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Canadian Federalism, and the Foreign Affairs and Treaty Power. The Impact of Quebec’s “Quiet Revolution”

Published online by Cambridge University Press:  09 March 2016

Edward McWhinney
Edward McWhinney*
Affiliation:
McGill University, Montreal
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Extract

The succeeding discussion looks at some of the concrete record of governmental practice (whether provincial or federal) in Canada, under the impact of the “Quiet Revolution” in Quebec, in important areas of foreign affairs and trans-national cultural, social, and commercial relations generally. Its thesis will be, first, that at the level of constitutional law-in-action important changes and modifications are occurring in Canada which largely render out-of-date certain traditional a priori concepts and attitudes as to inter-governmental relations within a federal system; second, that these de facto changes, which are already ripening through sustained practice and observance into conventional constitutional law, tend to present the Privy Council’s work on the Canadian constitution and its interpretation in a new and rather more favourable light (in comparison perhaps with the record of the Canadian Supreme Court); and, third, that the constitutional changes that have, in fact, occurred in this area make good sense in pragmatic, experiential terms, having regard to the inner dynamics of Canadian federalism today and to the aspirations of the main contending power groups, the new positive law of the constitution thus coming very close to being also community “living law” in Canada.

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Articles
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 7 , 1969 , pp. 3 - 32
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1969

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References

1 Attorney-General for Canada v. Attorney-General for Ontario, [1937] A.C. 326 (P.C.).

2 See the comments by Lord Wright in his posthumous tribute to Chief Justice Sir Lyman Duff, published in 33 Can. Bar Rev. 1123, 1125 (1955).

3 See MacKinnon, , “Labour Conventions Case: Lord Wright’s Undisclosed Dissent?”, 34 Can. Bar Rev. 115, 117 (1956).Google Scholar And see also Scott, ibid., 114; McWhinney, ibid., 243.

4 Per Kerwin, C.J.C., Switzman v. Elbling, 7 D.L.R. (2d) 337, 341 (1957).Google Scholar

5 See per Kerwin, C.J.C., Francis v. The Queen, 3 D.L.R. (2d) 641 (1956).Google Scholar

6 Missouri v. Holland, 252 U.S. 416 (1920).

7 Decision of Federal Constitutional Court, (Second Senate), March 26, 1957. 6 B. Verf. GE 309 (1957).

8 See the discussion by the present writer in “Federal Constitutional Law and the Treaty-making Power — German-Vatican Concordat of 1933—Decision of West German Federal Constitutional Court,” 35 Can. Bar Rev. 842 (1957); Constitutionalism in Germany and the Federal Constitutional Court 46 et seq. (1962); Comparative Federalism 46 et seq. (1st ed. 1962; 2nd ed. 1965).

9 Federalism and International Relations (Hon. Paul Martin, Secretary of State for External Affairs) 14 (Ottawa, 1968).

10 Federalism and International Conferences on Education. A Supplement to Federalism and International Relations (Hon. Mitchell Sharp, Secretary of State for External Affairs) 10 (Ottawa, 1968).

11 Ibid.

12 [1936] S.C.R. 461, 510–12.

13 See Gérin-Lajoie’s, M. paper, published in The Montreal Star, March 19, 1968 Google Scholar; and see my own response thereto, “Education and Foreign Affairs: Re-examination of Canada-Gabon controversy,” The Montreal Star, March 29, 1968. And see generally, Brossard, Patry, , and Weiser, , Les pouvoirs extérieurs du Québec (1967)Google Scholar; and see the comments by Bourne, , in A Look Ahead: Confederation: Projection vers l’avenir (National Centennial Conference of Canadian Law Students, Dalhousie Law School, Halifax, 1967), at 107–13 (1969).Google Scholar

14 “The Constitutional Competence within Federal Systems for International Agreements,” in Ontario Advisory Committee on Confederation. Background Papers and Reports, 149, 153–54 (1967). Published also in 1 Canadian Legal Studies 145 (1966).

15 See generally Editorial, “Is Gabon Incident that Important?”, The Gazette, Montreal, June 13, 1968; Editorial, “Une representation mais deux délégations,” Le Devoir, Montreal, January 14, 1969; and see also “Niamey. Le Quebec assumes ses propres dépenses,” ibid., February 19, 1969; “Le ’grand espoir’ de Niamey. Ottawa et Québec sont d’accord, mais la guérilla continue!”, ibid., February 28, 1969.

16 See, for example, “Le Canada renoue avec le Gabon,” Le Devoir, Montreal, June 27, 1969; “Resume ties with Gabon,” The Montreal Star, June 27, 1969.

