Proposal for a new Federation

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Chevrier, J. “Proposal for A New Federation”
The New Federation 2.3 (1991): 30-37.

Proposal For A New Federation

by Jean Chevrier
Thirty years of White Papers, Task Forces and Commissions have given us the material to draw a remarkably coherent picture of what a reformed Canada should look like.
Of all the countries in the world, Canada has probably traveled one of the longest roads in its effort to achieve constitutional reform. There have been a number of failed attempts since 1960 and one partial success (Pierre Elliott Trudeau’s 1982 patriation of the Constitution, and the Charter of Rights and Freedoms).

Still, Meech Lake was something of a milestone in Canadian history, not so much for what it failed to do, but for what it may represent for the future. In this instance, failure may breed success. Historians may look at Meech Lake as the dividing line between the old Canada – mired in ancestral problems of aboriginal rights, founding peoples and outworn political institutions – and the new country which has yet to emerge from still more public consultations and a fundamental reform of our political institutions.

Anyone looking for answers to Canada’s constitutional problems can turn to some very specific studies and recommendations which are likely to take on new urgency when added to the findings of the Citizens’ Forum on Canada’s Future, and other similar panels. The problem will not be one of scarcity of material; the challenge will lie in making fundamental choices. Canadians will most likely have to arm themselves with a new frontier mentality and be prepared to contemplate a number of pathfinding solutions.

There are many accommodations that are possible within a country as large as Canada. “The approach to Canada’s problems,” to quote the 1979 Task Force on Canadian Unity (the Pepin-Robarts Commission), “must be as varied and comprehensive as are the problems themselves.” The Commission made a real effort to adapt our institutions to some hard-core realities, such as regionalism and the Canadian duality. Ten years later, these realities have become more acute and potentially more devastating. To use a current metaphor, the winds of change which are blowing in Eastern Europe with such force have reached our shores and will have to be assuaged with comprehensive and pointed arrangements.

The first one should be a completely new constitution to replace the British North America Act of 1867. This was Lester Pearson’s view when he launched his constitutional bid in the 1960s, a process which he hoped would be “broad and deep” and lead to a “great new act of accommodation.” Without a freshly written, modern, meaningful, even inspirational document – one to which students and future generations of Canadians can respond – Canada will be missing a major element of its development as a sovereign nation. The preamble, if it is to serve as a modern mission statement for Canada on the eve of the 21st century, may be as important as the Canadian flag in building bridges and conveying a sense of identity.

The framing of the preamble should be part of a national undertaking, much like the one which led to the adoption of the flag where public input and designs were sought. The educational value of such a document, particularly in the classrooms, cannot be taken lightly. In Nations and Nationalism, Ernest Gellner observed that the school has been the decisive factor in creating cultures for modern nations.

What is Canada? What should be the goals and objectives of the new federation? To capture the essence of Canada in a bold and forthright new declaration will require a special effort in craftsmanship. Plain language should replace the convoluted and legalistic terminology which was present in docu­ments like the Meech Lake Accord.

Overall, there is general agreement that the fundamental characteristics of Canada should coalesce around some of the following realities: regionalism, bilingualism, multiculturalism, and internationalism. It may be important as well to stress other values, such as community, coalition building, and the notion of evolution as opposed to revolution, or Canada’s peaceful role. The problem will lie, as it did during the Meech Lake discussion, with terminology and descriptions.

In the post-Meech Lake era, Quebec and the aboriginal peoples will most likely claim their place as distinct nations in Canada. Quebec adopted this position at the Confederation of Tomorrow Conference held in Toronto in 1960. In so doing, it will be renewing a tradition which is shared by most Quebec historians and one whose origins can be traced to Lord Durham’s description of “two nations warring in the bosom of a single state.” It can also be traced to the dictionary’s sociological definition of a nation as “a distinct race or people, characterized by common descent, language, or history.” The term ‘distinct society’ which was in vogue during the Meech Lake discussions fell short of capturing the full dimension of Quebec’s political existence. Other terms, however, such as sovereignty or full political autonomy, cannot be easily reconciled with the notion of a single separate Canadian entity.
The Monarchy
Most proponents of a new constitution take for granted that Canada will continue with the British parliamentary system of government, with the Queen acting as the head of state. Not much thought, however, has been given to the role and place of the Queen’s representative in Canadian society. Can the office of the Governor-General be made more relevant to Canadians? Quebeckers and new Canadians with various backgrounds and traditions have no particular affinity with the institution. Even the term Governor-General is reminiscent of another age.

In many ways the office, which is all ceremony and protocol, is no longer conducive to the functional and sophisticated environment in which we live. The Governor-General should play a more prominent and constructive role in the political life of the country. The office could be put to good use, for instance to help resolve conflicts in the national interest. Those dealing with Oka or the Rafferty-Alameda Dam project may be cases in point. This peaceful role as a national ombudsman or chief mediator/arbitrator could make a difference in conflicts between governments when the constitution or other vital interests are at issue.

