The Constitution—What Now?
The Empire Club of Canada Addresses (Toronto, Canada), 9 Oct 1980, p. 37-52
Stevens, The Honourable Sinclair, Speaker
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Constitutional change. Failure of Federal/Provincial agreement as a basis for unilateral action by the federal government. A discussion of the appropriateness of such action and its consequences. The Vancouver Consensus amending formula and its attributes. Suggestions by the speaker, as a member of the PC party, as to the nature of the amending formula, and the patriation of the Constitution. How those suggestions differ from the Prime Minister's proposals. Whether or not to entrench a Charter of Rights in the Constitution. Issues at the time of Confederation and how they have/have not changed. The failure of the constitutional debate.
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9 Oct 1980
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Full Text
OCTOBER 9, 1980
The Constitution—What Now?
AN ADDRESS BY The Honourable Sinclair Stevens, P.C., M.P.
CHAIRMAN The President, Reginald Stackhouse


Ladies and gentlemen of The Empire Club of Canada: Over a hundred years ago that noted economist, Wilkins Micawber, outlined this formula for financial stabilily:

Annual income twenty pounds, annual expenditure nineteen nineteen six, result happiness; annual income twenty pounds, expenditure twenty pounds ought and six, result misery.

As a successful businessman and a practical politician, as an opposition critic and a government minister, today's speaker has brought that wisdom to bear on the challenges that confront both government and nation. When he was President of the Treasury Board--some think for too short a time--the Honourable Sinclair Stevens became known from coast to coast as a champion for the seemingly original view that it is better to balance a nation's budget by spending less rather than taxing more.

That he should advocate this approach to public affairs came as no surprise to the many who had watched his impressive career in private and public sectors before he had the country's purse strings put in his hands. Not spending two dollars when one would get the job done had made it possible for Sinc Stevens to work his way through the University of Western Ontario and the Osgoode Hall Law School, then to save enough to initiate a remarkable succession of enterprises in a wide diversity of interests: finance, development, insurance, construction, electronics, as well as continuing the law firm which he had formed with his talented wife, Noreen.

The same practical emphasis marked his rapid rise in politics. Elected on his first attempt to a House of Commons seat in 1972, he soon became a leading debater for the Opposition, a serious contender for the Progressive Conservative party's national leadership, and a cabinet minister in 1979. He has been re-elected a Member of Parliament three times. We can feel privileged to hear him today, on the timely subject of constitutional change.

Thomas Hardy once wrote about a woman of whom he said: "Like the British constitution, she owes her success in practice to her inconsistencies in principle."

Naturally, neither today's speaker nor I advocate too close an emulation of her example, but I am sure you will agree that enough argument about the principles of constitutional reform has been heard, and it is time to ask questions about what it may mean in practice. In The Rubiat of Omar Khayyam, Fitzgerald wrote:

I did, when young, eagerly frequent

Doctor and saint, and heard great argument, About it and about,

But evermore came out

By the same door wherein I went.

After years of first ministers' conferences, federalprovincial confrontations, trans-Atlantic consultations, threats, warnings and promises, the Canadian public is surely looking for a practical approach to the subject of constitutional change, and The Empire Club of Canada is surely fortunate to be addressed today by such a public leader as the Honourable Sinclair Stevens.

THE HONOURABLE SINCLAIR STEVENS: Ladies and gentlemen: Canada has not had a budget since November 1978, our inflation level is 10.7 per cent and rising, nearly 900,000 of our people are out of work, major plants are closing down, the federal deficit is now over four million dollars per day or fifteen billion dollars a year, our dollar is under pressure and we have no energy policy.

Any discussion on constitutional reform in Canada today must be in the context of these problems. I would suggest that such issues should have priority since the redrafting of our constitution won't lessen inflation, reduce unemployment, or improve productivity. That, however, is not the Prime Minister's priority and in my remarks today, I accept his priority to deal with constitutional change.

In my opinion, Mr. Trudeau is using the failure of the most recent round of constitutional talks as an excuse for unilateral action on the part of the federal government. If Mr. Trudeau takes similar unilateral action in the fields of energy and the economy, this country will not survive. We have already been torn as a federation by the Prime Minister's action on the constitution. If there is similar action on questions of revenue sharing, energy and offshore resources we will be torn asunder.

