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ATTORNEY GENERAL OF ALBERTA

EDMONTON, Alberta,
October 14th, 1960.

Dear Mr. Fulton:

Pursuant to the arrangement made
at the recent Constitutional Conference, I am submitting the
views of this Province with respect to the sections of the
British North America Act which we consider should be entrenched
and those upon which we have an open mind at to whether or
nor they should be entrenched.

(1) Sections of the British North America Act which
may be amended only by an absolute majority of

the House of Commons and with the consent of all
of the Provinces:

92(2), (3), (5), (12), (13), (l4);
93; 121 and 133.

(2) Sections of the British North America Act which
may be amended by the Federal Parliament with the
consent of two thirds of the Provinces or upon such
other conditions as may be agreed upon:

21; 22; 26; 27; 28; 29; 31; 91; 92 (other
than provisions contained in (1)); 95; 96;
132 and 146.

Yours very truly,
“E.C. Manning”

Attorney General

The Honourable E.D. Fulton, Q.C.,
Minister of Justice and Attorney
General of Canada,
OTTAWA, Canada.

Ottawa 4, October 18, 1960.

Dear Mr. Wilson:

I have been directed by the Minister to
acknowledge the Honourable Mr. Manning’s letter to
him of October 14th setting forth the provisions
of the British North America Act that your Province
considers should be entrenched and those upon which
you have an open mind as to whether or not they
should be entrenched.

Yours truly,
“E.A. Driedger”

Deputy Attorney General
of Canada.

H.J. Wilson, Esq., Q.C.,
Deputy Attorney General of Alberta,
Department of the Attorney General,

EDMONTON, Alberta.

DEPARTMENT OF
THE ATTORNEY GENERAL

Frederiction, N.B.
October 18, 1960.

The Honourable E. Davie Fulton, Q.C.
Minister of Justice
OTTAWA, Canada

Dear Mr. Minister:

I have been instructed by the Attorney General
to send you the following segregation of section 92 of the
British North America Act as requested at the recent
Conference in Ottawa.

It is understood that each Attorney General has
been requested to segregate the different Heads of section
92 into:

1. Heads which the Attorney General feels should

be entrenched (requiring consent of the Parliament

of Canada and the Legislatures of all the Provinces);
and

2. Heads which the Attorney General is willing to
consider as subject to amendment by something less
than unanimity.

The Attorney General has placed under the first
category (entrenchment) Heads 2, 3, 12 and 14.

With respect to section 13, he feels that it should
be entrenched in some aspects, but in other aspects is agreeable
to considering amendment by some other formula.

With respect to the remainder of section 92, he is
agreeable to considering a formula for amendment by something
less than unanimity.

The actual formula with respect to amendment of
the provisions to be entrenched will have a bearing on his
final decision as to what additional Heads should be
entrenched. Also, the decision with respect to authority
to delegate will have a bearing on his final decision with
respect to some of the Heads.

Yours very truly,
“E.B. MacLatchy”
E.B. MacLatchy

Deputy Attorney General
EBM/eh

ATTORNEY GENERAL OF SASKATCHEWAN

6749 G

Regina, Saskatchewan,
October 19, 1960.

Dear Sir:

Re: Constitutional Conference.

Pursuant to the agreement reached at the
Constitutional Conference on October 3rd and hth, I
am enclosing two copies of Saskatchewan’s lists of
entrenched matters.

– We will expect to receive the lists from
other provinces and from your Department in the near
future.

Yours truly,

“Roy s. Meldrum”

Deputy Attorney General.
E.A. Driedger, Esq., Q.C.,
Deputy Attorney General of Canada,

Department of Justice,
Ottawa, Ontario.

Encl.

PROVINCE OF SASKATCHEWAN

List #1

Matters which the Government of Saskatchewan insists
should be entrenched:

(a) Section 93
(b) Section 133
(c) A bill of rights
(d) The amending procedure, including present
sections 91, head 1 and 92, head 1.
(e) Section 5l(l), except for the specification
of the total number of members of the House of
Commons.
(f) Section 51A

List #2 – Matters which the Government of Saskatchewan would
prefer to have entrenched but would not absolutely
insist on having entrenched:

(a) Section 92, head 12
(b) Section 92, head 14
(C) Section 121
(d) Limitation on the life of provincial legislatures
and a requirement of annual sessions of legislatures.

