Correspondence Between Minister of Justice and Attorneys General of Canada (Provincial)

Click here to view the original document (PDF).

Letter to the Attorneys General. (for Quebec, to the
Hon. P. Gerin-Lajoie)

Ottawa 4, March 24, 1961.

The Honourable …
Attorney General of ….

Dear Mr. …

On February 4, Mr. Driedger wrote to
Mr. … enclosing a redraft of the Constitutional
Amendment Act and inviting the comments of your
government as agreed at the January session of the

I am writing to you to ascertain whether
it would be possible for you to let me have your
comments by the end of this month. I may say that
I have received substantive replies from only two
provinces and I am therefore writing to all other
provinces urging them to submit their views as soon
as possible so that further progress may be made
with this important matter.

Yours sincerely,

“E.D. Fulton”


REGINA, March 29, 1961.

The Honourable E.D. Fulton, 4.0., P.C., M.P.,
Minister of Justice,

Department of Justice,

Ottawa, Ontario.

Dear Mr. Fulton:

Last Tuesday the Saskatchewan Legislature
unanimously passed the enclosed resolution dealing
with the subject of the amendment to the Consti-

I am enclosing this for your information.

Yours sincerely,

R.A. Walker
Attorney General.

That this Assembly:

(1) expresses the hope that agreement can be
reached among the provinces of Canada
and the Government of Canada whereby
complete power to amend the Constitution
of Canada may be transferred to this

(2) believes that any amending procedure
which is adopted must be as flexible as
possible while protecting certain
fundamental matters from ready change,
and in particular that:

(a) among such fundamental matters should
be included provisions in the Consti-
tution relating to the use of the
English and the French language,
education, and the new amending
procedure, all of which should be
subject to alteration only by the
unanimous agreement of the provinces;

(b) a bill of rights should be added to
the Constitution and this should also
be amendable only by unanimous
provincial agreement;

(C) before the conference of Attorneys
General makes-a final recommendation
to the provinces and to the Government
of Canada with respect to a new
amending procedure, the various
proposals which have been considered
by the conference should be made known
to the public, and members of the
public should be given an opportunity
to consider and discuss these proposals
and to present their views to a broadly
representative body established to study
such proposals;

(3) opposes the adoption of any new procedure
for amending the Constitution unless the
proposed amending procedure is approved
by the Government of Canada and all the


St. John’s, Newfoundland

March 30th, 1961.

Dear Mr. Fulton:

Your letter of March 24th reached
me this afternoon. I had delayed bringing this
matter befbre Cabinet in the hope that I might
find out the attitude of the other Provinces
which you will remember I hoped to be able to

At the first opportunity now I
will bring this matter before Cabinet, and in
view of the fact that all the Provinces have
been so courteous to us I cannot do other than
recommend acceptance of same by Newfoundland.

Yours faithfully,

“Leslie R. Curtis”

Attorney General of Newfoundland.

The Honourable E,D. Fulton, Q.C.,

Minister of Justice and Attorney General of Canada,



Toronto 2, Ontario,
March 30th, 1961.

Dear Mr. Fulton:

I have your letter of March the
24th with regard to the redraft of the
Constitutional Amendment Act.

I have been trying to get you on
the telephone several times but eventually
spoke to Mr Driedger who has no doubt
comunicated with you. I feel sure you can
count on our co-operation in the problems
left to be concluded in this matter.

Yours very sincerely,

“A.K. Roberts”

The Hon. E. Davie Fulton, Q.C
Minister of Justice,
OTTAWA, Ontario.


Halifax, 7th April, 1961

Dear Mr. Fulton:

I must express regret that, because of
the pressure of the work of the Session of our
Legislature, I have not had an opportunity earlier
to make the comments which are invited in Mr.
Driedger’s letter of the 4th February to Mr.
MacDonald in respect of the redraft of the Consti-
tutional Amendment Act.

As to Part I, I can see no great
objection either as to the form or substance. I am
unable to appreciate the purpose and effect of
Section 6, as I do not see how this Part in itself
alters any of the existing provisions of the British
North America Act. I have previously expressed the
view, to which I still adhere, that the provisions
of Section 7 are largely meaningless and; until such
time as Canada and its Provinces are prepared to agree
on a complete Constitution, I do not feel that the
United Kingdom Parliament should be asked to enact a
provision of this nature.

In reference to Section 91(1), my view
is that from the standpoint of the Dominion, all the
powers contained in that clause are encompassed in
Section I of the draft Constitutional Amendment Act
and that Section 91(1) should therefore be repealed.
To allow it to remain would, I think, only raise
questions as to whether it meant something different
from Section 1 or whether it restricted the operation
of Section 1 in some way. If this subsection is to
be retained, I should like to be advised what purpose
it is intended to serve that would not be served by
Section 1 of the draft Act.

