Constitutional Conference, A Briefing Paper on Discussions within the Continuing Committee of Officials (12 December 1968)

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Date: 1968-12-12
By: Secretariat of the Conference (E. Gallant)
Citation: Constitutional Conference, A Briefing Paper on Discussions within the Continuing Committee of Officials (12 December 1968).
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A Briefing Paper


Discussions within the Continuing Committee of Officials

December 12, 1968.

To the Members of the Continuing Committee of Officials

I am pleased to forward this briefing paper on
the discussions which have taken place in the Committee
and in hhe Sub-Committee on Official Languages concerning.
the subjects referred to the Committee by the first

meeting of the Constitutional Conference.

E. Gallant,
Secretary of the
Constitutional Conference.

Table of Contents Page No.

Introduction. 1
The use of propositions. 5
The object of the constitutional review. 5
[The objectives of Confederation. 6
General principles of the Constitution. 12
Official languages. 25
Fundamental rights. 56
Distribution of powers. 4;
The constitution of the central governmentr 57
The constitutions of provincial governments 62
The constitution of the judicial system 64

Regional disparities. 66


The purpose of this briefing paper is to
provide each government with a summary description
of the discussions which have so far taken place
within the Continuing Committee of Officials and
its Sub-Committee on Official Languages on the
questions referred to the Committee by the Gonsti-
tutional Conference in February, 1968. The paper
concentrates on identifying the main points of view
and ideas which arose during these discussions. In
the interests of brevity, many shades of meaning
and auxiliary or illustrative points which were
brought out during these meetings of officials have

not been recorded here.

This paper was prepared by the Secretariat
working in close consultation with the Continuing
Committee. while an attempt was made to reflect as
closely as possible the views and comments expressed
by the members of the Committee, responsibility for
the document rests with the Secretary of the Constitu-

tional Conference.


In its Report to the Constitutional Conference

the Continuing Committee explains that it decided to try

an approach to constitutional review which would facilitate
a systematic examination of all aspects of the Constitution.
This’opproaoh called for the submission of “propositions”
by the various delegations which would suggest objectives,
principles and provisions to be reflected in the constitu-
tional arrangements. As the Committee emphasizes in its
Report, “these propositions were not to be taken to
represent at this stage firm or final positions of the

governments concerned nor were they to be regarded as

comprehensive, but they were intended to give an indication

of the thinking within the several governments concerning
the views, needs and aspirations of Canadians across the
country which should be taken into account during the


A large number of propositions were received and
distributed by the Secretariat, and these were classified
by relating them to the basic concepts they involved, and
by grouping them within a number of major categories.
(These categories were listed in the Continuing Committee’s
Report and are reproduced in the Appendix to this paper).
The Committee, to date, has had exploratory discussions
on most of the subjects oovered by the constitutional
review. These discussions were based primarily on the
propositions received by the Committee and generally

followed the classification mentioned above.

These discussions have proceeded in advance of
any consideration of amending procedures. However, the
Committee recognized that amending procedures would have
direct relevance to a number of the questions which have

been discussed. Indeed, it was observed that the position

of some governments on certain issues mighu depend, in
part, on the nature of the amending formula which would

be developed at a later stage.

The following sections attempt to report the
gist of the Committee’s discussionsto date in the order
indicated in the proposed agenda for the second meeting

of the Constitutional Conference.


A number of propositions were submitted which
were concerned with the nature and purpose of the consti-
tutional review itself. The Continuing Committee’s
discussion on this subject is reflected in the Committee’s
Report to the Constitutional Conference in which different
interpretations of the object of the review are described,
a possible approach to the exercise is outlined, and a
specific request is made for direction from the Conference.
A summary of this discussion in this briefing paper would

be largely repetitive, and so is not included.


A number of working propositions expressed some
of the fundamental reasons why Canadians want Canada to
exist as a country. Such propositions might not call for
explicit or detailed expression in the Constitution,
although the ideas they express about the broad objectives
of Confederation might suitably be incorporated in a pre-
amble to a written constitution. In any event, the point
of view has been advanced that the fundamental purposes of
a country and its people lie behind its constitution and
should be the basis on which the essential elements of the

constitution rest.

The varied and often conflicting objectives set
forth in this group of propositions can be summarized as

(a) To promote Canadian social, cultural and
economic development, and the general welfare
of and equality of opportunity for all

(b) To promote the full development of all regions
of Canada.

(c) To promote Canadian unity.

(d) To ensure cultural equality for the two founding
linguistic communities or two nations.

(e) To assert the multicultural character of Canada
and to develop a nation in which all Canadians,
without regard to race, colour, creed, or ethnic
origin, can find anywhere in Canada full satis-
faction in their citizenship and maximum
enjoyment from their particular linguistic and
cultural heritage.

(f) To ensure that the union of the provinces will
be maintained while keeping the constitutional
linguistic provisions in their present form.

(g) To ensure the fullest development of Canada’s
linguistic duality.

(h) To ensure the fullest realization
rights and freedoms of all Canadians.

(i) To maximize the contribution of Canadians to
world peace and security and to promote the
social, cultural and economic progress of the
world society.