ATTORNEY GENERAL OF PRINCE EDWARD ISLAND

October 20th, 1960.

Honourable E. Dave Fulton, Q.C.
Minister of Justice,
House of Commons,

Ottawa,

Ontario.

Dear Mr. Minister:-

On my return from the Attorney General Conference

in Ottawa I reported to uur Attorney General the proceedings

at the Conference and that the final decision or the Conference
was to request each Attorney General to submit, by October 21st,
a report showing what Sub-Sections of Section 92 of the British
North America Act should require the consent of the Parliament
of Canada or the Legislatures of all the Provinces, (Category 1)
before they could be amendedand what Sub-Sections of Section 92
of the Act would require less than unanimous consent of all the
Provinces (Category 2).

The Attorney General instructs me to advise you that
under the first category would be Sub-Sections 2, 3, 12 and 14.

That as regards to Section 15 some matters which would
come under this Section should be entrenched and others could be
treated as coming under the 2nd Category.

As to the remaining Sub-Sections of Section 92 he
considers that they could be placed under Category 2 above.-

Yours very truly,
“J.A. McGuigan”

J. Arthur McGuigan
Deputy Attorney General.

ATTORNEY-GENERAL OF MANITOBA

October 20, 1960.,

AIR MAIL – SPECIAL DELIVERY
The Honourable E.D. Fulton, Q.C.,

Minister of Justice,
OTTAWA, Ontario.

Dear Mr. Fulton:

Pursuant to your request to each province to submit
to you by October 21, a list of those provisions of The British

North America Act, 1867, which the province considered should
be entrenched, I would advise that the following provisions,

in the opinion of Manitoba, should fall under that category:
The British North America Act, 1867
Section 92
clause 1
clause 12
clause 13 (Property and Civil Rights in
the Province) only in so far
as it relates to amendments
that would affect the Civil
Code of Quebec.
Section 93
Section 121
Section 133
The Manitoba Act, Statutes of Canada 33 Vic cap 3
Section 22
You also requested each province to submit a list of
those provisions which it would prefer to have entrenched but
with regard to which it might be prepared to compromise or abandon
its insistence. This is to advise that Manitoba would designate

no provisions under this heading.

I trust you will be forwarding to us the compilation of
the material from all the provinces in due course.

Yours very truly,
“S. R. Lyon”

S. Sterling R. Lyon,
Attorney-General of Manitoba.

ATTORNEY GENERAL OF NOVA SCOTIA

Halifax, 21st October, 1960

Dear Mr. Fulton:
Re: Constitutional Conference

It is my understanding that, following bur recent
meeting in Ottawa, the several provincial Attorneys General
were to forward to you their views respecting

(a) those sections of the present British North
America Act which they believed rather firmly should
require unanimous consent for amendment, and

(b) those other sections of the British North
America Act which they believed should require
unanimous consent, but with respect to which their
views were somewhat less firm.

Speaking in general terms, it is our belief that a
considerable degree of flexibility is most desirable in any
amending procedure and that, accordingly, the number of pro-
visions requiring unanimous consent should be quite restricted.
We feel that this group should be limited to those sections
which, while of general application, may have a sufficient
actual or potential fundamental importance to any one Province
to justify giving one Province in effect a veto. We feel that
there are other sections, also applicable generally, which may
be equally fundamental to all Provinces and which, therefore,
may be left to amendment by majority approval.

Accordingly, we would be inclined to place in the (a)
category those sections enacted or affected by the British North
America Act 1915, specifically Sections 21, 22, 26, 27, 28 and
51A; the main operative part of Section 92 and specific clauses
(12) and (14); Section 93 and Section 133. In the category in-
dicated as (b) above, we would be inclined to place Sections 17,
109, 121, 125, 132 and clauses (2), (3), (4), (8), (15) and (16)
of Section 92.

It will be appreciated, I trust, that the foregoing
does not set forth an inflexible stand, even with respect to the
sections classified under (a) nor, on the other hand, does it
mean that we would not be prepared to consider placing other
provisions within the requirement for unanimous consent. Our
inclination to the latter course would be affected to a very
great extent by a decision to incorporate a specific reasonably
general power of delegation. We reiterate our views that a power
of delegation would provide that degree of flexibility which we
think is greatly to be desired, and which would facilitate the
placement of constitutional provisions in appropriate amending
procedure categories.

