McGILL LAW JOURNAL
Volume 12
Montreal
1966-67
Number 4
Editor’s Diary*
The Search for an Amending Process 1960-19671
January 18, 1960.
Prime Minister Diefenbaker, during the Throne Speech Debate, speaking in
connection with an amendment to s. 99 of the B.N.A. Act, expresses to the House
of Commons the hope “that the time will not too long be delayed when as a
result of an agreement between the federal and provincial authorities” a process
will be secured for constitutional amendment in Canada without recourse to
the United Kingdom Parliament. Can. H. C. Deb., p. 65.
July 25, 1960.
Dominion-Provincial Conference at Ottawa, July 25th to 27th, 1960. The
subject is raised on the first day by Premier Lesage of Quebec, and taken up by
(Premier Douglas of Saskatchewan. Prime Minister Diefenbaker responds
favourably by offering an autumn conference on the subject. Premier Frost of
Ontario agrees. Proceedings of the Dominion-Provincial Conference, 1960 (Ottawa,
1960), p. 29, 87-8, 107-9.
September 19, 1960.
Hon. E. Davie Fulton, Minister of Justice land Attorney-General for Canada,
invites the Attorneys-General to meet. The letter proposes that repatriation
first take place on the basis of a unanimous consent amending procedure;
which could then be used to substitute in the B.N.A. Act another amending
formula to be made by unanimous consent. See Can. H.C. Journals, vol. 108
p. 307 and vol. 109 p. 392-3 for papers tabled.
* By S. A. Scott, B.A., B.C.L. Editor-in-Chief, McGill Law Journal (1966),
in haste and as
who apologizes for errors or omissions, this being drawn
surrogate.
1 For the history prior to that time, reference may be made inter alia to the
following: White Paper by Hon. Guy Favreau, Minister of Justice, The Amend-
nent of the Constitution of Canada (Ottawa, February, 1965); Paul G6rin-Lajoie,
the
Constitutional Amendment
in Canada (Toronto, 1950); Proceedings of
McGILL LAW JOURNAL
[Vol. 12
October 6, 7, 1960.
Conference of Attorneys-General of Canada and the Provinces. Resumed,
November 2-3, 1960; January 12-13, 1961; September 11-12, 1961. Deputy
Attorneys-General met in November, 1961. Proceedings were confidential.
November 2, 3, 1960.
Conference of Attorneys-General resumes. Saskatchewan’s Attorney-General,
Hon. R.A. Walker, Q.C., makes public on November 3 his opposition to a general
unanimity rule entrenching provincial powers. From that time forward the
to
C.C.F. government of Saskatchewan undertakes
a unanimity rule, both within the Conference and outside. For a general account,
is public knowledge, and is publicly
see B. L. Strayer, below. The division
known to be preventing agreement on a formula. Mr. Walker’s press release
declared, “Saskatchewan still takes the position that the power to amend the
Canadian constitution should be brought to Canada. However, Saskatchewan
is not prepared, as the price of this, to concede that each province should have
a ‘right of veto’ over every future amendment affecting the provinces.” See
A Review of Saskatchewan’s Position Regarding a Basis for the Amendment
of our Constitution in Canada (Department of the Attorney General, Regina,
Saskatchewan, January, 1962).
the burden of opposition
November 17, 1960.
Speech from the Throne reports to Parliament that progress has been made
in the repatriation conferences, which will be resumed. Can. H. C. Deb., p. 2.
January 12, 13, 1961.
Constitutional Conference resumes. Delegates: –
Canada: Hon. E. D.
Fulton, Minister of Justice; Hon. W. J. Browne, Solicitor General; Hon. Noel
Dorion, Secretary of State; Mr. E. A. Driedger, Deputy-Minister of Justice;
Mr. H. Calof, Department of Justice; Mr. Claude Bruneau, Department of
Justice; Mr. Jean Fournier, Assistant Secretary to the Cabinet; Mr. Andr6
Laframboise, Privy Council Office. Ontario: Hon. Kelso Roberts, Attorney-
General; Mr. C. R. Magone, Department of the Attorney-General; Professor
Alex Brady, Professor of Political Science, University of Toronto; Miss Alice
Winfield, Private Secretary. Quebec: Hon. Paul G6rin-Lajoie, Minister of
Youth; Mr. Louis-Philippe Pigeon, Special Adviser; Mr. Ren6 Montpetit, Public
Relations; Professor Jean Beetz, Special Adviser. Nova Scotia: Hon. Richard
Donahoe, Attorney-General; Mr. John A. Y. MacDonald, Deputy Attorney-
General. New Brunswick: Hon. Louis J. Robichaud, Premier and Attorney-
General; Mr. E. B. MacLatchy, Deputy A.-G.; Manitoba: Hon. S. R. Lyon,
Attorney-General; Mr. G. S. Rutherford, Legislative Counsel; Mr. A. A. Moffat,
Barrister; Professor M. Donnelly, Special Adviser. British Columbia: Hon.
R. W. Bonner, Attorney-General; Dr. Gilbert D. Kennedy, Deputy Attorney-
General. Prince Edward Island: Mr. J. A. McGuigan, Deputy A.-G. Saskatchewan:
Hon. Robert A. Walker, Attorney-General; Mr. B. L. Strayer, Department of
Attorney-General; Dean F. C. Cronkite, Counsel. Alberta: Mr. H. J. Wilson,
Deputy Attorney-General; Mr. J. J. Frawley, Counsel. Newfoundland: Hon.
Leslie R. Cuiis, Attorney-General; Mr. H. Carl Goldenberg, Counsel.
Constitutional Conference of Federal and Provincial Governments, First Session:
Ottawa, January 10-12, 1950; Second Session: Quebec, September 25-28, 1950.
(Ottawa, Queen’s Printer, 1950). Laskin, Amendment of the
Two volumes
Constitution: Applying the Fulton-Favreau Formula (1965) 11 McGill L. J. 1.
No. 4]
June 6, 1961.
EDITOR’S DIARY
Communique: Association of Canadian Law Teachers asks for publication
of proposals under consideration by the Attorneys-General, and public hearings
to which submissions may be made and representations offered, so that there
may be informed public discussion, and that a solution to this fundamental and
ultimate constitutional question will not be the result either of private deliberation
or haste. This resolution is communicated to the Conference,
to the Prime
Ministers, and to the public.
September 11, 12, 1961.
Final Session, Attorneys-General’s Conference. Delegates: As previously,
except: Canada, absent Messrs. Dorion and Calof; present, Mr. R. B. Bryce,
Secretary to the Cabinet, in place of Mr. Fournier. Ontario: Present, Mr. Maurice
Tremblay, Adviser. Quebec: Absent, Mr. Ren6 Montpetit. Manitoba: Absent,
Messrs. Moffat and Donnelly. P.E.I.: Present: Hon. Melvin J. McQuaid, Attorney-
General; Saskatchewan: Present, Professor F. R. Scott, Counsel; Alberta,
Present, Hon. E. C. Manning, Premier and Attorney-General.
September 27, 1961.
Prime Minister Diefenbaker in the House of Commons: “Yet when we
are in a position where most if not all of the provinces, I think, are willing
to agree, it is the government of Saskatchewan that stands against the fair
and reasonable right of amendment as agreed to generally by the other provinces.”
H. C. Deb., p. 9003.
December 2, 1961.
Hon. E. Davie Fulton, P.C., Q.C., M.P. Minister of Justice and Attorney
General for Canada, issues a statement to the press, with the text of the
formula reported by the conference of Attorneys-General, appended to the
statement. See The Montreal Star, December 2, 1961 for the statement; see
Appendix I for the formula. The statement inter alia says:
“This text has been approved by representatives from each Provincial
delegation and the Federal delegation as being a satisfactory draft of the
formula arrived at by the conference.”
“Mr. Fulton emphasized
that at the last session all attorneys-general
agreed to report the draft, when received,
to their respective governments.
The great majority also indicated their approval of the formula on which the
draft is based, as being the consensus of the conference and as an acceptable
basis for legislation.”
“It
is the responsibility now of each provincial government to consider
and decide whether or not it finds the formula reported by the conference to be
acceptable for the purposes of enactment as an amendment to the B.N.A. Act.
It
is understood that some if not all provinces wish to place the proposal
before their legislatures for consideration before final action is taken.”
to Her Majesty.
“The final step would be for the Government of Canada to present the
formula to Parliament in a resolution asking for adoption of the necessary
address
the address would be
transmitted to the Queen, praying that she cause the proposed formula to be
laid before the United Kingdom Parliament for enactment as an amendment
to the British North America Act. This would be the final amendment to
the act to be made in the United Kingdom, as by it all further power of
amendment would be transferred to Canada.”
If Parliament approved,
McGILL LAW JOURNAL
[Vol. 12
[Text of Formula is Appendix I below.]
Not only the merits, but even the meaning of the formula, became a matter
of great dispute, as will be seen below, as soon as the result of the conference
was made known. It should therefore be said that it had been understood to
have been the meaning of the draftman that the unanimity rule applied as
well to reductions as to increases of federal authority. There was no one-way
street to reduce federal authority by a simple two-thirds of the provinces having
50 per cent of the population. As to subsequent differences, see articles below,
especially on “Interpreting the Fulton-Favreau Formula”, and Premier Lesage’s
Letter of January 20, 1966. Appendix III. See under Sept. 8, 1964, Nov. 20, 1964.
December 4, 1961.
Dean F. R. Scott of the McGill Law Faculty denounces the Formula to the
Montreal Star in a statement characterized by Star Reporter Morris Fish as
“scathing” and “scorching”.
December 9, 1961.
Mr. Diefenbaker’s comments on Hon. Paul G6rin-Lajoie’s statement that
the Fulton Formula draft does not satisfy Quebec’s opposition to the unilateral
Federal amending power, reported in The Montreal Star.
February 7, 1962.
La Soci6t6 St-Jean Baptiste of Montreal rejects unequivocally the Fulton
Formula as confirming Quebec’s subordinate status, denying French minority
rights in other provinces, and leaving a unilateral federal amending power.
Montreal Star.
June 18, 1962.
Canadian general election. Mr. Diefenbaker’s Conservative government is
returned to power with a minority in the House of Commons. Party standings:
P.C. 116; Lib. 100; S.C. 30; N.D.P. 19.
September 27, 1962.
Speech from the Throne in the Parliament of Canada: “My government
will ask you, as a significant step in rounding out the concept of confederation,
to consider a resolution to provide for the “repatriation” of the constitution
of Canada and to invite the concurrence of the provinces to this end.”
April 8, 1963.
Canadian general election. Party standings: P.C. 95; Lib. 129; N.D.P. 17;
S.C. 24.
April 22, 1963.
A Liberal government under Mr. Lester B. Pearson takes office. Minister
of Justice: Lionel Chevrier; Minister of 0tizenship and Immigration: Guy
Favreau. President of the Privy Council: Maurice Lamontagne.
