Errol P. Mendes
At the time this article was
written Errol P.Mendes was a professor of Constiutional Law at the university
of Western Ontario. This is a revised version of his presentation to the
Special Joint Committee on the Process of Amending the Constitution on February
19, 1991 and to the Ontario Committee on Confederation on February 20, 1991.
Driven by a large consensus in
Quebec, at least among francophones, that the time has come for some sort of
sovereignty, Canada will soon have to restructure its confederation bargain.
For those in Quebec and elsewhere who believe in a Canadian confederation which
includes Quebec, the Herculean task is to devise a restructured constitutional
framework to allow Quebec to "push" away from Canada at this time,
but then also to devise institutional structures which will in the future
entice Quebec to "pull" towards Canada. English-speaking Canada will
only become interested in such an enterprise if the institutional reforms are
also beneficial to the various regional aspirations in the rest of the country.
This article argues that federal institutions and processes must reflect
certain new political principles that have emerged in Canada.
If a new Confederation is ever to
arise from the ruins of the present one, there must be a coincidence of
interests between Quebec and the various other regions in their search for
security With this goal in mind, I suggest the following proposal for a revised
federalism and the means by which to achieve it.
First the federal government should
begin to enumerate all federal powers that it considers essential for the country
to be regarded as one, albeit considerably decentralized political unit, with
national standards in various essential areas of jurisdiction. Section 91 of
the Constitution Act, 1867 should not be regarded as such a list because
we exist in a different political reality today. The essential powers of the
federal government may be those which have been used to give Canada a
distinctive identity and personality.
Second, the provinces and the
federal government should attempt to agree that all provinces have what I call
"sovereign capacity". This means that any province should have the
capacity to repatriate any or all of the essential federal powers described
above. This will guarantee equality of treatment between Quebec and other
provinces. Furthermore provinces should be able to repatriate such powers
through popular referendum. Depending on the percentage of powers that are
repatriated, transfer payments from the federal government will be cut by the
same percentage amount, and a proportionate amount of federal taxing room will
also be moved over to such repatriating provinces. The western provincial
governments are already demanding such an arrangement in the areas of health
and post-secondary education, although I suspect the people of these provinces
would reject such a move if put to a referendum.
Third, federal seats in the House
of Commons should also be cut according to the percentage of essential powers
repatriated by a province. Referendums held to determine repatriation of
federal powers should be done on the basis of federal constituencies. Those
ridings with the highest vote for repatriation would lose their federal members
until the requisite percentage is reached.
If a repatriating province opts for
complete separation, repayment of that province's share of the federal debt
should be amortized over time. Payment should take the form of continued
payment of federal taxes. If only a limited number of powers are repatriated,
the appropriate federal taxing room will be shifted over to the province, with
a proportionate reduction in federal transfer payments to the province. There
will be a sizeable financial incentive not to opt for complete sovereignty or
to demand repatriation of powers not necessary for the protection of the vital
interests of a particular province.
Fourth, the Senate should be
abolished, and replaced by a Council of the Canadian Economic Union. An equal
number of representatives of the Council should be elected by the Legislatures
of each province, including Quebec. The Yukon and the Northwest Territories
should also have representatives. There should also be representatives of the
First Nations of Canada in the Council. The Council should have a suspensive
veto over all legislation. If three-quarters of the members of any of the six
regions of Canada vote against any legislation, a Commons-Council conference
must take place. Representatives of a province in the Council should be
permitted to only vote on legislation, the subject-matter of which has not been
repatriated by that province. The six regions for the purposes of the permanent
veto should be as follows:
1.. Pacific Canada (British
2. Western Canada (Alberta,
Saskatchewan and Manitoba)
5. Atlantic Canada (Nova Scotia,
New Brunswick, Newfoundland, Prince Edward Island)
6. Northern Canada (Yukon and
Any legislation which involves the
vital interests of the First Nations of Canada, should have the consent of at
least three-quarters of the First Nations' representatives. The Council should
vote to designate any legislation as being of "vital interest" to the
First Nations on a motion for such designation by three-quarters of the First
The Council should also have
responsibility to recommend to the Commons measures to dismantle all trade,
investment and services barriers within the Economic Union of Canada. The
representatives of the six regions of Canada should also have responsibility
for proposing measures to the Commons for regional industrial policies and
economic development. Similarly, the Council should be responsible for
proposing national industrial policies to promote Canadian global
competitiveness. A secretariat, called the Canadian Economic Commission, should
be attached to the Council.
Any province should be able to
reverse a previous decision to repatriate powers by another popular referendum
and become fully integrated back into Canadian confederation, with full
restoration of Commons representation and federal transfer payments.
This, in essence, is a blueprint
for implementing a "push-pull" restructuring of Canadian federalism.
It gives Quebec the sense of and potential for sovereignty, while giving it
every incentive to remain in Canada voluntarily and become involved in the
"superstructure" of a new Canadian confederation. At the same time,
the above restructuring of confederation will draw all of the regions and the
First Nations into a framework for economic and political co-operation on the
basis of mutual interest and benefit.
The Means and the End
Having described a new form of
Canadian federalism let me now turn to the question of how this could be done.
The first step is adoption of a new process for amending the constitution.