Yours very truly,
“Richard A. Donahoe”
R.A. Donahoe
The Honourable E.D. Fulton, Q.C.,
Minister of Justice and

Attorney General of Canada,
Ottawa, Ont.

PROPOSAL OF ONTARIO SUBMITTED
FOR DISCUSSION TO THE SECOND
CONFERENCE OF ATTORNEYSAGENERAL
ON CONSTITUTIONAL AMENDMENTS —
(NOVEMBER – 1960).

I. Subjects for Entrenchment.

1. The use of the English or the French language
(Sec. 133).

2. The rights or privileges granted or secured to
any class of persons with respect to education or
schools (S.93).

3. The provision that all articles of the growth,
produce or manufacture of any one Province shall be
admitted free into each of the other Provinces. (S.12l).

4. The amendment from Time to Time, notwithstanding
anything in this Act, of the Constitution of the
Province, except as regards the office of
Lieutenant-Governor.(S. 92(1)).

5. Direct taxation within the Province in order to the
raising of a Revenue for Provincial Purposes.
(S. 92(2).

6. The borrowing of money on the sole credit of the
Province. (S. 92(3).

7. The establishment and Tenure of Provincial Offices
and the appointment and payment of Provincial
Officers. (S. 92(4).

8. The Management and sale of the Public Lands belonging
to the Province and of the Timber and Wood thereon.
(S. 92(5).

9. Municipal institutions in the Province (S. 92(8).

10. The Solemnization of Marriage in the Province.
(S. 92(12).

11. Property and Civil rights except in the Common Law
Provinces.

-2-

12. The Administration of Justice in the Province,
including the Constitution, Maintenance and
Organization of Provincial Courts, both of Civil
and of Criminal Jurisdiction, and including
Procedure in Civil Matters in those Courts.
(S. 92(14).

13. The Imposition of Punishment by Fine, Penalty,
or Imprisonment for enforcing any Law of the
Province.
(S. 92(15).

15. The procedure for future amendments to the

Constitution of Canada.

II. Amending Formula for other Subjects.

The Parliament cf Canada may from time to time
amend, alter or repeal any of the provisions of the Con-
stitution of Canada with the consent of at least two-thirds
of the Legislatures of the Provinces provided that such
two-thirds of the Legislatures represent not less than
fifty-five percentum of the population of Canada according
to the last decennial census of Canada in respect of matters
not otherwise provided for.

III. Provision should be made for the amendment of those
parts of the Constitution which are limited in their appli-
cation to one or more Provinces and which do not apply to

the others (particularly referring to the special provisions
in the Acts adding new Provinces to Canada). The suggestion

is that Parliament might amend, alter or repeal with the

consent of the Legislature to which such amendment relates.

IV. Ontario is in favour of a power of delegation,

NOTES ON THE ABOVE:

1. Our justification for the entrenchment of
certain subjects or sections of the Act,

(i) to protect special liberties in the Canadian
state

(ii) to protect institutions that seem vital to

the survival of federal government

2. The power to delegate would increase the

flexibility of the Constitution without impairing the
powers either of Parliament or of the Provincial Legis-
latures. Either Parliament or the Provincial Legislature

could refuse to enter into such an arrangement.

A suggested delegating section might be as follows:
Notwithstanding anything in this Act,

(a) the Parliament of Canada may delegate to and
withdraw from the Legislature of any Province
the power to make laws in relation to any
matter coming within a class of subject ex-
clusively within the legislative jurisdiction
of such Parliament and any law so made by
a Provincial Legislature shall, while such
delegation is in force, have the same effect
within the Province as if enacted by the
Parliament of Canada, and

(b) a Provincial Legislature may delegate to
and withdraw from the Parliament of Canada
the power to make laws in relation to any
matter coming within a class of subject
exclusively within the legislative juris-
diction of a Provincial Legislature and
any law so made by the Parliament of Canada

shall, while such delegation is in force,

have the same effect as if enacted by such

Provincial Legislature.

provided that any law passed under this section does

not affect any right, privilege, asset or revenue of any
other Province.

OCTOBER 20th, 1960.

Identical letters were sent to Attorneys General of
all the Provinces.,

Ottawa, October 25, 1960.

The Honourable A. Kelso Roberts, Q.C.,
Attorney General of Ontario,
Parliament Buildings,
Toronto , Ontario .