May 20, 1963.
Mr. Diefenbaker, Leader of the Opposition, in the House of Commons:
“If this Government is able to attain it, I will salute them for patriating our
constitution. We tried it, and but for the action of only two provinces we would
have achieved it.” H.C. Deb., p. 51.
No. 4]
February 3, 1964.
EDITOR’S DIARY
Hon. Guy Favreau, becomes Minister of Justice and Attorney-General of
Canada.
April 22, 1964.
Saskatchewan general election. C.C.F. Government of Mr. Woodrow Lloyd,
who had succeeded Mr. T.C. Douglas as Premier, narrowly defeated. Party
standings: C.C.F. 25; Liberal 33; P.C. 1. On May 22nd, a Liberal, government,
under the premiership of Mr. W. Ross Thatcher, is formed. Attorney General:
Mr. D. V. Heald.
June 1964.
Prime Minister Pearson, speaking in connection with an amendment to
section 94A of the B.N.A. Act, expresses his intention to propose that the
matter of a constitutional amendment procedure’ be put on the agenda of a
federal-provincial Prime Ministers’ Conference planned for Charlottetown the
following September.
August 1964.
Fifth Inter-provincial Conference at Jasper, Alberta. The provincial premiers
exchange views on the matter of a Canadian procedure for constitutional amend-
ment, and the chairman, Premier Manning, conveys to the Prime Minister at
their request their belief that general agreement on the repatriation of the
Constitution could be achieved on the basis of the formula that had emerged
from the Constitutional Conferences of 1960 and 1961.
September 1, 2, 1964.
Federal-Provincial Prime Ministers’ Conference, Charlottetown, P.E.I.,
commemorating the centenary of that held there by the Fathers of Confederation.
It is announced on September 2nd that “The Prime Minister and Premiers
affirmed their unanimous decision to conclude the repatriation of The British
North America Act without delay. To this end they decided to complete a
procedure for amending the Constitution in Canada based on draft legislation
proposed at the constitutional conference of 1961, which they accept in principle.
An early meeting of the Attorneys-General of Canada and the provinces will be
held to complete the amending formula devised by the 1961 conference, and to
report to the Prime Minister and Premiers.”
September 3, 1964.
In the House of Commons. “Mr. T. C. Douglas: Could I ask the Prime
Minister if in view of the wide powers which the courts have injected into the
property and civil rights clause he does not consider that entrenching that
clause would put Canada in a constitutional strait-jacket for many years to come?
Mr. Pearson: I can only say that in recent years, in respect to the amendment
of the constitution, Canada has been in a kind of strait-jacket, a strait-jacket
imposed from outside… I should have added that the imposition was of our
own doing…” H.C. Deb. p. 7605 ff at 7606-7.
September 8, 1964.
The Editor prepared for circulation to the Prime Minister, premiers, and
Attorneys-General, a Memorandum on the Constitutional Amendment Formula.,
with a view both to technical improvements and some additional flexibility even
McGILL LAW JOURNAL
[Vol. 12
within the framework of a unanimity rule. Response was generally polite, and,
in the case of Quebec City, interested. The Memorandum, of which the greater
part is reproduced below,* was successful in securing the inclusion in s. 10 of
*Memorandum on the Constitutional Amendment Formula.
1. Scope of Memorandum. As all the Governments appear committed
in
principle to the text of the proposed constitutional amendment formula published
in Ottawa on December 2nd, 1961, by the Hon. E. D. Fulton, Minister of Justice
and Attorney-General for Canada, this Memorandum, without in any way
approving that Formula, will refrain from discussing its principle, and will
be confined to certain observations of a somewhat more technical nature in
order to achieve the best possible result within the framework of those proposals.
2. The extinction of the authority of the U.K. Parliament. It is desirable that
section 7 of the Formula be adjusted by adding at its end the words “as part
of the law of Canada or of such province or territory”.
The section will ‘then read:
“7. No act of the Parliament of the United Kingdom passed after the
coming into force of this act shall extend or be deemed to extend to
Canada or to any province or territory thereof as part of the law of
Canada or of such province or territory.”
This will make the section properly consistent with section four of the
Statute of Westminster, which reads:
“4. No Act of Parliament of
the
commencement of this Act shall extend or be deemed to extend, to
a Dominion as part of the law of that Dominion.” (Italics added).
the United Kingdom passed after
Clearly, what is desired is that the United Kingdom Parliament cease to be a
part of the Canadian lawmaking process, not that it should cease to be able
(so far at least as the law of the United Kingdom is concerned)
to legislate
extraterritorialfy for its own purposes.., for instance to regulate its armed
forces when in Canada, in the same way that the Parliament of Canada has
been able -to do since 1931.
Indeed, the draftsmen of the Statute of Westminster had precisely this in
mind when they corrected the draft reported from the Imperial Conference of
1930, which had read:
“No Act of the Parliament of the United Kingdom … shall extend or be
be deemed to extend to a Dominion as part of the law in force in that
Dominion.” (Italics added)
in order ‘to read instead:
“extend to a Dominion as part of the law of that Dominion”. (Italics added)
It appears that the draftsmen of the Formula have left the same inaccuracy
here as in the first draft of the Statute of Westminster, and it is desirable
to correct it in the same way and for the same reasons as in. that case, especially
as the defect is one to which objection might justly be taken in the United
Kingdom by Parliamentary Counsel to the Treasury.
[3. Identical Entrenchment of Federal and Provincial Powers. This paragraph
cannot be reproduced, as it was based on confidential materials. The author
argued that the Fulton Formula was ambiguous in that it left unclear whether
the powers of the provinces, which could only be restricted by unanimity, could
No. 4]
EDITOR’S DIARY
the final Fulton-Favreau Formula [Appendix II] of the additional words “as
part of the law thereof”. Moreover, the Editor was at pains to point out that
since provincial consent could, under the Fulton Formula, be given only by the
provincial legislatures, the latter could never be circumvented even where
desirable. The example was given of the Quebec Legislative Council, which
would now have a negative both on a provincial statute and on a federal
constitutional amendment statute passed under the unanimity rule, the only two
procedures which could after the end of Imperial authority reform the Council.
The Editor hoped by this means to induce the insertion into, the Formula of an
alternative means of provincial consent, namely, referendum.
the
result seems to have been to suggest to the Quebec Government the advisability
of reforming the Legislative Council before implementing- the Formula. But
wherever the Government may have found the idea that Council reform must
precede approval of the Formula, it seems likely that it was the complications
[described below] arising from the struggle with the Legislative Council that
produced the delay that, through the year 1965, allowed the swelling of opposition
to the Formula, which, actively fostered by the Union Nationale opposition,
ultimately forced Premier Lesage to abandon the Formula on January 20, 1966.
Instead
be increased by two-thirds. The author argued that this one-way street was
not intended, and that no one who had acted in good faith could now object to a
clarification in the language. The author argued that the language should now
clearly show that unanimity, if applicable to either, was applicable to both.]
(See above under Dec. 2, 1961, in fine.)
4. Alternative means of provincial consent. Provincial consent has heretofore
been assumed to be the same thing as the consent of the legislatures of the
provinces.
The effect of this, when combined with the unanimity rule, is to produce
certain results not perhaps foreseen by the most ardent advocates of unanimity.
In Quebec, for instance, the Legislative Council (now controlled by the
provincial Opposition) will be able to exact heavy concessions from the provincial
government in connection with any provincial legislation, or to force an election
at its pleasure. There will now be no means of circumventing it, even on a
Bill to reform it, for a provincial statute to reform it will require as heretofore
its consent; there will in future cease to be a recourse through Ottawa to the
United Kingdom Parliament at Westminster; and if the consent of all the
provinces to a constitutional amendment means the consent of all provincial
Legislatures, will also require the consent of the Council.
Furthermore, there would be no means of stopping a legislature from
indefinitely perpetuating itself, or from engaging in the worst abuses of
power or violations of civil liberties.., even by constitutional amendment,
because the offending Legislature could never be circumvented to pass such an
amendment.
What is more, a Legislature faced with the alternative of giving or refusing
consent to constitutional amendments may well be excessively cautious lest
their consent become an election issue, certain to be exploited by the Opposition.
it is desirable that provincial consent should be
capable of being given alternatively by the voters of the province or by its
legislature; and to avoid all tampering with the electoral roll on such an
For all these reasons,
McGILL LAW JOURNAL
[Vol. 12
October 5, 6, 13, 14, 1964.
Attorneys-General meet at Ottawa, essentially to meet Quebec and possibly
Ontario wishes for a restriction of the unilateral federal constitutional amend-
ment power added in 1949 as s. 91(1) of the B.N.A. Act. A much more limited
power is substituted therefor, and the remaining portions of the 1949 powers
will fall to be exercised principally under the two-thirds rule.
October 14, 1964.
Prime Minister and Premiers agree on a final text of an amending formula,
which becomes known as the Fulton-Favreau Formula and in the form of a
text dated October 30, 1964, (reproduced as Appendix II) is circulated to the
Premiers for verification of text and provincial approval: see the Prime
Minister’s letter of November 3, 1964 (reproduced in Appendix III), explaining
certain variations made in the agreed text.
October 15, 1964.
Announcement to the House of Commons of federalprovincial agreement.
General favourable reception, but Mr. Diefenbaker desires time to consider the
changes from the Fulton Formula and suggests considerable apprehension at
occasion, it should suffice that a voter be qualified by having either the
provincial or federal franchise.
It is strongly urged that the following be inserted:
“The consent of a province to the enactment of a law made under the
authority of this part affecting the constitution of Canada may be given either
by the legislature of the province, or alternatively and in lieu thereof, by a
majority of rthe votes cast in a referendum held in that province at the
direction of the Governor-General of Canada or of the Lieutenant-Governor
of the Province; and in any such referendum all persons shall be eligible to
vote who are by law qualified to vote -in an election for members of the House
of Commons of Canada, or who are by law qualified to vote in an election for
members of one of the houses of the legislature of the province.”
Objection to such a provision can surely be nothing more than insistence
on protecting the people from themselves, and the proposed referendum procedure
protects the unanimity rule while giving some flexibility.
5. Patriation of the Treaty Power. At Confederation, as is well known,
Parliament was given full powers to implement treaties, by section 132 of
the British North America Act, 1867. The patriation of the power to Make
treaties has produced the result that they are no longer made for the Empire,
so that the power of implementation given to the Parliament of Canada no
longer serves its function. Patriation, therefore, would seem to require that the
words “British Empire” in section 132 be delected and replaced by the word
“Canada”.
It is difficult to see how opposition to this change can be reconciled with
claims to seek the carrying out in good faith of the British North America
Act. Surely, the persistence of the anomaly of the present section, which
drives Canada to have Great Britain conclude its treaties if it is desired to
take advantage of s. 132, stands in direct opposition to the national feeling in
favour of patriation of the Constitution.