Summary of questions which emerge –


while the above summary statement may be taken to
reflect the main views which have been submitted
concerning the broad objectives of Confederation,
it clearly cannot be taken to imply agreement on
these objectives. In addition to the sharp
differences which were expressed about some of the
objectives themselves, discussions in the Committee
suggest that views may differ about the exact meaning
of these objectives or about the best means of
achieving them. These more precise questions are the
subject of propositions which follow in other cate-

gories, concerning matters which are to find

expression in the Constitution.

2. The Committee’s discussions of this category of
propositions revealed marked differences of views in

respect of objectives (d), (e), (f) and (g).

– One View indicated outright opposition to any con-
cept of “two founding linguistic communities” or
“linguistic duality”, or any thought that the
Constitution should recognize as objectives the
ensuring of cultural equality of the two founding
linguistic communities or the development of

linguistic duality. According to this view,

sub-paragrephs (e) and (f) express more appro-

priate objectives for Canada.

– An opposing point of view stressed that the
objectives (d) and (g) must be reflected in the
Constitution, in recognition of the realities

which exist in Canada, today. According to this

view, Canada is composed of two main linguistic
and cultural communities (which were described
by some as “two nations”). It was argued that
one of these groups has not always received
equitable treatment in the past, and that the
objective of equitable treatment of both groups

in future must be accepted if Canada is to continue

as a viable country.
– Another View is that both the notion of “two

founding linguistic communities” and the concept
of “cultural equality” lack the precision of
meaning that would be required for these to be
placed in a yreamble to the Constitution; for
example, how could a collectivity such as a
“linguistic community” be defined – would it be
based on geography, ethnic origin, or language of
expression, and who would be assumed to be the

spokesman for that collectivity?

– A further View is that the Constitution should not
make direct reference to the fact of Canada’s two
major linguistic communities in terms of collecti-
vities of people, but rather in terms of certain

fundamental rights of individuals.

3. Preliminary discussion in the Committee concerning the
two objectives “equality of opportunity for all Cana-
dians” and “full development of all regions of Canada”
suggests that these would have to be defined very
carefully to point out clearly the potential implica-
tions of different possible interpretations. For
– Is the term “regional disparity” meant to refer

to the differences from one region to another

in the quantity and quality of public services,

in per capiba personal income, in relative rates

of economic growth and development, or is it
meant to refer to other measures of the welfare

of individual Canadians?

– when “equality” for individual Canadians is
spoken of as a desirable goal, is this meant
mainly to imply “equality of opportunity”, or
does this also include the notion of equality
of public services, equality of personal income,
and an equality of economic conditions in

whichever region individual Canadians may live?

– would the Objectives of “equelity of opportunity”
and “full development of all regions” be under-
stood as relating to equal opportunity for
collectivities of Canadians or for individual

– Should the problem of “regional disparity” be
tackled by stressing equality for provinces or
regions, or by giving first emphasis to equality
for individual Canadians?

The answers to these questions could have far-reaching

implications in respect of such elements of the Consti-

tution as fundamental rights and the distribution of


4. with reference to the objective enunciated under sub-

paragraph (h) concerning fundamental rights, the

following questions seem likely to arise:

– Does the objective imply the recognition of
collective as well as individual rights and

– Should language rights be included in basic

– Should basic rights and freedoms be guaranteed

and, if so, how?

Discussions within the Continuing Committee on these

que one are summarized in later sections of this


5. Propositions related to objective (i) reflecb the
thought that, when defining its objectives, the
country should not only look inwardly but should also
consider Canada’s place and role in the world


6. Discussions in the Committee suggest that semantic difficulties
could pose a key problem for this exercise. without
minimizing the importance of the differences of views
which do exist on questions of substance, the
Committee’s discussions relating to objectives of
Confederation also revealed that such terms as “nation”,
“culture”, “national unity”, “regional disparity” and
“equality of opportunity”, are susceptible to different
interpretations. Because of this, differences of views
could, at times, appear to be greater than they really
are. Preliminary discussion of propositions related
to these objectives confirmed the desirability of
seeking a clarification of their meaning and of the

implications which might flow from them.

The View was cxprossed by some members of the Committee
that the Conference might usefully consider the possi-
bility of providing in a preamble to the Constitution
a general statement of the purposes which the federa-
tion is designed to serve. It was suggested that such
a preamble could also serve to facilitate the inter-
pretation of the Constitution. At the same time, it
was recognized that great care would have to be taken
in the wording of such objectives in a preamble.

Serious difficulties could arise if, for example, the

wording of one or the other of these objectives were

to result in transferring to the courts the kind of
judgments which would more properly be made through

political processes.


In this category, the Secretariat grouped pro-
posiuions chat exoross principles which, if accepted,
would underlie the Constitution. These principles go
farther than the objectives of Confederation, in that they
would influence directly the form and content of the
Constitution, even though they might not relate directly
to specific provisions within the Constitution, as do

propositions in subsequent categories.

