Document Information

Date: 1980-08-30 – 1980-09
By: Cabinet
Citation: Cabinet [Report on CCMC Meetings], n.d. (prob. 30 August – September 1980)
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MINISTERS’ EYES ONLY

II. The Issues

This section summarizes federal and provincial positions on the twelve items under negotiation as at the end of the August 26^th to 29^th CCMC meetings, highlights significant outstanding issues and sets out positions that the Prime Minister might adopt at the First Ministers Conference. It then outlines a proposed strategy for the FMC based upon the mood of the August CCMC, the positions on the twelve items at the end of those meetings and the overall strategy for the negotiations developed earlier in the summer. It concludes with an estimate of the position in which the federal government might find itself at the conclusion of the FMC.

The twelve items are not dealt with in the order in which they were originally identified for consideration by the CCMC, but rather in the order proposed for their consideration at the FMC in the Prime Minister’s communication to the Premiers. In order to keep this part as brief as possible, the official report from the CCMC to the FMC is annexed. That report deals with each of the items in greater detail and includes any “Best Efforts Drafts” “Federal Drafts” and “Provincial Drafts” referred to in this section.

1. Charter of Rights

(1) Federal and Provincial Positions

At the direction of CCMC Ministers, a subcommittee of officials met during the week of August 25 to consider:

(a) a revised federal discussion draft Charter dated August 22, 1980, which was prepared in light of concerns raised by provincial officials during the Vancouver meetings;

(b) a provincial draft Charter dated August 28, 1980;

(c) an override (non-obstante) clause in an entrenched Charter;

(d) the possibility of strengthening the Canadian Bill of Rights as an alternative to an entrenched Charter.

Officials discussed these items without prejudice to any province’s position on the principle of entrenchment.

The Federal Discussion Draft dated August 22, 1980

Most provinces continued to have some concerns about the federal draft even though a number of significant concessions had been included (revised limitation clause, modification of legal rights, deletion of property rights and delays for Ontario and Manitoba on implementation of provincial language rights).

The Provincial Discussion Draft dated August 28, 1980

Provincial officials met and prepared a joint provincial proposal for a Charter in the event one was to be entrenched. Provincial officials did not consider language rights feeling that further discussion on these rights was required at the Ministers’ level.

There was general agreement from all provinces with the federal proposals with respect to the general limitation clause, Fundamental Freedoms, Democratic Rights and some Legal Rights.

The principal changes proposed by provincial officials were:

– deletion of the legal rights and qualification of others by a “lawful grounds and prescribed procedures” test rather than a “reasonable-or non-arbitrary” test.

– deletion of non-discrimination rights, the remedies section for breach of rights and mobility rights (provincial officials suggested if the latter category was included in the Constitution it should not be in the Charter).

– qualification of the paramountcy of Charter rights to ensure that admissibility of evidence rules would not be superseded.

The provincial draft was subsequently reviewed with federal officials. Federal officials indicated that a number of changes would be given consideration. However, serious doubts were expressed about the acceptability of some changes proposed in the legal rights category and about the deletions of non-discrimination and mobility rights.

Legislative Override Clause

Some doubt was voiced about the desirability of including such a provision. Many provinces felt they could not respond to this question until they knew what categories of rights would be included in the Charter. There was general agreement that further consideration should be given to this matter. Federal officials raised doubts respecting the necessity for an override clause but suggested that if there should be one it should be restricted by requirements that any law enacted under an override provision be adopted by a 60% majority of the legislative body and expire after a specified time (e.g., 5 years).

Strengthening the Canadian Bill of Rights

In discussion of this matter federal officials noted tha½even if the Bill of Rights was made into a clear statement of effective rights rather than an interpretive statute, these rights would continue to apply only at the federal level, would not cover the range of rights contemplated in the draft Charter and would not guarantee basic rights to persons across Canada.

Ministers’ Discussions

Ministers agreed to refer the report of the committee of officials to the First Ministers.

Ministers also indicated their position with respect to entrenchment of a Charter. Canada, New Brunswick, Newfoundland and Ontario indicated agreement with entrenchment, Ontario specifying they agreed with a limited Charter, and other provinces indicated they opposed an entrenched Charter.

