here, but it has been wanted also all over the world. This involvement in the economics sphere by governments is very different indeed in the unitary state as opposed to federal system. In the unitary states; such as Great Britain, France or Spain the problem is relatively simple.

A single government only has to decide if people want a new social service or other activity, and are willing to pay for it. They can then go ahead and do it. But in a federal system, because of the way powers are divided between the two levels, and their different sources of revenue, the problem is much more complex. One has to decide which government can undertake such a new service, and then decide if it has sufficient financial resources to do so. Under the present distribution of powers between the federal and provincial governments, both levels of government have power to influence the economy and the rate of economic growth. Ottawa can legislate as to monetary policy, the supply of money, national defence, trade and tariff policy and so on. The provinces have legislative powers over natural resources, highways, social services, education and so on. All these affect the level of economic activity.

Also, both governments in their tax policies and in their borrowing practices can influence the economic health of the whole community. In a federal system, if you want to have

a strong economy and maintain high employment and strong economic growth, you must find ways and means to combine the use of federal and provincial economic powers, and thus create some kind of continuing and consistent economic policy for the country as a whole. This means that the provinces must have some say in what the federal government does in the exercise of its economic powers, and equally that Ottawa must have some say in how the provincial governments exercise their economic powers. And you must have institutions and machinery for working out economic policy for the whole country on a consistent and continuing basis. The machinery and the methods must be capable of being changed to meet changing conditions. This is why we suggested that a fiscal commission and other institutions should be embodied in a new constitution to deal with the economic policies and activities of all Canadian governments.

MR. PALMER KENT:

My question is how can Canada conduct its relations with other countries, both through federal ambassadors and provincial representatives?

MR. FARIBAULT

This topic has been much debated in the Province of Quebec, but is actually rather simple. At least the solution we offered seems very clear to us. To start with, foreign affairs are the business of Canada as a whole. But while this is undoubted, there are local affairs which are better treated if discussions are held between the parties without any outside help or interference. Not only is this admitted by everybody in business matters, but some Provinces have long governed themselves accordingly without being taken to task on that account. For instance, the Province of Ontario has had direct dealings with London for a good many years and British Columbia also. When therefore the Province of Quebec wishes to make some sort of cultural agreement with France, to have some degrees in education acknowledged in both countries, is it really necessary that it be done through the federal government or not? Is it necessary to do it in a roundabout way by people who know nothing about it? I do not think so.

In a broader sense, the whole matter is one of definition, both in substance and in form. Mr. Fowler and I have suggested that provinces could choose to be individually represented in any international negotiation or with any foreign government otherwise than through ambassadors and envoys extraordinary in all matters of the exclusive legislative jurisdiction of the provinces. The federal government representing the provinces whenever the latter fail to exercise their option. We also stated that the representation of Canada and the negotiation and signing of treaties be of the exclusive federal jurisdiction.

The upshot is that you may look at a subject matter from the mere aspect of form. If the level of discussion is one for ambassadors, or if the name given to the agreement is one of treaties, then it becomes a matter for the federal government, even though the topic may be one of provincial jurisdiction, bearing in mind that through the development of international law, it is now a settled question that federal governments signing treaties in such matters may not apply them within their territory without the intervention and consent of the Provinces which alone have the legislative power in that field. Although this may appear as a great restriction to the federal power of treaty making, it should be deemed of very great practical advantages. Furthermore, this leaves entire the federal jurisdiction in substance over all those questions which are of federal concern and the usual subject matter of treaties, namely trade and commerce, monetary policy, war and peace, citizenship, immigration, customs, telegraph, shipping, navigation, etc.

MR. POTTS:

Mr. Chairman, how can the speakers suggest dropping the peace, order and good government clause in the B.N.A. Act? Will federal initiative designed to establish uniform standards for Canadians throughout the country be preserved? I cite, by way of example in the past, the establishment of the employment insurance act, and similar acts, and possibly the other side of that same question is what happens to the residuary powers-where will that lie?

MR. FARIBAULT:

As I have said, I have no doubt that the locale of residuary powers ought to be changed. The RowellSirois Commission reported on that and they stated very definitely that the allotment of the residuary powers to Ottawa had actually been superseded by the decisions of the courts on property and civil rights. What we often fail to realize is the inconsistency of such a situation. You cannot have a clause saying one thing and the courts saying another. Certainly the courts never do it if they can avoid it and when they do it is because the matter is so fundamental that they must.

This question has, of course, been examined in all other federal constitutions that I know, which is more than 90% of the whole, and they all allot the residuary powers to the Provinces or the constituent states. In Canada, where the reverse has been done, it has been shown by the courts to be entirely impractical and why we should refuse to acknowledge our mistake, I cannot understand. The argument in favour of the retention of the residuary powers by Ottawa is generally presented in a way very close to that expressed by the last speaker: "What about the unwritten aims of a federal country to give some unity of direction in matters of economics? Should not this be the concern of the federal government?" But this is not the way things actually develop. They develop through diverse initiatives, some private and some public, taken without any overall planning, and which therefore constitute a strictly empirical and pragmatic approach and are not to be used as a means of subverting the constitution. There can be no presumption that such initiatives will fall in or out of the federal jurisdiction, since initiative in itself does not prove that one is right when all the consequences come to be considered. Given therefore one such initiative, one may find it so good that it would warrant a change in the constitution, but one may also find it so bad that it be declared unconstitutional and ultra vires, and finally the matter may remain undisputed. But to say in advance that all residuary powers are Ottawa's certainly stacks the cards against the Provinces.