17 “L’entente cordiale Canada-Gabon-Québec,” Le Devoir, Montreal, July 4, 1969; “Trudeau et le Gabon,” ibid., July 5, 1969.

18 Examples of such trans-national agreements, being less than treaties, are the agreement, concluded in the era of Premier Jean Lesage’s Liberal government in Quebec, between Renault (a property of the French government), and the Société Générale de Financement (a provincially-owned investment corporation of the province of Quebec) granting the latter a licence to manufacture Renault cars in Canada; or agreements between governmental fire-fighting agencies of a Canadian province and of an American state on common fire control and prevention measures; or similar agreements as to joint road-building projects, as between a Canadian province and an American state; or even agreements between a Canadian province and individual American states as to the best commercial use of a river flowing (so far as Canada is concerned) wholly within one Canadian province. The examples are, of course, legion; one of the problems in obtaining detailed records of such trans-national agreements entered into by the Canadian provinces is that they have very often been highly informal in their modes of creation, and very often concluded, not by the Prime Minister of the province or his cabinet, but by intermediate-rank civil servants who have acted on a purely functional, utilitarian basis related to the province’s needs, and dealt directly with their civil service counterparts in other countries without apparently being aware that, in doing what comes naturally, they may have created conceptualistic problems for latter-day commentators. Such trans-national agreements, as a survey of Ontario government practice has revealed, may sometimes be evidenced in an ordinary commercial contract, sometimes in a formal exchange of letters, sometimes in reciprocal legislative action, sometimes simply in parallel administrative action. No one is sure of the exact number, but a good guess would appear to be that there must be many hundreds of such trans-national agreements concluded by all of the Canadian provinces over the years, even more perhaps by Ontario than Quebec in view of Ontario’s greater degree of industrial and commercial development, and never raising any political, constitutional, or diplomatic quarrels, over the years, until the recent Gabon affair produced the dramatic Ottawa-Quebec confrontation. The essence of such international “non-treaties,” of course, is that they afford none of the international law protections of a “treaty”: apart perhaps from the limited parens patriae protections that any one nation-state might choose to invoke on behalf of its own citizens (including private corporations and even provincial departments or statutory authorities) the effective legal recourse, if any, would be no more than the ordinary legal remedies through the ordinary courts. As one provincial civil servant said to the present writer, it would normally be unthinkable to consider legal action against, say, a neighbouring state of the United States, in respect to any such trans-national agreement. Such agreements rest, therefore, essentially on their reciprocal benefits and convenience, and their mutual common-sense, and not much else, for their effectiveness; but, in terms of modern legal science, that would generally be considered to be quite as effective, if not more effective, than a formal legal sanction. See generally Ontario Advisory Committee on Confederation. Background Papers and Reports 153–54 (1967) ; and see also Delisle, ibid., 115, 138 et seq.

19 Ontario Advisory Committee on Confederation. Background Papers and Reports 157 (1967). It is often forgotten that emphasis on protocol and procedure, and on forms and ceremonies, in dealings between countries, is giving way increasingly to a new functionalism in which the emphasis is on doing what comes naturally — what is sensible and reasonable — without worrying too much, in advance, as to abstract (essentially nineteenth century, after all) issues of sovereignty. Thus Canada made agreements with the Soviet Union while the Cold War was still on to sell hundreds of millions of dollars’ worth of wheat to Russia, the deal being engineered by the Department of Trade and Commerce rather than by External Affairs, presumably to avoid offending the United States. Again, the Department of Trade and Commerce made a deal, to sell further hundreds of millions of dollars’ worth of wheat to Communist China, even though Canada did not then accord diplomatic recognition to, or maintain diplomatic relations with, Communist China.

This “new” diplomacy, with its essentially functional orientation, is as likely to be carried on by the more general, service departments, as by the regular diplomats in the foreign ministries. It may also be carried on by private industry, or even educational institutions. It is often forgotten, for example, that the foreign operations of great private corporations like Texaco or Aramco, or even of private educational foundations like the Ford or Rockefeller Foundations, are often far more significant in their financial and economic terms and in their impact on the domestic policies of the foreign countries with which they are dealing, than are the activities of very many of the 120-odd member-countries of the United Nations. The universities themselves often administer significant “foreign programmes”: quaere whether the cultural and educational exchanges involved in the Gabon “crisis” could not all have been achieved as purely private arrangements between, say, the Université de Montréal and the Université Laval, on the one hand and the Gabonese government on the other, without raising any cause for an Ottawa-Quebec confrontation.

20 See “Franco-Canadian Cultural Agreement,” 17 External Affairs 513 (Ottawa) (December 1965); “Text of Cultural Agreement between the Government of Canada and the Government of the French Republic,” ibid., 514; “Entente on Cultural Cooperation between France and Quebec,” ibid., 520; “Text of Entente on Cultural Cooperation between the Government of the French Republic and the Government of Quebec,” ibid., 521.

