Constitutional Conference of Federal and Provincial Governments, Proceedings (25-28 September 1950)
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Date: 1950-09-25
By: Secretariat of the Conference
Citation: Constitutional Conference of Federal and Provincial Governments (Second Session), Proceedings (Quebec: 25-28 September 1950).
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PROCEEDINGS OF THE CONSTITUTIONAL CONFERENCE OF FEDERAL AND PROVINCIAL GOVERNMENTS (SECOND SESSION)
Quebec, September 25-28, 1950
OTTAWA
EDMOND CLOUTIER, O.M.G., O.A., D.S.P.,
KING’S PRINTER AND CONTROLLER OF STATIONERY
1950
TABLE OF CONTENTS
VERBATIM REPORTS
First Meeting, Monday, September 25, 1950
PAGE
Hon. Maurice Duplessis 5
Ron. Hon. L.S. St-Laurent, (Chairman) 6
Hon. Stuart Garson 8
Hon. Leslie M. Frost 12
Hon. Anus L. Macdonald 18
Hon. John B. McNair 19
Hon. Douglas L. Campbell 22
Hon. Byron I. Johnson 28
Hon. J. Walter Jones 29
Hon. T.C. Douglas 32
Hon. E.C. Manning 36
Hon. Joseph R. Smallwood 39
Second Meeting, Tuesday, September 26, 1950
Right Hon. L.S. St-Laurent 43
Hon. Maurice Duplessis 44
Hon. Leslie M. Frost 46
Hon. Douglas L. Campbell 51
Hon. Joseph R. Smallwood 51
Hon. T.C. Douglas 52
Hon. E.C. Manning 53
Third Meeting, Thursday, September 28, 1950
Right Hon. L.S. St-Laurent 57
Hon. Leslie M. Frost 58
Hon. Angus L. Macdonald 59
Hon. J.B. McNair 61
Hon. Douglas L. Campbell 62
Hon. Byron I. Johnson 63
Hon. J. Walter Jones 64
Hon. T.C. Douglas 64
Hon. E.C. Manning 65
Hon. Joseph R. Smallwood 66
Hon. Maurice Duplessis 68
APPENDICES
I. Translation of speeches delivered in French 71
II. Federal and Provincial Representatives and Advisers 75
III. Report of the Committee of Attorneys General 76
IV. Briefs submitted by the Federal and Provincial Governments to the Committee of Attorneys General prior to the meeting of August 21 86
V. Statement to the press (September 28, 1930) 131
INDEX 133
APPENDIX I
The following is the English translation of speeches delivered in French on the date indicated.
MONDAY, September 25, 1950.
Hon. MAURICE DUPLESSIS(Premier of Quebec): Mr. Prime Minister of Canada, Premiers of the Provinces and Delegates, it is fitting I think, that my opening remarks and my first words of welcome be spoken in French and so they are. On the other hand the traditional courtesy of Quebec makes it appropriate that the English langixage be used to welcome the delegates attend ing this memorable conference.
THE CHAIRMAN (Prime Minsiter of Canada): Gentlemen, the constitution of Canada allows us to use the French language in the chamber where we are holding this conference, and it was certainly appropriate that your first words of welcome should be in the language that has been spoken from the earliest days of what is now the capital of the province of Quebec.
On my own behalf, on behalf of the Canadian government and, I may odd I am sure, on behalf of the governments of the nine provinces other than Quebec, I wish to express to you and to your government our most sincere appeciation for your courtesy and hospitality in inviting us to hold in Quebec this second session of the constitutional conference. Personally I am very proud that it should take place in the capital of my native province of Quebec, for which I have always retained the attachment due to what is perhaps not a small homeland but what is ordinarily known as one’s small homeland.
Since we set the precedent of holding a dominion-provincial conference elsewhere than in the national capital, I feel it is most desirable that it should take place in Quebec City.
The Premier of Ontario (Mr. Frost) was pointing out to me that a conference rsuch as this could perhaps have been held in Orillia. For Quebec, indeed, is but seven or eight years older than Orillia, his native town, which was founded in 1615. There were thus seven or eight years in favour of Quebec, and that is why we are here.
Hon. MAURICE DUPLESSIS (Premier of Quebec): There is no need to repeat what I said in Ottawa during the first sessions of this important conference in January, 1950, I merely wish to reiterate our sincere desire to co-operate, in a spirit of loyalty and friendliness, in drafting and putting into effect an essentially Canadian constitution suited to the situation.
We have outgrown the period of guardianship and come of age. In my opinion, it is now time for an essentially Canadian constitution, made in Canada, by Canadians and for Canadians. I think our efforts should bend in that direction.
TUESDAY, September 26, 1950.
MR. DUPLESSIS: Mr. Chairman and premiers, the position of the Province of Quebec is very clear-cut. We wish to co-operate in a friendly way on the intangible and fundamental bases. This does not mean that we do not recognize the desirability of amending the present constitution. Tradition is not opposed to progress. The traditions of the Province of Quebec are entrenched, but they are not at a standstill.
It is fitting, I think, that the situation belwell understood. When Confedera- tion was decided upon it was not simply a matter of agreement between four pioneer provinces. It was first and above all a pact between two great races, whose traditions and culture endow Canada with tremendous advantages such as are enjoyed by no other country of the world; advantages that do not impoverish, but rather enrich our country greatly. These fundamental tradi- tions we prize; it is our duty to do so and our right to preserve them.
Obviously, it costs nothing to dispose of your neighbour’s property. It is easy to conclude an agreement providing for the apportionment of the other fellow’s property. But that is not in keeping with the very spirit of the Canadian constitution. The Canadian constitution recognizes certain principles that we consider unalterable; but like all human acts, it can be perfected.
The premiers of some provinces expressed the opinion that the constitution, particularly with regard to matters of property and civil rights, is too rigid. It was only after lengthy discussions that the representatives of the four pioneer provinces, men of different races and religious denominations, came to a considered and reasonable understanding on this provision of the constitution. It is impossible to respect as they should be the rights of the two major races without at the same time respecting the fundamental traditions of the two great racial groups whose co-operation is essential to the progress of our country and to the welfare of our people.
It is obvious that preservation and respect of fundamental traditions depend largely if not wholly upon means of action or financial possibilities.
There is unanimous agreement in favour of provincial autonomy. The autonomy as conceived by the Fathers of Confederation for the two great races that brought it into being, is not merely a matter of words, but autonomy in law and in fact. Some believe that certain fundamental sections should be amended, because, as they say, their province is not wealthy and they want some social legislation. These questions should not be considered solely as material problems, as money matters. Social legislation embodies basic factors which are closely related to traditions, habits and ways of life.
Social legislation is based on traditions which we consider essential.
As far as the Province of Quebec is concerned, We have always done our ample share. In the matter of old age pension legislation, in the field of specia- lized teaching and of pensions for the blind, we have co-operated loyally and generously. We are always willing to co-operate. Co-operation is not a one-way street. It does not consist. in the one party being willing to co-operate and in the other simply wishing to receive. It is not fair to ask us to surrender guarantees that protect our ethnic life and survival; money can never replace them.
The health insurance system of the Province of Quebec embodies religious and national traditions to which we hold with determination. That system may not suit all the provinces, but it is perfectly satisfactory to us and we stand by it. In this province, we have the exclusive right to legislate regarding the liberal professions, the system of education which gives training in the various professions, trades and other callings. This is a right we consider essential and sacred and we cannot decently surrender it. It is possible to seek and to find a basis of understanding that will respect the essential rights of each and everyone and take every circumstance into account. We shall be happy to seek and to obtain this basis of understanding.
I feel, of course, that our first move should be to domicile the constitution here in Canada.
There are certain fundamentals that must, in our opinion, remain intangible if our essential traditions are to be preserved. Our traditions do not stand in the way of progress. On the contrary. The traditions of the Province of Quebec have largely contributed, and continue to do so, to the welfare of the country, as well as to its lasting progress and prosperity.
Instead of apportioning the other fellow’s property, we are all willing, I am sure, to arrive by way of mutual understanding at some formula of give and take which, while involving no unbearable compromise, would be just, fair and appropriate. If everyone shows a reasonable measure of goodwill, we can hope to reach agreement on an entirely Canadian basis.
THURSDAY, September 28, 1950.
THE CHAIRMAN: Gentlemen, in the report of this last meeting certain things will necessarily be repeated in French. The press release sums up the decisions taken during our secret sessions. The report would be neither complete nor true to the spirit of our constitution if it did not contain in French, which is also an official language under the Canadian constitution, the summary of our conclusions. I therefore deem it my duty to put it on the record. It is as follows:
“The Constitutional Conference of Federal and Provincial Govern- ments has discussed at Ottawa and in Quebec City the constitutional position and the procedure by which amendment of the present constitu- tion could be effected in Canada.
The Conference has had a full and frank discussion of the principles applicable to such a general amending procedure and has reached agree- ment on many of them. Its members are unanimously of the opinion that stibstantiol progress has been made and are exceedingly gratified at the spirit of harmony and co~operation which has been shown by all delegates throughout the whole of the proceedings.
Important sections of the Constitution involving what are considered fundamental and basic rights of the provinces were studied at length and considerable progress towards agreement has been made. Various formulae for amendment were submitted which, while having in view the safeguarding of these basic rights, would assure adequate flexibility in the constitution.
The Conference has requested the Continuing Committee of Attorneys General to study the proposals which it received with a view to arriv- ing at an amending procedure satisfactory to all governments concerned. The Continuing Committee met today in the late afternoon and agreed that the Provincial Attorneys General and the Minister of Justice would exchange views by correspondence leading up to a meeting to be held at Ottawa on November 13, 1950, in order that the matters referred to it might be further considered and a report prepared for submission to a third plenary session of the Constitutional Conference to he held immedi- ately after the Federal-Provincial Conference on fiscal and other matters which is to meet in Ottawa on December 4, 1950.
The Continuing Committee has also been authorized to study the methods and techniques whereby a Canadian Constitution can be domiciled in Canada as a purely Canadian instrument.”
All our colleagues wish, I am sure, Mr. Premier of Quebec, that I repeat in French the thanks they have tendered to you, to your colleagues and to all the staff of these parliamentary buildings, for the great courtesy you have shown; I assure you that we have all been most favourably impressed by these tangible signs which tend to show the determination of everyone to do everything in his power to solve the problem with which we are all concerned, in a way that would safeguard the essential rights of everyone, while at the same time bring ing about the amendments which, in the present or the years to come, may, at any time, appear desirable or advantageous for the progress of the Canadian nation.
Hon. MAURICE DUPLESSIS: Mr. Chairman, during those last few days, the Province of Quebec has written an outstandingly remarkable page of history. For the first time, every prime minister in Canada, including one of Quebec’s most prominent sons, the Right Honourable Mr. St. Laurent, have suggested and discussed in a friendly atmosphere the ways and means of endowing this country we all love with an essentially Canadian constitution, a constitution made here by Canadians, the terms of which shall respect the fundamental rights of each and every one. Such are the principles of the Canadian Con- federation, based not only on an agreement between four pioneer provinces, but on a treaty between two great racial groups. Such are the problems we have been studying together in an effort to find the best ways of co-operating even more, if possible, to enhance our country’s greatness and to increase the prosperity of our different provinces.
I wish to say to you, Mr. Chairman, that you have presided at these sessions in a remarkable way; you have fulfilled your task with your customary courtesy, as well as with affability and competence, thereby easing the task and contrib- uting to the success of this Conference.
As Prime Minister of the Province of Quebec and as a compatriot of yours, I thank you and say to you that we shall keep of your stay in Quebec City as chairman of these memorable meetings a lasting memory and an appreciation that time will never erase.
Every Prime Minister expressed his opinion. The purpose of a conference is not to cast views in a standard mould, but to listen to the opinions of all who take part and exchange ideas with them. I feel that we have frankly expressed our points of view. We have done so in a way that strikingly gives point to the old saying: “the clash of ideas begets enlightenment.” Mr. Chairman, the clash of ideas expressed so amicably and in such a brotherly fashion in these meetings has kindled a light particularly bright and comforting, one that sheds rays of hope and I would even say of optimism on the broad paths of the future. I believe that one and all can feel that they have had a hand in building up a new solid and splendid national structure. It is the hope of every- one that this new national structure may rest on foundations so firm that time can never weaken them.
The attitude of the Province of Quebec is well known. We desire co-opera- tion, fullest respect for the rights of everyone, and a hand in the furtherance of the country’s prosperity. Canada will prosper in so far as it has a constitutional system consonant with its rightful hopes and aspirations, a system based on justice and the fullest respect for the prerogatives and essential rights of one and all.
APPENDIX II
FEDERAL REPRESENTATIVES
Rt. Hon. L. S. St. Laurent, Prime Minister.
Hon. Stuart Garson, Minister of Justice.
Hon. Brooke Claxton, Minister of National Defence.
Hon. Paul Martin, Minister of National Health and Welfare.
Hon. F. G. Bradley, Secretary of State.
Hon. Hugues Lapointe, Minister of Veterans Affairs.
Mr. F. P. Varcoe, Deputy Minister of Justice.
Mr. Charles Stein, Under Secretary of State.
Mr. P. M. Ollivier, Joint Law Clerk, House of Commons.
Mr. E. A. Driedger, Counsel, Department of Justice.
PROVINCIAL REPRESENTATIVES
Ontario
Hon. Leslie M. Frost, Premier.
Hon. Dana Porter, Attorney General.
Col. L.R. McDonald, Deputy to the Premier and Secretary of the Cabinet.
Mr. C.R. Magone, Deputy Attorney General.
Mr. Chester S. Walters, Deputy Provincial Treasurer and Controller of Finances.
Mr. H.A. Cotnam, Provincial Auditor.
Mr. George Gathercole, Assistant Provincial Statistician.
Dean W.P.M. Kennedy, Adviser.
Mr. Maurice Tremblay, Director of Publicity, Department of Mines.
Quebec
Hon. Maurice Duplessis, Premier.
Hon. Onésime Gagnon, Provincial Treasurer.
Hon. J. S. Bourque, Minister of Lands and and Forests.
Hon. Antonio Barrette, Minister of Labour.
Hon. Paul Sauvé, Minister of Social Welfare and Youth.
Hon. Patrice Tardif, Minister without Portfolio.
Hon. Antoine Rivard, Solicitor General.
Mr. Leopold Desilets, Deputy Attorney General.
Mr. Arthur Beauchesne, Adviser.
Mr. Emile Tourigny, Chef de Cabinet of the Premier.
Mr. Georges Shink, Comptroller of Provincial Revenue.
Nova Scotia
Hon. Angus L. Macdonald, Premier.
Hon. M. A. Patterson, Attorney General.