S. A. Scott.
No. 4]
EDITOR’S DIARY
the proposed loss by Parliament of s. 91(1) powers. Mr. Andrew Brewin,
N.D.P. spokesman and constant critic of the Fulton Formula and its successor,
attacks it, quoting Professor Bora Laskin (now Hon. Mr. Justice Laskin),
as an “unmitigated constitutional disaster”, a “formula for constitutional
futility and absolute rigidity”, which serves only to “exchange the easy yoke
of a relic of colonialism for the self-imposed bondage of a constitutional strait-
jacket.” The conmuniqu6 is condemned as falsely insinuating that the basic rule
is two-thirds of the provinces with fifty per cent of the population. Can. H. C.
Deb., p. 9067 ff.
The Montreal Star reports that Mr. Fulton
telephone interview
welcomed the agreement as a “major achievement” with which he was “extremely
pleased”, the short time needed to reach agreement being a “conclusive indication
that the formula we worked out in 1960 and 1961 was a satisfactory basis for
action”.
in a
The same newspaper reports Premier Lesage as declaring himself “well
satisfied” with -the repatriation agreement. The repeal of s. 91(1) of the
B.N.A. Act, and restrictions imposed on the unilateral federal amending power
“give to the provinces
the inviolable guarantees which Quebec has always
sought”.
October 31, 1964.
The Montreal Star, a consistent editorial supporter of the Formula, criticises
the Fulton Formula having been
Mr. Diefenbaker’s stand against it as thin –
much the same in substance –
and obstructive of needed legislation.
November 3, 1964.
Letter by Prime Minister Pearson to Premiers of the provinces asking
for confirmation of accuracy of final draft text dated October 30, 1964, and
asking for advice of concurrence of the province as soon as possible. As soon
as all are received, the necessary addresses are to be put before Parliament, hope-
fully early in the new yeaT, with expectation of an Imperial statute in the
Spring. The British High Commissioner has conveyed British agreement
to
inclusion of s. 14 concerning the French version, and suggested in view of the
Statute of Westminster a Tevision of the Bill to recite that Canada has
requested and consented
to its enactment. The preamble has been revised
accordingly. [See Appendix III].
November 4, 1964.
The Montreal Star reports a “sharp challenge” by Mr. Fulton to Mr.
Diefenbaker: a five-page memorandum sent by Mr. Fulton (for the time being,
B. C. Conservative Leader) from Kamloops, B.C., to former federal colleagues,
minimising the differences between the Fulton Formula and the Fulton-Favreau
Formula.
November 13, 1964.
Letter by Premier Lesage to Prime Minister Pearson. The text -is accepted;
the change in the preamble is welcomed as suggesting that constitutional changes
require the consent of the provinces as well as the Federal houses. A resolution
of approval will be put before the Quebec Legislative Assembly to give the
consent of the province, in January, and the Premier is confident of a favourable
decision at the begining of the new year. [See Appendix III.]
McGILL LAW JOURNAL
[Vol. 12
November 20, 1964.
Hon. Guy Favreau, Minister of Justice, addressed the closing banquet of a
Conference on the Supreme Court and Canadian Federalism (University of
Toronto Conferences on Law and World Affairs, for 1964). The text is
reproduced below. The Minister, in a brief discussion with the Editor, advised
him afterwards that in his (the Minister’s) view of the Formula, the unanimity
rule applied to protect the powers of the provinces only and not Canada; the
the powers of the provinces could be increased under the two-thirds rule though
they could only be reduced under the unanimity rule. [Compare the views of
the previous Minister of Justice, Mr. Fulton, indicated above under December 2,
1961, and under September 8, 1964, footnoted Memorandum, para. 3. Compare
also articles below on the Interpretation of the Fulton-Favreau Formula, and
the views of Hon. D.V. Heald, the (Liberal) Attorney-General for Saskatchewan,
below under March 17, 1966.] The Minister did however suggest that a concurrency
could be created in favour of the Parliament of Canada under the two-thirds
rule, provided it was of the same type as s. 94 A of the B.N.A. Act, which,
the Minister suggested, could have been enacted under the proposed two-thirds
rule. [Compare Hon. A. A. Wishart, Attorney-General Legislature of Ontario
Debates, March 11, 1965, p. 1193 last para. and 1194 first para.] [Mr. Favreau
suggested that the two-thirds rule protected the Federal parliament as effectively
as unanimity could, since either way it had a veto. But on this reasoning, a
Quebec veto would have sufficed exercisable only against amendments affecting
Quebec: yet this proposal of the Saskatchewan C.C.F. government was held
unacceptable to Quebec: see Professor Strayer, below. Furthermore, a unanimity
rule if applied to protect federal powers would allow a province to protect
Parliament against itself.., an idea not so very far-fetched when it is recollected
that Saskatchewan had undertaken that very function at the Conferences, and
was using for -that purpose the veto which custom if not law was thought to
give.] See Mr. Hatfield in N.B. Ass. Deb., 1965, I, p. 385, 2nd. Col. last
para. See also below Temarks of Mr. Walker -and MT. Blakeney in the Saskat-
chewan Assembly under April 13, 1965. See the Peaxson-Lesage correspondence
in Appendix III, below, and debates in -the Quebec Legislative Assembly indicated
below.
November 27, 1964.
In the House of Commons. Mr. Diefenbaker: “It
is all very well to try
to build a smokescreen and say the Fulton formula is much the same.” Mr.
Favreau: “It is identical.” Mr. Diefenbaker: “It is not, with section 91 removed.”
Mr. Macdonald: “Mr. Fulton says so.” Mr. Diefenbaker: “And whether it is
or not, back in 1961 the L6vesques, and those people, were not talking about
associate states in Canada and dividing this nation.” H. C. Deb., p. 10652.
January 21, 1965.
Speech from the Throne at the opening of the 4th session of the 27th
Legislature of Quebec includes the following:
“The
last autumn made
two conferences of attorneys-general held
it
possible to devise a formula for the repatriation of the Canadian constitution.
This formula was accepted unanimously by the conference of prime ministers
and the government will ask the Legislative Assembly to adopt a resolution
ratifying this agreement.”
“So that the repatriation of the constitution shall not have the effect of
entrenching the powers of the Legislative Council over bills passed by the
No. 4]
EDITOR’S DIARY
Legislative Assembly, you will be asked
de l’Ass. lg., vol. 2 No. 1 p. 1-2.
to restrict those powers.” Dibats
January 22, 1965.
Legislative Assembly of Quebec, Government Motions. By Mr. Lesage,
Motion: –
“That an humble Address be presented to Her Majesty the Queen in the
following words: –
To the Queen’s Most Excellent Majesty:
Most Gracious Sovereign:
“We, Your Majesty’s most dutiful and
loyal subjects, the Legislative
Assembly of the Province of Quebec, in Parliament assembled, humbly approach
Your Majesty praying that You may graciously be pleased to cause a measure
to be laid before the Parliament of the United Kingdom, to be expressed as
follows: An Act to provide for the amendment in Canada of the Constitution
of Canada [and the Fulton-Favreau Formula follows at length. See Appendix II].
In the Throne Speech Debate, Opposition Leader Daniel Johnson categorically
opposes the Fulton-Favreau Formula.
January 22, 1965.
Bill 3, entitled “Loi du Parlement du Quebec… Quebec Parliament Act”
introduced into the Quebec Legislative Assembly by Premier Lesage, and given
first reading. Text reproduced as Appendix IV. For amendments see February 16,
1965. In the Legislative Council, see under March 17 and 24, 1965 and Appendix V.
February, 1965.
The Amendment of the Constitution of Canada, a White Paper, published
by Hon. Guy Favreau, Minister of Justice. .(Queen’s Printer, Ottawa, 1965).
Cat. No. J2-1665. Price $2.00.
In an introduction, Prime Minister Pearson states: “The Government of
Canada believes that, with the tolerance and political capacity of which the
Canadian people have shown themselves capable, the proposed formula can
work over the years to adapt the framework of our government to essential
changes, while at the same time protecting the fundamentals on which our
Confederation rests. I have no hesitation in recommending it to the favourable
consideration of the parliament and people of Canada.”
February 1, 1965.
Le Devoir reports a resolution of a conference of 42 Union Nationale
constituency associations meeting at Quebec City over the previous weekend
congratulating Mr. Johnson on his categorical stand against the Formula,
assuring him firm support, and giving U.N. members a mandate to wage a
merciless fight against the Formula whose acceptance “would be treason
against the Quebec nation”. Mr. Johnson himself, addressing the meeting, accused
Messrs. Lesage and G6rin-Lajoie of having “made themselves guilty of treason
against the Quebec nation” by accepting “irons held out by Ottawa.”
February 9, 1965.
Quebec Legislative Assembly. Bill 3 debated. D6b. de l’Ass. lig., vol. 2,
no. 11, p. 392.
348
McGILL LAW JOURNAL
[Vol. 12
February 11, 1965.
Quebec Legislative Assembly. Committee of the Whole. Bill 3 debated.
D6b. de l’Ass. lg., vol. 2 no. 13 p. 490.
February 11, 1965.
Nova Scotia Legislative Assembly. Notice of motion by Hon. Mr. Donahoe
(Attorney-General), seconded by the Premier: “Be it resolved that this House
approves of the request proposed to be made to the Parliament of the United
Kingdom for the enactment of an Act to provide for the amendment in Canada
of the Constitution of Canada, such Act being sfibstantially in the form approved
by the Conference of the Prime Minister of Canada and the premiers of all
the provinces on the 14th day of October, A.D., 1964, and a copy of which is
annexed hereto and forms part of this resolution.” Journals, February 11, 1965.
February 12, 1965.
Quebec Legislative Assembly. Bill 3 debated on third reading. Db. de
l’Ass. lg., vol. 2 no. 14 p. 549.
February 15, 1965.
Nova Scotia Legislative Assembly. Pursuant to notice, Mr. Donahoe moved
the resolution relating to the B.N.A. Act Amendment Formula. A debate arose
thereon, in which some time was spent and Hon. Mr. Donahoe, Mr. Nicholson,
and Hon. Mr. Fergusson took part. The motion passed
in the affirmative
nem. con.
February 16, 1965.