Language rights, mainly minority education language rights, were briefly discussed. The principal participants were Canada, Quebec and Ontario. Quebec eld to its current position, Ontario indicated willingness to entrench minority education rights. Other provinces remained silent and likely hold to the positions they put forward at earlier meetings. Some provinces, notably New Brunswick, Ontario, Prince Edward Island and Newfoundland favour entrenchment, but nearly all others feel the Pepin-Robarts approach of provincial legislation is the only acceptable routs.

(2) Significant Issues

While progress at the August 26th to 29th meetings was significant, there remain areas of fundamental difference between the federal position and that of some or all of the provinces. One of these is highlighted by the omission from the provincial draft of any reference to non-discrimination rights. The provincial proposal to deal with mobility rights in the context of the economic union is undoubtedly motivated by their view that the federal government is much more likely to proceed this autumn on a Charter of Rights than it is on an economic union provision. Finally, undoubtedly the most significant issues remain the concept of entrenchment and the question of language rights.

(3) FMC Position

At the FMC some of the following adjustments in the federal position might be contemplated:

(a) Legal Rights: modifications to the language of some legal rights in light of the provincial concerns, development of provisions to preclude courts from adopting American jurisprudence excluding illegally obtained evidence in all cases, possible withdrawal of invasion of privacy right and right to be tried within a reasonable time;

(b) Non-discrimination Rights: possible withdrawal or re-definition of this category of rights in face of continued provincial opposition;

(c) Provincial Language Rights: in order to meet concerns of Ontario, possible further concessions to Quebec, New Brunswick, Manitoba and Ontario in implementation of language rights in courts, e.g., possible implementation on a regional basis where numbers warrant. This offer would only be made if Ontario did not feel that the offer of a ten-year delay was sufficient. Ontario did not give a firm answer on the ten-year delay at the CCMC meeting.

(d) Minority Language Education Rights: possible offer to Quebec of a delay period of up to ten years to give effect to minority language education rights.

(e) Override Clause: possible inclusion of an override clause whereby a legislative body could expressly Provide that a law would operate notwithstanding . certain Charter Rights. Fundamental Freedoms, Democratic Rights and Language Rights would not be subject to this override clause. In the event that it is decided to include an override clause, it could be made subject to such requirements as a 60% majority vote of the legislative body and an automatic expiry of any law enacted after a specified time period, e.g., five years.

Conclusion

The summer of CCMC negotiations has created circumstances in which there is now a possibility of reaching agreement on a package of constitutional amendments. This possibility has developed largely because of the three elements of the federal negotiating strategy.

– the statements that the federal government was going to take action this fall and would do so unilaterally if necessary. While this was initially not believed by most of the provinces, events of the last week (Mr. Chretien’s two speeches, the leaked Pitfield memo, ) have finally convinced the~ that the federal government is deadly serious this time. This conviction will· cause several provinces to come to the FMC wanting an agreement, but for political reasons needing in that agreement at least one item which they regard as being of political significance in their own province;

– the distinction between the People’s Package and the Package of Government Powers and Institutions and, most importantly, the refusal of federal negotiators to bargain elements in one package against elements in the This, combined with the Gallup poll showing the popularity of the People’s Package, and the insistence by federal negotiators that unilateral action would be on the whole package has led to closer agreement on a Charter of Rights than there has been before. The task at the FMC will be to broaden agreement on the Charter, in particular to get it to include language rights and mobility rights;

– the direct linking of Powers over the Economy (a new Section 121) with the resources item and the federal position that there would be no agreement on resources without agreement on Section 121.

Within the confines of maintaining these three key strategic principles, the challenge of the FMC will be to try to move the provinces toward an agreement recognizing that:

a) an agreement on a smaller ^[broader] package is infinitely preferable to unilateral action on a larger ^[smaller] package provided that the smaller ^[broader] package includes the elements of the People’s Package.

b) the federal government must be seen to be negotiating in good faith, and to be trying hard to reach a negotiated solution, so that unilateral action is publicly acceptable if it becomes necessary;