As to Part II, I am somewhat surprised
and even appalled at the content of Hr. Driedger’s
letter in reference to delegation and at the form
and limitations of the proposed Section 9A. In my
view, the whole concept of the purpose and form of
the delegation power is in this draft completely
missed. Nova Scotia has consistently urged a
workable delegation authority, with the object of
providing a necessary degree of flexibility. In
this general position, there has been next to
unanimous agreement among the Provinces. Jhat we
had in mind, so far as Nova Scotia is concerned,
was a power which would be used primarily to cover
minor situations, frequently peculiar to one

Province or to a few Provinces, and possibly of a
temporary nature. To cite example situations is
to run the risk of having them subjected to super-
critical analysis and to have them regarded as
exhaustive. Furthermore, one of the purposes of
such a power is to provide for situations which
are not in immediate contemplation. We have, how-
ever, considered the possible use of such a power
in connection with an arrangement between Nova
Scotia and the Federal Government for the care and
custody of Provincial prisoners in an institution
either in Nova Scotia or outside the boundaries of
the Province but under the administration of the
Federal Government. So, too, we have considered
its possible use in relation to the care and
treatment of drug addicts. On the other hand, it
would be possible, if considered desirable, to use
such a power on a broader scale as, for example,
to give to the Provinces willing to accept it the
power to legislate with respect to interprovincial
operations of motor carriers; or to provide a workable
solution to the present legislative question with
respect to the regulation of small craft on rivers
and lakes throughout the Country.

In my view, the limitations contained in
subsection (2) of the proposed Section 94 would
almost completely nullify the effect of a delegation
power. Further, the form of subsection (1), which
contemplates the approval of specific statutes and
which would require the approval of every amendment
made to a statute passed under delegated authority
and presumably to every change in a regulation made
under such a statute, fails to meet the requirement
of a workable delegation power. Such a power should
be in general terms, enabling the delegated body to
deal with a subject matter.

To suggest that such a general power
would be subjected to abuse or misuse is to impute
to the Provinces a lack of good faith and good sense.
However, if a safeguard were considered necessary,
surely it exists in ample measure in the fact that
the Parliament of Canada must of necessity be a
party to every use of the delegating power. Any
suggestion that Parliament or the Federal Government
could not and would not turn down an unacceptable
proposal is without support in past experience.
If a power of delegation is to serve the purpose
for which it is designed, it must be in some such
general terms as were suggested in the draft proposed
by Nova Scotia, and should be without limitation
other than the necessary one implied in the
concurrence of the Federal and Provincial Governments

It is my impression that it was this
broad type of delegation power which was in the
minds of certainly the great majority of the
Provinces, if not all of them, during the course
of our deliberations to this point, and I am very
much afraid that, if the draft provision reflects
the considered position of the Federal Government,
the status of amendment procedure negotiations will
be very much set back, and that much of the ground
gained in recent conferences will be lost.

On the question of mechanics, I feel
that the proposed Section 94 should be in substi-
tution for, rather than as an addition to, the
present Section 94. The present Section in its terms
applies only to Ontario, New Brunswick and Nova
Scotia and I do not believe it is made applicable to
the other Provinces by the statutes or orders
admitting them to Confederation. Its scope is such
that it has never, consciously at least, been acted
upon and I cannot conceive that it ever would be
acted upon. I, therefore, feel that this Section
should be replaced by a specific Section in the
broadest possible terms conferring a workable power
of delegation.

Yours very truly,

R.A. Donahoe
Attorney General

The Honourable E.D. Fulton, Q.C
Minister of Justice,
Ottawa, Ontario


April 10, 1961.

The Honourable E.D. Fulton, Q.C.,
Minister of Justice,

OTTAWA, Ontario.

Dear Mr. Fulton:

I have your letter of March 24, in
regard to the redraft of the Constitutional Amend-
ment Act which Mr. Driedger forwarded to Mr.
Rutherford on February 4.

We are now nearing the close of our
legislative session and, immediately following
prorogation of the House, we will go into this

matter fully and let you have our views at the

earliest possible date.

Yours sincerely,

“Sterling R. Lyon,”


Fredericton, New Brunswick,

April 10, 1961

The Honourable E. Davie Fulton,
Minister of Justice,
Ottawa, Ontario.

Dear Mr. Fulton:

Please accept my apologies for not having
replied earlier to your letter of March 24 with
respect to redraft of the proposed Constitutional
Amendment Act. We have been very much preoccupied
with matters connected with the session on
Legislature which has just prorogued.

Mr. MacLatchy will be writing to Mr.
Driedger about this matter in the very near

Yours sincerely,

“Louis J. Robichaud”
Attorney General.


Regina, April 12, 1961.

Dear Mr. Fulton:

Re: Constitutional Conference

I note that in your letter of March 24
to Mr. Walker you requested Saskatchewan’s views
on the draft Constitutional Amendment Act.

Mr. Walker has been in hospital for the
last two weeks and this matter has only recently
been given further attention. I believe that a
statement of this province’s views will be for-
warded to you within the next few days.

Yours truly,
“Roy S. Meldrum”

Deputy Attorney General.

The Honourable E.D. Fulton, Q.C., P.C , M.P.,
Minister of Justice,

Department of Justice,

Ottawa, Ontario.


Province of Quebec
QUEBEC, April lb, 1961.

The Honourable Davie Fulton,
Minister of Justice and
Attorney General of Canada,

Dear Sir:

In the absence of Mr. Gerin-Lajoie, I
acknowledge receipt of your letter of March 24,
with regard to the redraft of the Constitutional
Amendment Act.

I will inform the Minister of your
request, as soon as he returns to his office and
you may be sure that he will do his utmost to
let you have his comments by the end of this

Yours very truly,

“Robert Morin”
Executive Secretary.

Leave a Reply