Quebec Legislative Assembly. Bill 3 given third reading. Djb. de l’Ass. lig.,
vol. 2 no. 15 p. 573. The bill as passed on that day differs from the version
at first reading in that sections 2 and 3 now read as follows:
<<2. Sont des projets de loi d'ordre financier tous projets ayant pour
seul objet d'affecter une partie du revenu public de la province
i quelque
service, d'6tablir, modifier ou supprimer un imp6t affect6 i ce revenu ou de
statuer sur quelque sujet accessoire s'y rattachant. 2'
"2. All bills which contain only provisions for appropriating any part of
the public revenue of the Province, or for imposing, altering or repealing any
tax allocated to such revenue, or for legislating on any subordinate matter
incidental thereto, are money bills."
e 3. Tout projet de loi vis6 i l'article 2 dolt contenir une disposition d6clarant
qu'il est d'ordre financier et cette disposition fait preuve conclusive et ne peut
6tre contest6e devant aucun tribunal.;,
"3. Every bill contemplated by section 2 shall contain a provision stating
that it is a money bill and such provision shall be conclusive evidence and
shall not be questioned in any court."
February 17, 1965.
Quebec Legislative Council. "A message was brought from the Legislative
Assembly with a bill (No. 3), intituled: "Quebec Parliament Act", to which
they request the concurrence of this House." Bill read a first time.
February 20, 1965.
M. Johnson, to an audience of secondary school students, vows against
suicide of the Liberal party,
the Formula "a fight to the death, a suicide fight -
or of the Union Nationale and Daniel Johnson" Le Devoir, February 22.
No. 4]
EDITOR'S DIARY
February 28, 1965.
Quebec Opposition Leader Daniel Johnson declares in Sherbrooke, P.Q., to
the "Jeune Socidt6 Nationale" that the proposed Formula would make stateless
persons of Quebecers; that it was a "depatriation" formula which "gives nothing"
to French Canadians and "takes away everything, even hope". A similar speech
is delivered in Quebec City to a club dinner. Montreal Star, March 1. Le Devoir,
March 1.
March 3, 1965.
Mr. Johnson at Three Rivers predicts that the Formula by denying Quebec
a special status would lead directly to the separation of Quebec, which could
be violent. Premier Lesage in
the Legislature emphasizes Quebec's veto as *a
"power of persuasion."
March 8, 1965.
Powerful opposition to the Formula by Claude Ryan of Le Devoir, and
support by Le Soleil of Quebec City, reported by Montreal Star.
March 10, 1965.
Premier Lesage as part of a campaign to gather support for his position
on the Formula, defends it strongly before the Quebec Chamber of Commerce.
Le Devoir, March 11, 1965. La Presse, same date.
March 11, 1965.
Alberta Legislative Assembly. Moved by the Honourable Mr. Manning:
seconded by Mr. Maccagno:
"WHEREAS it is a matter of concern to this Assembly and to all Canadians
that full authority to amend the constitution of Canada is not presently in
this, country; and
"WHEREAS the Government of Canada and the Government of all the
Provinces have for many years endeavoured to establish mutually acceptable
principles upon which such authority should be exercised in this country; and
"WHEREAS agreement on those principles has now been reached and it
is proper that this Assembly give its approval to those principles and to the
implementation thereof:
THEREFORE, BE
the
request proposed
the United Kingdom
for the enactment of an Act to Provide for -the amendment in Canada of the
Constitution of Canada, such Act to be substantially in the form approved
by the Conference of the Prime Minister of Canada and the Premiers of all
the Provinces on the 14th day of October, A.D. 1964; as follows: ..." See
March 16.
IT RESOLVED, That this Assembly approve
to be made to
the Parliament of
March 11, 12, 1965.
Legislative Assembly of Ontario. Hon. A. A. Wishart, Attorney-General,
seconded by Hon. A. K. Roberts, Minister of Lands and Forests, moves on
March 11th, "That this House approves and supports the Addresses of the
Senate and House of Commons of Canada to Her Majesty the Queen praying
that Her Majesty may graciously be pleased to cause a Bill to be laid before
the Parliament of the United Kingdom in the following terms: [etc.]." During
debate a N.D.P. amendment was moved by Mr. Renwick, seconded by Mr. D. C.
MacDonald, leader of the N.D.P. in Ontario, 'That the resolution be amended
McGILL LAW JOURNAL
[Vol. 12
in the first line and
by striking out the words "approves and supports"
substituting therefor the following: "believes that before it is asked to express
approval, a Select Committee should be established to hear, consider and report
on the views of constitutional and other experts and the public regarding"...'.
A debate of some interest extended through Thursday afternoon and evening
and Friday morning, March 11-12. New Democratic Party members were
generally critical of the formula, and also of the lack of public participation
in preparing the formula and approving it. Mr. Andrew Thompson, Leader of
the Opposition (Liberal) criticized the (Conservative) government for presenting
the Legislature with a fait accompli, and depriving the Legislature of its
rights, and even expressed a wish that a committee had been established. (See
Debates, p. 1250-51). He did not however support the N.D.P. amendment.
that it could not be said that he
"had given Ontario's word", but that "it is all subject to the approval of this
Legislature". But the government were committed "the same as the government
brings to this Legislature, any bill...".
Mr. Wishart made it clear (p. 1251)
The various arguments for and against the formula were canvassed, and
the views of the academics and other constitutional authorities.
Mr. Bryden (N.D.P.) pressed the "vast difference... between what was
merely convention, a procedure that the government of the day adopted, and
a formal constitutional procedure which says that it may be done in this way
and in no other way," (p. 1229),
i.e., unanimity.
The amendment was defeated, on division, by a vote of 71-7. The address
was then carried on a reversal of the same vote, 71-7. The seven seem to have
been all N.D.P., and the majority consisted of the Conservative government and
Liberal official Opposition.
Legislature of Ontario Debates, Nos. 43-45, 27th Leg., 3rd Sess. Votes and
Proc., Nos. 35-36. Federal Conservative strategists now abandon this as an
election issue.
March 13, 1965.
Meeting in Montreal of the 300-member General Council of the Quebec
Liberal Federation. Premier Lesage and M. Pierre Laporte explain the Formula
at a three-hour closed session which ends with its unanimous endorsement (with
that the Formula guarantees
abstentions) by the Council, which resolves
Quebec's vested rights and permits its constitutional evolution; approves the
Formula as a great constitutional victory for Quebec, and endorses the positive
towards the repatriation of the
attitude
Canadian Constitution. Le Devoir, March 15, 1965. Premier Lesage claims, c A
l'unanimit6, j'ai eu l'appui de la F6d~ration libdrale qui voit comme moi dans
cette formule, un point de d6part d'un statut particulier pour la province
de Quebec. > For an account of M. Lesage’s arguments, see Claude Ryan in
Le Devoir, March 17.
taken by the Quebec government
March 16, 1965.
On motion of Premier Robichaud, seconded by Mr. Riley, the Formula is
approved by the Legislative Assembly of New Brunswick, and ordered that
a certified copy of the resolution be transmitted to the Prime Minister of
Canada. Journals of the Legislative Assembly. Debate is reported in Synoptic
Report of Proceedings of the Legislative Assembly of the Province of New
Brunswick, 1965, Vol. I, p. 372. The motion seems to have carried the House
No. 4]
EDITOR’S DIARY
(Liberal government and Conservative opposition) without division. A certain
amount of unease seems however to have existed, and it appears to have been
thought that the matter was before the House as a matter of courtesy only.
Mr. Logan pointed out the technical gap as to withdrawal of provincial consent;
Mr. Hatfield the problem of the date at which an- amendment would become
operative. The former was not favourable to the unanimity rule; the latter
thought that it was the best that could be done. Several members complained
that the province had been committed before they had been consultzd. The
leader of the Conservative Opposition, Mr. Sherwood, had reservations, but
also thought it necessary to have faith. Premier Robichaud had no such reserva-
tions. “It is the best and the only one [i.e., formula]. It is the best because it is
the only one…” After agreement of the Attorneys-General, the Prime MIister
and Premiers, and all their staffs, experts, and law professors, “when all these
people come to a unanimous agreement I doubt if any member of the New
Brunswick Legislature should buck them.” A willingness to go along was evident
also on the opposition benches. The debate closed with the remarks of Mr.
Bishop: “Well,
if Davie Fulton says so, its alright. As long as Davie prepared
it, we’ll go along with it.”
March 16, 1965.
Alberta Legislative Assembly. Debate on the motion to approve the amend-
ment formula continued, and, the motion being proposed, Mr. Speaker declared
it carried unanimously. Journals for that date, p. 83.
March 17, 1965.
Quebec Legislative Council. Bill 3 read a second time, on division. Journals
of the Leg. Coun.,. 27th Leg., 4th Sess., p. 50.
Montreal Star editorial, urges implementation of the Formula as the price
to be paid to get out of constitutional deadlock.
Laval University .students -vote 2485-482 against the Formula, and the
Union G6n6rale des Etudiants du Quebec threaten to march on the Legislature
in May if the Government seeks to ratify it. Montreal Star, March 18, 1965.
March 18, 1965,
Mr..Diefenbaker complains in the House of Commons of breach of privilege
in the Ontario -resolution (which approves and supports “the addresses of the
.Senate and House of Commons”), on the ground that there have been no such
addresses. H. C. Deb., p. 12505 ff.
Marcl 18, 1965.
Debate at the University of Montreal, sponsored by the Union G~n6rale
‘des Etudiants de Quebec, on the Fulton-Favreau Formula. Supporting
the
Formula were two of the strongest ministers of the provincial Liberal govern-
ment, M. Ren6 Livesque, Minister of Natural Resources, -nd M. Pierre Laporte,
Minister of Municipal Affairs and of Cultural Affairs, both with a wide following
amongst radical and nationalist opinion because of their demands for “associate
statehood”, “special status”, and < Maitres chez nous z> for Quebec, M. L6vesque
being a particularly powerful leader of left wing opinion. They supported the
government’s position by arguing that the situation was essentially unchanged,
as what had been custom was to become law. Whatever could have been obtained
by negotiation before the Formula could be obtained under it. M. Levesque
thought that opposition to the Formula now in order to obtain associate
statehood would be to fight the wrong battle in the wrong place at the wrong
McGILL LAW JOURNAL
[Vol. 12
time; that the legal text was like all legal texts, a reflection of the past;
and was neither loss nor gain; that no great power, let alone Ottawa which
was not one, could resist self-determination; that Quebec’s status would be
renegotiated in a massive step; but that a formula which would guarantee
what Quebec did not already have would be unobtainable immediately and to
insist on it would provoke total confrontation. M. Laporte suggested that the
Formula would shelter Quebec from a coup, which, he said, Ottawa had shown
in 1949 it could undertake, and might again. In any case agreement with one’s
neighbours was always necessary, otherwise, whatever the amendment procedure,
the outcome would be the same. Professor Jacques-Yvan Morin, of the University
of Montreal law Faculty, a leader of nationalist intellectual opinion, attacked
the Formula as a yoke, and Messrs. Ivesque and Laporte as defenders of
associate statehood who had become advocates of a formula designed to prevent
it. Moreover, s. 132 of the B.N.A. Act, respecting treaty implementation, could
be amended without Quebec’s consent, under the formula. The Formula was like
– which he proceeded to expose
a woman with complicated undergarments
[see Article below: Les dessous de la Formule]. The opinion of the student
audience, which the press suggested had come -into the hall in his favor, generally
supported M. Morin, and even apparently showed some hostility to the generally-
popular M. Levesque. See reports in Le Devoir, March 20, 1965; La Presse,
March 19, 1965; Le Quartier Latin, March 25, 1965.
