Our Constitution—Shaping Canada's Future
The Empire Club of Canada Addresses (Toronto, Canada), 2 Dec 1976, p. 121-132
Richardson, The Honourable James, Speaker
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The constitution and how it can shape the future of Canada and Canadians. The importance of the constitution and how it shapes our lives—defining what federal and provincial governments may do. The difference between the constitution and the laws of the land. The constitution as the "Great Law." The constitution is beyond Parliament. Bringing the constitution to Canada as opposed to the British North America Act (B.N.A. Act). Questions at issue: How are we going to amend and change the Great Law? What are we going to add to the Great Law that determines the kind of country we are? A discussion of those questions with an attempt at some suggestions and answers. Some major subjects in the discussion include language rights, formula for amendment, role of the Supreme Court, provincial vetos, unity. A call for public scrutiny and public appraisal of what is happening with the constitution.
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2 Dec 1976
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Full Text
DECEMBER 2, 1976
Our Constitution--Shaping Canada's Future
CHAIRMAN The President, William M. Karn


Reverend Sir, distinguished guests, ladies and gentlemen: Canada has come a long way since March 29, one hundred and nine years ago, when there was passed "The Confederation Act 1867--an Act for the union of Canada, Nova Scotia, and New Brunswick, and the government thereof, and for purposes connected therewith."

Under the provisions of this Act, which became effective July 1, 1867, Canada has enjoyed commendable expansion, now reaching from the Atlantic to the Pacific, and we have prospered.

For years we have been admired and envied by many less affluent nations, and we still are -but today those same people are questioning our internal behaviour. Since our meeting last week, I have visited in Texas, Mexico City, New Orleans, St. Louis and Chicago, and have been surprised to note the keen interest in our domestic political problems, and the concern expressed for the first time by everyone I visited, as well as by some fellow travellers.

Perhaps one explanation may be the fact that controversy attracts attention, as was illustrated by a Mexican newspaper EL Universal, which proudly states in bold print on each of its several sections "El Periodico de Controversia".

Some may think that The Empire Club of Canada is exhibiting a similar characteristic, but this is not our policy. We merely seek to be informed. Although Senator Eugene Forsey will be speaking to us on April 14th next on certain aspects of the B.N.A. Act and its possible patriation, we are pleased to give our guest of honour today equal opportunity to acquaint us with his views on this subject as a parliamentary representative from the west, that region which represents almost one third of our population and of our country's area. And no region is playing a more important role in the expansion of our national economy than Canada's four western provinces.

It has been said that there are those who write history, those who read history and those who make history. Our speaker today may well qualify for that third category. After his early training in Winnipeg schools, he graduated from Queen's University in Kingston in 1943, majoring in Political Science and Economics.

He served his country during World War II as an Air Force pilot, logging over a thousand hours with 10 BR Squadron, flying the North Atlantic on anti-submarine patrol.

In business he established a commendable record, entering the family firm of James Richardson & Sons, Limited in 1945, where, after serving in Montreal, Toronto and Winnipeg he rose to the position of Chairman and Chief Executive Officer.

During this period he also served on the boards of directors of several companies--the Canadian Bank of Commerce (later the Canadian Imperial Bank of Commerce), the Hudson's Bay Company, International Nickel, and Canadian Pacific Railway, to name a few.

Mr. Richardson obviously believes that travel broadens one's understanding, and in his youth visited extensively in Europe, the Middle East, India, South-East Asia, and China. In 1964 he accompanied a Canadian trade mission to the U.S.S.R.

To education and community projects he also applied his talents generously, serving on the Board of Trustees of Queen's University, and the boards of many community organizations.

In June 1968, the federal constituency of Winnipeg South elected him their Member of Parliament, and one month later he was sworn in to the Privy Council. During the succeeding eight years in Ottawa, he has made a significant contribution to Canada, serving firstly as Minister without Portfolio with special responsibilities in the Department of Transport, then as Minister of Supply and Services, and lastly as Minister of National Defence.

Having strong convictions about Canada's future as one nation and differences of opinion regarding certain proposed changes in the Constitution, he resigned from cabinet seven weeks ago. The Honourable James Richardson has included Toronto in his cross-country tour, and I am pleased to invite him to speak to us now on his subject: "Our Constitution--Shaping Canada's Future".


Mr. Chairman, Your Worship, ladies and gentlemen: I welcome this opportunity to speak to the Empire Club and I first of all want to thank your President, Mr. Karn, for his generous introduction.

When I resigned from the Federal Cabinet, in my letter to the Prime Minister, I said that I wanted to be able to speak openly and frankly with the Canadian people about the constitution and the way in which it can keep us as one nation, and not divide us into two nations.