On another plane, should Canadians consider electing their Governor-General (on July 1, perhaps)? At the very least, the Prime Minister’s choice for Governor-General should be approved by a majority of members of the House of Commons and possibly by a majority of both Houses. This procedure was used effectively when members of Parliament elected the Speaker from a short list of candidates. Given the current climate and the need to reform our institutions, Canadians will probably no longer tolerate that the highest officer in the land be hand-picked by the Prime Minister.

On the question of the Monarchy, Canadians may want to consider a compromise option put forward by Pierre Elliott Trudeau in the 1969 federal constitutional proposals. This option would recognize that the form of provincial political institutions is primarily the individual responsibility of each province. The institutions could vary between the two orders of government and from one province to another. The Queen would continue to ‘reign’ over Canada, but a province like Quebec or British Columbia, if it wished, could set up an American-style form of government, with a president and an upper house formed of regional representatives. The Parti Quebecois has said that it will set up a special commission to study this possibility if it forms the next government.

While this may result in dissimilar political institutions, the Canadian federation would enjoy a greater degree of flexibility and diversity, leaving some provinces with more freedom to develop their own institutions in North America.
The Division of Powers and the Concept of Regions
The most basic reforms, however, will have to come from the heart of the system, and address federal-provincial relations and the division of powers. Over the years, conflicting commitments to a strong central government and to the politics of provincial autonomy have stood in the way of progress, even though our constitution has been able to adapt to periods of centralization and decentralization. However, in the process, our federation has amassed an incredible burden of duplication and overlapping of jurisdictions, to the point where parallel administrations exist at the federal and provincial levels in most fields of activity and crossovers within individual subject areas are common practice.

Compounding this problem is the political geography that divides Canada into ten different provincial administrations, creating additional barriers and distortions between the provinces in terms of economic output, resources, population, and territory. Over the years there have been calls to re-structure Canada and create a more symmetrical and balanced federalism based on a given set of regions; the most natural ones being the Maritimes, Quebec, Ontario, the West and possibly British Columbia. Political union per se need not occur. However, to succeed, this arrangement would require that individual provinces in the Maritimes and in the West put in place integrated policies at the regional level and speak with one voice at the national level.

This option probably offers the best potential for establishing a modern structure and a level playing field from which could flow a more concentrated, systematic and manageable system of government relations. As a prelude, a special inquiry or feasibility study could be set up (headed by an independent auditor) with a view to modernizing the overall federal-provincial structure and to removing costly and inefficient barriers. Politically there is every reason to believe that the fall-out would be positive. Instead of being constantly at odds with its status (one province against ten), Quebec would find a more natural and equal place in what could be described as ‘les grands ensembles canadiens.’

Each regional administration by virtue of its stronger base could then exercise jurisdiction over a larger field of domestic matters, such as employment, agriculture, education, culture, regional development, health, and family policy. Much of this activity is already in provincial hands and further decentralization would not seriously endanger the federation. In its report The Federal-Provincial Distribution of Powers (1979), the Ontario Advisory Committee on Confederation advocated greater provincial autonomy over social and cultural policy. There has also been a remarkable degree of consistency in the submissions presented to the Belanger-Campeau Commission when it comes to the above sectors.

Ottawa’s power base would then become more clearly identified with the management and direction of the economy (fiscal and monetary) in addition to exercising jurisdiction over a wide range of international activities (e.g. foreign policy, trade, customs and excise, citizenship, defence, aid, space, fisheries and oceans and, to a lesser extent, immigration). It should also have stronger powers to regulate inter-provincial trade and affect the free movement of people, goods and services.

Major and more recent portfolios, such as the environment, communications, and science and technology, are likely contenders for concurrent areas of jurisdiction. However, within given sectors there should be an attempt to sharpen the attribution of responsibilities.

Regarding concurrency, the Task Force on Canadian Unity suggested that such powers should be avoided whenever possible through a more precise definition of exclusive powers; when this is not possible, a federal or provincial paramountcy should be explicitly stipulated in the constitution.

By relying on classical federalism, in which each level of government, in certain key areas, performs the responsibilities assigned to it by the constitution in relative isolation from the other, both Ottawa and the provinces could begin the process of removing the overlapping and duplication that has resulted from decades of growth in the government sector.

To succeed, an exercise of this nature will require a change of mentality in both Ottawa and the provincial capitals. Ottawa should be prepared to divest itself, if necessary, of whole departments (e.g. employment, regional development, labour, and health and welfare), or transfer some of its services to newly formed regional agencies or existing parallel administrations. Regions by and large should be expected to look after their own socio-economic development and receive fiscal compensation. Equalization payments would continue to assist ‘have-not’ provinces or regions.