March 19, 1965.
Thomas Sloan, Legislature Correspondent of the Montreal Star, analyses
the politics of the Formula and finds, amidst growing support in Quebec for
taken by Opposition Leader Johnson, Premier Lesage “forced
the stand
personally to solicit the rather unenthusiastic support of the Quebec Liberal
Federation and has received little backing from other sources.”
Three-day Union Nationale Convention of 3000 persons opens in Montreal.
Party takes unequivocal position against the Formula and gives Mr. Johnson
total support. The Formula is voted down unanimously. Le Devoir March 22.
March 24, 1965.
Quebec Legislative Council. Bill 3 considered in Committee of the Whole.
Hon. George Marler, leader of the Government in the Legislative Council [where
the opposition Union Nationale is in the majority] moves two amendments,
to sections 3 and 7, and these are unanimously carried. [See Appendix V, where
the Message from the Council includes the foregoing changes.]
Mr. Asselin, Leader of the Opposition in the Council, moves an amendment;
and Mr. Marler a sub-amendment.
The sub-amendment, which is lost 13-5, reads as follows, in the French
version:
‘Que le bill soit modifiM
(a) en y ajoutant A ]a fin de l’article 4 l’alin6a suivant:
c Ce present article ne s’applique pas non plus h un projet qui
renferme une disposition abolissant le Conseil l~gislatif, restreignant
ses pouvoirs ou modifiant le nombre de ses membres. 3
(b) en ajoutant l’article suivaut aprbs l’article 4:
c 5. Si un projet de loi vis6 au dernier alin~a de l’article pr6cdent
est vot6 par l’Assemble l4gislative b deux sessions de deux lgislatures
distinctes et, apr~s avoir 6t6 trapsmis au Conseil l6gislatif au moins
No. 4]
EDITOR’S DIARY
un mois avant la fin de chacune de ces deux sessions, y est rejet6
chaque fois, il sera n~anmoins pr~sent6 au lieutenant-gouverneur pour
6tre sanctionn6 et devenir loi en consequence, A moins que l’Assembl~e
legislative n’ordonne le contraire.,,’
[This sub-amendment was of course a government compromise designed
to prevent Council reform without an intervening general election. It was lost
and instead the Opposition amendment carried. See La Presse, March 4, 1965.3
Mr. Asselin’s amendment is then carried, as well as amendments of agree-
ment (concordance).
[See Appendix V for the result.]
On report to the House, Mr. Marler’s amendments to sections 3 and 7 are
unanimously carried, and Mr. Asselin’s amendments are agreed on division:
Contents, 12; Non-Contents, 5; against the government.
is ordered to acquaint the Assembly accordingly.
The Bill is given third reading, as amended, and passed, and the Clerk
[Message, in Appendix V.]
The amendment was designed to protect the Council from later reform
without its consent, by any provincial statute made by Grown and Assembly
alone. The amendment proposed to Bill 3 by the Council also made Council’s
consent necessary to Bills to amend the Canadian Constitution; but it is not
clear whether this was done wholly or partly to prevent Council reform from
being achieved without Council’s consent by later use of the Fulton-Favreau
Formula [either s. 2 or perhaps s. 3 thereof]. The insistence by Council that
its consent be necessary to Canadian constitutional amendments was represented
in the Assembly by the Union Nationale opposition as being calculated to make
it more difficult to surrender provincial rights even when an Assembly was
willing. Though the Union Nationale of course opposed
the approval of the
Fulton-Favreau Formula, the Liberal government had apparently never intended
to seek approval for it from anyone but the Assembly, so that probably the
Liberals did not seek Council reform to facilitate acceptance of the Formula,
nor could the Union Nationale demand changes in Bill 3 out of any expectation that
this would help prevent implementation of the Formula. See for example “P.S.”
in Le Devoir, June 21, 1965. Compare C.A. Sheppard, Le Devoir, June 21, 1965.
The reasuns given by the Lesage government had from the first concerned
only -the impact which the Formula would have by way of entrenching Council
powers. Mr. Lesage himself seems to have indicated in the Assembly that he had
no intention of seeking Council approval of the Formula before advising Ottawa
that Quebec concurred in the Formula, and as Ottawa would have been satisfied
with the Assembly’s concurrence, the existence or powers of the Council formed
no obstacle as such to the implementation of the Formula, in a mechanical sense,
but only to its desirability from the Quebec government’s standpoint.
March 25, 1965.
Mr. Diefenbaker complains in the House of Commons that a draft Address
to the Sovereign, approving the Fulton-Favreau Formula, appearing on the
order paper of the Quebec Legislative Assembly, is constitutionally improper.
Mr. Pearson, in promising to consider the matter, declares: “of course it is
understood by us all, and I think by those concerned in Westminster, that
no amendment
the
constitutional jurisdiction of the United Kingdom parliament, can be entertained
by that parliament except on a address of both houses of this parliament”.
H. C. Deb., p. 12, 763. [See Appendix IX.]
to the British North America Act, which
is within
On March 29, 1965, Mr. Pearson expresses the view that the Quebec
authorities may :petition the Crown, that this should be and is in-tended to
354
McGILL LAW JOURNAL
[Vol. 12
be sent -through the Governor-General; that in these as in other matters the
Governor-General acts on the advice of his federal ministers; and that “since
this action requested in the address by the legislature of Quebec is the same
as that which may be requested in an address by the parliament of Canada,
it would be appropriate to advise the Crown, in forwarding it to London, in
the event that it is sent forward to the Governor General through the lieutenant
governor of Quebec and through the Governor General to London, that it
should be acknowledged as the expression of the view of the legislature of
Quebec about a matter on which action could be taken only on the basis of a
decision by the parliament of Canada on the address to be placed before it.”
H. C. Deb., p. 12867.
March 25, 1965.
P.E.I. Legislative Assembly resolves, on motion of Premier Shaw, seconded
by Attorney-General Farmer, that it approve enactment of the Formula by
the U.K. Parliament. Journals of the Legislative Assembly of Prince Edward
Island, 1965, p. 46, 62, 119-125.
March 25, 1965.
Quebec Legislative Assembly. Message received from Legislative Council
on Bill 3. Djb. de l’Ass. lg., vol. 2 No. 35 p. 1555. Amendments read and further
consideration postponed: Votes and Proceedings, p. 304.
March 26, 1965.
British Columbia Legislative Assembly. On motion of Premier W. A. C.
Bennett, second by Attorney-General R. W. Bonner, it is resolved, on division,
35-13 “That this House record its approval of the proposed Act to Provide for
the Amendment in Canada of the Constitution of Canada contained and described
in the White Paper tabled in the House of Commons on March 2, 1965.”
March 26, 1965.
Quebec Legislative Assembly. Possibility canvassed of summoning Mr.
Diefenbaker for breach of privilege for questioning the Assembly’s right to
petition the Crown. Premier Lesage had, in a speech the night before, charged
Mr. Diefenbaker with a “flagrant violation of Legislative Assembly privilege”.
March 28, 1965.
to implement
House of Commons. Mr. Pearson considers the Quebec draft address to the
the Fulton-Favreau Formula constitutionally proper.
Crown
Provincial addresses were supported by precedent and quite proper. Mr. Diefen-
baker contra. H. C. Deb., p. 12867 ff. [Quaere, if proper for the Legislative
Assembly, why not also for the Legislative Council?]
March 29, 1965.
Montreal Star reports that repatriation has become
the most ticklish
political question of the year for Premier Lesage’s cabinet, which at a stormy
meeting had decided to soft-pedal repatriation. But the heavy commitments of
the Quebec and federal Liberal governments to the Formula were apparent.
April 1, 1965.
Mr. Daniel Johnson criticizes the Formula as so vague that even
experts cannot tell exactly what requires unanimity –
of the constitution will be a federally-appointed Supreme Court.
the
and that the masters
No. 4]
April 6, 1965.
EDITOR’S DIARY
355
Throne Speech Debate, Canadian Parliament. Mr. Diefenbaker: ….
if this
is accepted they will be placing Canadian federalism in a strait-jacket which
will deny future amendments, however necessary they may be. They will place
the Canadian constitution in a position in which each and every province will
have a veto.” He lists denunciations of the formula by Professors G.A. McAllister
(U.N.B.), R.D. Gibson (Manitoba), B. L. Strayer (Saskatchewan), Alex Smith
(Alberta), E. R. Alexander
(Queens).
H. C. Deb., p. 24.
(Ottawa), Dean W. R. Lederman
April 9, 1965.
Mr. Favreau reminds the House that on October 26th previous, Mr. Fulton
had written to Mr. Diefenbaker to observe that the new Formula was, in all
essentials, identical to the old one. H. C. Deb., p. 178.
Premier Lesage hints to reporters after a Quebec cabinet meeting that the
Government may petition the Crown for a reduction of the Legislative Council’s
to Bill 3
powers, as his government would not accept Council amendments
and therefore “this is the only thing left for us to do”. Montreal Star, April 10,
1965.
April 12, 1965.
“Information clinic” held by St. Jean Baptiste Society at Montreal, on the
subject of the Formula. Opponents included Prof. J.-Yvan Morin, M. F.-A. Angers;
Supporters: Prof. Jean-Charles Bonenfant, Dr. Eugene Forsey.
April 13, 1965.
Legislative Assembly of Saskatchewan. On motion of Hon. D. V. .Heald,
Attorney-General, seconded by Hon. Mr. Cuelenaere, it was resolved, on division
31-25, “That this Assembly:
“(1) Expresses its approval of the draft of an Act to provide for the
amendment in Canada of the Constitution of Canada contained in a White
Paper entitled “An Act to Provide for the Amendment in Canada of the
Constitution of Canada” and tabled in this Assembly the 5th day of February,
1965;
“(2) Recommends to the Government of Canada that the proposed Act
be submitted to a committee of the House of Commons for consideration and
that such committee be directed to hold public hearings and report thereon to
Parliament; or, alternatively, that the proposed Act be submitted by the Govern-
ment of Canada to the Senate of Canada with a request that it be considered
by a committee thereof, appointed for such purposes and that the committee
hold public hearings and report thereon to Parliament.”
On a reversal of the same division an opposition amendment by Mr.
Blakeney is defeated. It would have substituted in the place of the words of
approval, an expression of opinion that the provisions of the white paper were
unacceptable, and that none should be finally determined without the widest
possible public consultation and debate by all interested persons and groups.