The main points which arose in the discussion
of the general principles could be grouped under five

A. The form of government

B. The status of governments

C. Fundamental rights and official languages
D. Intergovernmental relations

E. Other

The general principles under sub-heading C
relate directly to specific subject areas which are
reported on in sections VI and VII of this paper and, for
convenience of presentation, a summary of the discussion
of these general principles is incorporated in those
sections. The major points which arose in the Committee’s
discussion of “general principles of the Constitution”
under sub-headings A, B, D and E above are summarized in

the following paragraphs.

A. The Form of Government

General Principles:

The following outline of general principles was
formulated by the Secretariat for the purpose of expressing
as concisely as possible the basic ideas contained in or
implied by propositions concerning the form of government
in Canada. It should be emphasized that the statement of
these principles does not imply agreement with them by all
members of the Committee. Indeed, some of the principles
express opposite ideas. Also, it should be noted that the
principles necessarily express the ideas more abruptly than
is usually the case in the propositions themselves. For
example, the tenor of the propositions suggesting alterna-
tives to the present situation (republic, congressional
system) was that consideration should be given to these

(1) The Constitution shall provide for 5 sovereign

(2) The Constitution shall provioe for a federal
system of government.

(3) The Constitution shall provide for Canada to
be a monarchy.

(4) The Constitution shall provide for Canada to
be a republic.

(5) The Constitution shall provide for a parliamentary
system of government.

(6) The Constitution shall.provide for a congressional

system of government.

Summary of Discussion
1. The first principle was taken to be obvious for the
Canadian situation and unlikely to give rise to



2. while the second principle seemed also to be readily
acceptable in the Canadian situation (no government
has asked that the alternative of a unitary state he
considered), there were some basic differences of
interpretation. Two different points of view con-
cerning the process by which Canada assumes the
federal form seemed to emerge in discussions of
Canadian federalism. One View is that the people of
Canada as a whole decide that their country shall be
of a federal form, A contrasting view is that the
member states decide to join together as a country,
with a central government having certain functions to
carry out on behalf of all of them. An elaboration of
the latter View is that Canada should be thought of at
the same time as a federation of states and an associa-

tion of two linguistic communities.

3. Propositions relating to the alternatives of retain-
ing the monarehical system or adopting a republican
form were submitted (principles 3 and 4, above). These
propositions seem to indicate that while opposition

to a change exists in some parts of the country,

other parts believe that serious consideration should

at least be given to the alternative. It seems apparent
that symbolic factors associated with these forms are

of great significance in Canada.

4. Propositions relating to the alternatives of retaining
a parliamentary system or adopting a congressional
system were also submitted (principles 5 and 6, above).
Again, these propositions seem to suggest that views
across the country vary, with considerable opposition
to change, but with one View that the possible
advantages of a different system should at least be

explored. During discussions in the Committee for the

purposes of clarifying the intent of those propositions,

certain points arose:

(a) It was observed that certain advantages and disadvan-
tages could be identified with either form of government,
and one View was that it would be appropriate, during the
constitutional review, to try to assess these in relation
to the Canadian situation.

(b) The point was made that one form of government might
be preferable for the federal government while the other
form might be better suited to the situation in certain
provinces. This raised the question as to whether or not
it would be desirable to have different forms of govern-
ment operating within the country. In this connection,
it was suggested that advantages which might be gained
from a mixed system should be weighed against the
disadvantages resulting from the loss of a common
institutional framework and a common language of

(o) A question also arose as to whether or not there
should be any constitutional limitation of the freedom

of a province to choose its form of government. One point
of View suggests that the province should have complete
freedom of choice; another View is that it would be
desirable to provide some constitutional protection against
unilateral change by a government of the political institu-
tions within a province, just as this protection ought to

be given in respect of central government institutions.

B. The Status of Governments

General Principles:

The basic ideas contained in propositions which

related to the status of governments were expressed by the

Secretariat in the following general principles:

(1) The Constitution shall provide for a strong
central government representing and speaking

for all Canadians.

(2) The Constitution shall provide for strong
provincial governments capable of dynamic
development of the human and natural potential
within their jurisdiction.

(3) The Constitution shall provide for the

primacy of the central government.

(4) The Constitution shall provide for the
constitutional equality of all governments
within their spheres of jurisdiction.

(5) The Constitution shall take into account the
fact that Quebec has a special role to play

in bringing about cultural equality.

Summary of Discussion:


The first two principles did not give rise to much
debate in the Committee. while they might seem to
be mutually exclusive at first sight, the View was
expressed that they can be quite compatible goals,
implying that each level of government must have
certain tasks of significance to perform along with
the resources required to carry out these functions.
It was suggested in the Committee, however, that

Canada seems to be facing what is so far a rather

unique problem of federalism – the definition of a

federal structure to accommodate a strong central
government and strong provincial governments at

the same time.

There was considerable discussion within the
Committee concerning principles (3) and (4), since
these do not seem to be compatible and are subject

to a wide range of interpretation. The main features

of this discussion are summarized very briefly below:

(a) It was suggested that “primacy of the central
government” might be taken to imply only that the
central government is different in character from
provincial governments, since it speaks for and
represents all Canadians at the some time. On the
other hand, the expression might also imply a degree
of subordination of provincial governments to the
central government, or even that the constitutional
functions of the former ought to be subject to some

supervision by the latter.