Hon. R. M. Fielding, Minister of Municipal Affairs.
Hon. H. D. Hicks, Minister of Education.
Mr. John A. Y. MacDonald, Deputy Attorney General.
Mr. Innis MacLeod, Departmental Solicitor.
New Brunswick
Hon. J. B. McNair, Premier and Attorney General.
Mr. E. B. MacLatchy, Deputy Atftorney General.
Mr. J .E. Hughes, Senior Counsel.
Mr. W. Hickman, Senior Solicitor.
Manitoba
Hon. Douglas L. Campbell, Premier
Hon. C. Rhodes Smith, Attorney General.
Hon. S. Marcoux, Municipal Commissioner.
Hon. C.E. Greenlay, Provincial Secretary and Minister of Labour.
Mr. R.M. Fisher, Deputy Provincial Secretary.
Mr. R.E. Moffatt, Economic Adviser.
British Columbia
Hon. Byron I. Johnson, Premier
Hon. G.S. Wismer, Attorney General.
Hon. W.T. Straith, Minister of Education.
Mr. H. Carl Goldenberg, Special Counsel.
Mr. J.W. Fisher, Deputy Minister of Finance.
Mr. H. Alan MacLean, Assistant Deputy Attorney General.
Mr. Percy C. Richards, Executive Assistant to the Premier.
Prince Edward Island
Hon. J. Walter Jones, Premier.
Hon. J. Wilfrid Arsenault, Provincial Secretary.
Hon. W.E. Darby, Attorney and Advocate-General.
Saskatchewan
Hon. T. C. Douglas, Premier.
Hon. J. W. Carmen, Attorney General.
Prof. F. R. Scott, Adviser.
Dean F. C. Cronkite, Adviser.
Mr. J.W.W. Graham, Secretary to the Cabinet.
Alberta
Hon. E. C. Manning, Premier.
Hon. Lucien Maynard, Attorney General.
Mr. H. J. Wilson, Deputy Attorney General.
Mr. J. J. Frawley, Counsel.
Newfoundland
Hon. J. R. Smallwood, Premier.
Hon. H. W. Quinton, Minister of Finance.
Hon. Leslie R. Curtis, Attorney General.
Hon. W. J. Keough, Minister of Fisheries and Co-operatives.
SECRETARIAT
Mr. R. G. Robertson, Privy Council Office.
Mr. Paul Pelletier, Privy Council Office.
Miss Muriel Ann Mosley, Secretary of State Department.
APPENDIX III
Report of the Committee of Attorneys General to the Constitutional Conference of the Federal and Provincial Governments
Your Committee reports as follows:–
(1) That at the oonciusion of the plenary session of the Constitutional Conference of the Federal and Provincial Governments, January 12,1950, the Committee of Attorneys General authorized a sub-committee consisting of the Honourable S. Garson, the Honourable M. Duplessis, K.C., and the Honourable Dana Porter, K.C., to appoint a secretariat. This sub-committee accordingly unanimously appointed as Joint Secretaries J. F. MacNeil and L. Pare.
(2) That after discussion by long distance telephone the Attorneys General unanimously concurred in recommending the following procedure to the members of the Continuing Committee:
(a) that the briefs of all governments be forwarded to the Joint Secretaries as soon as such briefs were completed;
(b) that as soon as the brief of each government was received in the Secretary’s office, but not before, the Secretary would forward to such government a copy, in quadruplicate, of all briefs of other governments which had been previously filed with the Secretary and would also forward as soon as possible a copy in quadruplicate of the briefs of other governments thereafter filed as soon as they became available;
(c) that the Federal Government should file its brief and be entitled to copies of the briefs of other governments on the same basis as each of the provincial governments.
(3) That briefs of all governments were filed with the Secretaries and distributed on or before July 24, 1950. Copies are available for use of the plenary conference.
(4) That compilation of the classification of sections submitted was pre- pared and the Committee met August 21, 1950, to carry out the instruction of the Conference.
(5) That from the briefs submitted it was found that there was a large measure of agreement as to the categories in which the following sections of the B.N.A. Act should be placed: 1, 4, 6, 7, 11, 13, 14, 15, 18, 19, 24, 30, 32, 33, 34, 35, 36, 38, 39, 44, 45, 46, 47, 48, 49, 53, 54, 93, 98, 103, 105, 106, 114, 115, 116 and 124. The final classification of these sections is set out in Appendix 1.
(6) After a frank and full discussion the sections–other than those listed in Appendix 1–were disposed of as set out in Appendices 2 and 3.
(7) That in accordance with instructions of the Conference the Committee fixed the date for the re-assembling of the Conference as September 25, 1950, at Quebec.
(8) That appended hereto is a list of those who took part in the Conference. (Appendix 4).
Respectfully submitted, “S. GARSON”
APPENDIX 1
(Report of Auorneys-General)
Sections on which there was a large measure of agreement in the Briefs sub- mitted prior to the meeting of the Committee.
* See PDF for chart.
APPENDIX 2
(Report of Attorneys-General)
Sections upon which agreement was reached at the Conference. Disposed of as follows:
*See PDF for chart.
APPENDIX 3
(Report of Attorneys-General)
Sections upon which it was not possible to secure unanimous agreement and on which accordingly the Committee recommend there be further consideration at the Conference.
*See PDF for chart.
*See PDF for chart.
APPENDIX 4 (Report of Attorneys-General)
Federal and Provincial Representatives and Advisers
FEDERAL REPRESENTATIVES
Honourable Stuart Garson (Chairman), Minister of Justice
Mr. F. P. Varcoe, Deputy Minister of Justice
Mr. Charles Stein, Under-Secretary of State
Mr. P. M. Ollivier, Joint Law Clerk, House of Commons
Mr. E. A. Driedger, Department of Justice
Mr. R. G. Robertson, Privy Council Office.
PROVINCIAL REPRESENTATIVES
Ontario
Honourable Dana Porter, Attorney-General
Mr. C. R. Magone
Col. L. R. McDonald
Quebec
Honourable Maurice Duplessis, Attorney-General
Honourable A. Rivard, Solicitor-General
Dr. A. Beauchesne
Mr. R. Ouellet
Nova Scotia
Honourable M. A. Patterson, Attorney-General
Mr. John A. Y. MacDonald
New Brunswick
Honourable J. B. McNair, Attorney-General
Mr. E. B. MacLatchy
Mr. J. E. Hughes
Manitoba
Honourable C. Rhodes Smith, Attorney-Genera1
Mr. R. E. Moffat
Mr. R. M. Fisher
British Columbia
Honourable Gordon Wismer, Attorney-General
Mr. H. Alan MacLean
Prince Edward Island
Honourable W.E. Darby, Attorney-General
Saskatchewan
Prof. F. R. Scott
Dean F. C. Cronkite
Mr. J. W. W. Graham
Alberta
Honouwble Lucien Maynard, Attorney-General
Mr. E. J. Wilson
Mr. J. J. Frawley
Newfoundland
Honourable L. R. Curtis, Attorney-General
SECRETARIAT
Mr. J. F. MacNeill, Law Clerk and Parliamentary Counsel-Joint Secretary
Mr. Lorenzo Paré, Joint Secretary
Miss M. A. Mosley, Secretary of State Department
EXPLANATORY NOTE
In this report reference by numbers to the six categories into which the sections of the British North America Act have been classified are as follows:
Category 1: Provisions which concern Provincial Legislatures only;
Category 2: Provisions which concern the Provincial Legislatures only;
Category 3: Provisions which concern Parliament and one or more but not all of the Provincial Legislatures;
Category 4: Provisions which concern Parliament and all of the Provincial Legislatures ;
Category 5: Provisions which concern fundamental rights (as for instance, but without restriction, education, language, solemnization of marriage, administration of justice, provincial property in lands, mines, and other natural resources) and the amendment of the amending procedures.
Category 6: Provisions which should be repealed.
STUART GARSON, Chairman.
OTTAWA, September 1, 1950.
APPENDIX IV
Briefs submitted by the federal and provincial governments to the committee of attorneys general prior to the meeting of August 21
GOVERNMENT OF CANADA
Classification of Sections of the British North America Act
I. Preliminary Remarks
The present submission is presented in accordance with the terms of the resolution adopted by the Constitutional Conference on January 12, 1950. It represents an allocation of the sections of the B.N.A. Act as it now stands. In allocating these sections it should be pointed out that any amending procedure must necessarily confer legislative authority, and such authority can be con- ferred only in terms of subject matter and not in terms of section numbers. It would not, for example, be sufficient merely to authorize a legislative body to amend a particular section, because the authorization does not contain any indi- cation of the nature of the amendment that may be made except the implied indication that the amendment must relate to the subject matter of the section to be amended. An amending procedure founded entirely on references to particular sections would,it is suggested, give rise to serious problems because of the difficulty in defining accurately the subject matter of each individual sec- tion. The federal government, therefore, suggests that the allocation of sections should be regarded as a broad allocation of subject matters in the form of refer- ences to particular sections, rather than as a suggested form of amending procedure in terms of section numbers.
As indicated above, the federal governnebt;s allocation is based on the B.N.A. Act as it now stands, but discussion may disclose a basis for general agreement on a distribution, that would be more satisfactory to all parties con- cerned. If so, the federal government would be ready to contribute in every way possible to achieving such a distribution and would be glad to consider any modification of existing provisions that would be of assistance.
It is in the light of the above considerations, and not with a view to present- ing any final or definitive scheme for distribution of the sections of the British North America Act, that the present submission is made.
The group numbers in the text refer to the six heads of classification set forth in the report of the Committee of Attorneys General of the Constitutional Conference, which was made to the Conference and unanimously adopted on January 12, 1950.
II. General
Some difiiculties have been encountered in attempting to classify the various sections of the British North America Act. They are as follows:
1. Some sections fall partly within one group and paitly within another. For example, section 128 deals with oaths to be taken by members of the House of Commons and also by members of the provincial legislatures. To the extent that the section deals with the House of Commons it is suggested that it should fall in Group (1) and to the extent that it deals with the provincial legislatures, it is suggested that it should fall in Group (2). Mixed sections of this class have been indicated as falling in part in one group and in part in another group.
2. Some sections are not suitable for formal amendment. There are sections that, by their own terms or by some other provision in the British North America Act, are subject to alteration either by Parliament or the legislatures. If the appropriate legislative body legislates on the subject matter the section becomes spent. For example, section 70 provides that the Legislative Assembly of Ontario shall be composed of eighty-two members. A formal amendment to this section was not necessary to change the membership of the Ontario Legislature. By virtue of provincial legislation enacted pursuant to head 1 of section 92, the membership has been changed and section 70 has become spent.
3. The selection of spent provisions has also presented some difficulty. The terms of provincial legislation will determine whether or not a section relating to a provincial constitution has become spent. For example, section 84 provides for the continuance of existing election laws in Ontario and Quebec and if present provincial laws have covered the field, then the section may be spent. Accord- ingly scctions that may be nullified by provincial legislation have been left in the classification pending an indication from the province concerned that they may be regarded as spent.
4, Sections on disposition of property at Confederation may be spent or may not require amendment. They were, for the most part, inserted for the purpose of settling property questions at the time of Confederation. For example, sec- tion 108 transfers certain property to Canada but there is nothing to prevent Canada from transferring some of this property back to the provinces, nor is there anything to prevent a province transferring additional property to Canada.
5. Sections 91, 92, 95 and 132 have not been specifically allocated to any one or other of the six groups established at the Constitutional Conference. The resolution itself contained the suggestion that subsections (12) and (14) of sec- tion 92 might properly be regarded as coming within Group (5). Apart from these subsections, section 92 and the other three sections dealing with the dis- tribution of legislative power were left without any clear agreement as to what disposition would be the most satisfactory. These provisions are of partlcular importance for the continued successful operation of Canadian government, both federal and provincial, and the federal government feels that an attempt on its part at specific allocation to one or other of the six groups, without the benefit of further discussion of the problems involved, rnight not be the most helpful manner of proceeding at this time.
For these reasons it would seem desirable, before attempting any specific allocation of the sections on legislative jurisdiction, to have further discussion of the problems connected with their amendment. The federal government recommends that these matters be made the subject of special consideration at the next meeting of the Continuing Committee.
6. The British North America Acts enacted after the original Act of 1867 and other constitutional documents have not been included in this analysis. The provisions of other constitutional Acts and documents correspond to sections in the British North America Act and could be placed accordingly.
III . Classification
Group 1–Provisions which concern Parliament only
9-16. Executive Power
17. Constitution of Parliament of Canada
18. Privileges of Parliament
20. Yearly Session of Parliament (in time of war)
21-36. Senate
The majority of these sections deal with matters of detail relating to the qualification of Senators, appointment, procedure, quorum, etc., and seem clearly to belong to Group 1. The entire series of sections concerning the Senate has accordingly been placed in that Group. It may be that, if agreement can be reached on a general amending procedure, it would be deemed desirable to place sections 17, 21 and
22 in another Group, possibly in Group 4.
38-39.
44-49. and
51-52. House of Commons
50. Duration of House of Commons (in time of war)
53-57. Money Votes, Royal Assent
101. Supreme and other Federal Courts
102. Consolidated Revenue Fund
103. Consolidated Revenue Fund
104. Provincial debts
105. Salary of Governor General
106. Consolidated Revenue Fund
120. Form of Payment to provinces
128. (in part) Oath of Allegiance
129. (in part] Continuance of Laws
137. (in part) Construction of temporary Acts
138. (in part) Errors in deeds and writs
147. Representation of new provinces
Group 2–Provisions which concern provincial legislatures only
63. Executive Officers of Ontario and Quebec
64. Executive governments of N.S. and N.B.
65. (except as regards the office of the Lieutenant-Governor)
Powers to be exercised by Lieutenant-Governor of Ontario or Quebec with advice or alone.
68. Seats of provincial governments
69. except as regards office of Lieutenant-Governor) Legislature for Ontario70. Electoral districts (Probably Spent)
71. (except as regards office of Lieutenant-Governor) Legislature for Quebec
72-80. Legislative Council of Quebec (Probably Spent)
83-87. Provincial Legislatures (Probably Spent)
88. (except as regards office of Lieutenant-Governor) Constitution of Legislatures of N.S. and N.B.
126. (in part) Provincial Consolidated Revenue Funds
128. (in part) Oaths of Allegiance
129. (in part) Continuance of Laws
134. Appointment of Executive Officers (Probably Spent)
135. Powers of Executive Officers (Probably Spent)
136. Provincial Seals (Probably Spent)
137.(in part) Construction of temporary Acts
138. (in part)Errors in deeds and Writs
139. Issue of proclamations before Union
140. Issue of proclamations after Union
Group 3–Provisions which concern Parliament and one or more but not all of the provincial legislatures
6. Boundaries of Ontario and Quebec
7. Boundaries of N.S. and N.B.
94. Uniformity of Laws
97-98. Selection of Judges
99. (to provide for retirement age) Tenure of Office of Judges
These sections (97, 98 and 99, in part) are included in Group 3 so that a change in the law respecting selection of judges and tenure of office in one province may be made with the consent of that province.