With the demise of the Meech Lake
Accord a vacuum exists because our constitutional amendment procedure is no
longer functioning. Reforms in areas critical to the political and even
economic life of the country are suspended, until Quebec is willing to come
back to the constitutional table. These areas include Senate reform; First
Nations self-government and other aboriginal claims; constitutional
clarification of the resolution of conflicts between the collective rights of
the francophone majority in Quebec and the individual rights of all residents
in Quebec under the Canadian Charter of Rights; jurisdictional conflicts and
power-sharing in the vital financial and telecommunication sectors; devolution
of jurisdiction in the areas of immigration, refugees and manpower training;
the dismantling of barriers to trade in goods, services and capital between
provinces; harmonizing government procurement policies and more generally
setting the constitutional framework for Canada to compete more effectively in
the global economy. Tied up with this last issue, is the potential linkage of
the debt-load of the federal government, equality of treatment between
provinces as regards federal transfer payments and the transfer of federal
powers to Quebec and other provinces.
In the absence of a working
constitutional amending process, all provinces, and Quebec in particular will
seek to advance their interests in the above-mentioned areas through bilateral
negotiations with the federal government leading to administrative agreements
for power-sharing. Quebec has already initiated this process in the area of
immigration selection and settlement. At least one other province has stated
that it would ask for similar treatment as regards any transfer or powers that
Quebec receives. Such a situation, is a certain recipe for the slow
disintegration of the Canadian federation, both in reality and in spirit.
We may not be able to head-off the
looming crisis, but we must be politically and intellectually prepared to take
on a leadership role in an attempt to either avoid it through creative
solutions, or to at least prepare for the consequences to Canada once it is
mired deep in crisis.
The issues that must be addressed
are the ones which precipitated the present constitutional vacuum. Even if it
is still possible to obtain constitutional change for those amendments
stipulated in sections 38 and 42 of the Constitution Act, 1982,
requiring the consent of the Canadian Parliament and seven provinces
representing 50% of the population, without Quebec's presence at the
constitutional table such changes would not be politically feasible. Moreover
the important changes requiring unanimous consent as stipulated in section 41
of the Constitution Act, 1982, such as changes to the composition of the
Supreme Court and changes to the amending procedures itself, are now legally
impossible without the participation of Quebec. In addition, there was
widespread dissatisfaction with the perceived private and exclusive nature of
the last two rounds of constitutional negotiations.
The Joint Committee of the House of
Commons and Senate has the unenviable goal of coming up with a new set of
amending formulas and procedures which could be acceptable to Quebec and the
rest of the country. One must question whether a new amending formula is
possible in the present context. Perhaps we should investigate whether an
alternative implementing procedure exists that would be so attractive that all
the provinces would be willing to take a leap of faith to try it out. In recent
statements, the Minister of Intergovernmental Affairs of Quebec has not ruled
out the possibility of the other provinces and the federal government working
out a possible amending formula which Quebec would look at without coming to
the constitutional bargaining table, and then decide whether to accept or
reject, thus providing or denying the necessary unanimous consent.
I believe there is a possibility
that an alternative implementing formula can be crafted which would be
acceptable to Quebec and the rest of the country and the following are some
preliminary ideas as to the content of such an alternative.
I do not believe that unanimous
consent can be obtained to change what areas need unanimous consent to be
amended, and what areas can be changed by the so called "7/50"
formula under sections 38 and 42 of the Constitution Act, 1982.
Therefore I believe we have to work
with the present provisions in the constitution. Again, and with great sadness,
I do not believe that unanimous consent can be obtained to shorten the three
year maximum period for implementation of amendments made under the
"7/50" formula under the provisions of section 39(2) of the Constitution
I believe we must emphasize that
any changes to the amending process will have as its essential rationale the
promotion of democratic participation based on the principle that apart from
questions of fundamental rights and freedoms the will of the majority,
especially an overwhelming majority in a democracy should prevail. Any system
of government can only exist if its leaders, who are charged with the
responsibility to entrench the society's fundamental values, in the
constitution keep their promises and bargains. Given the above analysis, the
search is for an implementing formula which would not change the present
constitutional amending provisions, but add to them.
I propose adding to section 39 of
the Constitution Act, the following provisions:
The signing of a political accord by the first ministers for amendments
under sections 38, 41 and 42 of the Constitution Act will bind those first
ministers as individuals. This would mean that they and their administrations
would be under a legal duty to do nothing to nullify or impair the binding
nature of their signatures.
If a new premier and administration is elected during the three year maximum
period for implementation and the new administration wishes to cancel
implementation of the political accord or rescind ratification of the accord by
the provincial legislature, the administration must put such measures to a
referendum in the province.
The new administration will only have authority to cancel implementation
or rescind ratification if at least fifty percent of the eligible voting
population of the province vote in favour of such a measure.
Even if a fifty percent eligible vote in favour of cancellation of
implementation or rescinding of ratification of a political accord is obtained,
if such a vote is at odds with the wishes of at least eighty percent of the
other legislatures and the federal parliament in situations where unanimous consent
is required, the amendments will still go into effect for the rest of Canada,
but will not affect the dissident province(s).
The above proposed implementing
formula will not by itself be sufficient for Quebec to accept. However if
negotiated in conjunction with the restructuring of the entire constitution to
allow provinces to "repatriate" certain powers from the federal
government, with financial consequences attached, and, if necessary, to
separate completely from Canada, I believe we have an opportunity to emerge
from our current constitutional cul de sac.