(b) There is a range of possible interpretations
for the expression “constitutional equality of all
governments”. The expression might imply exclusion
of one level of government from a role in the areas
constitutionally assigned to the other level of
government, and consultation among equals concerning
matters of overlapping interests. A less sweeping
interpretation might be that all governments are
equally subject to the Constitution and to the
interpretation of the courts when questions concerning

the definition of jurisdiction arise.

(C) A view was expressed in the Committee that;

because of the range of possible interpretations, it
would be difficult to make specific provisions in the
Constitution for either “primacy” or “constitutional

equality”. However, some form of interpretation might

eventually appear through the resolution of specific
questions regarding the’distribution of powers and

other aspects of the Constitution.

(d) The observation was made that the question of

paramountcy in areas of shared or concurrent Juris-

diction was a related issue, and that if the Constitu-
tion did not include a definition of paramountcy,
the Courts would have to provide one. At the same
time, it was suggested that the question of para«
mountoy need not be equated with that of status,
since paramountcy’in respect of a particular field

could be assigned to either order of government.

In the discussion of the above-montioned principle (5)
concerning a special role for Quebec, the following

main points were raised:

(a) The point of view underlying this principle was
that account must be taken of the existing demographic
situation: a French-speaking minority in Canada, and
in North America, largely concentrated within the
borders of one province. For this reason, it was
argued, the constitutional arrangements must make it
possible for the Government of Quebec to fulfill a
special role in insuring the survival and development
of French-Canadian culture and way of life. This
did not mean that the federal government should have

no role with respect to French-speaking Canadians;
indeed, the reflection of ihe bicultural fact in federal
institutions was regarded as very important. Nor did
this point of view imply that Quebec should have responsi-
bilities for French-speaking Canadians in other provinces.
However, it was argued that the key to the survival of
French-speaking culture in Canada would depend primarily
on what was done within the only province which had a

majority of French-speaking Canadians. This implied,

in turn, an allocation of powers to the Government
of Quebec which would enable it to meet the new
challenges which would confront French-Canadian
society. This did not necessarily mean “special
status”, since other provinces could be given the

same powers if this were to be desired in the rest

of the country.

(b) A contrasting View was that recognition of a
special role for Quebec would have far-reaching
implications for the distribution of powers which
could affect the basic nature of the country.
According to this view, the distribution of powers
should be guided solely by the principles of
functionalism. It was argued that if federal
institutions were or became fully representative of
the interests of the French-speaking as well as of
the English-speaking Canadians, fulfillment for both
groups could be achieved on a country-wide basis.

(c) It was also observed that it was important to
distinguish the question of new symbols which could be
adopted to reflect Canadian cultural duality from the
question of a particular role which might be desirable
for Quebec. whether or not this would have special
implications for the distribution of powers could only
be determined after a study in depth of the whole

subject of distribution of powers.

C. Fundamental Rights and Official Languages

(See Sections VI and VII)

D. Intergovernmental Relations

General Princigles

The basic ideas set forth in propositions

dealing in general terms with the subject of inter-

governmental relations were summarized by the Secretariat

in the following general principles;

(1) The Constitution shall ensure the respect of

each other’s jurisdiction by both levels of


(2) The Constitution shall provide for institu-

tional machinery to promote coordination and

cooperation between the levels of government.

(3) Intergovernmental relationships should be
flexible allowing for a variety of arrange-
ments between the provinces and the central
government, taking into account the diversity

of circumstances across the country.

Summary of Discussion:

1. The Committee’s discussion of the first of the three

principles outlined above may be summarized as follows:

(a) It was observed that the propositions related to
this principle were meant to express the view that
one level of government should not have the power to
intervene in matters falling within the jurisdiction
of the other. The further thought was expressed by
some that when there were elements of mutual interest,
these should be handled through consultation and
cooperation, rather than through the imposition of the

will of one government upon another.

(b) A view was expressed also that it would not be
possible to arrive at watertight compartments

precisely marking out federal and provincial juris-

dictions in a constitutional document. There would

continue to be a need for some overlapping of jnterm
in many fields, for consultation, and for the use of
of the courts to solve disagreements over areas of

During the discussion of the second principle, the
following points were made:


effective intergovernmental liaison will continue to

A number of delegations expressed the View that

be a very necessary part of Canadian federalism, even
after the constitutional review is completed, and that
some constitutional basis for such arrangements will
be desirable.


provide for at least one meeting of the heads of the

One suggestion was that the Constitution should

central and provincial governments each year. An
elaboration of hhis suggestion was that the Federal-
Provincial Conference should be formally established

as an institution of federalism.

In relation to the third principle outlined above,

the following points were made:

(a) It was observed that Canadian federalism is
complicated by large disparities among its units in
area, population, natural resources, industrial
capacity, and economic development, and also by some
basic variations in culture and language. Because of
this, it was suggested that it might be reasonable

to provide for a variety of relationships between the

central government and the provinces to take into account

particular local needs. It was suggested that there

were three theoretical approaches:

– Differences in the constitutional allocation of
powers between provinces (i.e;, special status)

– A similar initial allocation of powers to the
provinces, but with provision for delegation of
powers to the central governmeni: by those
provinces which wished to do so.