Ottawa’s spending power, which is currently unlimited and which has been a bone of contention for so long, would be exercised with ‘special restraint’ and be supported by ‘broad national consensus,’ to use the terms of the 1985 Macdonald Commission (Royal Commission on the Economic Union and Development Prospects for Canada). Most reports went so far as to recommend that the use of spending power in areas of exclusive provincial jurisdiction should be subject to ratification by a reformed Senate.

On that score, it is not at all certain (nor necessarily desirable) that Ottawa should initiate shared-cost programs. Regional governments should be able to establish a day-care policy, for instance, and other social programs with the maximum of discretion to meet the needs of their respective regions. Ottawa could then coordinate interregional policy or establish comparable standards when the difference between the regional programs is so wide that it affects Canada’s integrity as a nation.

On the other hand, the old bogey of provincial autonomy should not blind the provinces to the necessity for Ottawa to exercise its role as the authentic voice of the whole country. For instance, Ottawa should have the power to examine all aspects of the Canadian federation, including matters that come under provincial jurisdiction, such as education or municipalities, to make sure that Canada remains competitive internationally. In Canada Challenged: The Viability of Confederation (1979), published by the Canadian Institute for International Affairs, Magnus Gunther, when discussing the absolute minimum condition for a federal presence in the field of social affairs, argues in favour of ‘leadership’ or ‘pressure’ which would permit the federal government to play a key role in collecting information, making special investigations, issuing publications and carrying out research which, it is hoped, the provinces would heed.

This general ‘advisory’ power would replace other unilateral federal powers such as the power to legislate for peace, order and good government, and the powers of reservation and disallowance which have fallen into desuetude. The federal government would retain the emergency powers which could be invoked in wartime and also in peacetime under certain conditions. On the other hand, the residual power which currently rests with Ottawa and which some commissions would transfer to the provinces should be subject to ad hoc consultations whenever it becomes necessary to meet changing realities.
Canada’s Superstructure: The Fourth Institution
Fears have been expressed that the regions might be tempted to go their separate ways if given extra powers. These fears are more imagined than real considering the confining political geography in North America. However, other measures can and should be adopted to reinforce the federation. In that spirit, Ottawa should bind the regions together in a new government organiza­tion at the centre and have their governments play a key role in determining national policies. This new permanent body, with representation from the provinces and the federal government, would have the mandate to oversee the direction of the country’s economy. It would be equal in importance to the other three central institutions (the Supreme Court, the House of Commons and the Senate). Its role could be advisory in nature or its decisions could be binding on the federal government under certain conditions.

A number of bodies, including the Economic Council of Canada, in its latest report, have called for more provincial input into national economic decision-making. In 1965, Faribault and Fowler proposed a fiscal commission in The Confederation Wager. In 1971, the Ontario government of Bill Davis proposed a Joint Economic Council to “review and determine, on a continuing basis, national economic goals of a strategic order.” For its part, The MacDonald Commission recommended the establishment of three central ‘Ministerial Councils’ – one devoted to finance and treasury matters, one to economic development, and another to social policy.

Such an organization is long overdue, given the number of economic issues that are subject to joint federal-provincial actions (from deficit reduction to fiscal relationships), and given that so much of the expenditures are coming from the provinces (over 60%, including municipalities). When Premier Bourassa refers to a new political ‘superstructure’ to oversee the monetary, fiscal and economic interests of both nations, he is speaking the same language as many others and resurrecting an idea whose time has come.

To deal with some of these issues, both the Quebec Liberal Party ‘Beige Paper,’ A New Canadian Federation (1980) and the Pepin-Robarts Task Force also recommended the creation of a new Federal Council. The authors would give the new Council broad powers, incorporating as well the objectives of a reformed Senate, with power of ratification over a wide range of issues. This proposal would more than likely overload the new central institution and divert from its intended mission, which is to maximize the harmonization of economic and social policies. It would be preferable to maintain the idea of a reformed and separate Senate altogether.

This new central institution should be empowered to play a prominent watchdog role in matters of duplication and overlapping of government policies. Ideally, only one government should have negotiated with the Mohawks during the Oka crisis. In the same vein, Ottawa should have spearheaded the drive towards constitutional reform. As matters stand, individual provinces have set up their own task forces or panels, all aiming to accomplish the same objectives as the federal government. It would be important to have a clause in the new constitution to allow for intergovernmental delegation of powers, so that governments in the 90s are able to react with more enlightenment and speed in any particular situation.
Senate Reform
If the regions or provinces are given a new national forum to influence the decision-making process, then the creation of a Senate along regional lines to redress the power imbalance becomes less important. So far, much of the debate on a reformed Senate has centered on a ‘Triple-E’ Senate - elected, equal, and effective. There are, however, two general drawbacks to the Triple-E Senate.