As you all know, a constitutional reform package has been presented to Parliament in the form of a government resolution. Once this resolution has been passed in the Canadian House of Commons and Senate, it will be referred to the Parliament of the United Kingdom.

There, if passed, a constitution act will be enacted by the British Parliament to be called the Canada Act. It will include some forty new or changed rights, freedoms or limitations on our freedoms. This will be done without meaningful review in Canada by Canadians, and against the wishes of most provincial governments. Ottawa will have the only voice in Canada.

Before dealing with the specifics of the government's constitutional resolution, let's take a look at how appropriate our Parliament in Ottawa is as a forum to take unilateral action on major constitutional change. There is no doubt that a constitutional resolution must eventually obtain the approval of the Parliament of Canada, before it can go to England. But, how meaningful is Parliament's review of the matter prior to it being sent to England. In my opinion, the present Parliament by its very nature is not a consensus institution on constitutional questions.

As you know, the government is proposing that a joint committee of the House of Commons and the Senate be formed to deal with its constitutional resolution and to report back to the House by December 9. A majority, of course, on the committee will be Liberals. The House of Commons itself is dominated by a government formed from a majority Liberal caucus which, in turn, has a majority of its members from Quebec. It is a regrettable fact of Liberal life that there are only two members in their caucus west of Ontario. In fact, in terms of popular vote, not only did the Liberals not receive a majority vote in the last election nationally, but provincially, other than Quebec, they did not carry, by a majority, one single province or territory.

But at least the House of Commons is elected. Mr. Trudeau seeks added support in the Senate--the very institution that he has suggested should be abolished. In any event, as we all know, it is dominated by Liberal senators and is not elected. Those senators, however, will have a significant voice in committee in determining your constitution, in determining what will be

enshrined in the constitutional document. You will not have a similar voice or vote.

Some may say, well surely Mr. Trudeau received his mandate. But I don't remember the constitutional issue being discussed to any degree in the 1980 federal election. If Mr. Trudeau received any mandate he received a mandate not to place an extra eighteen cent excise tax on gasoline. That was his most significant promise.

Mr. Trudeau argues that strong federal action is needed in view of the Quebec referendum vote. Even if one agrees that this vote was for renewed federalism, this in no way means support for the present constitutional proposals.

In fact, both Mr. Levesque and Mr. Ryan, the Premier and Leader of the Opposition in Quebec, have expressed disapproval of the direction being taken by the federal government. The point is that if Mr. Trudeau is going to honour his commitment to constitutional change then he ought to be offering reforms of a sort that have been sought.

Before suggesting an alternative to the government's constitutional proposals, I would like to outline some of my party's specific objections to the resolution that has been placed before Parliament.

First and foremost, I want to make it clear that we are not opposed to patriation of the constitution at this time. Mr. Trudeau talks about the desire of Canadians to be independent of Britain. Certainly, this desire is not solely the concern of the Liberal party.

But while we are not opposed to patriation, we do take the position that the constitution should be brought home with a built-in amending formula. Further, it should be a formula that is suitable to the provinces and in this respect, we favour something along the lines of the Vancouver Consensus, which was agreed to in principle by all the provinces, this year.

I hope that you will bear with me for a few moments while I elaborate on the nature of the Vancouver Consensus amending formula. By this formula, amendments to critical sections of the BNA Act would require the approval of the Federal Government plus seven of the provinces holding at least fifty per cent of the Canadian population. Such a formula would prevent any one province from having an absolute veto. This is quite different from the amending formula favoured by the government which would give Quebec and Ontario a veto power.

It is also significant to note that the Vancouver Consensus included a clause which would allow provinces to "opt out" of any amendment which would affect their fundamental rights.

Thus, we prefer this proposal not only because it is favoured by the provinces, but also because it takes into account the essential regional dimensions of our federal system.

If the current government can come up with another proposal which could receive the same provincial support, we would have no objection.

In brief summation, we believe that the following order of events should take place. First, an amending formula which has the agreement of all the provinces should be decided on. Second, the constitution should be patriated with that formula already in place.

Third, and this point is very important, substantive changes to the constitution should be made only after the first two steps have been taken and should be made in Canada and not Great Britain.

Clearly, this is very different from what the Prime Minister is proposing. He would like to have entrenched in the constitution a charter of rights before patriation takes place, and before an amending formula has been decided on.

