Constitutional Conference, Report of the Continuing Committee of Officials (10-12 February 1969)
By: R.G. Robertson
Citation: Constitutional Conference, Report of the Continuing Committee of Officials (Ottawa: 10-12 February 1969).
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REPORT OF THE
CONTINUING COMMITTEE OF OFFICIALS
PRIVY COUNCIL OFFICE
Ottawa 4, Ontario,
December 4, 1968.
The Right Honourable P.E. Trudeau, Chairman of the Constitutional Conference, Ottawa, Ontario.
I have the honour to submit to the Constitutional Conference the attached report of the Continuing Committee of Officials. It is the purpose of this report to inform the First Ministers of the work which has been undertaken since the Constitutional Conference met in February, 1968, and to seek guidance concerning the work programme of the Continuing Committee in the months ahead.
REPORT TO THE CONSTITUTIONAL CONFERENCE
PART I – Machinery for Constitutional Review
1. At the federal-provincial Constitutional Conference held in Ottawa on February 5-6-7, 1968, the First Ministers decided to undertake a review of the Constitution and for this purpose agreed:
– that the Constitutional Conference be established on a continuing basis to supervise the process of constitutional review;
– that a continuing committee of officials be set up to assist the Conference in its task; and
– that a secretariat be formed to serve the Constitutional Conference and its committees.
The Conference also reached a consensus on language rights. One of the terms of this consensus provided for the establishment of a special committee on official languages. The two documents in which the First Ministers set forth the conclusions of their February meeting are reproduced in the Appendix.
2. It is the purpose of this report to inform the Constitutional Conference of what has been done since February and to seek the guidance of First Ministers concerning the work programme for the months ahead.
3. Secretariat of the Constitutional Conference – The first step taken was the establishment of a secretariat in accordance with the conclusion of the February Conference. After consultation with the provincial governments, the Federal Government appointed Mr. Edgar Gallant to serve as Secretary of the Constitutional Conference. The task of
organizing a secretariat was started early in May. For administrative convenience, and without prejudice to the fact that the Secretary’s responsibilities are to the Constitutional Conference and its committee, the Secretariat was established as a special unit within the public service of Canada.
4. Continuing Committee of Officials – On May 1, 1968 the Prime Minister of Canada and the Chairman of the Constitutional Conference wrote to the First Ministers of the provincial governments suggesting that the organizational meeting of the Continuing Committee of Officials be held at the end of May. The Committee held its first meeting on May 29 and 30 under the chairmanship of Mr. R.G. Robertson (senior representative of the Federal Government on the Committee) and has had four more meetings since then. It was clear to all participants from the outset that the Continuing Committee could not and should not presume to take decisions. The Committee felt that it should seek to assist the Constitutional Conference by attempting to identify and define problems, by seeking to clarify issues, and by helping to focus attention on the questions requiring the consideration of First Ministers.
5. Sub-Committee on Official Languages – At its first meeting the Continuing Committee of Officials took steps to establish a sub-committee on official languages. While it was not clear whether the decision of the February meeting of the Constitutional Conference had envisaged a special committee reporting directly to the First Ministers, it was agreed to set up a sub-committee of the Continuing Committee to undertake without delay the work which the Conference itself had agreed should be carried out. To date, the sub-committee has had two meetings at which its members
have made a preliminary examination of the views of governments on the recommendations of the Royal Commission on Bilingualism and Biculturalism, the problems of implementation of these recommendations and other questions relating to language rights.
PART II – Constitutional Review Process
6. The first concern of the Continuing Committee was to consider possible procedures which could be recommended to the First Ministers to assist the Constitutional Conference in carrying out its review of the Constitution in accordance with the conclusions of the February meeting. The outcome of the Committee’s deliberations on this question is summarized below.
Object of constitutional review
7. The members of the Committee did not all have from the outset the same understanding of the nature of the review which was implied by the conclusions of the February Conference. Some believed that the First Ministers had in mind a very broad and fundamental review, embracing all aspects of Canadian life which could be affected in any way by the Constitution, written and unwritten. Others were of the view that the scope of the review which had been envisaged was much more limited, involving perhaps an examination of the British North America Act with a view to considering suggested amendments thereto. For the purpose of its programme of work the Committee proceeded on the basis that the conclusions of the Conference called for a “total review” of the Constitution, while recognizing that this interpretation would be subject to consideration by the Conference at its second meeting.
Process of constitutional review
8. In order to facilitate consideration by the Conference of the object and scope of the constitutional review, the
Committee found it desirable to attempt to outline the process which might be involved in a “total review”. The following possible steps or stages were identified:
– examination of propositions submitted by governments and development of concepts to be reflected in constitutional arrangements suitable for Canada’s future;
– special study of particular elements or problem areas where extra clarifications is needed to enable a detailed evaluation of the implications of certain concepts or principles;
– examination of the existing constitutional arrangements in the light of the concepts and principles developed under stages 1 and 2 and the development of proposals for amending or rewriting the constitution;
– legal drafting and the definition of possible means by which the constitution may be promulgated or amended;
– final acceptance of the wording of the written constitution and of the method of promulgation or amendment;
– promulgation or amendment of the constitution through whatever political processes are judged to be appropriate.