– A variable application of the central govern-

ment’s powers.

(b) Views were expressed by some that there should

be no difference in the allocation of powers between,

provinces. A further view was that the suggestion
for “a variable application of the central govern-
ment’s powers” should not imply special arrangements
in respect of federal programmes which are by their

nature applicable across the country.


General Principles:

A number of the propositions which were sub-
mitted suggested various other principles of a general
nature, which have been expressed by the Secretariat in
summary form below. There is no suggestion that this is
in any way a complete list of the general principles which
could bear upon the Constitution. Additional general
principles will no doubt be formulated as further propo-
sitions are submitted.

(1) The primacy of the Constitution as the Supreme

law of the land should be declared formally.

(2) The Constitution shall change the name of the
country to reflect its political and sociolo-
gical nature.

(3) The Constitution shall provide for unrestricted

movement of goods and persons within Canada.

(4) The written Constitution shall include a number

of the present constitutional conventions.

Summary of Discussion:

1. It seems probable, from the discussion within the
Committee, that the first principle is unlikely to
give rise to much debate.

2. with reference to the second general principle stated
above, a proposition was submitted suggesting that
“The Canadian Union” be adopted as the official name
for this country to better reflect the nature of
Canada as a federation of states and an association

of two nations.

3. While the third principle listed above seemed likely
to be reasonably acceptable as a general guideline,

it was observed that there were some potential adminis-
trative complications associated with it which would
have to be taken into account. What might the
implications be, for example, for control of liquor

sales, or for controlling the spread of plant, animal

or human diseases?

4. The last principle simply suggests that there should
be specific provision within the written Constitution
for certain of the unwritten conventions which have,
in effect, operated as a part of the Constitution of
Canada. In fact, many of the detailed propositions
which have been submitted in respect of the institu-
tions of federalism have as their purpose the

incorporation of many of the conventions into the

written Constitution.


At the end of its February meeting the Constitu
tional Conference issued a consensus on language rights
(copy in Appendix) recognizing “that French-Speaking
Canadians outside Quebec should have the same rights as
English-speaking Canadians in Quebec” and affirming
“the desirability of proceeding by governmental action
as speedily as possible in ways most appropriate in
each province”. The consensus also provided for the
establishment of a special committee
“to examine the Report of the Royal Commission
on Bilingualism and Biculturalism and the Views
expressed at this Conference on the Report, and
on other matters relating to language rights and
their effective provision in practice, and to
consult on methods of implementation, including
the nature of possible federal assistance, and
on the form and the method of constitutional

As indicated in its Report, the Continuing Committee

established at its first meeting a sub-committee on

official languages to undertake the special tasks which

the Conference had agreed should be carried out.

This section of the Secretariat’s briefing paper
attempts to summarize the discussions both in the Continuing
Committee and in its Suh-Committee on matters relating to
official languages. These discussions were based on the
recommendations contained in the first report of the Royal
Commission on Bilingualism and Biculturalism (copy of the
recommendations in Appendix), on the relevant propositions
submitted by governments, and on Views related to other

aspects of this subject.

Main Points Arising out of Discussions

1. Implementation of the consensus of February, l968 –

An important part of the discussions to date relate:
to the implementation of the two major conclusions

or the consensus of February 1968, namely:

that Frenoh-speaking Canadians outside Quebec
should have the same rights as Eng1ish-speaking

Canadians in Quebec; and

that governmental action be proceeded with as
speedily as possible in ways most appropriate

in each province.

The following are the main points arising out of

that discussion:

(a) Various views were expressed relating to the
implementation of the conclusions of the consensus.

One view was that these conclusions inmlied that there
should be formal recognition of English and French as

the official languages of Canada, either through specific
constitutional provision or as part of an entrenchedbill
of rights, or by statute. A contrasting view was
that it would not be wise to give formal recognition
of official languages through constitutional or
statutory provisions but that the goals expressed in

the consensus would best be achieved through Voluntary


(b) ‘ In discussing the possiblity that formal legis-
lative action might be taken to recognize official

languages the following concerns were expressed:

– There was a View that federal legislation
having the effect of requiring an extension
in the use of English or French, even for

strictly federal purposes, would in effect be

tantamount to a unilateral amendment of the

British North America Act.

– Another point of View stressed that it was

important not to attempt to force prog
too quickly through legislative action since
this could cause adverse reaction when there
was now a healthy interest in proceeding
toward the goals expressed in the February
consensus. In addition, overly precipitous
action could lead to serious administrative


(c) It was observed that the Government of Canada had
introduced a Bill on Official languages which, if
approved by Parliament, will among other things have
the effect of making English and French the Official
languages of the Parliament of Canada, of the Federal
Courts, of the Federal Government and of the federal
administration. lt was explained that, this action
reflected the desire of the Federal Government to
proceed quickly with the implementation of the
recommendations of the Royal Commission on
Bilingualism and Biculturalism. It was the view

of the Federal Government that the enactment of this
Bill into law would not in any way affect or modify
the permission conferred or the obligation imposed by
Section 133 of the British North America Act. (As
noted in sub-paragrayh (b) above certain provinces

expressed an opposite view.)