During the past month I have travelled from Victoria, B.C. to St. John's, Newfoundland to talk about the constitution and the way in which it can shape the future of Canada. And I welcome this opportunity today to tell you something of what I have been saying. But before I do so, I'd like to make two introductory comments. Although I have spoken frankly, and I intend to speak frankly again today, I have tried in all that I have said to be a voice of tolerance and of understanding, and I believe that I have succeeded in taking a moderate position. I am particularly pleased that the response I have received in letters and in telegrams has not been from extremists but rather from sensible and sincere Canadians in all parts of Canada. I would like to say further that the result of the recent election in Quebec has increased the importance of what I have been saying about the constitution, and for that reason I am particularly grateful for your invitation to speak to the Empire Club in Toronto today.

In my travels across the country I have talked to Canadians about the importance of the constitution. The constitution is the Great Law. The constitution is the fundamental law. It is the constitution that says what governments may do--what the federal government may do, what the provincial governments may do. It is the constitution that sets out the system of law and government for our country.

I have been, secondly, clarifying the difference between -the constitution, the Great Law, and the other laws of the land. I want to speak about this briefly now because I will keep referring to it in what I say later. The difference between the constitution and the laws of the land is that the laws of the land, the laws that we pass every week or every month in Parliament, are amendable by Parliament. The same parliamentarians, or their successors, who make a law today, what is called statutory law, can change the law. But once we put something into the constitution, it is beyond the reach of Parliament. Parliament cannot change the constitution. The constitution can only be changed by an amending procedure. And that is why there is such great discussion about how we amend, how we change our constitution. And it is particularly with the great rigidity, the inflexibility, of our proposed amending procedure that I am concerned.

I have been talking as well to Canadians about the patriation of our constitution, and I believe wholeheartedly that we should bring the Canadian constitution to Canada. But what we must ask ourselves is what we are going to add to the constitution and how we are going to amend the constitution at the time of patriation.

If we were just going to bring the British North America Act back to Canada, without changing a word or a comma, none of us would have any problems. The B.N.A. Act has served us well as a nation for 110 years. But the Prime Minister wants to change the constitution and the Prime Minister wants an amending formula attached and agreed to at the time of patriation. Patriation itself is just symbolic. What I want everyone to think about are two vital questions. First, how are we going to amend and change the Great Law? And second, what are we going to add to the Great Law, to the fundamental law, to the law that determines the kind of country we are, when we bring it back to Canada?

I suggest that the answer we give to those questions will determine the future of Canada for many years to come, if not for all time. So let us look at those questions.

First of all, how do we amend? At the time of the Victoria Conference in 1971, the federal government proposed an amending procedure. I was opposed to it at the time and I still am. I thought that when the Victoria Conference failed, we would give up the proposed amending procedure, which unfortunately is now called the "Victoria amending procedure". It was a federal government amending procedure. And that procedure says that you cannot change the constitution except with the approval of Parliament, with which we would all agree, and by a majority of provinces that includes (and these are the operative words) every province that had (past tense!) at any time prior to any proclamation to change, 25 % of the population of Canada. That clause in the amending procedure simply means a perpetual veto for the province of Ontario and a perpetual veto for the province of Quebec. It might just as well have been written that way because that is exactly its purpose and its intent and its result.

Look around the world. Look at any federal state. You cannot find a federal state that gives to one of its constituent parts, a province, a canton, or a state, the same right to approve or to disapprove changes in the constitution of the whole nation as belongs to the nation itself. The part is not equal to the whole. A single province veto, such as was proposed and is still being proposed, is doubly wrong. It will not only prevent anything that is in the constitution from being taken out in future years without the approval of the single province, but it can prevent anything from being put into the constitution. A veto works both ways. We have to ask ourselves, as Canadians, do we really want to put ourselves in the position where nine provinces of Canada and the vast majority of Canadians would want to make some addition to the constitution and could only do so with the approval of a single province? I do not think that is an acceptable amending procedure. I do not think it is democratic, or workable. I think it will prevent Canada from growing and changing and adjusting and becoming the great nation that Canada is destined to become.

We have talked about what I disagree with in the amending procedure. What do we want? What is right? Clearly, it must be a national amending procedure. And I can name at least three possible national amending procedures..

To start with, the first, the simplest procedure is what we do now. It is simply the approval of Parliament, that is the House of Commons and the Senate, in consultation with the provinces. That is how we have amended the B.N.A. Act for years. We could go on doing that, as fad' "as I'm concerned, but the provinces want more say. To achieve that, we could have an amending procedure something like that of the United States where it takes a majority of states and a majority of people. We could have a procedure that says Parliament with an agreement of six or seven of the provinces, containing 60 or 70% of the population of Canada can amend the constitution. Or if we want to, we could go to another procedure used in Australia and in Switzerland, where a national referendum is used to change the constitution in major ways.