107. Transfer of stocks, etc., to Federal Government
108. Transfer of property to Federal Government
110. Assets connected with provincial debts
111. Canada to be liable for provincial debts
112. Debts of Ontario and Quebec
113. Assets of Ontario and Quebec
114. Debt of Nova Scotia
115. Debt of New Brunswick
116. Payment of Interest to N.S. and N.B.
117. Provincial public property
119. Further grant to New Brunswick
124. New Brunswick lumber dues
142. Arbitration respecting debts (Probably Spent)
143. Division of records between Ontario and Quebec (Probably Spent)
Group 4–Provisions which concern Parliament and all of the provincial legislatures
1. Short Title
2. Declaration of Union
3. Use of name “Canada”
4. Division of Canada into provinces
5. Decennial Census
20. Yearly Session of Parliament of Canada
50. Duration of House of Commons
Should there be any similar provisions with respect to annual sessions and duration of provincial legislatures?
58. Appointment of Lieutenant-Governors of provinces
59. Tenure of office of Lieutenant-Governor
60. Salaries of Lieutenant-Governors
62. Application of provisions of referring to Lieutenant-Governor
65. (insofar as it relates to Office of Lieutenant-Governor) Powers to be exercised by Lieutenant-Governor of Ontario or Quebec with advice or alone
66. Application of provisions referring to Lieutenant-Governor in Council
67. Administration in absence, etc, of Governor
69. (insofar as it relates to Office of Lieutenant-Governor) Legislature for Ontario
71. (insofar as it relates to Office of Lieutenant-Governor) Legislature for Quebec
82. Summoning of Legislative Assemblies
88. (insofar as it relates to Office of Lieutenant-Governor) Constitution of Legislatures of N.S. and N.B.
90. Application to Legislatures of provisions respecting money votes, etc.
118. (as altered by B.N.A. Act, 1907) Grants to provinces
121. Free trade between provinces
125.Exemption from taxation
126. (in Part) Provincial Consolidated Revenue Fund
Group 5–Provisions concerning fundamental rights (as for instance but without restriction, education, language, solemnization of marriage, administration of justice, provincial property in lands, mines and other natural resources) and the amending procedure
93. Education
As the title of the Group indicates, this section was considered at the Constitutional Conference as one that might appropriately be placed in Group 5.
96. Appointment of Judges
99. (in part) Tenure of Office of Judges
100. Salaries of Judges
109. Property in lands, mines, etc.
133. Languages
Group 6–Provisions which should be repealed
The resolution of January 12 established the Continuing Committee for the purpose of examining the classification of sections of the Canadian con- stitution with a view to arriving at an amending procedure. The resolution does not contemplate that the Committee will examine substantive ch onges that might be considered desirable in the continuing provisions of the constitution as they now stand. Proposals for repeal of sections may be regarded as purely technical and not in the nature of suggestions for actual modification of the constitution when they relate to provisions that are clearly spent. In cases, however where sections have or could have a continuing effect, their repeal would constitute substantive amendments, and proposals relating to their repeal would be, in reality, proposals relating to substance rather than procedure. The federal govermnent is, therefore, of the view that the Continuing Committee should consider sections for classification under Group 6 only when they are clearly spent. No sections should be classed as for repeal if such repeal would constitute a substantive change in the constitution.
In the light of the above consideration, the federal government would put the following sections under Group 6:
19. First Session of Parliament
37. Constitution of House of Commons in Canada.
40. Electoral Districts for the provinces
41. Continuation of Election laws until Parliament otherwise provides
122. Continuation of Customs Laws
123. Exports and Imports between provinces
130. Transfer of Officers to Canada
131. Appointment of new officers
141. Penitentiary established until Parliament otherwise provides
146. Admission of other colonies
There are other sections that may be spent, depending upon whether pro- vincial legislation has covered the field and the Federal Government would be prepared to consider including them in this Group if the provinces concerned so desire. These sections are 70, 72-80, 83-87, 134-136 and 142-144.
IV. Delegation
The report of the Committee of Attorneys General which was adopted by the Constitutional Conference on January 12 stated that “In the opinion of this committee the subject of delegation of powers should be placed upon the agenda”. The resolution establishing the Standing Committee does not direct that it is to look into the question of delegation. Nevertheless, a provision to authorize the delegation of powers by a provincial to a federal authority or by a federal to a provincial authority might be of considerable influence on the decision as to the precise lines along which the general amending procedure should be drawn. Delegation would intro- duce an element of flexibility into the constitutional framework which might be considered to make possible a greater rigidity in some portions of the amending procedure, or in the application of the amending procedure to certain areas of the constitution. The federal government would, accordingly, be agreeable to having the Continuing Committee consider the question of delegation in order to assist the later discussions at the Conference when it resumes. In this connection, attention is drawn to the possibility that the Nova Scotia case on delegation will come before the Supreme Court of Canada in April.
OTTAWA, Canada. March 10, 1950.
PROVINCE OF ONTARIO
Draft proposal to be submitted for discussion to the Committee of Attorneys General of the Conference on Constitutional amendment
1. ‘Constitution of Canada’ means the British North America Acts 1867 to 1950 and any other Acts of the Parliament of the United Kingdom or Orders of His Majesty in Council affecting the constitution of Canada or of any Province or territory thereof.
2. The Parliament of Canada may from time to time amend, alter or repeal any of the provisions of the Constitution of Canada in relation to the Executive Governinent of Canada and the procedure, constitution and privileges of the House of Commons and the Senate except with respect to the representa- tion of the Provinces in the House of Commons and the Senate and the requirements that there shall be a Session of the Parliament of Canada at least once each year and that no House of Commons shall continue for more than five years from the day of the return of the Writs for choosing the House; provided, however, that a House of Commons may in time of real or apprehended war, invasion or insurrection be continued by the Parliament of Canada if such continuation is not opposed by the votes of more than one-third of the Members of such House.
3. The Parliament of Canada may from time to time amend, alter or repeal any of the provisions of the Constitution of Canada which relate to one or more but not all of the Provinces with the consent of the Legislature of the Province to which such amendment, alteration or repeal relates; provided that nothing herein shall authorize any amendment, alteration or repeal of section 80 of the British North America Act 1867 unless the Act of the Legislature of the Province of Quebec consenting to such amendment, alteration or repeal has been passed as provided in the said section.
4. The Parliament of Canada may from time to time amend, alter or repeal any of the provisions of the Constitution of Canada with the consent of the Legislatures of all the Provinces and not otherwise, notwithstanding anything in this Act, with respect to,–
(a) the use of the English or the French language;
(b) the rights or privileges granted or secured to any class of persons with respect to schools;
(c) the procedure for future amendments to the Constitution of Canada;
(d) the legislative jurisdiction of the Provincial Legislatures except in relation to matters coming within the following classes of subjects;
(i) the establishment, maintenance and management of public and reformatory prisons in and for the Province;
(ii) the establishment, maintenance and management of hospitals, asylums, charities and eleeniosynary institutions in and for the Province ;
(iii) local works and undertakings;
(iv) the incorporation of companies with Provincial objects;
(v) Generally, all matters of a merely local or private nature in the Province.
5. The Parliament of Canada may from time to time amend, alter or repeal any of the provisions of the Constitution of Canada with the consent of not lower than two-thirds of the Legislatures of the Provinces provided that such two-thirds of the Legislatures represent not less than fifty-five per centum of the population of Canada according to the last decennial census of Canada in respect of all matters not hereinbefore provided for.
6. The British North America. (No. 2) Act, 1949, is repealed.
March 1, 1950.
PROVINCE OF ONTARIO
(Supplementary Submission)
Classification of Sections of the British Notch America, Acts in accordance with the report of the Coinmittee of Attorneys General to the Constitutional Conference of Federal and Provincial Governments.
HEAD 1: Provisions which Concern Parliamemt Only
British North America Act, 1867
Section 10. Provisions referring to the Governor-General.
Section 11. Constitution of the Privy Council for Canada.
Section 12. Powers vested in the Lieutenant-Governors to be exercised by the Governor-General in Council in relation to the Government of Canada subject to being abolished or altered by the Parliament of Canada.
Section 13. Governor-General in Council to be construed as the Governor- General acting with the advice of the Privy Council.
Section 14. Authority to appoint Deputies to like Govornor-General.
Section 15. Armed Forces to be vested in the Queen.
Section 18. Privileges of the House of Commons and Senate.
Section 23. Qualification of Senators.
Section 24. Summons of Senators.
Section 29. Tenure of Senators.
Section 30. Resignation of Senators.
Section 31. Disqualification of Senators.
Section 32. Filling vacancy in the Senate.
Section 33. Senate to determine questions of qualification.
Section 34. Appointment of Speaker of The Senate.
Section 35. Quorum of the Senate.
Section 36. Voting in the Senate.
Section 38. Calling together the House of Commons.
Section 39. Senators disqualified as Members of the House of Commons.
Section 40. Until Parliament otherwise provides-Eleotoral Districts in the four Provinces.
Section 41. Until Parliament otherwise provides–continuation in force of election laws.
Section 44. Election of the Speaker for House of Commons.
Section 45. Filling vacancy in the office of Speaker.
Section 46. The Speaker to preside at Meetings of the House of Commons.
Section 47. Until Parliament otherwise provides–filling vacancy in the Office of Speaker, House of Commons.
Section 48. Quorum–House of Commons.
Section 49. Voting in the House of Commons.
Section 53. Appropriation and tax bills to originate in House of Commons.
Section 54. Appropriation and tax bills to be recommended in message of the Governor-General.
Section 55. Royal Assent to Bills.
Section 56. Disallowance by the Imperial Privy Council.
Section 57. Bills reserved for the Queen’s pleasure.
Section 102. Creation of Consolidated Revenue Fund of Canada.
Section 103. Until Parliament otherwise provides, first charges on the Consolidated Revenue Fund of Canada.
Section 105. Until Parliament otherwise provides–Section fixing the salary of the Governor-General.
Section 106. Consolidated Revenue Fund to be appropriated by Parliament.
Section 120. Until Parliament otherwise provides, Section providing for payment of liabilities assumed by Canada at the Union.
Section 122. Until Parliament otherwise provides, Customs and Excise Laws to continue in force.
Section 128. Insofar as it relates to oath of Senators and Members of House of Commons.
Section 131. Until Parliament otherwise provicles Governor-General in Council may appoint officers, etc.
British North America Act, 1871, Cap. 78
Section 2. Power of Parliament of Canada to establish new Provinces in territories forming part of Canada, but not included in any Province.
Section 4. Power of the Parrliament of Canada to make provision for peace, order and: good Government of territories not included in any Province.
HEAD 2: Provisions which Concern the Provincial Legislature only British North America Act, 1867
Section 65. Continuation of the powers of the Lieutenant-Governors of Ontario and Quebec after the Union subject to alteration by the Legislatures.
Section 68. Seats of Provincial Governments until altered by the Govern- ment of the Province.
Section 69. Establishment of Legislature of Ontario.
Section 71. Establisliment of the Legislature of Quebec.
Section 72. Constitution of the Legislative Council Quebec.
Section 73. Qualification of Legislative Councillors Quebec.
Section 74. Disqualification of Legislative Councillors Quebec.
Section 75. Filling vacancies in Legislative Council Quebec.
Section 76. Legislative Council to determine questions of qualifications Quebec.
Section 77. Appointment of Speaker Legislative Council Quebec.
Section 78. Until the Legislature otherwise provides, quorum of Legis- lative Council Quebec.
Section 79. Voting in the Legislative Council Quebec.
Section 80. Constitution of the Legislative Assembly Quebec.
Section 88. Constitution of the Legislature Nova Scotia and New Brunswick.
Section 128. Insofar as it relates to oath of Members of the Legislative Assembly and Legislative Council.
HEAD 3: Provisions which Concern Parliament and One but not all of the Provincial Legislatures
British North America Act, 1867
Section 6. Upper Canada to constitute Ontario and Lower Canada to constitute Quebec.
Section 7. Nova Scotia and New Brunswick to have same limits as at the passing of this Act.
Section 82. Lieutenant-Governor of Ontario and Quebec to call together the Legislative Assemblies.
Section 86. Yearly Session of the Legislature of Ontario and Quebec.
Section 98. Judges of Quebec to be selected from that Bar.
Section 104. The annual interest of the four Provinces to be a second charge on Consolidated Revenue Fund.
Section 114. Nova Scotia’s liability to Canada.
Section 115. New Brunswick’s liability to Canada.
Section 116. Payment of interest to Nova Sootia and New Brunswick.
Section 119. Further grant to New Brunswick.
Section 124. Lunrber dues in New Brunswick.
British North America Act, 1871, Cap. 28
Section 3. Alteration of the limits of the Provinces.
Section 5. Confirmation of Acts of the Parliament of Canada re Rupert’s Land, North West Territories and the Province of Manitoba.
Section 6. Limitation of Power of the Parliament of Canada to legislate for Manitoba or any future Act establisliing a new Province.
Ontario-Manitoba Boundary Act, 1889, Cap. 28. An Act Fixing the Boundaries of Ontario and Manitoba
HEAD 4: Provisions which Concern Parliament and all the Provincial Legislatures
British North America Act, 1867
Section 1. Short Title.
Section 3. Proclamation of the Union.
Section 4. Meaning of the word “Canada”in this Act.
Section 8. Decennial census.
Section 9. Executive Govermnent to be vested in the Queen.
Section 16. Seat of Government at Ottawa.
Section 17. Constitution of the Parliament of Canada.
Section 20. To be a yearly Session of Parliament.
Section 21. Number of Senators.
Section 22. Representation of Provinces in the Senate.
Section 26. Adding to the number of Senators (See B.N.A. Act 1915).
Section 27. Reduction of the Senate (See B.N.A. Act 1915).,
Section 28. Maximum number of Senators.( See B.N.A. Act 1915).
Section 37. Constitution of the House of Commons.
Section 50. House of Commons to continue for five years.
Section 51. Deeennial readjustment of replesentation in Commons.
Section 51A. Representation of Provinces in House of Commons.
Section 52. Parliament of Canada may increase number of Members of House of Commons provided proportionate reprosentation not disturbed.
Section 58. Governor-General to appoint Lieutenant-Governor.
Section 59. Tenure of Office of Lieutenant-Governor.
