Fulton-Favreau Formula (1964-1965)

Claude Bélanger,
Department of History,
Marianopolis College

Named after two federal justice ministers – Davie Fulton and Guy Favreau – the formula aimed at patriating the Canadian constitution and at devising a new amending formula.

The process leading to the adoption of the Statute of Westminster had made Canada an independent country and raised, for the first time, the question of the modification of the Canadian Constitution. It should be noted that there had not been any provision included in the Constitution Act of 1867 to amend any of its federal parts. It was accepted that only the Parliament of Great Britain could alter in a significant manner the Constitution, as Canada was still a colony of Britain and a colony, in the British system, does not control its constitution. But if Canada was an independent country after the Statute of Westminster, who would have the power to modify the Canadian Constitution? Discussions occurred and formulas were proposed in 1927, 1935 and 1950 at federal-provincial conferences. For the most part, the formulas proposed were in the nature of a qualified majority rule.

Such formulas might be acceptable in a homogenous country but they were all rejected mostly because of the opposition of Quebec that feared that the majority of the English provinces might impose upon Quebec a system which might be injurious to the integrity of its culture, its system of laws and its autonomy. The Fulton-Favreau formula took these fears into account and subjected all important constitutional changes affecting the provinces to the rule of unanimous consent. Hence, Quebec (and all other provinces) would obtain a veto on all major constitutional changes. Presumably, this would have safeguarded Quebec’s interest.

However, this proposal, in so far as Quebec was concerned, turned out to be anachronistic. Quebec had refused the amending formulas proposed in the past because it feared constitutional changes. In the context of a static society, bent on mere survival, that was understandable. But Quebec was engaged in the early 1960's in the process of the Quiet Revolution; constitutionally, this had two main effects: French Canadians defined themselves more and more as a distinct collectivity centered in Quebec and discovered that the state could become the motor of socio-economic progress. Quebecers did not fear change anymore; they welcomed it. The result of this process was that the Québécois not only rejected the status quo but desired the enlargement of their self-government, either in the form of more powers for their provincial government or in the form of independence (this period sees the rise of various separatist groups in Quebec). Thus, to those Québécois who remained federalists, the Fulton-Favreau formula had two major defects:
 

1. it did not provide for those increased powers that the government of Jean Lesage desired to develop the French Canadian “nation” (taxation, social security, immigration etc.);
2. it would have subjected all future propositions of Quebec to amend the constitution in the direction of a larger autonomy for Quebec to the assent of 2/3 of the predominantly anglophone provinces. It was argued that English Canada would have controlled the future development of French Canada.

Under these conditions, the Fulton-Favreau formula which had been accepted by all the Anglophone provinces was rejected by Quebec and, consequently, shelved.
 

Content of the Fulton-Favreau formula:

• The Parliament of Canada could repeal or amend any provision of the Constitution of Canada subject to some restrictions. The restrictions were:
  • The power of the legislature of a province.
  • The rights and privileges of the government of a province.
  • The assets or property of a province.
  • The use of English or French.
  • Education.

• For all of these provisions, the federal government would also require the unanimous consent of the provinces. If a provision affected only one or more provinces, but not all, the Parliament of Canada would require the consent of the provinces involved.

• For changes in other provisions of the Constitution, the consent of 2/3 of the Legislatures of the provinces representing at least 50% of the population of the provinces would be required.

• The Parliament of Canada could amend its own Constitution save for some exceptions (functions of the Queen and of the Governor-General, yearly session of Parliament, duration of the House of Commons, provincial Senate representation, qualifications of Senators, proportionate representation in the House of Commons, the use of English and French.).

• Provinces could amend their own constitutions (same as s. 92-1 of the BNA Act)

• The documents contained in the Canadian Constitution were listed.

• Article 13 permitted intergovernmental delegation of power for certain limited fields of jurisdiction subject to approval by the governments involved.

© 1998 Claude Bélanger, Marianopolis College