The first is that it would have powers approximating those of the House of Commons. It is doubtful that the Fathers of Confederation ever intended the Senate to play a competitive role or be in a position where it could challenge the supremacy of the House of Commons, which is based on responsible government. To counter this imbalance, both the 1978 Special Joint Committee on Senate Reform and the 1985 MacDonald Commission recommended that, instead of the absolute veto it enjoys now, the Senate be given only a suspensive veto. This would still be a powerful instrument to force the government to alter its legislation, after allowing time for national debate and reflection (from three to six months).

The second drawback, which was reinforced during the recent squabble over the goods and services tax, is that the Senate would be elected on a purely partisan basis. Such a Senate is not likely to produce an assembly very much different than the House of Commons, where Reform Party and Bloc Quebecois members would compete with Liberals and Conservatives. This is hardly a ready-made measure for making the Senate a house of sober second thought capable of addressing legislation at its face value and strengthening our national institutions.

Most groups, including the Canada West Foundation and the Alberta Select Committee on Senate Reform (1985) have recommended an elected Senate, some favouring a system of proportional representation and others the first-past-the-post test. While the politics in favour of an elected Senate will be strong, there is room for a more extensive debate on this question. Other alternatives should be examined, with a view to establishing non-adversarial forms of democracy.

Ideally, the Canadian Senate should be devoid of partisan politics. It should also be distinct from the American model as Canada needs to fulfill its own special destiny in North America. Unlike the melting pot concept in the United States, Canada’s identity is derived largely from the formal recognition it gives its two linguistic majorities and multicultural minorities.

The Canadian mosaic or the demographic make-up could lay the foundation for the new Senate. Members would be chosen or elected by the various cultural and ethnic associations across Canada. To reflect Canada’s commitment to equality, 50% of the members would be female.

A modified version would have the new senators come from different backgrounds (e.g. education, science, environment, and labour) and selected by organizations representing different disciplines. Both the Pepin-Robarts Task Force and the 1983 Discussion Paper on the Reform of the Senate stressed the importance of placing as much emphasis on linguistic and other minority interests as on regional representation. Participatory democracy would reach a higher level of relevance. Many qualified and experienced Canadians have been strong representatives and have made worthy contributions in their respective communities, which have too often been overlooked by the higher levels of government

Redistribution of seats could occur on the basis of equality between the provinces or on the basis of equality between the three fundamental groups (French, English, and members of other communities, e.g. Italians, Germans, Asians, Africans, etc., including a select number of seats for aboriginal peoples). Setting up this guaranteed form of representation and seeking out Canadians from all regions, all linguistic, ethnic and cultural backgrounds and all walks of life may pose some problems, but it should not be beyond the imagination of the bureaucrats to work out the practical details.

The final selection of new senators could rest with the Prime Minister and/or the Premiers or with a select committee of both Houses to ensure that all the intrinsic elements are taken into consideration.

Irrespective of the way the Senate is reformed, our leaders should seriously consider another dimension: giving concerned citizens and groups the right to present petitions at the bar of the Red Chamber and outline their plans for new legislation. The Senate would then have the right to initiate legislation under certain rules. Because the government is responsible to the House of Commons, the latter would have a veto power over such legislation. Most commissions did not recommend that the Senate be able to initiate legislation. However, this form of direct democracy, away from executive federalism, would be welcomed at a time when public cynicism with politicians and the system has reached unusual proportions. Both the Pepin-Robarts Task Force and the Quebec Liberal Party ‘Paper’ suggested that both Houses should have the right to initiate amendments to the constitution. Both studies, as well as the Canada West Foundation report, advocated a much broader range of powers, including the ratification of appointments to the Supreme Court and other government bodies.
In Conclusion
These proposals are meant to activate discussion on the future of Canada and are not considered an end in themselves. Constitutional reform, however, can only go so far in rescuing the country. Other types of intervention will be needed, both in terms of policies and national projects capable of rekindling public enthusiasm for Canada, particularly in Quebec, where the very idea of Canada has suffered a tremendous setback. John A. Macdonald’s words: “If we have made Canada, we have yet to make Canadians,” illustrate the full measure of the challenge ahead.

To begin the national healing, it may be important for all three federal party leaders to put aside their political differences and agree on a timetable and process of reform. Even the idea of a formal alliance or a national coalition government (with representatives from the Reform party) should not be excluded. This would be unprecedented in peacetime, but it may be an effective way of managing the crisis. Canada is presently in a state of double jeopardy due to a singular loss of confidence in the political system and the threat of Quebec separation. The next few years will be critical and will require new modes of leadership to restore public confidence.
Jean Chevrier is Editor of The New Federation Magazine.

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