In effect, the Prime Minister wants to take advantage of Westminster's present ability to amend our constitution. The proposed resolution is quite a lengthy document, containing some fifty-nine clauses which will fundamentally change our constitutional framework. In effect, Westminster is being asked to make our laws for us. This is extremely ironic in view of Mr. Trudeau's continuing regret over Canada's lack of constitutional independence. Let me read you some Trudeau statements made in Quebec City in 1976, before the Quebec Liberal Association meeting:

... Basically, what we want to do is take away from England, from the United Kingdom, we want to take away from this foreign country, friendly country, the right to make laws for Canadians; it shouldn't be very difficult to agree on that.

He then goes on to say ...

For a hundred years now we haven't been able to agree to tell the British: please stop making laws for us. All the other Commonwealth countries have done so, all of them. In 1931, when the Statute of Westminster was adopted in England, it said exactly this. It said: "From now on the British Empire has ceased to exist in those countries ... in the five Dominions of the Commonwealth, we will not make laws for them.... You are adults now, you can make your own laws yourselves." The Canadians said: "No, no, we aren't able to do it."

He goes on to say ...

Let's agree to patriate that constitution, let's do it without discussing the division of powers. We can always fight afterwards. We don't need the Queen as arbitrator, nor Harold Wilson as arbitrator. If we don't agree, we won't agree; if we agree, we'll agree. We won't need the Pope either, for that matter. We can do that amongst ourselves....

These are the statements made by Mr. Trudeau four years ago. But what is he saying now? He is saying: Your Majesty, and Mrs. Thatcher, we would like to have our constitution brought home. But for me, please make certain legislative changes first because, frankly, I don't think that I will be able to get the provinces to agree to them, and I can't trust my subjects to understand what I want passed.

Notwithstanding his earlier statements in Quebec, Mr. Trudeau is now so anxious to have the Queen and Westminster intervene in our affairs that he actually had two ministers of the Crown fly to England to explain his position before he even brought the matter to Parliament in Canada.

Ladies and gentlemen, we in the Progressive Conservative party say, yes, bring back the constitution. Yes, bring it back with the amending formula which has been accepted by the provinces. And then, let Canadians decide how they wish to alter their constitution. We believe that there should be a Canadian constitution, but not a constitution made in the United Kingdom as amended by Mr. Trudeau.

You might ask, what is wrong with those legislative matters that Mr. Trudeau plans to ask the British Parliament to pass on our behalf? In my view, the answer is a great deal! In his proposed wording, Mr. Trudeau would secure the power to by-pass any provincial legislature when he wants to make further amendments to our constitution; and he would entrench a charter of rights that alters our provisions respecting such things as Habeas Corpus. He would even make us constitutionally an abolitionist state.

The whole question of whether or not to entrench a charter of rights is a complicated one. Mr. Trudeau has tried to create the impression that anyone opposed to entrenchment is opposed to the guarantee of fundamental and democratic rights. That is just not so. The real thrust of the debate revolves around the question of whether such rights are better protected by enshrining them in the constitution.

To elaborate on this comment, let me refer to the famous judgement by Oliver Wendell Holmes that the United States constitution's guarantee of free speech does not entitle one to shout "Fire!" in a crowded theatre without just cause. Clearly the line between individual right and the public good is a fine one.

In the United States such determinations are 'referred to the courts and represent a very significant burden on the legal system at great cost and not always to the ends of justice. American jurists must be continuously aware that they are interpreting the constitution.

This difficulty is not as prevalent under the British common law system of guaranteeing civil liberties. There the law assumes a high degree of individual respect for the public good and prefers to limit this "common ground" only as necessary. Positive law, of which enshrined rights form a prominent part, is as much a limitation on individual freedoms as a guarantee of them. Will we be any more free in fact, once a bill of rights is embedded in the constitution?

Premier Blakeney gave a very reasoned plea against entrenchment, and I think that his views deserve serious consideration. I don't want to go into this question in any more detail except to suggest that the entrenchment of rights offers no guarantee that such rights will be respected. We are all aware of the very liberal nature of the Soviet constitution--on paper it covers even more points than Mr. Trudeau does in his charter of rights--yet we all know how few basic freedoms are respected in that country.