Method of handling the process of review
9. In its consideration of possible ways of handling the process of constitutional review the Committee noted that:
– at its February meeting the Conference had listed seven questions to be examined “without limiting” the process of constitutional review;
– the examination of these seven questions alone would not provide a “total review”;
– a “total review” would seem to imply a requirement for a systematic approach which would provide for an orderly examination of all the aspects of the constitutional structure.
10. The Committee proceeded to try out an approach which would seem to meet both the requirement for a systematic review and the need to examine all aspects of the Constitution, including notably the various questions listed by the Conference in February. This approach called for delegations representing the various governments on the Committee to submit through the Secretariat a series of “propositions”. These propositions were to put forward tentative suggestions which, in the judgment of the governments concerned, should guide the examination of the different aspects of the constitutional arrangements of the country. The propositions were not to be taken to represent at this stage firm or final positions of the governments concerned, nor were they to be regarded as comprehensive, but they were intended to give an indication of the thinking within the several governments concerning the views, needs and aspirations of Canadians across the country which should be taken into account during the review. It was also understood that the propositions were submitted to the Committee on a confidential basis, although individual governments would of course be free to make their own propositions public if they so wished.
11. It was thought that, with the approval of the Conference of First Ministers, the Committee might, through a detailed examination of the propositions, seek to define concepts and principles which should underlie constitutional arrangements for Canada. This examination could lead to a common identification of differences and similarities in the views of governments concerning these concepts and principles. The Continuing Committee would in no way presume to decide upon any question, but it might in this way assist the Constitutional Conference in focussing upon the questions which would require the attention of First Ministers.
12. Some delegations started to submit propositions in July, and by the end of November a large number of propositions had been received and distributed by the Secretariat. For the purpose of facilitating their preliminary examination in a coordinated way, the Secretariat grouped these propositions under broad categories arranged in the following sequence:
Object of the review
Objectives of Confederation
General principles to be reflected in the Constitution
Specific elements to be provided for in the Constitution:
– Fundamental Rights
– The Constitution of the Central Government
– The Constitutions of the Provincial Governments
– The Constitution of the Judicial System
– The Distribution of Legislative Powers
– Intergovernmental Relations
– External Relations
– Amendment Procedures
– General Provisions
Adoption of the Constitution
13. The first category in the above classification was established to accommodate a number of propositions which were concerned with the nature of the constitutional review itself. The next category groups propositions which were meant to express the fundamental reasons why Canadians want Canada to exist as a country; such propositions might not necessarily be directly reflected in the Constitution, although the ideas they express might suitably be incorporated in a preamble to the Constitution. The third category covers the expression of general principles which relate closely to the nature of Confederation and would directly influence the form or content of the Constitution. The next several categories are concerned with specific subjects which could be reflected eventually in particular constitutional provisions. These categories embrace the substantive parts of the
constitutional review. Propositions in the last two categories are not concerned with the content of the Constitution itself, but with transitional arrangements which may be required and with the means by which a new or amended Constitution could be adopted.
14. As previously indicated, the proposition approach was envisaged as one which could facilitate a systematic examination of all constitutional questions including, in particular, the seven specific subject areas identified by the Constitutional Conference last February. These subject areas are incorporated, either directly or indirectly, in the several categories identified above, and it was the expectation that an orderly examination of propositions within this sequence would ensure that adequate attention would be given to all aspects of these seven areas. These subject areas were:
(a) official languages;
(b) fundamental rights;
(c) distribution of powers;
(d) reform of institutions linked with federalism, including the Senate and the Supreme Court of Canada;
(e) regional disparities;
(f) amending procedure and provisional arrangements;
(g) mechanisms of federal-provincial relations.
Items (b), (c), (f), and (g) correspond directly with certain of the categories listed in paragraph 12 above. Propositions dealing with the subject of official languages appear within the categories: objectives of confederation, general principles, and fundamental rights. Propositions relating to institutions of federalism (item (d)) appear in categories dealing with the constitution of the central government and the constitution of the judicial system. Propositions relating to the subject of regional disparities appear in categories dealing with objectives of confederation,
the distribution of legislative powers and intergovernmental relations.
15. It should be noted that the grouping of propositions into the categories which have been identified was in no way meant to establish an order of priorities for the detailed examination of the several subject areas; rather, it was designed to enable discussion to proceed within an orderly framework, taking account of the inter-connections and inter-relationships between the various subject matters involved. In this way each issue could be examined by itself and in relation to the other aspects of the Constitution.
16. In order to test this approach, as well as to permit progress to be made by the Committee in preparation for the second meeting of the Conference, members of the Committee have had a preliminary discussion of propositions in the following categories:
the object of the review;
the objectives of Confederation;
the Constitution of the central government;
the Constitution of provincial governments; and
the distribution of legislative powers.