Dear Mr. Roberts:

In accordance with the arrangement made
at the conclusion of the Constitutional Conference
on October 7th last, I enclose alternative drafts
prepared in my department of the transfer formula
reflecting the various views that were expressed
during the Conference, together with drafts of
related clauses and alternative drafts of a delega-
tion clause.

It was agreed at our previous session
that the statements made by each representative at
the Conference were fbr the purpose of examining ‘
possible courses of action and possible areas of
agreement and were not to be taken as committing
the respective Governments. These drafts, and my
comments hereunder, should be read in the same light.

My recommendation for a transfer clause
would be that set out as Draft I, coupled with the
limitation clause in the form of Draft IV. A pro-
vision along these lines would, it seems to me,
provide for the complete transfer of constitutional
amending authority to Canada, without imposing undue
rigidity and at the same time fully protecting the
legislative and property rights of the provinces as
well as education and language.

I would prefer the savings clause set

out in Draft II coupled with the draft renunciation
clause. So far as delegation is concerned, I express
no views at this time as to the desirability of such
a clause, but if it is felt by the Conference that
such a clause should be included, my preference
would be for Draft I or Draft III, which provide for
delegation of specific items of legislation, rather
than Draft II, which contemplates the delegation of
a subject matter in relation to which laws may be
made.

Copies of the notes made by the secretariat
at the Conference will be sent to you shortly direct
from the Privy Council Office. I have not yet heard
from all the provinces as to the provisions that they
consider should be entrenched and am therefore not yet

able to-send you the collation I undertook to
prepare. This will be done as soon as the

necessary material has been received from all

the provinces.

May I confirm that the dates for the

next session of the Conference have now been set

as November 2nd and 3rd, in Ottawa.

Yours sincerely,

“E.D. FULTON”

TRANSFER CLAUSE

Draft I

It is hereby declared and enacted that
the Parliament of Canada has, subject
to the provisions of this Act, the same
power to make laws having operation in
Canada or any part thereof as that
possessed by the Parliament of the
United Kingdom at the coming into force
of this Act.

Note: This transfers complete authority, not
only to enact an amending formula or a new
constitution, but also any specific amendments.
It includes the powers that Parliament and the
provinces now have, because this is necessary
in order to enable the re-enactment of the
whole constitution; an appropriate savings
clause would be needed in addition. Under the
foregoing draft, the United Kingdom Parliament
would continue to have concurrent jurisdiction
unless an appropriate renunciation clause were
added.

Draft II

Subject to this section, the Parliament
of Canada may make laws altering, or

abolishing and replacing, the Constitu-
tion of Canada, or any portion thereof.

Note: This alternative also confers wide authority
as draft I and the same comments apply.

The expression “Constitution of Canada” is used,
and there should therefore be added also the
following definition:

In this Act “Constitution of Canada” includes
the British North America Acts, 1867 to 19 ,
“Constitution of the Province” within the meaning
of that expression as used in section 92 of the
British North America Act, 1867 and “Constitution
of Canada” within the meaning of that expression
as used in section 91 of the British North
America Act.

If the power is to be restricted to provisions not
now subject to amendment by Parliament or the
legislatures, the following definition might be
used:

“Constitution of Canada” does not include
any of the provisions of the Constitution of.
Canada that, immediately before the coming into
force of this Act, are subject to amendment by
the Parliament of Canada or the legislatures of
the provinces.

The foregoing would restrict the power of amend-

ment as indicated above. It would, however, be
impossible to enact a new constitution under
such a restriction. In order to repeal and re-
enact those provisions of the constitution that
are now amendable by the provinces only, it
would be necessary to go back to the United
Kingdom Parliament.

Draft III

The Parliament of Canada may, subject
to the provisions of this Act, make
laws providing (establishing a method
or procedure) for the amendment of
the Constitution of Canada.

Note: This alternative authorizes only the
enactment of an amending formula. For other
amendments it would still be necessary to go
to the United Kingdom Parliament.

SAVINGS CLAUSE

Draft I

Nothing in this Act shall be regarded as
affecting any power existing immediately
before this Act came into force to amend
the present Constitution of Canada or
the propriety of exercising any such
power.

Note: This clause would preserve the present
powers of the Parliament of Canada, the legis-
latures of the provinces and the Parliament of
the United Kingdom.