Debate was fairly extended, and took place on March 26th, April 6th,
April 9th, April 10th and April 13th.
Mr. Heald, at p. 1323: “I must admit, -that if Saskatchewan had been the
only province involved, we would have been prepared to accept the formula
that did not involve the degree of entrenchment proposed. At the conference
McGILL LAW JOURNAL
[Vol. 12
of Attorneys General last year, in my opening address to the delegates, I stated
that this province would prefer to see less entrenchment than -that contemplated
by the Fulton formula of 1961. During the conference, I also stated that
Saskatchewan would prefer to see delegation allowed to or by fewer than four
provinces. These propositions were resisted by the majority of the provinces and
it was apparent that .the proposed act was as far as the majority was willing
to go.” Though unable to reveal the positions of others, “Saskatchewan stood
very nearly alone on many of these issues.”
“We were therefore, and are therefore, faced with the decision as to
whether or not to resist the will of the majority of the provinces and thereby
prevent the repatriation of the constitution.” This was “only justified.., if we
are of the opinion that the repatriation of the constitution is to be done at the
expense of the constitution.” He thought that the “proposed formula does not
impair the opportunity to maintain a strong central government, nor does it
in fact commit the constitution to unnecessary rigidity.” The position would
be no worse -than now, and he denied that the various parts of the nation
lacked enough maturity to conduct its affairs properly.
At p. 1326 Mr. R. A. Walker doubted that the work of the conference was
consistent with Mr. Heald’s picture of growing nationhood. He pointed out
(p. 1476) the problems of unanimity and that now the unanimity would be of
legislatures rather than just provincms
(p. 1477). But he cited authorities in
the federal and U.K. parliaments in support of his view that a simple request
of the federal parliament, without provincial concurrence, sufficed
(p. 1476).
Mr. Walker (p. 1479) also made the following interesting remarks on
the interpretation of the formula: “… I cannot think of any important matter
of legislature
important matter, in the British Norti
America Act, which does not fall under one or other of the restrictive classifica-
tions, except in one area, the transfer of parliament’s powers to the provinces.
This appears to we, that it falls under the more flexible section. But to transfer
them back from the province to Ottawa, falls under the more rigid section
requiring unanimous consent. So you have there a built-in, a sort of one-way
street, whereby parliament powers can be dismantled, and transferred to the
provinces, but which can be restored back to parliament, or provincial powers
can be given to parliament only with the utmost difficulty. So you have there,
in my opinion, a sort of ratchet effect… a built-in balkanizing feature which
builds in the decentralization of Canada’s powers to the province.”
jurisdiction or any
Mr. A. E. Blakeney (p. 1611): “… I believe that this provision, section 2,
is capable of a couple of interpretations. It undoubtedly means that the powers
of a province cannot be reduced, the legislative powers of a province cannot be
reduced without unanimous consent. It may mean that the legislative powers
of a province cannot be increased without unanimous consent. It may mean,
indeed, that powers which are now in the federal area cannot be transferred
to the provinces without unanimous consent. In the remarks which I have…
I have assumed this fatter to be the case…”
[See later debates under March 10th and 17th, 1966, below. See also
references under November 20th, 1964, above.]
April 27, 1965.
House of Commons. Mr. Heward Grafftey, a Conservative member from
Quebec, speaks of “the strong possibility that everybody in Canada recognizes
that the Fulton-Favreau proposition will not get through the Quebec House
in the foreseeable future.” H. C. Deb. 627.
No. 4]
April 30, 1965.
EDITOR’S DIARY
Hon. Guy Favreau delivers a strong speech to the Chamber of Commerce
in Hull, Que. in favour of the Formula, reported by The Montreal Star.
May 4, 1965.
Manitoba Legislative Assembly. Formula approved 40-3, the opponents
being N.D.P., the government Conservative. Liberals support the government.
All provinces save Quebec have now assented.
May 8, 1965.
Caucus of the Federation of Young Liberals of Quebec, some 40 persons,
at Quebec City, to study the Formula, which Premier Lesage defends at a
three-hour morning session and for which he succeeds
if not
positive support at least the acquiescence of the young Liberals. During the
afternoon, at a thirty-minute session held in the absence of the Premier, it is
decided to take no vote. La Presse, May 10, 1965. See comments of M. Johnson
in Debates of the Assembly, Vol. 4, No. 22, p. 1135.
in securing
May 11, 1965.
Quebec Legislative Assembly debates and rejects amendments made by
Legislative Council to Bill 3. No message is sent to the Council. Discussion
takes place on a possible request to London for reform of Council’s powers,
and assurances received from the Prime Minister of Canada that it would
be transmitted with favourable recommendation. Dib. de l’Ass. lg., vol. 2, no. 52,
p. 2441; p. 2443 ff.
May 12, 1965.
Quebec Legislative Assembly. Government motion by Premier Lesage for
an Address to the Sovereign for the enactment of a measure to amend the
British North America Acts, to be called the Quebec Parliament Act. With it is
proposed an address to the Governor-General, praying transmittal of the same.
Order Paper, No. 54, May 13, 1965, p. 6. See Appendix VI.
May 20, 1965.
Quebec Legislative Assembly. Bill 3 removed from Order Paper. Dib. de
l’Ass. l6g., vol. 2, no. 58, p. 2735-7.
M. Edouard Asselin, leader of the National Union majority in the Quebec
Legislative Council, announces that he will move in that Chamber for a petition
to the Crown to reject the Assembly proposals for Council reform.
May 25, 26, 1965.
Quebec Legislative Assembly. Address
to the Queen concerning Quebec
Parliament Act, and ancillary address to the Governor-General, are debated
and adopted by a vote of 44-15. See Le Devoir, May 26. Dib. de
‘Ass. l6g.,
vol. 2, nos. 60-61.
May 27, 1965.
Quebec Legislative Assembly. Issues arising from the Addresses, especially
procedure at the federal level, are debated. D6b. de l’Ass. 1g., vol. 2, no. 62,
p. 2907.
June 1, 1965.
House of Commons. Statement by Prime Minister Pearson in answer to a
question by Mr. Diefenbaker. “I advised the Premier of Quebec, informally,
McGILL LAW JOURNAL[
[Vol. 12
that if and when the address was received from the Government of Quebec,
it would be considered by the. Government of Canada and advice would be
tendered to the Governor General for transmission to the Queen, in the normal
way; and that advice, if the addresses were received in the normal fashion from
the Government of Quebec, would be favourable.” H. C. Deb., p. 1818.
June 2, 1965.
Quebec Legislative Council. Addresses adopted to counter-petition the Queen
against the Legislative Assembly’s address asking for reform of the Council’s
powers by the U.K. Parliament. Also passed are addresses to the Governor-
General to transmit the Council’s address to the Queen;
to the Lieutenant-
Governor to transmit to the Governor-General; and to the Government of
Canada to lend no support to the Assembly’s petition. Journals of the Leg. Coun.,
p. 97. For the text of these addresses, carried against the government 12-6, see
Appendix VII.
Montreal Star, June 3, reports that during debate in the Council, Govern-
ment Leader Hon. George Marler characterized the Council petition as “illegal”,
that it was the prerogative of the people’s elected governors to petition the
Queen’s representative; that an appointed Upper House does not enjoy the
same privilege. Later, Premier Lesage stated that he agreed with Mr. Marler.
Asked whether the Lieutenant-Governor would be advised not forward the
Council’s petition to Ottawa, Premier Lesage stated that the cabinet would
study the matter, and give their findings to the Premier, who would advise
the Lieutenant-Governor. See below July 7.
June 3, 1965.
Quebec Legislative Assembly. Discussion of the Council Addresses. Ddb. do
lAss. lg., vol. 2, no. 66, p. 3105.
House of Commons. Prime Minister Pearson disclaims having received any
communication from the Quebec government transmitting a Quebec Legislative
Council address, or having received any communication from the Legislative
Council. H. C. Deb., p. 1932.
June 8, 1965.
House of Commons. Mr. Diefenbaker attacks the Quebec Legislative Assembly
address on Council reform, and the federal advice favouring it, as (1) improperly
involving the Crown;
treating the Assembly alone as speaking for the
province. H. C. Deb., p. 2107.
(2)
June 14, 1965.
Mr. Johnson calls the Assembly’s address to the Queen -to limit
the
Council’s powers, nothing more than a request to the federal government to
intervene in Quebec’s affairs, since the Queen must act only on the advice of
her federal ministers. Montreal Star.
Legislative Council Majority Leader, Hon. Edouard Asselin, requests by
telegram to Prime Minister Harold Wilson that he refrain from implementing
the Assembly petition until the Council’s counterpetition has reached him. Refusal
to transmit the Council’s petition had been’iinplied by Premier Lesage, and
Hon. George Marler, government leader in the Council, had reportedly stated
that the right to petition the Crown was confined to the elected representatives,
and that the Council’s address to the Lieutenant-Governor, asking for transmission,
was illegal. Montreal Star, June 15. Le Devoir, June 15.
No. 4]
June 15, 1965.
‘EDITOR’S DIARY
House of Commons. Hon. Paul Martin believes communication has been
received from the Legislative Council, and expresses an opinion as to proper
channels of communication being through executives and not directly from a
provincial legislative body to the federal executive. H. C. Deb., p. 2412.
June 16, 1965.
House of Commons. Hon. Paul Martin, Acting Prime Minister makes a
statement giving the government’s position on the Quebec Legislative Assembly’s
request for Council reform. Its substance is (1)
that federal action in support
of the Assembly may or ought to be effected rather by action of the Executive
.Government of Canada than by joint resolution of the Senate and Commons;
(2) that the r8le of -the federal authorities in the matter should properly be the
secondary one of favourably transmitting the address with advice to act on the
advice of the provincial ministers, rather than the primary r6le of passing
judgment and making a request emanating from the federal authorities. H. C.
Deb., p. 2479. Appendix VIII.
While the Government statement may be understood as merely declaring
the way in which the government think federal rights ought to be exercised,
rather than suggesting a limitation on the federal rights themselves, it is hard
to eseape the implication that the Government is in some measure compromising
the exclusivity and absoluteness of the federal standing at Westminster –
that
the federal authorities may obtain everything, and no one else anything –
as
enunciated by Sir William Jowitt, later Lord Chancellor, who, when asked
whether the provincial legislatures had agreed to the Unemployment Insurance
amendment to the B.N.A. Act, disclaimed any information, and declared that
the federal joint address was “sufficient justification”. U.K. H. C. Deb., 5th ser.,
vol. 362, col. 1181. Of course, the statement was made in the apparent expectation
by Mr. Martin that the Fulton-Favreau Formula would shortly become law and
that therefore federal rights at Westminster were largely academic. See below
June 30.
Mr. Diefenbaker attacks the Government for circumventing Parliament and
allowing the Quebec Legislative Assembly to speak for the Quebec Legislature.