Section 60. Salary of Lieutenant-Governor.
Section 61. Oath of Lieutenant-Governor.
Section 62. Provisions referring to Lieutenant-Governor to extend to Administrator.
Section 66. Application of provisions referring to Lieutenant-Governor.
Section 90. Re-Appropriation and Tax Bills in the Legislatures and disal- lowance of Acts.
Section 91. Legislative power of the Parliament of Canada.
Section 92. (6) Establishment, maintenance and management of public and reformatory prisons in and for the Province.
(7) Establishment, maintenance and management of hospitals, asylums and eleemosynary institutions in and for the Province other than Marine Hospitals.
(10) Local works and undertakings.
(11) Incorporation of Companies with Provincial objects.
(16) Generally all matters of a merely local or private nature in the Province.
Section 94. Uniformity of Laws respecting property and civil rights.
Section 95. Concurrent power of Legislature respecting Agriculture and Immigration.
Section 96. Appointment of Superior and County Court Judges.
Section 97. Selection of Judges.
Section 99. Tenure of Office of Judges.
Section 100. Payment of salaries of Judges.
Section 101. Power of Parliament to constitute Supreme Court of Canada and additional Courts.
Section 109. Lands mines and minerals to belong to Provinces.
Section 111. Canada liable for the debts of each Province at the Union.
Section 117. Provinces to retain their respective public property with exceptions.
Section 118. Subsidies to the Provinces (superseded by 1907 Act).
Section 121. Products of one Province to enter other Provinces free.
Section 125. Lands and property of Canada and the Provinces not liable to taxation.
Section 126. Revenues of the Provinces to form Provincial Consolidated Revenue Funds.
Section 128. Insofar as the oath to be taken by Members of Provincial Legislatures are concerned.
Section 129. Continuance of laws, Courts, etc. existing at the Union.
Section 132. Treaty obligations.
Section 147. Representation of Newfoundland and P.E.I.
British North America Act, 1886, Cap. 35
Section 1. Representation in the Senate and House of Commons from the territories.
Section 2. Validation of Acts formerly passed with respect of representa- tion of the territories and increasing the number of Senators.
British North America Act, 1907, Cap. 11
Subsidies to the Provinces.
British North America Act, 1915, Chap. 45
Alteration of the Constitution of the Senate and House of Commons.
Statute of Westminster, 1931
Powers of Canada and the Provinces in relation to Imperial Legislation, etc.
HEAD 5: Provisions concerning fundamental rights (as for instance, without restriction, education, language, solemnization of marriage, administration of justice, provincial property in lands, mines and other natural resources) and the amendment of the amending procedures.
British North America. Act, 1867
Section 92. 1. 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.
2. Direct taxation within the Province in order to the raising of a revenue for Provincial purposes.
3. The borrowing of money on the sole credit of the Province.
4. The establishment and tenure of Provincial offices and the appointment and payment of Provincial officers.
5. The managernent and sale of the public lands belonging to the Province and of the timber and wood thereon.
8. Municipal Institutions in the Province.
9. Shop, saloon, tavern, auctioneer and other licenses in order to the raising of a revenue for Provincial, local or municipal purposes.
12. The solemnization of marriage in the Province.
13. Property and civil rights in the Province.
14. 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.
15. The imposition of punishment of fine, penalty or imprisonment for enforcing any law of the Province mode in relation to any matter coming within any of the classes of subjects enumerated in this Section.
Section 93. Power to make laws respecting education but protecting the rights and privileges in relation to schools of certain minorities.
Section 133. Regarding the use of the English or the French language.
HEAD 6: Provisions wlrich should be repealed (as for as Ontario is concerned)
British North America. Act, 1867
Section 5. Dividing Canada into four Provinces.
Section 19. Calling Parliament together not later than six months after Union.
Section 40. Electoral Districts of the four Provinces and the first Schedule.
Section 63. Composition of the Executive Councils of Ontario and Quebec.
Section 64. Constitution of the Executive authority in Nova Scotia and New Brunswick at the Union to continue.
Section 70. Electoral Districts in Ontario.
Section 83. Disqualification as Members of the Legislatures of Ontario and Quebec of persons holding office of profit.
Section 84. Continuance in existence of election laws in Ontario and Quebec.
Section 85. Duration of Legislative Assemblies, Ontario and Quebec.
Section 87. Proceedings in the Legislative Assemblies, Ontario and Quebec.
Section 107. Transfer of stocks, etc., belonging to the Provinces at the Union to Canada.
Section 108. What Public Works to be the property of Canada (and the third Schedule).
Section 110. Property of the Province at the Union.
Section 112. Debt of Ontario and Quebec at the Union.
Section 113. Joint property of Ontario and Quebec at the Union (and the fourth Schedule).
Section 122. Until altered by the Parliament of Canada, customs and excise laws to continue.
Section 123. Importation of goods between two Provinces.
Section 130. Officers of the several Provinces at the Union to continue.
Section 134. Until Legislatures of Ontario and Quebec otherwise provide, Ministers of the Crown to exercise their respective powers at the Union.
Section 136. Great Seals of Ontario and Quebec.
Section 137. Construction of temporary Acts.
Section 138. Use of the words Upper Canada and Lower Canada in deeds, etc.
Section 139. Proclamations issued before the Union to take effect after.
Section 140. Issue of proclamations after the Union.
Section 142. Arbitration with respect to adjustment of debts.
Section 143. Division of records.
Section 144. Constitution of Townships in Quebec.
Section 146. Power to admit Newfoundland, Prince Edward Island, British Columbia, etc. to the Union.
British North America Act, 1943, Cap. 30
Postponement of redistribution of Seats in the Commons. British North America (2) Act, 1949 respecting the power of Parliament to amend its Constitution.
PROVINCE OF QUEBEC
Preliminary Memorandum by the Government of the Province of Quebec re the Canadian Intergovernmental Conference Which Opened in Ottawa on January 10, 1950
The matters submitted for the consideration of the delegates at this very important Conference include numerous problems which require very careful study.
The Province of Quebec is deeply convinced, that we should have an essentially Canadian Constitution, made in Canada, by Canadians, for the Canadian people.
Our Province considers that the Canadian Constitution should be com- pletely freed from all remaining traces of colonialism, both in the field of inter- national relations and in the domain of Canadian intergovernmental relations.
In our opinion, the only appropriate and just system of government is one recognizing to the Provincial State and to the Federal State, each in its own respective sphere, all the powers which are indispensable for the carrying on of a responsible and democratic government, and this, both from the legislative and administrative standpoint, and also from the financial or fiscal point of view.
We feel certain that the complete acknowledgment of the bi-racial charac- ter of our country and of the essential rights of each one of the parties constituting the Canadian Federation, constitute the indispensable basis of real Canadian unity.
We are deeply convinced that constitutional stability and the clear and precise delimitation of provincial and federal rights are absolutely necessary to ensure genuine progress and well understood national unity in Canada.
In order to avoid the uncertainties and the hazards involved by legislation, which is at all times subject to amendments, we believe that the Canadian Constitution should be embodied in a treaty or convention.
Furthermore, logically and in all fairness, the Canadian Constitution should be drawn up in the two official languages: the English language and the French language.
We sincerely believe that these fundamental principles should guide us in our work.
We reaffirm our sincere desire to co-operate, in a friendly spirit, in prepar- ing and drawing up an essentially Canadian Constitution, respectful of the rights of all parties concerned.
At this stage of the Conference we think that we should limit ourselves to general considerations. In light of the discussion and of the exchanges of which will take place between us, it will be advisable to determine, more precisely and in fuller detail, the most just and appropriate methods of achiev- ing the fundamental aims outlined above.
I- Powers of the Federal Authorities
These powers relate to matters concerning:
The Governor General;
The Executive Council;
The prerogatives, immunities, indemnities of the Senators and the delibera- tions of the Senate;
The prerogatives, immunities, indemnities of the members of the House of Commons, and the deliberations of the said House;
The appointment of the Speakers of the Senate and of the House of Commons;
International relations;
International trade;
Taxation and borrowing powers, in federal matters, clearly defined and adapted to the federative system;
The postal service;
The federal civil service;
Currency and coinage;
Incorporation of banks and the issue of paper money;
Navigation of public harbours;
Patents of invention;
Lands reserved for the Indians;
Bankruptcy, without encroaching upon the sphere of the Civil Code of the Province of Quebec;
Canadian Citizenship;
Naturalization;
The Criminal law and the procedure in criminal matters except the consti- tution of Courts of criminal jurisdiction;
The Exchequer Court;
The Admirality Court.
II-Powers of the Provincial Authorities
These powers relate to matters concerning:
The Lieutenant Governor;
The Provincial Executive Council;
The Legislature;
Education;
Property rights and civil law;
Taxation and borrowing powers in provincial matters, clearly defined;
The provincial civil service;
Provincial natural resourcres: mines, forests, water powers, etc;
Insurance;
The administration of justice, civil and criminal;
Hospitals;
Trades and professions;
Marriage;
Agriculture ;
Colonization;
Fisheries;
Municipal and school institutions;
The organization and maintenance of Courts of civil and criminal jurisdic- tion in each Province and also procedure in civil matters and the appointment of judges of these Courts.
We are of the opinion that matters of civil law, of municipal law and of school law should be adjudicated upon, in the last resort, by a Court of Appeal get up by each Province, the Judges of which should be appointed by each Province.
III-Special Observations
Since, in our opinion, it is advisable to proclaim the sovereignty, in their respectivc spheres, of the Federal Parliament and of the Provincial Legislatures, we believe that the powers of disallowance and of “reserve” referred to in the present Constitution, should be abolished.
The immediate repeal of the recent amendments to the Canadian Consti- tution, namely the British North America. Act (No. 2) 1949, is, in our view, appropriate and desirable.
It is our considered opinion that in constitutional matters and in those relating to Canadiian intergovernmental relations, the Supreme Court of Canada should meet all the conditions required of a third arbitrator.
It is our deep conviction that the bi-racial character of our country, par- ticularly the rights of the French speaking minority in Canada, should be fully and effectively recognized.
M. L. DUPLESSIS.
Prime Minister and Attorney General of the Province of Quebec.
QUEBEC, August 11, 1950.
PROVINCE OF NOVA SCOTIA
The suggestions of the Government of Nova Sootia respecting the classifica- tion of the Sections of the British North America Act, 1867 and other constitu- tional documents as to amendment procedure are set out in the tabulation annexed hereto.
In the extreme left-hand column are listed the Sections or Acts. Check marks in the following six columns indicate the view of this Province on the amendment procedure to be followed. A check mark in the seventh column opposite any Section indicates that this Province has no decided views on the ainendment procedure to be followed, or is not concerned. A check mark in the eighth column indicates that further comment is to be made on the sheets following the tabulation.
Where the Province would be prepared to consider more than one method of amendment the first choice of the Province is indicated by the figure “I” opposite the Section, second choice by the figure “2”.
*See PDF for chart.
*See PDF for chart.
*See PDF for chart.
*See PDF for chart.
Section 5:
This Section should be repealed and brought up-to-date. Insofar as the substituted Section assigns names to the Provinces, such names should be alterable only with the consent of the Provinces concerned.
Section 6:
Compare the Canada (Ontario Boundary) Act, l889. It is suggested that insofar as this Section merely settles the boundaries between Ontario and Quebec it might be amended with the concurrence of those Provinces. Insofar as any amendment might purport to affect extension of boundaries beyond those fixed by the 1889 Act, the consent of the majority of the Prov- inces should be required. Alternatively, Sections 6 and 7 might be repealed and a new Section substituted establishing the boundaries of all Provinces as at present constituted, which new Section would be amendable only with the consent of the Lcgislature of the Province or Provinces concerned, where only a, boundary as between two Provinces is involved, and would be amend- able only with the consent of a majority of the Legislatures of all the Prov- inces where it is proposed to add any territory to a Province.
Section 21:
Compare the British North America Act, 1915. It is suggested that the provisions of the 1915 Act should be incorporated in s new Section 21 and the provisions of the first 1949 amendment insofar as they affect this Section should also be incorporated. The new Section so substituted should then be smendable only with the consent of all the Provinces. The new Section would affirm the Senate as presently constituted.
Section 23:
Insofar as this Section requires specific qualification for Quebec Senators theconsent of the Legislature of Quebec should be required for amendment.
Section 37:
This Section should be brought up-to-date and when this is done this Section should be amended only with the consent of a majority of the Legislatures.
Sections 53 to 57 inclusive:
These Sections must be read in conjunction with Section 90. It is pro- posed that Section 90 should be amended by removing the words “the assent to Bills, the disallowance of Acts and the signification of pleasure and Bills reserved”. If this course were followed the Province would then have no objection to Sections 53 to 57 inclusive being amendable by the Parliament of Canada only. So long, however, as those Sections are still applicable to the Provinces by reason of the provisions of Section 90 the view of the Government of Nova Scotia is that these Sections should be amendable only with the consent of the majority of the Legislatures of the Provinces.
Section 58:
It is suggested that this Section might be altered to provide for the appointment of the Lieutenant Governor by the Province concerned, or in any event would give the Province a voice in the appointment of its own Lieutenant Governor.
Section 90:
See comments above with reference to Sections 53 to 57.
Section 91:
The Province realizes that the words used in the opening clause of Section 91 are such that abuse or even extreme use of the powers conferred by this Section would curtail very drastically the power of the Provinces, particularly in the taxation field. It is suggested that consideration should be given to substantive amendment to define more specifically the general power of the Parliament.
Section 92:
The Government of Nova Scotia. would be prepared to consider alterna- tives, particularly in reference to Clause 13. It is felt, however, that on the whole the consent of a majority affords sufficient protection without limiting too drastically the flexibility of amendment.
Section 95:
It may be desirable to consider substantive amendment of this Section to clarify its meaning and the present state of affairs.
Section 118:
This Section is superseded by the British North America Act, 1907. It is suggested that the provisions contained in that Act should be amendable only with the consent of a majority of the Legislatures.
Section 125:
It is suggested that the Government of Canada should be able to decide on whether or not it shall permit any of its lands to be liable to taxation, and the Government of each Province should be in a simliar position to decide the same question with respect to its lands. Insofar as Section 125 relates to lands or property belonging to Canada it should be amendable by the Parliament of Canada, and insofar as it relates to lands or property belonging to the Provinces, it should be amendalale only by the Legislature of each Province.
Sections 146 and 147:
With these Sections must be read the British North America Act, 1871, the British North America Act, 1886, the British North America Act, 1949, Number One, and the Imperial Orders in Council admitting Rupert’s Land and the North West Territory, British Columbia and Prince Edward Island into the “Union and the Order in Council annexing islands and territories, It is suggested that Sections 146 and 147 should be repealed and a new Section substituted which would confirm the situation as it exists today and would make adequate provision for the admission of new colonies or territories and that such new Section should be annendable only with the consent of a majority of the Legislatures.