Draft II

Nothing in this Act shall be regarded as
affecting any power existing immediately
before this Act came into force of the
Parliament of Canada or the Legislatures
of the provinces to make laws.

Note: This clause would preserve the present
powers if the Parliament of Canada, and the legis-
latures of the provinces, but not the Parliament
of the United Kingdom. However, in the absence

of an express renunciation clause, there would be
doubt-whether the present powers of the United
Kingdom Parliament would continue.

RENUNCIATION CLAUSE

The Parliament of the United Kingdom
hereby renounces any right it may have
to make laws for Canada or for any
province or territory thereof; and no
Act of the Parliament of the United
Kingdom passed after the coming into
force of this Act shall extend or be
deemed to extend to Canada or to any
province or territory thereof.

LIMITATION CLAUSE
Draft I

No Act made under the authority of this
Act shall have any force or effect
unless it is expressly declared therein
that all the provinces have requested
and consent to the enactment thereof.

Draft II

No Act made under the authority of
this Act shall have any force or
effect unless it is expressly
declared therein that the Lieutenant-
Governor in Council of each province
has certified that the province has
requested and consents to the enact-
ment thereof.

Draft III

No Act made under the authority of this
Act shall come into force unless and
until it is ratified by the Legislatures
of all the provinces.

Draft IV

Any Act made under the authority of

this Act shall not come into force

unless and until it is ratified by

the legislatures of the provinces if

(a) the Act diminishes the authority
of a legislature to make laws;
or
(b) the Act affects any of the pro-

visions of the Constitution
relating to the property of a
province, education or the use
of the English or French
language.

DELEGATION CLAUSE
Draft I

Notwithstanding anything in this Act

(a) the Parliament of Canada may make
laws in relation to any matter
coming within section 92 of this
Act, but a law made under this
paragraph does not extend to any
Province unless and until it is
ratified by the legislature thereof,
and .

(b) the legislature of a Province may
make laws in the Province in
relation to any matter coming
within section 91 of this Act, but
a law made under this paragraph does
not have effect unless and until it
is ratified by the Parliament of
Canada.

Draft II

(1) Notwithstanding anything in this Act
(a) the Parliament of Canada may make
laws in relation to any matter
coming within section 92 of this
Act and referred to the Parliament
of Canada by the legislature of
any of the Provinces, but a law
made under the authority of this
paragraph extends only to the
Provinces by whose legislatures
the matter was referred or the law
was adopted; and
(b) in each province the legislature
may make laws in relation to any
matter coming within section 91
of this Act and referred to the
legislature by the Parliament of
Canada.
(2) A reference made by Parliament or a
legislature under this section may be
revoked by Parliament or the legislanire,
respectively, at any time, and a reference
made under this section is subject to
such conditions or limitations as the
authority making the reference may
prescribe.

Draft III

Notwithstanding anything in this Act,
(a) the Parliament of Canada may, with

the consent of the legislature of

a province, make laws in relation

to any matter coming within section
92 of this Act, but a law made

under the authority of this para-
graph extends only to that province;
and

(b) the legislature of a province,
with the consent of the
Parliament of Canada, may make
laws in the province in relation
to any matter coming within

an section 91 of this Act.

Identical letter sent to Deputy Attorney General of
each province

HC: pe
187574

October 27, 1960.

Dear Mr. Common:

At the conclusion of the Constitutional
Conference on October 7th last, it was agreed that
each province would prepare and submit to the office
of the Attorney General of Canada a list of those
provisions of the British North America Act which
the province considers should be entrenched and those
provisions which the province would prefer to have
entrenched but in respect of which the province would
hold itself open for further consideration and that
the Department of Justice would in turn, prepare and
forward a collation of these submissions to each
province.

In accordance with my undertaking I am
enclosing copies of the various submissions received
by the Attorney General of Canada and a collation of
the views set out in them. The collation consists of
two lists, one entitled “Views of Provinces as to
Provisions to be Entrenched” and the other “Views of
Provinces as to Provisions to be Entrenched but on which
Provinces willing to Compromise”.

The collation represents the views of the
provinces whose submissions were received at the office
of the Attorney General of Canada by twelve o’clock
noon, October 27th.

Yours sincerely,

“D.S. Maxwell”

Acting Deputy Attorney General.

W.B. Common, Esq., Q.C.,
Deputy Attorney General of Ontario,
Toronto, Ontario.

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