More detailed work on all the categories will be undertaken in future if the Constitutional Conference indicates its approval of this approach. A request for guidance concerning the future work programme is contained in the next part of this report.
Part III – Future Programme of Work for the Committee
17. The Continuing Committee, which was set up for the purpose of assisting the Constitutional Conference, has been searching for the most effective ways by which it
could facilitate prime ministerial discussion. Part II of this report referred to different interpretations of the object and scope of the constitutional review, and outlined a possible approach to this exercise based on a broad interpretation which has been described as the “total review” concept. The Committee has reached the point where it needs to know whether this interpretation conforms with the wishes of First Ministers. Any further clarification or direction which would enable the Committee to provide the kind of assistance expected by the Conference would also be appreciated. The following paragraphs contain a few suggestions which might assist the Conference in providing direction to the Committee.
Examination of propositions
18. Subject to the views of the Conference on the basic questions raised in the above paragraph, the Committee would propose to continue its examination of the many aspects of the constitutional arrangements in a systematic manner along the lines which have been described. By proceeding in this way the Committee would hope to identify and clarify principles and issues underlying the whole constitutional structure and thus assist the First Ministers’ deliberations at future meetings of the Constitutional Conference.
Detailed examination of selected subjects
19. At the same time as work was being carried forward in the manner suggested above, the Committee could undertake more detailed study of certain specific subjects, questions or problem areas. The purpose of such detailed study would be to make possible an evaluation in depth wherever this may be required to increase understanding of the policy issues involved. While the Committee’s systematic review of the propositions will bring all subject areas under consideration at one time or another, there may be certain
problems or questions which the Conference would wish to have examined in this detailed manner at an early stage.
Mechanisms for the review
20. To carry out the detailed studies as envisaged in the above paragraph, it seems likely that the Continuing Committee would need the assistance, from time to time, of more specialized sub-committees or working groups. The Committee assumes, first of all, that the Conference would wish the Sub-Committee on Official Languages to continue the task described in paragraph 3 of the consensus on language rights reached at the February meeting. It seems probable that other sub-committees may be required later in the process, as the Continuing Committee proceeds with its work. The Conference may wish to consider authorizing the Committee to establish more sub-committees or working groups as the need arises.
Request for guidance
21. The paragraphs above indicate how the Continuing Committee views its tasks for the months to come, assuming a continuation of the approach to the constitutional review process described in this report. It would be of great help to the Continuing Committee if, in the course of its deliberations, the Conference could make known its views with respect to the various issues which have been raised in this report. In particular, the Conference may wish to state its views on the following specific matters:
(1) The aim or object of the constitutional review (see paragraphs 7 and 8 above);
(2) The method for carrying out the review (see paragraphs 9 to 16 and 18 above);
(3) The sequence in which the various subjects are to be examined (see paragraphs 12, 13, 14, 15 and 19 above);
(4) The use of special committees, sub-committees and working groups (see paragraph 20 above).
It should be stressed that the above four specific matters are not meant to be restrictive, and the Continuing Committee would appreciate any additional direction the Conference may wish to give concerning how the Committee might best carry out the work it was given last February to “assist the Constitutional Conference in its task”.
Conclusions of the Constitutional Conference of February, 1968.
Conclusion of February Conference
THAT a continuing Constitutional Conference be set up, composed of the Prime Ministers and Premiers or their delegates, to supervise the process of constitutional review;
THAT a Continuing Committee of officials be set up to assist the Constitutional Conference in its task;
THAT a secretariat be formed by the federal government, after consultation with the provinces, to serve both the Constitutional Conference and the Continuing Committee of officials;
THAT the Continuing Committee of officials be allowed to set up sub-committees on specific questions; with the approbation of the Prime Ministers;
THAT, without limiting the above terms of reference, and taking into account the agreements as to principle and action reached at this Conference, the following questions be examined by the Constitutional Conference and the Continuing Committee of Officials;
a) official languages;
b) fundamental rights;
c) distribution of powers;
d) reform of institutions linked with federalism, including the Senate and the Supreme Court of Canada;
e) regional disparities;
f) amending procedure and provisional arrangements.
g) mechanisms of federal-provincial relations
CONSENSUS ON LANGUAGE RIGHTS
1. Recognition by this Conference that, as proposed by the Royal Commission on Bilingualism and Biculturalism and as a matter of equity, French-speaking Canadians outside of Quebec should have the same rights as English-speaking Canadians in Quebec.
2. Recognition, as the Royal Commission on Bilingualism and Biculturalism has recommended, of the desirability of proceeding by governmental action as speedily as possible, in ways most appropriate in each province and without diminishing existing rights, recognized by law or usage.
3. Establishment of a special committee to examine the Report of the Royal Commission on Bilingualism and Biculturalism and the views expressed at this Conference on the Report, and on other matters relating to language rights and their effective provisions in practice, and to consult on methods of implementation, including the nature of possible federal assistance, and on the form and the method of constitutional amendment.