(d) with reference to the recommendation that New
Brunswick and Ontario become officially bilingual
provinces, the Committee’s attention was drawn to
the following main points:

– In March 1968, the Legislative Assembly of

New Brunswick had approved a resolution which

declared the principle that English and Wrench
arc the official languages of New Brunswick;
reaffirming that both languages have full
rightsof usage in all the proceedings of

the Assembly; agreeing that stops be taken

to provide for records of the Assembly,

public statutes and other public documents to

be printed in both languages; and agreeing

that the Government introduce with appropricxte
speed such legislation as may he required to
establish in New Brunswick the language regime
appropriate to an officially bilingual province.

As had been stated in the February Conference by

the Head of the Ontario Government, four task
forces had been formed to report on bilingualism
with respect to l) municipal administration;

2) the administration of justice; e) the
provincial public service; and 4) the Legis-
lature and the provincial statutes. It was
observed that in July the Legislative Assembly
passed unanimously a resolution allowing
members to address the House as a matter of
right in either of the two official languages

of Canada. Furthermore legislation had been
enacted in July authorizing the maintenance

and establishment of elementary and secondary
schools or classes for the purpose of providing
French as the language of instruction for French»
speaking pupils. The Government of Ontario was
also expanding its translation service and has
developed a language training programme for public

(e) with reference to tho recommendation that in the

provinces other than Quebec, New Brunswick and Ontario,

both English and French may be used in the debates
in legislatures and that appropriate services in French
be provided for their French-speaking minorities, it

was noted that the following steps have been taken:

– The use of the English and French languages
had been authorized in the Legislative
Assemblies of Newfoundland, Prince Edward

Island and Nova Scotia.

– Legislative measures or administrative
decisions to increase the use of French as
a language of instruction in schools had
been taken in the provinces of Newfoundland,
Prince Edward Island, Nova Scotia, Manitoba,

Saskatchewan, Alberta and British Columbia.
2. Intergovernmental assistance for implementation

Among the questions specified for study in the
February consensus was the matter of the effective
provision in practice of language rights including

the nature of possible intergovernmental assistance.
The main points which arose during examination of this

question were as follows:

(a) It was pointed out that one province had indicated
its desire to proceed as quickly as possible with the
establishment of full and effective recognition of two
official languages, and other provinces had also
indicated their intention of taking various steps to
increase the use of the French language in the
provision of public services including school
instruction, It was observed, further, that

effective implementation of appropriate measures would

be costly, and that federal assistance would be necessary,

at least for certain provinces, so that they could

proceed ouickly. some delegations enmhasized the imw

portance of early assurance from the Federal Govern-

ment that substantial assistance would be forthcoming.

(b) Discussions concerning the nature of federal
assistance which might be given revealed the difficulty
in defining such assistance in general terms. It was
observed that requirements and programmes could vary
widely from province to province. Those provinces
envisaging programmes which would warrant federal
assistance were invited to develop proposals with

cost estimates; these could be considered on a
bilateral basis between the Federal Government and
each of the provinces concerned. (In this connection,
it was noted that the Sub-Committee on Official
Languages was not a body to evaluate the merits of
individual provincial proposals, although discussions
within the Sub-Committee would assist provinces in
developing proposals.) As a general principle, it

was suggested that it would be preferable for the
federal assistance to relate to initial implementation
costs, rather than to recurring operating expenditures.
However, it was noted that what could be considered

to be an operational cost in one province Could be

an initial cost in another province. A question

was raised as to whether the residents of one province
which for decades had paid for bilingual public
services including education in both languages, should
be called upon to share through federal taxes the cost

of bilingualism in other provinces.

(c) It was recognized that another form of assistance
which would be important was technical aid in matters
such as translation, interpretation, bilingual

publication and language instruction. In this connection,

it was indicated in the Committee that the provinces
of Quebec, Ontario and New Brunswick, as well as the
Federal Government, have offered to provide technical


(d) An important factor which was recognized in the
discussion was that, in developing language policies
and programmes, governments would have to take into
account the limited resources which now exist for
effective implementation of a dual language regime.
In particular, it was recognized that shortages of
trained translators and interpreters for courts

and legislatures, and of qualified bilingual teaching
staffs could impose limitations on the speed with
which governments could proceed. lln view of the
likelihood that demand would exceed the supply of
such skills, at least for a period of some years,

it was suggested that provision might he made

for consultation torcooroinate their use on a

Canada-wide basis.

3. Commissioner of Official Languages – One of the

specific measures proposed by the Royal Commission

on Bilingualism and Biculturalism for the promotion

and the protection of the use of both official
languages in the provision of public services was

that the Federal Government and the bilingual provinces
establish Commissioners of Official Languages. During

discussions on this matter the following points arose:

(a) One view indicated agreemouxwith the intent of
the Royal Commission’s recommendation. It was
observed that the Fedeval Government’s Bill on
Official Languages does provide for a Commissioner of
Officiafl Laziguagws responsible to Parliament. It
was suggested by some that this function could also

be carried out as part of the general responsibilities

of Ombudsman.