21 65D.L.R. (2d) 353 (1968).

22 Ibid., 376.

23 Ibid., 380.

24 See, generally, “La querelle de Sainte-Scholastique,” Le Devoir, Montreal, May 17, 1969; Editorial, “Des documents nouveaux sur le conflict de l’aéroport,” ibid., May 17, 1969.

25 See, generally, Lalonde, Marc, “La querelle de Sainte-Scholastique: Ottawa répond au directeur du Devoir,” Le Devoir, Montreal, May 26, 1969.Google Scholar And see the responses to Mr. Lalonde: Ryan, Claude, “La querelle de l’aéroport: Où est la vérité?”, ibid., May 28, 1969 Google Scholar; Beaulieu, Richard, “Le choix de Sainte-Scholastique; un example vécu de la manière dont Ottawa pratique la collaboration avec Québec,” ibid., June 5, 1969 Google Scholar; McWhinney, , “La querelle de Sainte-Scholastique,” ibid., June 6, 1969.Google Scholar

26 “L’aéroport: Lussier se rendra de nouveau à Ottawa,” Le Devoir, Montreal, June 7, 1969.

27 “Trudeau à Ste-Scholastique: Ottawa ne reviendra pas sur sa décision,” Le Devoir, Montreal, June i6, 1969. And see the response, Paul Sauriol, “Intransigeance d’Ottawa,” ibid., June 17, 1969; “Lussier annule la réunion prévue avec Jamieson,” ibid., June 18, 1969.

28 In re Regulation and Control of Aeronautics, [1932] A.C. 54 (P.C.).

29 Johannesson v. The Rural Municipality of West St. Paul, [1952] S.C.R. 292.

30 Compare, for example, the sustained judicial analysis, in depth, of the interests-complex involved in an analogous problem-situation, in U.S. v. Causby, 328 U.S. 256 (1946).

31 See, for example, A Report on Airport Requirements and Sites in the Metropolitan New Jersey-New York Region (Port of New York Authority) (1961); National Airport Plan, Fiscal Years 1968–72 (Department of Transportation); The Airport — Its Influence on the Community Economy (Federal Aviation Administration) (1967); Quick, Megalopolis Airport Requirements, a paper presented to the Third Annual Meeting of and Technical Display by the American Institute of Aeronautics and Astronautics (1966); Sheppard, , “State-Federal Economic Regulation of Commercial Aviation,” 47 Texas Law Review 275 (1969).Google Scholar And see generally Horonjeff, , Planning and Design of Airports (1962).Google Scholar

32 The phrase “watertight compartments” was actually introduced into Canadian constitutional law, as a legal term of art, by Atkin, Lord, in the Labour Conventions case, [1937] A.C. 326, 354Google Scholar (P.C.).

33 Compare, for example, R. v. Burgess, ex parte Henry, 55 C.L.R. 608 (1936) ; Airlines of New South Wales Pty. Ltd. v. New South Wales, 113 C.L.R. 1 (1964); Airlines of New South Wales Pty. Ltd. v. New South Wales, (no. 2) 113 C.L.R. 54 (1964).

34 The federal government’s own rather facile tendency to acceptance of the Supreme Court as a federally-oriented body — the federal government’s “minion” — is perhaps to be seen in the casual arrogance implicit in the comments of a federal government spokesman, concerning the possibility of Quebec’s litigating the Montreal International Airport quarrel before the Supreme Court of Canada: “It’s hogwash”, said a key government source. “In fact I doubt if the Supreme Court would even hear such a case.… The chances are 100 out of 100 that the court would confirm the Federal Government’s right in this matter.” The Montreal Star, May 21, 1969.

35 Le Devoir, Montreal, June 1969. (Author’s translation from the French.)

36 See the statement by Angers, F. A., President of the Société Saint-Jean Baptiste de Montréal, “La S.S.J.B. de Montréal et les fêtes de la Saint-Jean,” Le Devoir, Montreal, July 12, 1969 Google Scholar: “That Mr. Trudeau… should have applied himself to do everything in his power to sabotage the Montreal festivities by exercising pressure of moral constraint on the ambassadors is not to his personal credit, and in any case it does not contribute to Canada’s prestige, in the World, as a serious power.

“For some years now, the federal government, particularly under Mr. Trudeau’s influence, seems to have made itself a master in the art of provoking diplomatic incidents, right out of the comic operas, on the subject of French Canada’s affairs.” (Author’s translation from the French.)