A new Section, preferarbly Section 148, should be added covering the amend- ing procedure decided upon and that Section itself, when incorporated in the Statute, should be amenable only by the Parliament of Canada with the con- currence of all the Provinces.
The Government of Nova Scotia concurs with the opinion expressed by the Committee of Attorneys General that “the subject of delegation of powers should be placed upon the agenda.”
PROVINCE OF NEW BRUNSWICK
The Federal-Provincial Conference on Constitutional Amendment on the 12th day of January, 1950 passed a resolution, paragraph 2 of which reads as follows:
“Resolved that the Conference agree to:
1. . . .
2. Presentation to this committee with the least possible delay by the Federal Government and the Provincial Governments of their views respecting classification of each section of The B.N.A. Act, 1867, as amended, and all other Constitutional Acts of the United Kingdom Parliament or other constitutional documents relating to Canada.”
This brief is submitted as a basis for discussion only and does not represent a fixed view or policy. The Government of New Brunswick, recognizing that reconciliation must be sought, is desirous of learning the views and opinions of the other members of the sub-committee and reserves the right to alter from time to time any submission contained herein.
The classification contained in this brief is in accordance with the formula not forth in the resolution of the sub-committee approved by the Conference on the 12th day of January, 1950.
We have interpreted all references to “Provincial Legislatures” in paragraph (1) of the said resolution as a reference to the Provinces. It is evident that the phrase “Provincial Legislature” is a more restrictive term than the word “Province.” Many matters of vital concern to a Province do not concern the Provincial Legislature as such.
We have realized the impossibility of assigning a section to a particular head under the formula without regard to the nature of any amendment to the section that might be proposed and its effect on the subject matter of other sections. Consequently in interpreting and applying the formula we have, in assigning a section number under a particular head, assigned under that head solely the power of amendment over or in connection with the subject matter of the section and not the section itself.
In some instances the power of amendment is divided. In certain of its aspects the subject matter of a section may be subject to one amending procedure and in other aspects to another amending procedure under the formula presented.
In assigning to head (5) a section which we have also assigned to one of the heads (1) to (4), inclusive, we indicate that in some aspects only the power of amendment over or in connection with the subject matter of that section is subject to the amending procedure attached to head (5) and to that extent the section is removed from the heads (1) to (4), inclusive, in which it has been placed.
In assigning a section to two of the heads (1) to (4), inclusive, we indicate that the power of amendment over or in connection with the subject matter of that section is in some aspects subject to the amending procedure attached to one of the heads and in other aspects it is subject to the amending procedure attached to the other head.
All section references are to The British North America Act, 1867, unless otherwise indicated.
PROPOSED DIVISION OF AMENDING POWERS
(1) Provisions which concern Parliament only Section numbers: 10; 11; 12; 13; 14; 15; 18; 20; 23, except subsection (6); 24; 29; 30; 31; 32; 33; 34; 35; 36; 38; 39; 44; 45; 46; 47;48; 49; 50; 53; 54; 55 (in some aspects–see head 6); 59; 60; 61; 67; 101; 102; 103; 105; 106; 120; 129 (in some aspects–see head 2).
(2) Provisions which concern the Provincial Legislatures only Section numbers: 63; 64; 65; 66; 68; 69; 70; 71; 72; 73; 74; 75; 76; 77; 78; 79; 80; 82; 83; 84; 85; 86; 87; 88; 90; 92 (1) (in some aspects–see head 5) 109; 110; 113; 126; 129 (in some aspects–see head 1); 138.
(3) Provisions which concern Parliament and one or more but not all of the Provincial Legislatures Section numbers: 5 (in some aspectswsee head 4); 6; 7; 23 (6) ; 51A; 94; 96 (in some aspects–see head 4); 97; 98; 111; 112; 114; 115; 116; 117; 124.
(4) Provisions which concern Parliament and all of the Provincial Legislatures Section numbers: 3; 4; 5 (in some aspects–see head 3); 8; 9; 16; 58; 62; 91; 92(2),(3),(4),(5),(6),(7),(8),(9),(10),(11); 92(13) (in some aspects– see head 5); 92 (16); 95; 96 (in some aspects–see head 3); 99; 100; 125; 128.
(5) Provisions concerning fundamental rights (as for instance but without restriction, Education, Language, Solemnization of Marriage, Adminis- tration of Justice, Provincial Property in Lands, Mines and Other Natural Resources) and the amendment of the amending procedure Section numbers: 17; 37; 51; 52; 92 (1). (in some aspects–see head 2); 92 (12); 92 (13) (in some aspects–see head 4); 92 (14),(15); 93; 121; 132; 133; B.N.A. Act 1915, sections 1 and 2.
(6) Provisions which should be repealed Section numbers: 19; 21 and 22 (see B.N.A. Act, 1915); 26; 27; 28 (see B.N.A. Acts, 1915 and 1949 No. 1); 40 (see the Representation Act, 1947); 55 (in some aspects–see head 1); 56; 57; 122; 123; 130; 131; 146; 147.
Submitted on behalf of the Province of New Brunswick.
JOHN B. MCNAIR
Attorney General.
FREDERICTON, N.B. March 20, 1950.
PROVINCE OF MANITOBA
Manitoba’s submission respecting the grouping of provisions of the British North America Acts, 1867-1949, and other Constitutional Acts under the Heads set out in the Report of the Committee of Attorneys-General to the Constitutional Conference of Federal and Provincial Governments of January 12, 1950
EXPLANATORY NOTE
Where a number only is used the reference is to a section of the British North America Act, 1867.
Where a number is used followed by a year the reference is to a section of the British North America Act of the year mentioned.
Where a number is followed by the abbreviations “Man.”, “Sask.”, “Alta.”, the reference to the Manitoba Act, the Saskatchewan Act and the Alberta Act respectively.
Where a number is used followed by the abbreviations “B.C.”, “P.E.I.”, the reference is to a section of the Orders in Council admitting British Columbia and Prince Edward Island to the Union.
(1) 1949 refers to the British North America Act dealing with the admission of Newfoundland.
(2) 1949 refers to the Act adding class 1 to section 91. Where comment is being made the reference will be followed by a number in brackets indicating where the comment will be found.
HEAD 1
8
10-17 both inclusive
18 as re-enacted by See. 1-1875
20-24 both inclusive
26-36 both inclusive
38, 39
44-50 both inclusive
51 as re-enacted by See. 1 – 1946
51A as enacted by 2 – 1915
52, 53, 54
102-106 both inclusive
108
120
122
125 (7)
128 (8)
131
146, 147 (1)
4 – 1871
2 – 1875
1 – 1886
Canadian Speaker (Appointment of Deputy) Act, 1895
1 – 1915 (12)
HEAD 2
63, 64, 65
68 – 80 both inclusive
82-88 both inclusive
Sub-section 1 of Sec. 92 in so far as it relates to the amendment of the constitution of a province.
109
113
125 (7)
126 (1)
128 (8)
134-140 both inclusive (1)
144
HEAD 3
6, 7
97, 98
111, 112 (1)
114, 115 (1)
116
117 (1)
118
124 (6)
129
143
5, 6 – 1871
Canada (Ontario Boundary) Act, 1889 (10)
1 – 1907 (11)
1, 2 – 1930
23 – 29 both inclusive of Schedule to (1) 1949
HEAD 4
3, 4, 5 (1)
9
58 – 62 both inclusive
66, 67
90 (4)
91, including sub-section 2A as enacted by 1-1940
92 except subsection 1 in so far as it relates to the amendment of the constitution of a province and subsection 12- (5)
95, 96
99, 100, 101
132
2, 3 – 1871 (9)
HEAD 5
Sub-section 12 of 92
93
121
133
22, Man.
17, Alba.
17, Sask.
(The procedure to amend the Constitution should be included under this Head).
HEAD 6 (16)
19
37 (2)
40, 41 (3)
55, 56, 57
94
107
110
119
123
130
141, 142
2 – 1886
1- 1943
2 – Man., 3 – Alta, 3-Sask,
3- (1) 1949, 10-B.C., 14-P.E.I., (13)
(2) 1949- (15)
Provisions of the Man. Act, Alta. Act, Sack. Act, B.C. O/C., P.E.I. O/C., B.N.A. Act, (1) 1949, not otherwise dealt with. (14.)
COMMENT
(1) These sections are spent either in whole or in part and consideration could be given to repeal in whole or in part.
(2) This section has been repealed by implication by Section 51 as enacted by B.N.A. Act, 1946.
(3) These sections are spent as they have been superseded by legislation of the Parliament of Canada.
(4) By reason of the suggested repeal of Sections 55-57 which deal inter alia with disallowance of legislation of the Parliament of Canada it may be thought advisable to give consideration to the question of whether some form of disallowance should be retained in respect of Provincial legislation or whether it should be eliminated.
(5) Sub-sections (13) and (14) have been included under Head 4 subject to the qualifications that provision be made for preservation of the Civil Code in Quebec. Section 91 and the greater part of Section 92 have been included under Head 4 for the purpose of avoiding rigidity in respect of legislative powers.
(6) Consideration should be given to the repeal of this section.
(7) Section 125 has been included under Heads 1 and 2 with the intention that land or property of Canada be dealt with by the Parliament of Canada and land or property of a Province be dealt with by the Provincial Legislature of such Province.
(8) Section 128 has been included under Heads 1 and 2 as it relates to the respective constitutions of Canada. and each Province.
(9) These sections have been included under Head 4. However, provi- sion should be made that if in the creation of a new province the boundaries of on existing province will be affected consent of the province affected be required.
(10) This Act can be changed under the provisions of Section 3 – 1871.
(11) The Provincial Subsidies Act being Ch. 192 R..S.C. 1927 and The Maritime Provinces Additional Subsidies Act being Ch. 14 SC. 1942 provide for additional subsidies to the Provinces. A saving clause will be required either in the Constitution or in the said Acts so that no change will be made in the statutory subsidy payable to a Province unless the Government of the Province concerned and the Government of Canada reach agreement.
(12) Section 1 of 1915 amends Sections 21, 22, 26, 27, 28, and 147.
(13) As the Constitution when redrawn will apply to all provinces these sections can be repealed.
(14) Except in respect of Sections 2 – Man., 3- Alta., 3 – Sask., 3 – (1) 1949, 10 – B.C., 14 – P.E.I., 22 – Man, 17 – Alta, 17 – Sask., and 23 – 29 both inclusive of Schedule to (1) 1949 which have been dealt with under other Heads, the provisions of these Acts relate to the constitutions of the respective provinces and representation in the Parliament of Canada. As the provinces have power over their own constitutions the provisions which relate to the constitution of a province can be dealt with by the province concerned. The provisions which relate to representation in the Parliament of Canada should go under the same Head as the provisions of the B.N.A. Act, 1867, which deal with representation.
(15) The B.N.A. Act, (2) 1949 has been included under this Head in view of the suggestion that if an overall plan of amendment were agreed upon consideration could be given to the repeal of this Act.
(16) It has been assumed that provisions will be enacted dealing with the effect of repeal and amendment similar to those found in interpretation Acts.
PROVINCE OF BRITISH COLUMBIA
Submission by the Attorney-General of British Columbia as to the Classification of the sections of the B.N.A. Act into the groups suggested by the Attorneys-General Committee of the Constitutional Conference
Suggested Classification of the British North America Act and amending Acts according to the classifications suggested by the Committee of Attorneys- General at the Constitutional Conference of January, 1950. The following are the classifications:
(1) Provisions which concern parliament only: (Amendment shall be made by an Act of the Parliament of Canada)
(2) Provisions which concern the Provincial Legislatures only: (Amendment shall be made by an Act of the Provincial Legislatures)
(3) Provisions which concern parliament and one or more but not all of the Provincial Legislatures:
(Provision be made for amendment by an Act of the Parliament of Canada and an Act of the Legislatures of each of the provinces affected)
(4) Provisions which concern parliament and all of the Provincial Legisla- tures:
(Provision be made for amendment by an Act of Parliament of Canada and Acts of such majority of the Legislatures and upon such additional conditions, if any, as may be decided upon)
(5) Provisions concerning fundamental rights such as education, language, marriage, etc:
(Amendment by an Act of the Parliament of Canada and Acts of the Legislatures of all the Provinces)
(6) Provisions which should be repealed:
(Conference did not make any suggestion as to what Parliament or majority of Provincial Legislatures should decide upon the question of the sections to be repealed)
Classification No. (1)
Section 9–Declaration of Executive Power in the Queen.
Section 10–Application of Provisions referring to Governor General.
Section 11–Constitution of Privy Council for Canada.
Section 13–Application of Provisions referring to Governor General in Council.
Section 14–Power to Her Majesty to authorize Governor General to appoint Deputies.
Section 15–Command of Armed Forces to continue to be vested in the Queen.
Section 17–Constitution of Parliament of Canada.
Section 18–Privileges, etc., of Houses.
Section 20–Yearly Session of the Parliament of Canada.
Section 23–Qualifications of Senator. (except sub-sec. (6)).
Section 24–Summons of Senator.
Section 30–Resignation of Place in Senate.
Section 31–Disqualification of Senators.
Section 32–Summons on Vacancy in Senate.
Section 33–Questions as to Qualifications and Vacancies in Senate.
Section 34–Appointment of Speaker of Senate.
Section 35–Quorum of Senate.
Section 36-Voting in Senate.
Section 38–Summoning of House of Commons.
Section 39–Senators not to sit in House of Commons.
Section 40–Electoral Districts of the four Provinces.
Section 44–As to Election of Speaker of House of Commons.
Section 45–As to filling up Vacancy of Office of Speaker.
Section 46–Speaker to preside.
Section 47–Provision in case of absence of Speaker.
Section 48–Quorum of House of Commons.
Section 49–Voting in House of Commons.
Section 50–Duration of House of Commons.
Section 52–Increase of number of House of Commons.
Section 53–Appropriation and tax Bills.
Section 54–Recommendation of money votes.
Section 55–Royal Assent to Bills, etc.
Section 58–Appointment of Lieutenant-Governors of Provinces.
Section 59–Tenure of office of Lieutenant-Governor.
Section 6l–Oaths, etc. of Lieutenant-Governor.
Section 62–Application of provisions referring to Lieutenant-Governor.
Section 67–Administration in absence, etc., of Governor.
Section 101–General Court of Appeal, etc.
Section 102–Creation of Consolidated revenue fund.
Section 103–Expenses of Collection, etc.
Section 105–Salary of Governor General.
Section l06–Appropriation from time to time.