(b) Another view expressed concern about the lack of
coordination that would result if Commissioners of
the various jurisdictions acted independently. It
was suggested that a permanent federal-provincial
Official Languages Commission might be set up to
ensure a more complete exchange of information;

this could lead to more uniform decisions in respect

of language rights.

(c)A further point of view was that such steps might
not be required and that reliance could be placed on
political processes and on recourse to the Courts in

order to ensure adequate protection of language rights.

Bilingual Districts – In order to make it more feasible
for governments to provide public services in French

to the majority of Frenoh-speaking Canadians outside
Quebec and in English to the majority or English-
speaking Canadians in Quebec, the Royal Commission on
Bilingualism and Biculturalism had recommended that
public services be provided in both official languages

in areas where the concentration of the minority would
warrant such services. Specifically the Royal Commission
recommended as a minimum requirement that such districts
be established wherever the minority French or English
speaking population attained ten percent of the

total population in that district. The Committee’s
discussions revealed reactions to the bilingual districts
concept ranging from full support to outright opposition.

The following are the main viewpoints which were


(a) While it was noted that the Federal Bill on
Official Languges did provide for consultation with
the provinces, some concern was expressed about the

pressures which would be placed upon provinces when-

ever the Federal Government would unilaterally establish
bilingual districts for its purposes. In particular,
federal bilingual districts could cause difficulties
for provinces which intend to proceed by means other
than the establishment of bilingual districts for

provincial purposes and for those provinces having minor

ity groups larger than their Frenchvspeaking minorities.

(b) Another problem was considered to be that of
determining acceptable boundaries for bilingual dis-
tricts, since there have been established by each
level of government a large number of regions or dis-
tricts for different purposes, the boundaries of which
are rarely cotermlnous. The problem of defining a
new district which could correlate with existing re-

gional units on as logical a basis as possible could

be a formidable one.

(c) A view was expressed that since Quebec residents
are generally served in both official languages,

the establishment of bilingual districts in Quebec could
have the effect of reducing the extent to which

public services are provided in English to the

English-speaking minority outside such districts.

5. Language rights and the Constitution – The February
consensus on language rights also directed that in
considering possible methods of implementation of
language rights, the form and method or constitutional
amendment should be examined. In the Committee’s
discussions concerning this qucstionq the following

main points arose:

(a) Wide differences of views were expressed as to
whether language rights should be guaranteed in the
Constitution. One View is that there should be

formal constitutional recognition of English and

French as the official languages of Canada. A

contrasting view is that it would be preferable not to
attempt to impose the use of one language or the other
through compulsory measures. In relation to this
discussion, the concepts of language as a matter of
right or as a matter of equity were identified. The
View seemed to be that if language were to be treated
as a matter of right, then it could logically be pro-
vided for specifically in the Constitution, perhaps as
part of an entrenched Charter of Human Rights. On
the other hand, if language were considered to be a
matter of equity, it might then be desirable

to avoid this formal type of guarantee and to leave

it to individual governments to make such provision
as seemed to be appropriate in regard to the use

of languages within their own jurisdiction.

(b) It was observed that if language were to be
taken as a matter of right, difficult questions of
definition would arise. The point was made that
language might be considered to be purely a right

of the individual. An elaboration of this, however,
was that language rights went beyond the notion of
strictly individual rights since languages constitute
the means by which the individual relates to society.
A further View was that language rights should also
be regarded as a collective right applying to a

society or group of people.

(c) There was some preliminary discussion concerning
the specific question of the form and method of
constitutional amendment. In this connection, note
was taken of the suggested amendments to the

British North America Act which had been proposed by

the Royal Commission. Some delegations expressed

opposition to the Royal Commission recommendation
arguing that the present constitutional provisions are
sufficient. Other delegations voiced agreement with the
intent of the Royal Commission, while indicating that
they had reservations about the precise form and wording
of the constitutional amendments which had been suggested.
A View was also expressed that since it was unlikely
that unanimous acceptance of a constitutional amendment
enshrining language rights could be obtained at this
time, there was little point in speaking of constitu-
tional provision for language rights. The time to
discuss this matter would be when means of achieving

constitutional amendment had been agreed upon.

(d) Concern was expressed about the transfer of
decision-making authority from the elected legislators
to the courts which could result from the entrenchment
of language rights. For example, entrenohment could
have the effect of placing beyond the authority

of Parliament and legislatures such matters as the
language of instruction in schools and the provision
of government services in either or both official


(e) In general, the question of entrenchment of
language rights raised the same kind of problems
and considerations associated with the proposal

to entrench fundamental rights and freedoms in a
Charter of Human Rights. These general issues are

summarized in the next section of this paper.



It might be useful to recall that, under the
systematic approach the Continuing Committee has been
following, the first reference to fundamental rights

took the form of one of the “Objectives of Confederation”:

“To ensure the fullest realization of the basic
rights and freedoms of all Canadians”.