“The Premier of Quebec, with unusual frankness… said it would be impossible
to bring about the end of the Legislative Council if the formula to amend
the constitution were accepted. In other words he is saying that we have a
formula and we want to bulldoze it through, but we will not be able to get it
through -the legislative council. Therefore let us remove the legislative council’s
powers by a recommendation through the Government of Canada. This is playing
ducks and drakes with the constitution simply because of the promise that was
made by -the Prime Minister to the Premier in the month of February…”
H. C. Deb., 2482. “It means that Premier Lesage agrees with us as to the
freezing effect of the formula for amending the constitution, because afterwards
there cannot be any changes.” H. C. Deb., p. 2483.
Mr. T. C. Douglas, the N.D.P. leader, says: “Not since 1871 has the
executive ever sought to exercise the authority to recommend amendments to
the ‘constitution without consulting the elected representatives of the people
of Canada. Why are we being asked to act as rubber stamps for this Government?”
(p. 2483) “It [the Quebec Legislature] has the power to amend the act now
without reference to this Parliament or Her Majesty the Queen, but the reason
it has not amended the Act is that the Legislative Assembly cannot get the
McGILL LAW JOURNAL
[Vol. 12
concurrence of the Legislative Council… So long as the matter can be dealt
with by the Legislative Assembly of Quebec, then it is a Quebec matter; but the
moment it is forwarded to the Government of Canada then it becomes a matter
for Parliament.” (p. 2484) He added that debating this question on a Supply
motion would deprive -the Senate of the opportunity to express its views; while
favouring abolition of the Senate, he thought that this should be done properly
and not by ignoring it; and hoped that it would not be too difficult to persuade
the Government to use the same method to abolish the federal as the provincial
upper house.
Mr. Thompson, the Social Credit leader, thought Parliamentary action
proper for transmitting such a request, but felt that the elected representatives
in Quebec had the “final responsibility”.
For an interesting exchange, see p. 2479ff.
Quebec Legislative Assembly. Premier Lesage tells the House that the
cabinet would probably take two weeks to advise the Lieutenant-Governor on
action regarding the Council’s address; and
that the Lieutenant-Governor
intended to vacation through the whole month of July. Exchange between M.
Johnson and Premier Lesage.
June 30, 1965.
House of Commons. Discussion on Quebec Legislative Council reform
proposals, p. 3110 ff., especially remarks of Mr. Andrew Brewin and Hon.
Paul Martin. See also Mr. Martin at p. 3122; inter alia he says, “The Government,
as the adviser to Her Majesty the Queen, has a responsibility which it will
exercise as we have already indicated. This advice will be that the matter
forwarded to us by the Lieutenant Governor, for the Government of the
Province of Quebec is in xespect of a matter which the Government of Canada
believes to be a matter of a local character within the terms of the constitu-
tion…” Did then the Government of Canada tender no advice except that
it was itself withdrawing from having anything further to do with what it
considered a local matter, and that it left Her Majesty to act, by implication,
on the direct advice of the Quebec Government? See Paul Sauriol in Le Devoir,
June 18, objecting that Ottawa was merely concealing its role as arbiter at
Westminster, and furthermore claiming
to act at the request of a mere
government of a province instead of its Legislature.
July 1, 1965.
Hon. Edouard Asselin in a statement says that for the Quebec government
to prevent transmittal of the petition would be “an odious denial of justice
and a sordid trick” and showed -the government’s “lack of confidence in its
case”. The Council would send the petition by other means with “appropriate
explanations”. Montreal Star, July 2, 1965.
July 7, 1965.
The Editor’s letter to the Editor of the Montreal Star is published
the following terms:
in
“Sir, –
It is disconcerting to find that with a Cabinet full of so-called
constitutional experts, the Quebec Government should be so perplexed about its
proper course of action on the Legislative Council’s petition
to the Queen.
to the Queen, and
transmitting it with favourable advice, is, one may hope (notwithstanding his
“The difference between
transmitting
the petition
No. 4]
EDITOR’S DIARY
reported comments)
Government in the Council, Mr. Marler.
a distinction not
too subtle for the Leader of the
“The Lieutenant-Governor
(or other officer administering the government
in his absence) appears from such authorities as exist to be bound by law to
effect [typographical error corrected]
this
would properly be done through the Governor-General.
In each instance, of
course, the petition may be transmitted together with unfavourable observations
and advice, but a refusal to transmit may very possibly render the officer
concerned liable to legal proceedings including an action in damages.
such transmittal
to the Queen;
“By way of example, Ministers of the Crown, while quite free to advise
the Lieutenant-Governor -not to fiat a petition of right to allow .the Crown
to be sued, cannot, on pain of an action in damages, refuse to lay the petition
before him: Norton v. Fulton 39 S.C.R. 202; Irwin v. Grey 3 F. & F. 635, 176
E.R. 290.
“Mr. Marler’s reported suggestion that only the elected representatives of
the people are entitled to petition the Crown is very unconvincing fiction. All
subjects, not least the Legislative Councillors, have the right to do so.
“If the Lieutenant-Governor and Governor-General refused to transmit the
Petition, the Councillors would be quite entitled
to circumvent them and
approach
in any event be at most a
discourtesy to these officers and a breach of probably little more than Colonial
Service practice.
the Queen directly. Doing so would
“Of course, once the petition reaches the Queen, Her Majesty will merely
ask the Federal Cabinet for advice in daling with it.
“Accordingly, much the least of the Councillors’ problem is ensuring that
their petition reaches the Queen. The Federal Cabinet have agreed to advise
that the U.K. Parliament accede to the Assembly’s wishes and there can be
little doubt that this advice will be acted upon however much the Council
may protest. The Imperial Conferences of 1926 and 1930 together with subsequent
practice are almost universally held to make federal requests both sufficient and
necessary -to accomplish any changes through Westminster, whether the provinces
are affected or not. So it would, from the standpoint of the U.K. Parliament,
make no difference what the Provincial Government or Assembly –
or in this
instance the Council – wanted, once appropriate Federal advice had been given.”
July 7, 1965.
Hon. Guy Favreau becomes President of the Privy Council. M. Lucien
Cardin becomes Minister of Justice and Attorney-General for Canada.
July 14, 1965.
Montreal Star reports that the Governor-General has over the preceding
weekend sent to the Crown a formal instrument of advice from the Federal
Government on the Legislative Assembly petition; asking the Queen to place
a Bill before Parliament in accordance with the Quebec request.
July 20, 1965.
G&-ard Pelletier in the Montreal Star predicts the death on -the order paper
of the Quebec resolution to approve the Formula, the first true defeat of the
Lesage Government in five years of office.
McGILL LAW JOURNAL
[Vol. 12
July 27, 1965.
M. Asselin announces that the Council’s petition will be sent directly to
London, with apologies and explanations for so doing, to the Queen, the Governor-
General and the Lieutenant-Governor. Montreal Star, July 28, 1965.
July 28, 1965.
Quebec Legislative- Council votes 9-5 against the Government, to send to the
Queen directly, copies of its petitions, together with an explanatory Memorandum
quoting Legislative Assembly Debates and press reports indicating that the
government sought to prevent the Council’s petition from reaching the Crown.
Journals of the Legislative Council, p. 149 and following.
August 6, 1965.
Quebec Legislature prorogued admidst threats outside the assembly of
abolition of the Council unless the latter passed the Laval bill as passed by the
Assembly. The Council did so. Le Devoir, August 7.
August 12, 1965.
Premier Lesage announces that, in accordance with a recommendation
of M. Louis-Philippe Pigeon, counsel, the Government will not send on the
Legislative Council’s petition.
–
September 7, 1965.
In a speech to the Club Optimiste Maisonneuve, M. Daniel Johnson says
that “Before acting, Ottawa is desperately seeking travelling salesmen with
sufficient nerve and guile to sell this formula to the Quebec population.
“As for the Quebec Government, it awaits only the modification of the
powers of the Legislative Council so it can, agree to render intangible all
the rest of this gelatin that some still dare to call the Canadian constitution.”…
“I tell you that the fight over the Fulton-Favreau Formula is far from over.
It has jtst begun.” Montreal Star, September 8, 1965.
October 12, 1965.
Prime Minister Pearson states in Quebec City of the Fulton-Favreau
Formula that “Up to now it has not been shown that this method
is not
satisfactory. We are awaiting a word from Quebec..” If Quebec expressed the
desire that the formula be changed, “we will take it into consideration and
discuss it.” Montreal Star, October 13, 1965.
October 22, 1965.
In reports of a speech to South Shore Association of Chartered Life Under-
writers, M. Johnson challenges Premier Lesage to step on his pride and call
for a revision of the Fulton-Favreau Formula. He asks what Mr. Lesage is
waiting for to send Ottawa “the word from Quebec.” Montreal Star and
Le Devoir.
Quebec Legislature. Emergency session, ostensibly to deal with the Levis
ferry. In the Throne Speech debate on an opposition amendment to reject
the Formula, Premier Lesage assumes a non-committal attitude about it. “I am
not ready to say no. I am not ready to say yes.” “I am not ready to ask Mr.
Pearson to re-study the formula. I am not ready to do that because I ask
myself if
it isn’t in another fashion that we should proceed and I am not
No. 41
EDITOR’S DIARY
ready either to be negative.” Of the considerable press comment which ensues,
Le Devoir editor Claude Ryan “rejoices”, and Montr~al Matin editor Lucien
Langlois hails Mr. Johnson’s yictory. Elsewhere
that the
Premier’s statement paves
the way for a complete rejection next session,
especially as the federal government appears to be losing hope, as indicated
in a Toronto election rally speech by Hon. Mitchell Sharp, “I don’t think
the Fulton-Favreau Formula is really going to survive. We have to start again
to find some way to bring the constitution home. We will have to find some
plan for amending the constitution, but I don’t think the Fulton-Favreau
Formula is it.”
is predicted
it
October 27, 1965.
In a Renaissance Club speech demanding a new constitution, M. Daniel
Johnson accuses Premier Lesage of treachery; the Fulton-Favreau Formula
was “an
impossibility” for Quebec, but the Premier had tried to thrust it
on the province with “the tactics of the Ottawa establishment: try to cajole
Quebec, especially French Canadians, while slipping
the handcuffs on.”
Montreal Star, October 27. Le Devoir, October 28.
November 8, 1965.
Canadian General Election. Mr. Pearson’s minority Liberal government
returned with another minority in the House of Commons. XParty standings:
Liberals: 131; P.C. 97; N.D.P. 21; Ralliement des Cr~ditistes 9; S.C. 5;
Ind. 2.
January 17, 1966.
In various speeches to students at three Montreal universities, Premier
Lesage refers to the Formula as a “dead duck”, outstripped by events. Star,
Jan. 18.
January 18, 1966.