The entrenchment of a bill of rights will substantially alter the nature of the Canadian constitution. It could also, as I have indicated, have serious implications for the development of future legislation. For instance, let us examine Clause 12 of the resolution. Clause 12 states that "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment." There is no qualification. Not even Parliament can override this privilege as you find it in our present "bill of rights."

The American constitution has a similar clause and the result has been endless litigation in the courts on the question of whether it is legal for a state to maintain capital punishment in its statutes. If Clause 12 becomes entrenched, we may face the same dilemma. However, ours would be a more complicated issue than in the United States, as capital punishment is a national, and not provincial issue. Mr. Trudeau knows that any attempt to restore capital punishment through a vote in the House of Commons would be challenged as being contrary to the constitution--if he has his way--and there it would end. Think of it. Notwithstanding Mr. Trudeau's attitude towards Britain, he now proposes that Westminster should pass a measure which would make Canada virtually an abolitionist state for all time. Yet, the Canadian public has never been, and would never be consulted. Indeed, Mr. Trudeau is the last colonial.

There are many other such changes.

Unilateral action on entrenchment of rights is just one way in which the federal government is going against the grain of parliamentary tradition that has developed in Canada--that the federal Parliament and the provincial legislatures are each sovereign within their own jurisdictions. This premise is fundamental to the maintenance of a workable federal system in Canada.

I am sure we are all familiar with the elements that are necessary in a federal system. First and foremost, there must be a division of powers between the central government and the governments of the nation's component parts. Secondly, the constitution which sets out the different jurisdictions should be more difficult to amend than ordinary laws and, as a corollary to this point, any change to this constitution should involve the participation of both levels of government. In a legal sense, it should not be possible for one government to alter the balance of powers without the consent of those governments affected by the change.

This fact is clearly recognized by the convention of obtaining a consensus among the provinces on any major federal action which impinges on their jurisdictions. In 1951, such consent was obtained before old age pensions were transferred from the provinces, to Parliament. In 1960, the same for the amendment requiring provincially appointed judges to retire at age seventy-five. Also in 1964, for an amendment transferring survivors' disability and death benefits in a contributing pension scheme from provinces to Parliament.

However, the resolution which is before Parliament at this moment proposes to circumvent the provincial legislatures in several important areas. A very striking example of this can be found in Clause 42 which pertains to procedures for amending the constitution. This clause proposes that the Canadian constitution should be amendable by a referendum of Canadian citizens. Such a referendum will be held at the discretion of the federal government, which will also establish the rules and procedures and state the question. It doesn't take much imagination to envision ways in which this vote can be manipulated. The recent vote in Quebec gave adequate indications of how the process can be treated on all sides. Moreover, the federal government would be able to make use of its immense presence and budget to launch a massive advertising campaign in order to stir up emotions and influence the ultimate outcome. Again, we have had recent examples of these practices just prior to the constitutional talks.

The important point is that the federal government is proposing an amendment procedure which will bypass the provincial legislatures and instead, will ask the Canadian public to make a decision in the heat of the moment. Giving the federal government such a unilateral privilege in the constitution threatens the very basis upon which our federation is founded.

I have raised several concerns regarding the Liberal government's reform package. What then, does the Progressive Conservative party propose?

As I stated earlier, we would like to see patriation with an amending formula--rather than the promise of having a formula imposed on us some two years down the road. We also believe that all parties to the debate should be guided by the same rules. The federal government should not be free to unilaterally make substantive changes to the balance of power.

But we also believe that there is urgent need for a fresh approach to the constitutional dilemma.

There is an alternative to the conferences of first ministers as a forum for constitutional change. In several nations constitutional conventions have been used quite successfully in the process of drafting a constitution. The example that comes to my mind is Australia in the late nineteenth century. A convention of delegates from the parliaments of all the colonies was established in 1891 to produce a draft constitutional bill. This bill was revised a few years later by a second convention, and referred to the legislatures of the colonies for their criticisms and amendments (seventy-five in all).

In an effort to associate the people with the work being done, the final version of the bill was submitted to a popular vote. Let me emphasize that the referendum approach was only used after the legislatures of all the colonies had expressed their concurrence.