The very best example I can give you is that of the offshore mining rights about which there is not a single word in the B.N.A. Act. If you put yourself in the position of the Premier of Quebec, or the Premier of British Columbia, you will realize, as they do, that if the question is submitted to the Supreme Court, there is every likelihood that it will say the matter should be decided by the residuary power clause, precisely because there is not a word about it, and residuary power must apply. If I were the Premier of a Province I would strenuously object and claim the cards are stacked against me. Such a question should be discussed and dealt with through arguments which cannot be adjudicated upon by the Supreme Court because they are entirely different from actual law. The whole question is one of policies, politics, and discussion by wise men and statesmen. Therefore, let us use the proper forums, and not the Supreme Court of Canada. The trouble is that there is no adequate or appropriate forum under our present constitution, since there is no formal way open to a Province, other than through the grace of the federal government, to express its desire to have a matter discussed leisurely, as a matter of constitution importance. It is high time that we get away from such a vicious condition so that the Provinces may discuss th- 1gs of paramount importance to them on a par with the federal government. They should not have to submit to a decision of the Supreme Court under a constitution which stacks the cards against them.

This is far from intimating that the federal government can have no initiative. It has initiated and will continue to initiate many laws and novelties, but the logical conclusion must be for the provinces to opt out if they will. If the federal government decides to do such and such a thing, the provinces may well take different stands, perhaps only on account of their geographical situation, if for no other reason. But while this seems all fine and reasonable, it does make for long squabbles which do no good to anyone.

It seems quite clear therefore that the residuary powers ought to be removed from federal jurisdiction, but it is perhaps somewhat less important to vest them in the prov inces, than to give the latter some. say or participation in the forum of discussion regarding economics, long term politics, and constitutional modifications, so that they may have some initiative of their own in these fields so vital to them.

Another example will illustrate the point, namely the experience of the Province of Quebec over last year about the abolition of the Legislative Council. Being a minority in such Council, the liberal party wanted to abolish it. The Council resented that and would not vote its own demise. The Legislative Assembly then voted an address to the Queen asking for the abolition. But London would not receive it unless it was forwarded by the federal government, which in turn would not forward the address of the Legislative Asembly because it could not forward the address because it had not been forwarded to Ottawa by the Quebec government. You see, the Council would have to approve the address to be an address of the government of Quebec of which the Council is part. Can there be anything more ridiculous.

These two examples are taken from everyday political life. Some other instances could be given regarding the delegation of powers by the Provinces to the federal government. Actually, the root of the trouble is our lack of agreement about an amending procedure to our constitution. One thing certain is that there will never be any agreement if we leave the residuary powers to Ottawa which will not agree to curtail its powers and will invoke the national interest on the basis that the members of the House of Commons come from all over the country. There is no doubt that the Province of Quebec will always reject that argument, since that would condemn it to the perpetual role of minority. Quebec then would be reduced to the following choice: either to admit that all its representatives in the federal House of Commons could be wrong at the same time, or to admit that there are no circumstances when one is entitled to reject a majority decision. No province should be in that position in a federal state.

The question of property and civil rights, therefore, becomes paramount for Quebec and is tantamount to being the residuary power so that they cannot be divorced easily. To a lawyer, the opposition between civil law, which prevails in Quebec where it has lived for 350 years, and common law which prevails in all the other provinces, goes much deeper than the average person may think and the recurrent encroachments of the latter over the former may not be countenanced. They are unworthy of us.

THE CHAIRMAN

Thank you. Mr. Fowler would you like to add something?

MR. FOWLER:

Yes, I would deal with it on a narrower point than Mr. Faribault has done. There was a question a moment ago--how do you get uniformity of standards? Now

I do not think it is a matter of residuary powers at all. You have to ask yourself what standards in what area you are talking about. I think if the federal government seeks to establish uniformity of standards in areas that are within provincial jurisdiction then they are acting beyond their constitutional powers in this or any other federal system.

If you want uniformity of standards, you can achieve it in one of two ways. In a new service, such as unemployment insurance, which was mentioned, where uniformity across the country is essential, there needs to be a constitutional change giving powers to the national government with jurisdiction over the whole country. The other method, in matters within provincial jurisdiction, is to leave it to experimentation by the provinces; they will at times compete and at other times co-operate to work out reasonable uniformity of standards in services. I do not think it is really a question of residuary powers at all.

Thanks of the meeting were expressed by Mr. D. H. W. Bath.

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Why Confederation?


A panel discussion led by Marcel Faribault, President, Trust Général du Canada.
Introduction to the panel discussion by Mr. Fowler, President, Canadian Pulp and Paper Association. The question for the panel discussion is: "If the federal and provincial governments are to look after their own affairs exclusively, why should not this principle be extended to municipalities so that the federal government would permit the deduction of municipal taxes?" Mr. Faribault responds with an initial "I see no reason why the federal government should not: It would certainly be an apt recognition of the division of powers, since municipalities are the most important creation of the provinces." The discussion follows from that point, involving Mr. Fowler, Mr. Hanson, Mr. Cranfield, Mr. Palmer Kent, Mr. Potts, and Mr. Faribault.