I don't mind which of these national amending procedures are used because they all would reflect the will of the Canadian people, and they all give us enough flexibility to change and to grow into the future. I object to an amending formula that gives a single province the right to say "yes" or "no" that is equal to the right of the nation itself. ,

The other important thing is what we add to the constitution at the time of patriation. I will only mention three subjects, all of which have been proposed in the Prime Minister's letter to the premiers, all of which are in the public record. These are language rights, the composition of the Supreme Court, and the amending procedure itself.

Let us start with language rights. I have tried to make it as clear as I possibly can in all that I have said that I am not opposed to language rights. We have language rights now, in the British North America Act, under Section 133, and they are clear. They should remain. We also have language rights in federal legislation in the Official Languages Act, and in provincial legislation in Bill 22. All I say is, let us keep the subject of language rights, which still has not been worked out perfectly in our bilingual program, at the level of statutory law where it is amendable, and not at the level of constitutional law where it is not amendable except under an amending formula that contains a single province veto. If we need proof, simply look at the recent provincial situation in Quebec where their official language act was the subject of debate. The premier of the day, Mr. Bourassa, talked about amending it. Another party, the Union Nationale, said "If we're elected, we'll scrap it!" It provides for flexibility and change.

Let us leave language rights at that level until we have developed further and are more certain of what the Canathan people really want, what they find comfortable and acceptable and workable. It's only common sense to leave language rights to Parliament and not to lock them into the constitution under a single province veto.

I mentioned the Supreme Court. Here again, I don't believe that we have to move from statutory law to constitutional law. We have a Supreme Court of nine judges. That is in the Supreme Court Act. But it is proposed by the Prime Minister in his letter to the premiers, the draft proclamation, that we entrench the composition of the Supreme Court in the constitution, and that we say (as the Act says) that of the nine judges at least three should be from the province of Quebec.

We know, from our history as Canadians, that if Quebec has three judges on the Supreme Court then the province of Ontario, by precedent and practice, will expect at least three. The mathematics are really quite simple. This means that you will have two, or at the very most three judges for the other eight provinces combined.

Some may argue that in today's Canada, that is fair. But what about twenty years from now? Or fifty years from now? At the rate at which British Columbia and Alberta are growing, maybe westerners would come along in a few years and say that it is obvious that we should have three judges. The answer would be to change the constitution. How can you do it? Ontario has a veto. Quebec has a veto. I don't think that anybody can give me a satisfactory answer to that proposition. It is unacceptable. It is unnecessary. The Supreme Court is working perfectly well. We do not need, at this stage in Canada's history, to entrench and to lock in the composition of a Supreme Court in that way.

The third item that is proposed to go into the constitution when it is patriated is the amending formula, that rigid formula that gives the veto, not only to Ontario and Quebec but also to two provinces in the Atlantic region, and two in the west that contain 50% of the population of Canada--a real hive of vetos, an impossible, unworkable amending procedure. And it is proposed that that amending procedure itself become part of the constitution of Canada.

What does that mean? It means that the amending procedure can only be amended by the amending procedure. It means that the veto will always protect the veto, that you could never change this rigid procedure again, that you could never take the Ontario or the Quebec veto away without the approval of each one separately. That is not democratic. It is not right.

In summary, there are two vital questions. How do we amend the constitution? How do we add to the constitution? The only thing that is more important than either of those two is the relationship between them. If we were not going to have a rigid amending formula, it would not matter so much what we put into the constitution. But it is the combination of what we are adding plus the rigidity of changing it, in the areas that I have discussed and others that could be mentioned, that should be of very real concern.

Since the provincial election in Quebec on the 15th of November, it has become more than ever necessary to achieve in all regions of Canada a wider and better understanding of the constitution and how it can shape Canada's future. I share the conviction of most Canadians that Quebec will never leave Canada, not only because of the legal difficulties and the disastrous economic consequences of separation, but primarily because I do not believe that a majority of Quebecers will ever vote to separate from Canada. It is therefore important that the debate on the constitution continue, and that we achieve a national consensus on a constitution that will keep Canada a united nation forever.