Ostensibly, the goal of constitutional reform has been to solidify Canadian unity. Yet, after protracted debate, the centrifugal forces in Canada are as strong, if not stronger than they were half a century ago. Nevertheless, I think it would be true to say that in Canada today there is a growing undercurrent of demand for a strong federal government--particularly in the area of the economy. There undoubtedly is a lot of sympathy for the federal position on economic union.

At the same time, there is tremendous tension and distrust among governments in Canada, each of which has a vested interest to protect. Political and economic rivalry and jealousies have developed. It is not surprising that these attitudes have permeated constitutional talks, making a consensus difficult to reach.

We have all heard Mr. Trudeau express frustration that it has taken fifty-three years to find an amending formula. This simple statement belies the fact that the constitutional debate has changed greatly over that period.

The original tensions in Confederation were mainly to do with our cultural duality and the necessity of preserving the French fact in Canada. That tension, while no less severe today, is not the only factor we have to deal with now.

Resource ownership and management is also a burning issue. So are questions about the nature of our economic union and the free flow of goods and services, labour and capital. These latter grievances have gained great weight over the last two decades. The reason should be clear.

Governments at all levels have grown immensely over the past twenty years. Many of them have outstripped their fiscal resources. The federal government especially has greatly limited its capacity to control and regenerate the economy.

In this context, a number of provincial governments are by default being made responsible for the task of improving the economies of their regions. Therefore, should Ottawa be surprised that certain premiers are vigorously resisting its efforts at encroachment into provincial territory? What is needed is a more objective forum to consider these complex issues and develop a set of constitutional proposals designed to build on the common interests that unite Canadians. It is for this reason that we suggest the establishment of a constitutional convention. Though the members of this convention would be appointed from federal and provincial legislatures, their mandate should be to represent Canadian interests.

Their selection should be based on knowledge of the issues involved. They should be given the responsibility of putting together a set of recommendations for reform which balance provincial, regional and national concerns.

The convention itself should be large enough to reflect diversity and ensure fair representation of important viewpoints. It must be small enough not to become formless or unwieldy through the complete loss of party power or personal leadership. Decisions could be by simple majority vote, or by a higher proportion. The final results could be put to a popular vote.

We believe that this proposal for a constitutional convention would help meet a basic requirement expressed quite some time ago to the Empire Club by the late John Diefenbaker. In my opinion, his comments captured the essence of the problem in a nutshell.

Canada will never achieve its destiny if the determination of its constitutional policies is made as a result of political vacillation masquerading as statemanship.

Clearly, the process of debate on the constitution has failed. In conclusion this afternoon, I would like to highlight the extent of this failure, by quoting twice from Mr. Peter Lougheed, now premier of Alberta.

In an address to this club in 1966, Mr. Lougheed made the following comment: We need in Canada a halt to the growing regionalism in this country--a return to a strong central government. . . . We need an awareness by the provinces of their responsibilities to support the central government--an attitude which has been effectively stated by the Prime Minister of Ontario .... Our peculiar combination of a parliamentary system within a federal state requires statesmenship by the premiers in resisting provincial political gains to the detriment of national strength.

Mr. Lougheed's attitudes have changed dramatically since he made that statement. In August of this year, Mr. Lougheed's tone was definitely more belligerent:

I am not overstating the case to say that if the federal government's budget next fall brings in the natural gas export tax it will be considered like a declaration of war by Ottawa against western Canada and will be so resisted.

What has gone wrong that a provincial leader, who was so sympathetic to the central government's needs fourteen years ago, should now--supported by many of his fellow premiers--speak of war?

Surely the present government in Ottawa must accept some of the responsibility for the widening gulf. If they persist in ramrodding their constitutional position, and act unilaterally on energy and related economic matters, the gulf will widen further.

And it is all so needless.

The thanks of the club were expressed to Mr. Stevens by Mr. Henry Jackman, a Past President of The Empire Club of Canada.

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The Constitution—What Now?

Constitutional change. Failure of Federal/Provincial agreement as a basis for unilateral action by the federal government. A discussion of the appropriateness of such action and its consequences. The Vancouver Consensus amending formula and its attributes. Suggestions by the speaker, as a member of the PC party, as to the nature of the amending formula, and the patriation of the Constitution. How those suggestions differ from the Prime Minister's proposals. Whether or not to entrench a Charter of Rights in the Constitution. Issues at the time of Confederation and how they have/have not changed. The failure of the constitutional debate.