37 Some of the main alternative constitutional options advanced in Quebec in recent years and their concrete federal institutional implications are discussed by the present writer in Federal Constitution-making for a Multinational World 88 et seq. (1966). The political reality of the disappearance today of these intermediate options — with their essentially middle-way, compromising approach to the reconciliation of the polar extremes of Quebec and federal (Ottawa) positions is perhaps symbolized in the resignation from the Quebec legislature in June 1969, of M. Gérin-Lajoie, the Quebec political leader normally most closely identified in public with the intermediate options, in order to accept an administrative post in the federal Prices and Incomes Commission in Ottawa.

38 See, for example, Decision of the Federal Constitutional Court (Second Senate), March 26, 1957, 6 B. Verf. GE 309 (1957); ibid., July 30, 1958, 8 B Verf. GE 104 (1959); ibid., February 28, 1961, 12 B. Verf. GE 205 (1961); New York v. U.S., 326 U.S. 572 (1946); People of the State of New York v. O’Neill, 359 U.S. 1, 11–12 (1959), per Frankfurter, J. Google Scholar; Cooper v. Aaron, 358 U.S. 1, 15–16 (1958); City of Melbourne (South Australia and Western Australia Intervening) v. Commonwealth (Victoria Intervening), 74 C.L.R. 31, 83–84 (1947), per Dixon, J. Google Scholar; Airlines of New South Wales Pty. Ltd. v. New South Wales (no. 2), 113 C.L.R. 54, 144 (1964), per Menzies, J. Google Scholar And see generally Bayer, , Die Bundestreue (1961)Google Scholar; Geiger, , “Die Pflicht zu Bundesfreundlichen Verhalten,” Frankfurter Allgemeine, March 29, 1961, at 11 Google Scholar; McWhinney, , Constitutionalism in Germany and the Federal Constitutional Court 51 et seq. (1962)Google Scholar; McWhinney, , Comparative Federalism 78 et seq. (2nd ed. 1965).Google Scholar

39 On July 18, 1969, The Montreal Star reported that Premier Bertrand had written to the new French government headed by President Pompidou asking that France end the two-year ban, imposed by President de Gaulle after his 1967 visit to Quebec, on French Cabinet Ministers visiting Ottawa. As The Montreal Star commented:

We hope that, with Mr. Bertrand’s commendable request to the new government of France, the era of bad manners between Ottawa and Paris may soon be over. It was not, in any sense, an elevating period. It did very litde credit to those involved. … Ottawa for its part, could reciprocate by not finding agents provocateurs under prairie wheat stooks [a reference, apparently to the so-called Kossillon affair] and getting uptight about every real and imagined breach of protocol.

Editorial, “Commendable Act,” The Montreal Star, July 18, 1969.

A supposer que cela soit vrai, qu’ [Ottawa] aurait cherché à profiter du voyage de M. de Lipkowski pour tenter d accréditer définitevement sa “théorie du chapeau” auprès de Îaris, on comprend que le ministre français ait voulu ^être prudent et ait préféré décliner l’invitation. Le genre de problème qu’Ottawa aurait alors voulu régler est un problème qui regarde les Canadiens et doit se régler entre Canadiens. Le gouverliment ( français, η ayant pas les mêmes besoins immédiats que certains gouvernments africains, pouvait se permettre, à cet égard, plus d’indépendance sans nécessairement verser dans la grossièreté.. Il y avait d’ailleurs, dans, l’insistence que mettait Ottawa à recevoir M. de Lipkowski, quelque chose qui incitait à la prudence. Ce n’est pas la diplomatie française qu’on pourra reprocher de manquer d’intuition en ces matières. Ryan, Claude, “Après le passage de M. de Lipkowski,” Le Devoir, Montreal, October 17, 1969.Google Scholar

important factor in the decision not to send junior Foreign Affairs Minister Jean de Lipkowski to Ottawa. … France had decided to take a more normal approach to its relations with Ottawa and … the alleged incident “played a major rôle” m the return to the Gaullist syle which has provoked the ire of Prime Minister Trudeau. … France complained to Ottawa a couple of weeks after the alleged incident which they qualified as ’ open blackmail’1. …

Dans Ies milieux autorises de la capitale canadienne, aucune signification particulière n’est attachée au fait que l’ambassadeur Beaulieu n’a été reçu finalement que par le ministre qui, est lui-même au centre de la controverse. On ne pense pas que les autorités françaises, aient voulu, par là, imposer au diplomate canadien un entretien avec une personnalité que Trudeau, M. a qualifiée de ‘peu importante.’ “Vue de Paris. ‘La note canadienne paraît inattendue et hée à des problèmes intérieurs’,” Le Devoir, Montreal, October 33, 1969.Google Scholar