Section 120–Form of payment.
Section 128–Oath of Allegiance, etc.
Section 131–Appointment of new officers.
“The Parliament of Canada Act, 1875”
“The Statute Law Revision Act, 1893”
“The Canadian Speaker (Appointment of Deputy) Act, 1895”
“British North America Act, 1907”
“The Statute Law Revision Act, 1927”
“Order to Her Majesty in Council Admitting all British Territories and Possessions in North America and all Islands Adjacent thereto into the Union.”
“The Statute Law Revision Act, 1927”
Classification No. 2
Section 22–Representation of Provinces in Senate. “In the case of Quebec each of the Twenty-four Senators represen- ing that Province shall be appointed for One of the Twenty-four Elec- toral Divisions of Lower Canada specified in Schedule A to Chapter One of the Consolidated Statutes of Canada”
Section 23–Qualifications of Senator — sub-section 6 only.
Section 60–Salaries of Lieutenant-Governors.
Section 63–Appointment of Executive Officers for Ontario and Quebec.
Section 64–Executive Government of Nova Scotia and New Brunswick.
Section 65–Powers to be exercised by Lieutenant-Governor of Ontario or Quebec with advice or alone.
Section 66–Application of provisions referring to Lieutenant-Governor in Council.
Section 68–Seats of Provincial Governments.
Section 69–Legislature for Ontario.
Section 70–Electoral Districts.
Section 71–Legislature for Quebec.
Section 72–Constitution of Legislative Council.
Section 73–Qualification of Legislative Councillors.
Section 74–Resignation, Disqualification, etc.
Section 75–Vacancies.
Section 76–Questions as to Vacancies, etc.
Section 77–Speaker of Legislative Council.
Section 78–Quorum of Legislative Council.
Section 80–Constitution of Legislative Assembly of Quebec.
Section 82–Summoning of Legislative Assemblies.
Section 83–Restriction on election of holders of offices.
Section 84–Continuance of existing election Laws.
Section 85–Duration of Legislative Assemblies.
Section 86–Yearly Session of Legislature.
Section 87–Speaker, Quorum, etc.
Section 88–Constitutions of Legislatures of Nova Scotia and New Bruns- Wick.
Section 90–Application to Legislatures of provisions respecting money votes, etc.
Section 134–Appointment of executive officers for Ontario and Quebec.
Section 135–Powers, duties, etc, of Executive Officers.
Section 136–Great Seals.
Section 138–As to errors in names.
Section 139–As to issue of Proclamations before Union, to commence after Union.
Section 140–As to issue of Proclamations after Union.
Section 144–Constitution of townships in Quebec.
Classification No. 3
Section 6–Provinces of Ontario and Quebec.
Section 7–Provinces of Nova Scotia and New Brunswick.
Section 94–Legislation for uniformity of Laws in three Provinces.
Section 97–Selection of Judges in Ontario, etc.
Section 98–Selection of Judges in Quebec.
Section 113–Assets of Ontario and Quebec.
Section 114–Debt of Nova Scotia.
Section 115–Debt of New Brunswick.
Section 116–Payment of interest to Nova Scotia and New Brunswick.
Section 118–Grants to Provinces.
Section 119–Further grant to New Brunswick.
Section l24–Lumber Dues in New Brunswick.
Section 126–Provincial Consolidated revenue fund.
Section 129–Continuance of existing Laws, Courts, Officers, etc.
“The Canada (Ontario Boundary) Act, 1889”
“The British North America Act, 1930”
“Order of Her Majesty in Council Admitting Rupert’s Land and the North- Western Territory into the Union”
“Order of Her Majesty in Council Admitting British Columbia into the Union”
“Order of Her Majesty in Council Admitting Prince Edward Island into the Union”
“British North America Act, 1949″(Number 1–Newfoundland)
Classification No. 4
Section 1–Short Title.
Section 3–Declaration of Union.
Section 4–Declaration of Union.
Section 5–Four Provinces.
Section 8–Decennial Census.
Section l2–All Powers under Acts to be exercised by Governor General with advice of Privy Council or alone.
Section 16–Seat of Government of Canada.
Section 21–Number of Senators.
Section 22-Representation of Provinces in Senate.
Section 26-Addition of Senators in certain cases.
Section 27–Reduction of Senate to normal number,
Section 28–Maximum number of Senators.
Section 29–Tenure of Place in Senate.
Section 37–Constitution of House of Commons in Canada.
Section 90—Application to Legislature of provisions respecting money votes, etc.
Section 91–Legislative Authority of Parliament of Canada.
Section 92–In each Province the Legislature may exclusively make laws in relation to Matters coming within the Classes of Subjects next herein- after enumerated; that is to say,
6. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province.
7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.
8. Municipal Institutions in the Province.
9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Pur- poses.
10. Local Works and Undertakings other than such as are of the follow- ing Classes:
(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province;
(b) Lines of Steam Ships between the Province and any British or Foreign Country;
(c) Such works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada or for the Advantage of Two or more of the Provinces.
11. The Incorporation of Companies with Provincial Objects.
15. The Imposition of Punishment by Fine, Penalty, or Imprison~ merit for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumer- ated in this Section.
Section 95–Concurrent powers of Legislation respecting Agriculture, etc.
Section 96–Appointment of Judges.
Section 99–Tenure of office of Judges of Superior Courts.
Section 100–Salaries, etc., of Judges.
Section 107–Transfer of stocks, etc.
Section 108–Transfer of property in schedule.
Section l10–Assets connected with Provincial debts.
Section 111–Canada to be liable for Provincial debts.
Section 112-Debts of Ontario and Quebec.
Section 117-Proviucial Public property.
Section 121–Canadian manufactures, etc.
Section 125–Exemption of Public Lands, etc.
Section 132–Treaty obligations.
Section 146–Power to admit Newfoundland, etc., into the Union.
Section l47–As to Representation of Newfoundland and Prince Edward Island in Senate.
“The British North America Act, 1871”
“The British North America Act, 1886”
“The British North America Act, 1915”
“The British North America Act, 1940”
Classification No. 5
Section 51—New provision as to readjustment of representation in Com- mons.
Section 51A–Constitution of House of Commons.
Section 92–In each Province the Legislature may exclusively make laws in relation to Matters coming within the classes of Subjects next here- inafter enumerated; that is to say :–
1. 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.
2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.
3. The borrowing of Money on the sole Credit of the Province.
4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.
5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.
12. The solemnization of Marriage in the Province.
13. Property and Civil Rights in the Province.
14. The Administration of Justice in the Province, including the Con- stitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
16. Generally all Matters of a merely local or private Nature in the Province.
Section 93–Legislation respecting Education.
Section 133—Use of English and French Languages.
“The British North America Act, 1946”
“British North America Act, 1949” (Number 2–amending procedure)
“British North America Act”– Section 148 — New proposed section con- taining the authority for the amendment of the Act.
Classification No. 6
Section 56–Disallowance by Order in Council of Act assented to by Governor General.
Section 57–Signification of Queen’s pleasure on Bill reserved.
Section 104–Interest of Provincial public debts.
Section 122–Continuance of customs and excise laws.
Section 130–Transfer of officers to Canada.
Section 137–Construction of temporary Acts.
Section 141–Penitentiary.
Section 143–Division of records.
“British North America Act, 1943”
“British North America Act, 1949” (Number 2–Amending Procedure) April 13, 1950.
PROVINCE OF PRINCE EDWARD ISLAND
The Submissions of the Government of the Province of Prince Edward Island as to the proper allocation of the various sections of the British North America Act and other Constitutional Documents, within the groups of classification for Amendment as agreed upon at the Dominion-Provincial Conference held in Ottawa, January tenth, nineteen hundred and fifty, are appended hereto.
J. WALTER JONES
Premier
CHARLOTTETOWN, Prince Edward Island, March 9, 1950.
GROUP ONE
Provisions which concern Parliament only Sections 9-18,20,24,27,30,32-50,52-54,102-108,122-123,131-132, of
B.N.A. Act.
Parliament of Canada Act 1875.
B.N.A. Act, 1886.
GROUP TWO
Provisions which concern the Provincial Legislatures only Sections 58,59,60,61,62,63,64,65,66,67,68,90,96,99,100,110,126.
GROUP THREE
Provisions which concern Parliament and One or MOre but not all of the Provincial Legislatures
Sections 5,6,7,51A (B.N.A. Act 1915, sec. 2),69-88,98,112-120,124,129, 134-144,147, of B.N.A. Act.
B.N.A. Act, 1871, sections 3 and 6.
The Canada (Ontario Boundary) Act, 1889.
B.N.A. Act, 1907.
The P.E.I. Island Subsidy Act, 1912.
The Provincial Subsidies Act, R.S. 1927, Cap. 192.
Maritime Provinces Additional Subsidies Act, 1942.
B.N.A. Act Amendment No.1, 1949.
GROUP FOUR
Provisions which concern Parliament and all of the Provincial Legislatures Sections 1,4,8,21,22,23,28,29,31,51,91,92 with exceptions, 94,95,97, 146 of B.N.A. Act.
B.N.A. Act, 1871, section 2.
B.N.A. Act, 1915, except section 2.
GROUP FIVE
Provisions concerning Fundamental Rights.
Preamble; Section 92, Subsections 12 and 14,93,101 (insofar as it affects the Supreme Court of Canada as a general and final Court of Appeal), 111,121, 125,128,133.
GROUP SIX
Provisions which should be repealed
Sections 3, 19, 55 in part, 56, 57, 130 of the B.N.A. Act.
B.N.A. Act Amendment No. 2, 1949.
PROVINCE OF SASKATCHEWAN
Draft Classification of Provisions of the British North America Acts, 1867-1949, and Other Constitutional Acts Under Headings Adopted by the Constitutional Conference of Federal and Provincial Governments, January 12, 1950
At the final session of the plenary conference it was agreed that the various governments, working independently, would classify the various parts of the pertinent constitutional documents under six specific heads. The following are the six heads agreed upon:
HEAD 1-Provisions which concern Parliament only–Amendment shall be made by an Act of Parliament of Canada.
HEAD 2-Provisions which concern the Provincial-Legislatures only–Amend- ment shall be made by an Act of the Provincial Legislature.
HEAD 3–Provisions which concern Parliament and one or more but not all of the Provincial Legislatures–Provision shall be made for amendment by an Act of the Parliament of Canada and an Act of the Legislature of each of the Provinces affected.
HEAD 4–Provisions which concern Parliament and all of the Provincial Legislatures–Provision shall he made for amendment by an Act of the Parliament of Canada and Acts of such majority of the Legislatures and upon such additional conditions, if any, as may be decided upon.
HEAD 5–Previsions concerning fundamental rights–Amendment by an Act of the Parliament of Canada and Acts of the Legislatures of all the Provinces.
HEAD 6–Provisions which should be repealed.
It was the understanding of the Government of Saskatchewan that the purpose to be achieved by this procedure was to determine to what extent the various governments stood on common ground. It was the further understanding that each government would be provided with copies of the submissions of the other governments, and that the various submissions would receive intensive study by the parties concerned in an endeavour to reach a common under- standing.
It is further understood that the various governments were expected to refrain from expressing opinions in addition to those called for by the problem of classification. For instance, the number of Legislatures whose assent would be required under Head 4 was to be left for future discussion.
The Government of Saskatchewan has made an effort to comply with the understanding noted. The classification that is submitted below represents a considered opinion on the various enactments involved. It should, however, be considered as merely tentative since in the case of many items nothing of a very fundamental nature is involved.
TENTATIVE CLASSIFICATION
The pertinent constitutional documents are classified under heads 1 to 6, so far as this is practicable. In certain cases it seems evident that there should be amendments, or at least consolidations.
HEAD 1–PROVISIONS WHICH CONCERN PARLIAMENT ONLY
The British North America Act, 1867
Section 11. Constitution of Privy Council for Canada.
Section 12. All Powers under Acts to be exercised by Governor General with advice of Privy Council or alone.
Section 13. Application of Provisions referring to Governor General in Council.
Section 14. Power to Her Majesty to authorize Governor General to appoint deputies.
Section 15. Command of Armed Forces to continue to be vested in the Queen.
Section 17. Constitution of Parliament of Canada.
Section 18. Privileges, etc., of Houses.
Section 21. Number of Senators. (As amended by 1915 amendment)
Section 22. Representation of Provinces in Senate. (As amended 1915)
Section 23. Qualification of Senator.
Section 24. Summons of Senator.
Section 26. Addition of Senators in certain cases.
Section 27. Reduction of Senate to normal number.
Section 28. Maximum number of Senotors. (Sec 1915 amendment.)
Section 29. Tenure of Place in Senate.
Section 30. Disqualification of Place in Senate.
Section 31. Disqualification of Senators.
Section 32. Summons on Vacancy in Senate.
Section 33. Questions as to Qualifications and Vacancies in Senate.
Section 34. Appointment of Speaker of Senate.
Section 35. Quorum of Senate.
Section 36. Voting in Senate.
Section 38. Summoning of House of Commons.
Section 39. Senators not to sit in House of Commons.
Section 40. Electoral districts of the four Provinces–1. Ontario. (see Rep- resentation Act 1947.)
Section 41. Continuance of existing Election Laws until Parliament of Canada otherwise provides.
Section 44. As to Election of Speaker of House of Commons.
Section 45. As to filling up Vacancy in Office of Speaker.
Section 46. Speaker to preside.
Section 47. Provision in case of absence of Speaker.
Section 48. Quorum of House of Commons.
Section 49. Voting in House of Commons.
Section 53. Appropriation and tax bills.
Section 54. Recommendation of money votes.
Section 55. Royal Assent to Bills, etc.
Section 56. Disallowance by Order in Council of Act assented to by Governor General.
Section 57. Signification of Queen’s pleasure on Bill reserved.
Section 102. Creation of Consolidated Revenue Fund.
Section 103. Expenses of Collection, etc.
Section 105. Salary of Governor General.
Section 106. Appropriation from time to time.
Section 120. Form of payments.
Sections 128. Oaths of Allegiance (as to that portion which refers to the Senate and House of Commons).
Section 131. Appointment of new officers.
Section 146. Power to admit Newfoundland, etc., into the Union.
The British North America Act, 1871
Section 2. Par1iament of Canada may establish new Province and provide for the constitution, etc, thereof.
Section 4. Parliament of Canada may legislate for any territory not included in a Province.
Section 5. Confirmation of Acts of Parliament of Canada, 32 and 33, Vict., (Canadian) cap. 3, 33 Vict., (Canadian), cap. 3.
The British North America Act, 1886
Section 1. Provision by Parliament of Canada for representation of terri- tories.
Section 2. Effect of Acts of Parliament of Canada.
