Department of History,
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.
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 Quebecs interest.
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:
- 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.);
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.
of the Fulton-Favreau formula:
Parliament of Canada could repeal or amend any provision of the Constitution of
Canada subject to some restrictions. The restrictions were:
power of the legislature of a province.
rights and privileges of the government of a province.
assets or property of a province.
use of English or French.
- 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.
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.
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.).
could amend their own constitutions (same as s. 92-1 of the BNA Act)
- The documents contained in the Canadian
Constitution were listed.
13 permitted intergovernmental delegation of power for certain limited fields
of jurisdiction subject to approval by the governments involved.
© 1998 Claude Bélanger, Marianopolis College