Parliament of Canada. Speech from the Throne, opening -1st session of the
27th Parliament. “It remains the objective of my Ministers to provide that the
Constitution of Canada may be amended in Canada.”
January 20, 1966.
Premier Lesage writes to Prime Minister Pearson announcing his intention
to postpone indefinitely consideration of the repatriation formula. See Correspond-
ence in Appendix III.
January 24, 1966.
Hon. Guy Favreau’declares to the closing banquet of the Founding Convention
of the Quebec Association of Canadian Student Liberals that the time
is
not ripe for repatriation and sweeping reform of the B.N.A. Act. “I would hold
up repatriation of the constitution –
rather
than place its revision in the hands of a Parliament dominated -by the emotional
colonialism which Tories get from their notion of ‘national unity’ “. Montreal
Star, January 24, 1966.
though I consider it essential –
Exchange in .the House of Commons. Montreal Star, January 24, 1966.
January 27, 1966.
House of Commons. Throne Speech Debate. Mr. Diefenbaker has an
exchange with Mr. Favreau about the rejection of his Formula. H. C. Deb., S60.
McGILL LAW JOURNAL
[Vol. 12
January 28, 1966.
Mr. Pearson declares in the House of Commons that it “would go without
saying” that the Fulton-Favreau Formula will not be proceeded with in the
absence of provincial unanimity: otherwise it would have been done in the
previous session. He suggests the possibility of studying future steps in a
parliamentary committee. Mr. Diefenbaker: that the changes in the Formula
emasculate parliament. Mr. Pearson: that Mr. Fulton considers the Formula
close to his own. Mr. Douglas –
is off to New Westminster to
amend the B.N.A. Acts. H. C. Deb., 373.
at p. 411 –
Mr. Pearson, in answer to a question by Mr. Diefenbaker, states that the
Quebec Legislative Assembly address was before the U.K. Parliament, and would
be considered before long. H. C. Deb., p. 374, and compare Prime Minister
Pearson’s letter to Premier Lesage, of January 26.
January 31, 1966.
House of Commons. Discussion on the formula, p. 479 ff. Mr. Clement
Vincent, M.P., quotes Mr. Favreau’s remarks, before kniwing of the rejection
of his formula by Premier Lesage, that “As usual petty provincial chauvinists
instinctively join with centralizing reactionaries
to destroy a fair solution
worked out by fair men.”
February 3, 1966.
House of Commons. Prime Minister Pearson: “The formula was acceptable
to all the provinces but one. That province has said it is acceptable but has
postponed consideration of it.” H. C. Deb., p. 638.
February 4, 1966.
Premier Lesage in the Quebec Assembly, in response to a question by the
leader of the Union Nationale opposition, M. Daniel Johnson, states that
“indefinite” postponement means postponement “without limit”. Dib. do l’Ass.
16g., vol. 4, no. 8, p. 336.
February 11, 1966.
Premier Lesage explains to the Quebec Assembly the interpretation he gave
to the Formula which enabled him to accept it: unanimity to reduce provincial
powers, two-thirds to increase them.
March 9, 1966.
Debate in Committee of Supply of the Quebec Legislative Assembly, on the
vote for Federal-Provincial Affairs, upon the Formula. The government
is
criticised for ever having entertained the Formula, even if it allowed increase
of provincial powers on a two-thirds basis.
The Premier denies having discussed reform of the Legislative Council at
the Conference of October 14, 1964, (see p. 1131), and is taxed by M. Johnson
at having broken his commitment if he made no reservation. (p. 1131 ff.)
Premier Lesage refuses to go beyond the reasons given in his letter of
January 20, 1966, either to explain his change of heart or to say how dead
he considers the Formula. But it is a “dead duck”.
March 10, 17, 1966.
Saskatchewan Legislative Assembly. Mr. Blakeney, seconded by Mr. Walker,
moves an opposition resolution similar to similar to Mr. Blakeney’s unsuccessful
No. 4]
EDITOR’S DIARY
amendment of April 13, 1965, approving repatriation, repudiating the Formula,
and seeking public consultation and debate before finally determining an amend-
ment procedure.
A government amendment by Hon. D. V. Heald, seconded by Hon. Mr.
Gardiner, carried 31-23, “Urges -the Government of Canada to convene immediately
a federal-provincial Conference on constitutional amendment to determine the
precise nature of the objections that the Province of Quebec has
to the
proposed Act”;
the
Assembly the result of the conference to permit full discussion of the Quebec
objections; and requests the Government of Canada “in view of the objections
of the Province of Quebec” to establish a committee of the Senate or the
Commons to hold public hearings and report to Parliament. Votes and Proceedings,
2nd. Sess., 15th Legislature, Nos. 23 and 28.
instructs the Saskatchewan representative to report to
See the debate thereon.
Mr. Blakeney pointed out that the unemployment insurance amendment
had had provincial unanimity only because two premiers had given consent
by withdrawing refusals earlier expressed by their Assemblies. This “relatively
informal procedure” was “now the most rigid formula …
in the world. How
much. more rigid would it be” under the Fulton-Favreau Formula, where the
consent of the legislature was required.
Hon. D. V. Heald criticised the federal Liberal and Conservative governments
of Mr. Pearson and Mr. Diefenbaker for eroding federal authority, and turned
the tables on -the N.D.P. for having become more equivocal on the subject.
Mr. Heald. made clear that his government was far from enthusiastic about
the Formula.
He also said this: “You recall that Mr. Lesage stated that he was as
early as -the spring of 1965 under the impression that any increase in provincial
powers, which of course could only be done at the expense of federal powers,
would require that -two-thirds of the provinces assent representing one-half
of the population. You will recall that the unanimity provision applied to any
law affecting any provision of the constitution relating to the power of the
legislature of the province to make laws. Mr. Speaker, if the interpretation
of that phraze was not apparent, it seems to me, I can’t understand this because
it was always represented and I think the member for Hanley (Mr. Walker)
who had attended some of these earlier conferences would agree that it was
always represented to the conference as providing for unanimous consent.”
April 5, 1966.
House of Commons. Mr. Pearson, in reply to Mr. Diefenhaker, disclaims
having any information about the progress of the Quebec Assembly address before
the U.K. Parliament, but he will inquire of the U.K. government. H. C. Deb.,
3859.
May 5, 1966.
House of Commons. In reply to a question by Mr. Diefenbaker, Mr. Pearson
states that he knows of no change in the presence of the Quebec Assembly
proposals being on the U.K. parliamentary calendar, “though in the eyes of
the United Kingdom government there may not be the same haste in bringing
it before Parliament because of the existing electoral situation in Quebec.”
(Was the U.K. government-then being left to deal as it thought proper with the
Quebec government?) H. C. Deb., 4724.
McGILL LAW JOURNAL
[Vol. 12
May 24, 1966.
. ” Montreal Star reports an election speech by M. Daniel Johnson,: “The day
after June 5, I’ll send a -telegram to Prime Minister Wilson of England in
which I will say politely; ‘Sir, don’t bother any more, we’ll settle our problems
ourselves.'”
June 5, 1966.
Quebec General Election. The Liberal government
is defeated, and an
Union Nationale government returned under M. Daniel Johnson. Party standings:
Union Nationale 56. Liberals 50; Independent 2. Premier Johnson takes office
June 16.
The new government is pledged to Council abolition, but refuses -to allow
it to take place until -a new Upper House is constituted to replace it. The
government’s views lean towards representation on an occupational and interest-
group basis, instead of the present life appointment by the Lieutenant-Governor-
in-Council. The question is ultimately put before an Assembly committee on
the constitution, and an abolition bill by M. Lesage is once iefused first reading,
and later introduced and struck.
June 8, 1966.
House of Commons. In reply to a question by Mr. Stanley Knowles, of the
N:D.P., Mr. Pearson states of the Quebec Legislative Assembly address, “in my
view its status is a little uncertain.” H. C. Deb., p. 6139.
June 10, 1966.
In reply to a question by Mr. Diefenbaker, Mr. Pearson declares that
“there is no danger of the United Kingdom Government proceeding in this
matter until there has been an opportunity to obtain the views of the incoming
government in question.” H. C. Deb., 6248.
November 23, 1966.
House of Commons. In reply to a question by Mr. Bell, M.P., on the Quebec
Legislative Council, Prime Minister Pearson indicates that: “The government
did, however, communicate the addresses of the Legislative Assembly to the
Crown with the indication that, in its view, the advice of the Executive Council
of Quebec in relation to a matter solely affecting the constitution of Quebec
should be followed… Consistent with the proposition indicated above, any
further action will depend on the views of the ministers now in office in Quebec.
This situation has been explained to the United Kingdom government.” H. C.
Deb., p. 10233.
December 1, 1966.
Quebec Legislature. Throne Speech promises a referendum procedure,
apparently of a consultative nature. Ddb. de l’Ass. 16g., p. 5.
December 2, 1966.
Quebec Legislative Assembly. On a notice of motion to set up a Constitutional
Committee of the Assembly to study constitutional problems, Premier Johnson
proposes that it should “examine the possibility of establishing, in the place
of the Legislative Council, an organization representing intermediary bodies,
Quebec’s minorities, representatives of the economy and the professions and
having administrative structures and powers in keeping with the needs of
our time.”
No. 4]
EDITOR’S DIARY
December 6, 7, 1966.
Quebec Legislative Assembly. First reading refused to Opposition Leader
Lesage’s Bill to abolish the Legislative Council, Bill 99. D6b. de l’Ass. 16g.,
p. 35 ff., p. 91 ff.
February 21, 1967.
Premier Johnson, introducing his motion of December 2, tells the Assembly
that the Legislative Council will not be abolished until a suitable replacement
is found. DEb., p. 1442 ff.
M. Legage’s bill to abolish the Legislative Council is given first reading,
p. 1461 ff.
February 28, 1967.
Legislative Assembly of Quebec. On motion of Premier Johnson, M. Lesage’s
bill to abolish the Legislative Council is stricken from the Order paper, on the
grounds inter alia that it affects the prerogatives of the Crown. See No. 33 of
the Votes and Proceedings of the Legislative Assembly. The debate is violent and
M. Lesage nearly expelled from the House. Le Devoir, March 1st. See also
Le Devoir, March 2, March 4. Dib. de l’Ass. lag., p. 1571 ff.
April 4, 1967.
Hon. Guy Favreau retires as President of
is
replaced by’ Hon. Walter Gordon. Hon. Lucien Cardin retires as Minister of
Justice and is replaced by Hon. Pierre-Elliott Trudeau.
the Privy Council and
April 21, 1967.
Hon. Guy Favreau is sworn as a judge of the Superior Court of the
Province of Quebec.
July 11, 1967.
Death of Hon. Guy Favreau, in Montreal.
I. –
Introduction:
The Continuing Search
For An Amendment Process