The Canadian Speaker (Appointment of Deputy) Act, 1895
59 Victoria, Chapter 3.
The British North America Act, 1915
Section 1. Alteration of Constitution of Senate.
HEAD 2-PROVISIONS WHICH CONCERN THE PROVINCIAL LEGISLATURE ONLY
The British North America Act, 1867
Section 70. Electoral districts.
Section 72. Constitution of Legislative Council.
Section 73. Qualification of Legislative Councillors.
Section 74. Resignation, Disqualification, etc.
Section 75. Vacancies.
Section 76. Questions as to Vacancies, etc.
Section 77. Speaker of Legislative Council.
Section 78. Quorum of Legislative Council.
Section 79. Voting in Legislative Council.
Section 80. Constitution of Legislative Assembly of Quebec.
Section 83. Restriction of election of holders of office.
Section 84. Continuance of existing election laws.
Section 87. Speaker, Quorum, etc.
Section 90. Application to Legislatures of provisions respecting money votes, etc., (Except as to disnllowance and reservation of bills)
Section 128. Oath of Allegiance, etc. (As to that portion pertaining to the provinces)
Section 136. Great Seals.
Section 140. As to issue of Proclamation after Union.
Section 144. Constitution of townships in Quebec.
HEAD 3–PROVISIONS WHICH CONCERN PARLIAMENT AND ONE OR MORE BUT NOT ALL OF THE PROVINCIAL LEGISLATURES
The British North America Act, 1867
Section 6. Provinces of Ontario and Quebec.
Section 7. Provinces of Nova Scotia and New Brunswick.
Section 63. Appointment of Executive Officers for Ontario and Quebec.
Section 64. Executive Government of Nova Scotia and New Brunswick.
Section 65. Powers to be exercised by Lieutenant-Governor of Ontario or Quebec with advice or alone.
Section 68. Seats of Provincial Governments.
Section 82. Summoning of Legislative Assemblies.
Section 94. Legislation for uniformity of Laws in three Provinces.
Section 97. Selection of Judges in Ontario, etc.
Section 98. Selection of Judges in Quebec.
Section 109. Property in Lands, Mines, etc.
Section 110. Assets connected with Provincial debts.
Section 111. Canada to be liable for Provincial debts.
Section 112. Debts of Ontario and Quebec.
Section 113. Assets of Ontario and Quebec.
Section 114. Debt of Nova Scotia.
Section 115. Debt of New Brunswick.
Section 116. Payment of interest to Nova Scotia and New Brunswick.
Section 118. Grants to Provinces.
Section 119. Further grant to New Brunswick.
Section 124. Lumber Dues in New Brunswick.
Section 129. Continuance of existing Laws, Courts, Officers, etc.
Section 130. Transfer of officers to Canada.
The British North America Act, 1871
Section 3. Alteration of limits of Provinces.
Section 6. Limitation of powers of Parliament of Canada to legislate for an established Province.
The British North America Act. 1907
Payments to be made by Canada to Provinces.
The British North America Act, 1930
20-21 George V, Chapter 26
An Act to confirm and give effect to certain agreements entered into between the Government of the Dominion of Canada and the Governments of the Prov- inces of Manitoba, British Columbia, Alberta and Saskatchewan respectively. (Natural Resources Agreements).
HEAD 4—PROVISIONS WHICH CONCERN PARLIAMENT AND ALL OF THE PROVINCIAL LEGISLATURES
The British North America Act, 1867
Preamble
Section 1. Short Title.
Section 3~4. Declaration of Union.
Section 5. Four Provinces.
Section 8. Decennial Census.
Section 9. Declaration of Executive Power in the Queen.
Section 10. Application of Provisions referring to Governor General.
Section 16. Seat of Government of Canada.
Section 58. Appointment of Lieutenant-Governor of Provinces.
Section 59. Tenure of office of Lieutenant-Governor.
Section 60. Salaries of Lieutenant-Governors.
Section 61. Oaths, etc., of Lieutenant-Governor.
Section 62. Application of provisions referring to Lieutenant-Governor,
Section 66. Application of provisions referring to Lieutenant-Governor in Council.
Section 67. Administration in absence, etc., of Governor.
Section 91. Legislative Authority of Parliament of Canada.
Section 92. Subjects of exclusive Provincial Legislation. (The whole, except heads 12 and 14).
Section 95. Concurrent powers of Legislation respecting Agriculture, etc.
Section 96. Appointment of Judges.
Section 99. Tenure of office of Judges of Superior Courts. (Possible amendment for age limit).
Section 100. Salaries, etc., of Judges.
Section 101. General Court of Appeal, etc.
Section 108. Transfer of property in schedule.
Section 117. Provincial public property.
Section 121. Canadian manufactures, etc.
Section 125. Exemption of Public Lands, etc. (possibly amended).
Section 132. Treaty obligations. (Suggest amendment to conform to pres- ent situation and give Dominion full powers).
HEAD 5–PROVISIONS CONCERNING FUNDAMENTAL RIGHTS
The British North America Act, 1867
Section 20. Yearly Session of the Parliament of Canada,
Section 50. Duration of House of Commons.
Section 51. New provision as to readjustment of representation in Com- mons. 30 and 31 Vict., c. 3.
Section 51A. Constitution of House of Commons. (1915, 5-6 George V, c. 45, s. 2)
Section 52. Increase of number of House of Commons.
Section 85. Duration of Legislative Assemblies. (Entrench at 5 years with uniform provision for all provinces.)
Section 86. Yearly Session of Legislature. (Entrench and make general like 85.)
Section 92. (12) The Solemnization of Marriage in the Province.
Section 92. (14) 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 these courts.
Section 93. Legislation respecting Education.
Section 133. Use of English and French Languages.
The British North America Act, 1915
Section 2. Constitution of House of Commons. (Section 51A added.)
The British North America Act, 1946
10 George VI, Chapter 63
An Act to provide for the readjustment of representation in the House of Commons of Canada on the basis of the population of Canada. –the whole–
HEAD 6–PROVISIONS WHICH SHOULD BE REPEALED
The British North America Act, 1867
Section 19. First Session of the Parliament of Canada.
Section 37. Constitution of House of Commons in Canada. (See 51)
Sections 69, 71 and 88 and equivalent sections in special Acts should be repealed and replaced by a new general section establishing provincial legislatures; (like sec. 17 for federal parliament).
Section 69. Legislature for Ontario.
Section 71. Legislature for Quebec.
Section 88. Constitutions of Legislatures of Nova Scotia and New Bruns- wick.
Section 90. As to disallowance and reservation of bills.
Section 104. Interest of Provincial public debts.
Section 107. Transfer of stocks, etc.
Section 122. Continuance of customs and excise laws.
Section 123. Exportation and Importation between two provinces.
Section 126. Provincial Consolidated Revenue Fund.
Section 13-1. Appointment of executive officers for Ontario and Quebec. (Covered. by 63)
Section 135. Powers, duties, etc, of Executive Officers.
Section 137. Construction of temporary Acts.
Section 138. As to errors in names,
Section 139. As to issue of Proclamations before Union, to commence after Union.
Section 141. Penitentiary.
Section 142. Arbitration respecting debts, etc.
Section 143. Division of records.
Section 147. As to Representation of Newfoundland and Prince Edward Island in Senate.
(superseded)
The British North America, 1943
7 George VI, Chapter 30
An Act to provide for the readjustment of the representation of the provinces in the House of Commons of Canada consequent on the decennial census taken in the year One thousand nine hundred and forty-one.
OTHER CONSTITUTIONAL DOCUMENTS
A. In regard to the following documents, to wit:–
1. Order in Council admitting British Columbia, 1871.
2. Order in Council admitting P.E.I., 1873.
3. The Manitoba Act, 1870.
4. The Saskatchewan Act, 1905.
5. The Alberta Act, 1905.
6. The B.N.A. Act, 1949 (Newfoundland)
the general rule regarding amendments should be:
I. Insofar as these documents deal with general matters also covered in the B.N.A. Acts, the method of amendment shall be the same as that provided for the letter acts.
E.g., Section 17 of Newfoundland Act Schedule (on education) shall be classified in group 5.
II. If there are provisions in any of these Acts not similar in principle to provisions in the B.N.A. Acts 1867-1946, they shall be classified in group 3.
B. It is believed that other documents may be ignored, as repealed, super- seded or spent.
CLARIFICATION
The following comments are made in order to clarify the position of the province:
(1) In the opinion of this Province an amendment should be procured forth- with confirming the legality of legislative delegation either by a province to the Dominion or vice versa.
(2) It is submitted that it short but emphatic Bill of Rights should be added to the constitution as an entrenched section (Head 5). Such a Bill of Rights should prohibit legislation by Pairliament or a legislature on certain fundamental matters, e.g. abridging freedom of speech or religion or suspending the right to habeas corpus.
(3) It is submitted that the proposal to entrench the amending procedure is unnecessarily inelastic.
(4) It is submitted that the consent of the Senate ought not to be a part of the amending procedure.
(5) With reference to The Statute of Westminster, 1931, and particularly section 7(1) thereof, it is submitted that a Constitution of Canada, embraced in one document, should be written and enacted. As a minimum this would consist of a consolidation of present valid constitutional documents. Section 7(1) would then be repealed.
Submitted on behalf of the Government of Saskatchewan.
J. W. CORMAN
Attorney General
REGINA, SASK., March 1, 1950.
PROVINCE OF ALBERTA
The Province of Alberta submits, for the consideration of the Committee of Attorneys General, the following classification and grouping of the British North America Acts, 1867 to 1949, and other Constitutional Acts or other Constitutional documents relating to Canada.
GROUP 1: Concerning Parliament only.
British North. America Act, 1867
Section 9-16 (Incl.) Executive Powers.
Section 18. Privileges of Houses of Parliament.
Section 24. Summons of Senators.
Section 30. Resignations of Senators.
Section 31. Disqualification of Senators.
Section 32. Summons on Vacancy in Senate.
Section 33. Questions on Qualifications and Vacancies in Senate.
Section 34. Appointment of Speaker of Senate.
Section 35. Quorum of Senate.
Section 36. Voting in Senate.
Section 38. Summoning House of Commons.
Section 39. Senators not to sit in Commons.
Section 44. Election of Speaker in Commons.
Section 45. Vacancy in Office of Speaker.
Section 46. Speaker to Preside.
Section 47. Provision in absence of Speaker.
Section 48. Quorum in Commons.
Section 49. Voting in Commons.
Section 53-54 (Incl.) Money Votes.
Section 100. Salaries, of Judges.
Section 101. General Court of Appeal.
Section 102-103 (Incl.) Consolidated Revenue Fund.
Section 105. Salary of Governor General.
Section 106. Appropriation for Public Service.
Section 131. Appointment of new officers.
Other Acts and Orders-in-Council:
Rupert’s Land Act, 1868.
The Parliament of Canada Act. 1875, (Validating Oaths Act).
The Statute Law Revision Act, 1893.
The Statute Law Revision Act, 1927.
The Canadian Speaker (Appointment of Deputy) Act, 1895.
Her Majesty’s Order-in-Council admitting Rupert’s Land and the Northwest Territory.
Her Majesty’s Order-in-COuncil annexing Islands and Territories.
The Marriage and Divorce Act (R.S. 1927, c. 127) amendment of 1932. (chapter 10).
The Divorce Jurisdiction Act, 1930.
GROUP 2: Concerning Provincial Legislatures Only.
British North America Act, 1867
Section 58. Appointment of Lieutenant-Governor of Provinces.
Section 59. Tenure of Office of Lieutenant-Governor.
Section 60. Salaries of Lieutenant-Governor.
Section 61. Oath of Office of Lieutenant-Governor.
Section 62. Application of Provisions to Lieutenant-Governor.
Section 67. Administration in absence of Lieutenant-Governor.
Section 92(1) Amendment of provincial constitution except as regards office of Lieutenant-Governor.
GROUP 3: Concerning Parliament and one or more but not all the Provincial Legislatures.
British North America. Act, 1867
Section 6. Ontario and Quebec oonstituted.
Section 7. Affecting Nova Scotia and New Brunswick.
Section 23(6) Real property qualification of Senate in Quebec.
Section 63. Appointment of Executive Council of Ontario and Quebec.
Section 64. Affecting Nova Scotia and New Brunswick.
Section 65. Affecting Ontario and Quebec.
Section 68. Seats of Government, Ontario, Quebec, Nova Scotia, and New Brunswick.
Section 69. Providing a Legislature for Ontario.
Section 70. Providing Electoral Districts for Ontario.
Section 71-80 (Incl.) Relating to Legislature of Quebec.
Section 82-87 (Incl.) Relating to Ontario and Quebec.
Section 88. Relating to Nova Scotia and New Brunswick.
Section 97. Selection of Judges in Ontario, Nova Scotia and New Brunswick.
Section 98. Selection of Judges in Quebec.
Section 114. Limitation of debt of Nova Scotia.
Section 115. Limitation of debt of New Brunswick.
Section 116. Payment of interest to Nova Scotia and New Brunswick re public debts.
Section 118. Grants to Provinces.
Section 119. Grant to New Brunswick.
Section 120. Form of payment to Provinces.
Section 124. Lumber dues in New Brunswick.
Section 129. Continuing of existing laws in Ontario, Quebec, Nova Scotia and New Brunswick.
Section 138. As to errors in names.
Section 143. Division of records, Ontario and Quebec.
Section 144. Constitution of Townships in Quebec.
Section 147. As to Representation of Newfoundland and Prince Edward Island.
Section 6 of the British North America Act, 1871 (as to alterations of the boundaries of Manitoba).
The Canada (Ontario Bounrlary) Act, 1889.
Her Majesty’s Order-in-Council admitting British Columbia.
Her Majesty’s Order-in-Council admitting Prince Edward Island.
All of the Acts of Canada as shown on page 6 of the Table of Contents in “British North America Acts and Selected Statutes, 1867-1948.”
These Acts are Acts of Canada passed pursuant to the British North America Act and constitute the constitutions of various Provinces and agreements between Canada and the various Provinces. Most of these Acts were ratified by the United King~ dom Parliament.
The British North America No. 1 Act, 1949, relating to the union of Newfoundland.
GROUP 4: Concerning Parliament and all of the Provincial Legislatures.
British North America Act, 1867
Section 1. Short Title.
Section 3. Declaration of Union.
Section 5. Division of Canada into four Provinces.
Section 8. Decennial Census.
Section 16. Seat of Government at Ottawa.
Section 17. Constitution of Parliament of Canada.
Section 20. Yearly Session of Parliament.
Section 21. Number of Senators.
Section 22. Representation of Provinces in Senate.
Section 23. Except (6) Qualification of Senator.