When speaking of unity, I believe most Canadians and certainly most men and women in public life are committed to the concept of national unity. But whenever we use the words "national unity" we must be careful to define exactly what we mean. There are two kinds of unity. There is negotiated unity and there is true unity. Negotiated unity, which could be called the unity of concession, is an imperfect form of national unity which results in the kind of unity that is achieved by the sovereign nations who meet in New York and who call themselves the United Nations. Their unity is imperfect because they surrender very little of their sovereignty to the common cause. I don't want Canada to be a "united nation" in that sense. I want Canada to achieve true unity, which is unity of the heart. True unity is in essence a community of sentiment, a community of feeling about Canada. It is based upon shared convictions about our destiny, and upon shared objectives and shared purposes. True unity is based upon the good will of all Canadians for each other. Above all, it is based on a genuine desire to see each part of Canada helping to build all of Canada.

In my mind, the great paradox of our time is that a federal government that claims to be fighting separatism has itself been contributing to the growth of separatism. Instead of talking about all that united us as Canadians, the federal government has persisted in talking about what divides us, talking about two founding peoples, two official languages, two realities, the virtues of diversity, the duality of the Canadian personality. Without saying so, or perhaps without even realizing it, the federal government has in fact been encouraging the concept of two nations, and has in this way contributed to the result of the election in Quebec.

There is still time to change all of this. As Canadians, we must emphasize. the reality of our unity. We must also talk about the symbols of our unity.

We are united as a people in many ways, first of all, by the land itself. As the inhabitants of a northern land of great wealth and beauty, we all know that together we have a limitless destiny. But we are united not just by our geography, but also by our history. We are united as well by one head of state, by one parliament, by one flag.

With so much to unite us, we should be more gentle with each other as a people about our differences of language. As we look to the future, let us stop talking so much about the duality of Canada's personality. Let us stop talking so much about the two realities and the two nations, and start talking more about the one reality, the one nation, Canada. There is only one reality, and that is the reality of Canada itself. The Canada that I believe in has a limitless destiny, and in my Canada there is an open-hearted and welcome place for Quebec as a great province of Canada.

If we are to be one nation, we must not lock our differences and our duality for all time into our fundamental law. Let us not prejudge and predetermine the future of Canada by placing Canada's constitution, the Great Law, under a single province veto. Before Quebec, or Ontario, or any single province is given a perpetual veto over the future development of Canada, there should be much more public discussion to enable the people of Canada to express their convictions on this vital subject. There has not been nearly enough debate on the far-reaching consequences that surround the patriation of the Canadian constitution. In a democracy, great public issues must be discussed publicly.

This thought was expressed very eloquently in a letter that I received just a few days ago from Lillooet, B.C. ". . . the people do not understand whether the return of the British North America Act is wise or unwise but we do know that anything to be added to it or deleted from it deserves the closest scrutiny and should eventually be subject to national referendum, not because the people are so smart, they are not, but because we are the people and this is our country and we have a right to be heard on any issue that affects the future of our nation."

I have welcomed this opportunity to speak to this meeting on a subject which I know you agree is of far-reaching importance to the future of Canada. Some people have suggested that my resignation from the cabinet on this issue was premature. Others, who may be more perceptive, have suggested that my resignation may be too late. It is well known that the premiers have been meeting in response to the Prime Minister's correspondence, and that the conference of premiers with the Prime Minister on patriation of the constitution is scheduled for the middle of this month. That vital meeting will now be attended by the new premier of Quebec, Mr. Levesque. To speak out now can hardly be considered premature, and it should never be too late to ask for a nation-wide public discussion leading to a truly Canadian decision and a Canada-wide consensus on our constitution before irrevocable decisions are made.

I call for this public scrutiny and public appraisal of what is going on, because in the words of the message from Lillooet, "we are the people and this is our country."

Judging from the response that I have received from all who believe in Canada's future as one nation, I am confident that it is not too late. It is never too late to work with all Canadians to build the Canada of our dreams. It is never too late to save and to serve Canada's limitless destiny as one nation.

The appreciation of the audience was expressed by Major Charles C. Hoffman, a Director of The Empire Club of Canada.

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Our Constitution—Shaping Canada's Future

The constitution and how it can shape the future of Canada and Canadians. The importance of the constitution and how it shapes our lives—defining what federal and provincial governments may do. The difference between the constitution and the laws of the land. The constitution as the "Great Law." The constitution is beyond Parliament. Bringing the constitution to Canada as opposed to the British North America Act (B.N.A. Act). Questions at issue: How are we going to amend and change the Great Law? What are we going to add to the Great Law that determines the kind of country we are? A discussion of those questions with an attempt at some suggestions and answers. Some major subjects in the discussion include language rights, formula for amendment, role of the Supreme Court, provincial vetos, unity. A call for public scrutiny and public appraisal of what is happening with the constitution.