Section 26. Addition of Senators.
Section 27. Reduction of Senate.
Section 28. Maximum number of Senators.
Section 29. Tenure of place in Senate.
Section 37. Constitution of Commons.
Section 40. Electoral Districts in four Provinces.
Section 50. Duration of House of Commons.
Section 52. Increase in number of House of Commons.
Section 66. Provisions referring to Lieutenant-Governor.
Section 91. Legislative authority of Parliament.
Section 92. Legislative authority of Provinces except Section 12.
Section 94. Uniformity of Laws in Provinces.
Section 95. Concurrent Powers re Agriculture.
Section 96. Appointment of Judges.
Section 99. Tenure of Office of Judges.
Section 109. Property in Lands, etc.
Section 111. Canada to be liable for Provincial debts.
Section 112. Liability of Ontario and Quebec to Canada.
Section 117. Provincial public property.
Section 121. Articles of Growth to be admitted free into Provinces.
Section 125. Exemption Public land from Taxation.
Section 128. Oath of Allegiance of Members of Senate and Commons and Legislatures.
Section 132. Treaty obligations.
Section 146. Admission of new areas.
Other Acts:
The British North America Act 1871 (except section 6), Establishment of new Provinces.
The British North America Act 1886 (Representation of Territories).
The British North America Act, 1907 (Provincial subsidies).
The British North America Act, 1915, (Alteration of the Constitu- tion of the Senate).
The Statute Law Revision Act, 1927.
The British North America Act, 1930 (Agreements with Western Provinces) .
The British North America Act, 1940 (Unemployment Insurance).
The British North America Act, 1943 (Readjustment of representa- tion).
The British North America Act, 1946 (Readjustment of representation).
The Statute of Westminster, 1931.
GROUP 5: Concerning Fundamental Rights
British North America Act, 1867
Section 51. Decennial readjustment.
Section 51A Representation in House of Commons.
Section 92(12) Solemnization of Marriage in the Province.
Section 93. Education. Relevant sections of other Federal Acts relating to Education.
Section 133. Use of English and French language. Method of Amendment of the British North America Act as herein set forth.
GROUP 6: Provisions which should be repealed. Sections of Act to be repealed:
(1) All sections of the Act the force of which has been spent.
(2) Section 55–Withholding Royal Assent.
Section 56–Disallowance.
Section 57–Rescrvation of Bills.
Section 90–Powers of Governor General re disallowance and reservation.
British North America (No. 2) Act, 1949.
PROVINCE OF NEWFOUNDLAND
The Province of Newfoundland has not been part of the Dominion for a sufficiently long time to be able to determine, in the light of experience, the proper distribution of all of the provisions of the British North America Acts.
We have, however, endeavoured to tabulate the various sections as suggested in the Report of the Attorneys General, but in many cases we would be prepared, after discussion, to agree to such reclassification as the other Provinces, as a result of their longer experience, might recommend.
LESLIE R. CURTIS,
Attorney General of Newfoundland.
HEAD 1
8
10-18 both inclusive.
20
23 (except 6)
24
30-32 both inclusive.
36
38
39
44-54 both inclusive.
102
103
105
106
120
122
125 (Canada)
128 (Canada)
131
146
(1871) 2, 4.
(1875) 2.
(1886) 1..
(1895) 1.
HEAD 2
63-65 both inclusive.
68
69-88 both inclusive.
109
113
125 (Provinces)
126
128 (Provinces)
134-136 both inclusive.
138-140 both inclusive.
144
HEAD 3
6
7
23 (6)
94
97
98
111
112
114-118 both inclusive.
124
129
143
(1871) 3, 5, 6.
(1907) 1.
(1930) 1 and 2.
HEAD 4
3
4
5
9
21
22
26-29 both inclusive.
58-62 both inclusive.
66
67
90
91
92
95
96
99-101 both inclusive.
132
147
(1915) 1.
HEAD 5
93
121
133
HEAD 6
19
37
40
55-57 both inclusive.
104
107
108
110
119
123
130
137
141
142
(1886) 2.
(1943) 1.
Proposed arrangement of provisions of Terms of Union of Newfoundland with Canada contained in the Schedule to the British North America Act, 1949.
HEAD 1
6
11 (a)
12
36
HEAD 2
10
11 (b)
13
14
15
37
HEAD 3
3
4
5
18
20
21
22
23
24
25
26
27
28
29
31
32
33
84
35
38
39
40
41
42
44
45
47
49
HEAD 4
8
30
HEAD 5
1
2
7
9
17
43
46
48
50
HEAD 6
16
19
APPENDIX V
Press Statement
The Constitutional Conference of Federal and Provincial Governments has discussed at Ottawa and in Quebec City the constitutional position and the pro- cedure by which amendment of the present constitution could be effected in Canada.
The Conference has had a full and frank discussion of the principles applic- able to such a general amending procedure and has reached agreement on many of them. Its members are unanimously of the opinion that substantial progress has been made and are exceedingly gratified at the spirit of harmony and co- operation which has been shown by all delegates throughout the whole of the proceedings.
Important sections of the Constitution involving what are considered funda- mental and basic rights of the provinces were studied at length and considerable progress towards agreement has been made. Various formulae for amendment were submitted which, while having in view the safeguarding of these basic rights, would assure adequate flexibility in the constitution.
The Conference has requested the Continuing Committee of Attorneys General to study the proposals which it received with a view to arriving at an amending procedure satisfactory to all governments concerned. The Continuing Committee met to-day in the late afternoon and agreed that the Provincial Attorneys General and the Minister of Justice would exchange views by corre- spondence leading up to a meeting to be held at Ottawa on November 13, 1950 in order that the matters referred to it might be further considered and a report prepared for submission to a third plenary session of the Constitutional Confer- ence to be held immediately after the Federal-Provincial Conference on fiscal and other matters which is to meet in Ottawa on December 4, 1950.
The Continuing Committee has also hccn authorized to study the methods and techniques whereby a Canadian Constitution can be domiciled in Canada as a purely Canadian instrument.
QUEBEC: 9.00p.m. September 28, 1950.
INDEX
ALBERTA, see Manning, Hon. E. C.
Submission to Committee of Attorneys General, 124
AMENDMENTS TO THE CONSTITUTION
Amending clause, see Constitution British North America Act, see that title, see also Constitution Civil Rights, see under this title, Property and Civil Rights Constitution, see that title Delegation of powers, 36 Disallowance, 25, 26 Entrenched clauses, 35, 36, 40 Federal government, powers of, 34, 35 Fundamental rights, 7, 24, 35, 48 Markets and marketing, 34 Old age pensions, 46 Ontario formula for, 15-17, 27, 29, 33, 48 Property and civil rights, 26, 27, 34, 35, 48 Provinces, see that title Rigidity, 35, 36 Social security, see that title United Kingdom, 22
ATTORNEYS GENERAL, see Committee of Attorneys General
AUTONOMY, 44, 45
BRITISH COLUMBIA, see also Johnson, Hon. Byron I. Submission to Committee of Attorneys General, 112
BRITISH NORTH AMERICA ACT, see also Constitution
Amendment, 1949, No. 2, 12 Amendment, lack of procedsure for, 28, 47 Groups of provisions falling under various methods of amendment, 10, 11, 24, 52, see also Constitution, division of Making it a Canadian document, see Constitution Repeal of sections, 38
CAMPBELL, Hon. DOUGLAS L. (Premier of Manitoba), 22, 51, 62
Amendment, method of, 23, 24 Category (4), procedure for, 24 Classification of sections for amendment, 24 Conference, procedure of, 51 Constitution a Canadian document, 51 Crown property, taxation of, 25 Disallowance, 25, 26 Flexibility, 27 Fundamental rights, 24 Judges, appointment of, 25 Ontario formula for amendment, 27 Property and civil rights, 26, 27
CIVIL RIGHTS, see Amendments to the Constitution
CLASSIFICATION OF PROVISIONS, for purpose of amendment, see Constitution
COMMITTEE OF ATTORNEYS GENERAL
Briefs submitted to, Canada, 86; Ontario, 92; Quebec, 98; Nova Scotia,100; New Brunswick, 107; Manitoba, 108; British Columbia,112; Prince Edward Island, 117; Saskatchewan, 118; Alberta, 124; Newfoundland, 127
Created, 9 Report, January 1950, 9 September, 1950, 10, 76
CONSTITUTION OF CANADA
Amending clause, requirements, 21, 23, 24, 30, 31, 37, 64 Amending procedure, Category (4), 24, 30, 52 Amendment, participation of provinces, 39 Ontario formula for, 15-17, 27, 29, 33, 48 Compact, a, 44. Division of, for purpose of amendment, 10, 11, 24, 52 Briefs submitted concerning, see Committee of Attorneys General Establishment of in Canada, 7, 12, 18, 20, 21, 22, 32, 33, 37, 38, 40, 43, 45, 47, 49, 51 Federal character of, 7, 37, 45, 60 Flexibility of, 35, 36 New, establishment of as a pact, 44
CONSTITUTIONAL CONFERENCE
Future meeting, 63 Procedure of, 43, 48, 49, 50, 51, 52, 53, 54 Progress of, 8, 13-15, 19, 30, 33, 35, 60, 64 Purpose of, 7, 15, 19, 20, 47
DELEGATION OF POWERS, 36
DIVISION OF CONSTITUTION, for purpose of amendment, sec Constitution, Division of
DOUGLAS, Hon. T. C. (Premier of Saskatchewan), 32, 52, 54, 64
Amending procedure, considerations, 64 Category (4), procedure for, 52 Conference, procedure of, 52, 54 progress of, 33, 35, 64 Constitution, a Canadian document, 32, 33 Delegation of powers, 36 Entrenched clauses, 35, 36 Flexibility, 35, 36 Fundamental rights, 35 Marketing, 34 Ontario formula for amendment, 33 Powers of federal government, 34, 35 Price controls, 34 Property and civil rights, 34, 35 Provinces, lack of protection for, 36 Social security, 34
DUPLESSIS, Hon. MAURICE (Premier of Quebec), 5, ll, 44, 50, 53, 68
British North America Act, amendment, 1949, 12 Conference, procedure of, 50, 53 Constitution, establishment in Canada of, 12, 45 a compact, 44: federal character of, 15 Fiscal powers, 45 Old age pensions, 46 Property and civil rights, 44 Provincial autonomy, 44, 45 Social security, 44, 46
ENTRENCHED CLAUSES, see Amendments to the Constitution
FEDERAL CHARACTER OF CONSTITUTION, 7, 37, 45, 60
FEDERAL GOVERNMENT, powers of, 34, 35
FINANCES, provincial, 45
FROST, Hon. LESLIE M. (Premier of Ontario), 12, 46, 58
Amending procedure, need for, 47 Amendment, formula for 15-17, 48 Conference, procedure of , 48, 49 progress of, 13, 1 15 purpose of, 15, 47 Constitution a Canadian document, 47, 49 Fundamental rights, 48 Provinces, lack of protection for, 47
FUNDAMENTAL RIGHTS, see Amendments to the Constitution
GARSON, Hon. STUART S. (Minister of Justice), 8
Committee of Attorneys General Report, January 1950, 9 Report, September 1950, 10 Sections of B.N.A. Act, disposition of, 10, 11
JOHNSON, Hon. BYRON I. (Premier of British Columbia), 28, 63
Amending procedure, need for, 28 Conferenrce, future meeting, 63 Ontario formula for amendment, 29
JONES, Hon. J. WALTER (Premier of Prince Edward Island), 29, 64
Amendmemt, procedure for, 30, 31 Category (4), procedure for, 30 Conference, progress of, 30 Prince Edward Island, communication with mainland, 29, 31, 32
LEGISLATURES, constitution of, 11
MACDONALD, Hon. ANGUS L. (Premier of Nova Scotia), 18, 59
British North America Act, character of, 60 Conference, progress of, 19, 60 Purpose of conference, 19
MCNAIR, Hon. JOHN B. (Premier of New Brunswick), 19, 50, 61
Amendment, formula for, 21 Canada, position of, 61 Conference, procedure of, 50 purpose of, 20 Constitution a Canadian document, 20, 21, 22 United Kingdom parliament, suggested legislation, 22
MANITOBA, see also Campbell, Hon. Douglas L. Submission to Committee of Attorneys General, 108
MANNING, Hon. E. C. (Premier of Alberta), 36, 53, 65
Amendment, procedure for, 37 participation of provinces, 39 British North America Act, provisions to be repealed, 38 Conference, procedure of, 53 Constitution, characteristics of, 37 a Canadian document, 37,38
NEW BRUNSWICK, see also McNair, Hon. J, B. Submission to Committee of Attorneys General, 107
NEWFOUNDLAND, see also Smallwood, Hon. J.R. Submission to Committee of Attorneys General, 127
NOVA SCOTIA, see also Macdonald, Hon. Angus L. Submission to Committee of Attorneys General, 100
OLD AGE PENSIONS, 46
ONTARIO, see also Frost, Hon. Leslie M. Submission to Commititee of Attorneys General, 92
PARLIAMENT, composition of, 43
PRESS, statement to, 57, 67
PRIME MINISTER OF CANADA, addresses, see St-Laurent, Right Hon. L.S.
PRINCE EDWARD ISLAND, see also Jones, Hon. J. Walter
Communication with mainland, 29, 31, 32 Submission to Committee of Attorneys General, 117
PROCEDURE OF AMENDMENT, see Constitution, division of
PROPERTY AND CIVIL RIGHTS, see Amendments to Constitution
PROVINCES
Autonomy of, 44,45 Lack of present protection for, 36,47 Legislatures, constitution of, 11
QUEBEC, see also Duplessis, Hon. Maurice Submission to Committee of Attorneys General, 98
REPRESENTATIVES attending conference, list of, 75
ST-LAURENT, Right Hon. L. S. (Prime Minister of Canada), 6, 11, 43, 50, 53, 54, 57, 67
Committee of Attorneys General, 8 Conference, procedure of, 43, 50, 53, 54 progress of, 8 purpose of, 7 Constitution a Canadian document, 7, 18, 43 Federal character of the Constitution, 7 Fundamental rights, 7 Legislatures, provisions concerning, 11 Parliament, composition of, 43 Quebec Act, 1774, 6 Statement to the press, 57, 67
SASKATCHEWAN, see also Douglas, Hon. T.C. Submission to Committee of Attorneys General, 118
SMALLWOOD, Hon. J. R. (Premier of Newfoundland), 39, 51, 66
Conference, procedure of, 52 Constitution a Canadian document, 40, 51 Entrenched clauses, 40 Social security, 40
SOCIAL SECURITY, 34, 40, 44, 46
UNITED KINGDOM, possible legislation, 22