Discussions within the Committee suggest that there is
likely to be little disagreement with this as a general
statement of purpose. It is when the means of attaining
the objective are considered that differences in View


The second reference to fundamental rights came
during the Committee’s discussion of “General Principles
of the Constitution”. One View contained in some of the
propositions examined during this discussion was that the
Constitution should recognize and guarantee the basic rights
and freedoms of Canadians. Another view opposed the idea
that there should be some form of entrenchment of these

rights and freedoms in the Constitution.

The main examination of this subject by the
Committee centred on the separate category dealing with
fundamental rights (see the classification in the appendix),
which grouped all the propositions dealing with this subjocL
in detail. The summary which follows incorporates the two
introductory discussions with the more detailed examination,

and attempts to describe the main points which arose.

The Framework for the Discussion

The Committee’s main discussion on fundamental
rights centred to a considerable extent on a proposition
from the federal government which suggested in detail the
kind of provisions which might be incorporated into an
entrenched charter of human rights. There was also a
discussion of a number of propositions submitted by several
provincial delegations some of which expressed opposite
views to those reflected in the federal proposition, and
some of which expressed views which were in accord with

parts of the federal proposal.

The discussion focussed on a grouping of related
provisions which emerged from the propositions as possible
component parts of a charter of human rights. while views
vary widely concerning the advisability of entrenching such
provisions, it may make the report on these discussions more

meaningful to include a brief summary of these groups below:

1. One group includes what might be described as
the traditional rights and freedoms – religion,
speech, assembly, press, etc. – and which are
now dealt with in certain federal and provincial


2. A second group is concerned with legal rights,
such as the right to a fair trial. The rights
considered correspond in general with those

already recognized in the Canadian Bill of Rights,
certain provincial legislation and some inter-

. national conventions.

3. A third group contains the egalitarian rights,
such as the right to non-discrimination in
employment. It was suggested that implementation
of these would require a good deal of supporting

legislation, particularly at the provincial level.

4. Another group is concerned with language rights,
and this involves much that is new. The federal
delegation noted that in framing its proposals
related to these rights it had attempted to follow
the recommendations or the Royal Commission

on Bilingualism and Biculturalism, although there
are some differences in detail. Certain of these
proposals are similar to provisions now in the
B.N.A. Act which apply tothe Government of Canada
and the Province of Quebec, but these would be
extended to other provinces which become officially
bilingual. Other provisions are completely new,
such as those applying to government administration

and to the language of instruction in schools.

5. Other provisions which were suggested for incorpora-

tion in a charter include:

– a provision to make clear that an entrenched
Charter would be paramount over any federal
or provincial legislation which conflicted
with it;

– a provision expressing the intent that the
entrenchment of a Charter should not have the
effect of transferring power from one jurisdic-

tion to another; and

– a provision that, in cases of national emergency,
Parliament could take actions which were in

conflict with the Charter.

Main Points Arising Out of Discussion

1. Discussion in the Committee suggested that there are
in the several governments a variety of reactions to
the idea of entrenching fundamental rights ranging
from agreement in principle, to agreement with reser-

vations, to definite opposition. A frequently

expressed view was that if entrenohment were to proceed,
careful attention to the definition of the rights and
freedoms to be guaranteed would first be required, It
was suggested that some governments might favour the
entrenchment of some, but not all of the rights which
had been proposed for inclusion in a charter of human
rights. It was noted also that there were different
forms of entrenchment which might be considered: a
general entrenohment which applied to the Constitution
of Canada as a whole, entrenchment provisions within
the constitutions of the central and the provincial
governments, or a combination of both. The other
alternative which was put forward was that there should
be no constitutional entrenchment at all, but rather a

reliance on statutes.

Concern was expressed about the extent of impairment
of legislative powers which might be implied by an
entrenchment of rights, and it was suggested that
this could only be assessed by considering in detail
the specific rights which were proposed for inclusion
in a charter of human rights. Questions were raised,
too, about the jurisdictional aspects of administering
and enforcing entrenched rights. Views were expressed
that positive legislative action by both federal ano
provincial governments in their own areas of jurisdic-
tion would be required to implement fully the guaran-
teed rights, and that the effect of entrenchmont should
not be to transfer power from one jurisdiction to
another. It was also observed that an entrenched
charter need not invalidate existing legislation
relating to rights, unless that legislation contained

provisions one which were in conflict with the terms of
the charter.

3. Because of concern about the possible jurisdictional
effects of an entronchmont of rights, the suggestion
was made that it might be preferable to settle upon
the distribution of powers before finally resolving
the matter of entrenchment. An opposing view was
that it would be more logical to discuss the distribu-
tion of powers after agreement in principle had been
reached on those areas which would be placed beyond
legislative competence; in this way the rights of
individuals could be settled before the rights of


4. The view was expressed that Canada could leave human
rights to the judgment of its parliamentarians and
legislators, as had been the case over the past 100
years; the federal proposal seemed to imply that the
present system of federal and provincial statutes
was considered not to be working adequately. A con-
trasting view was that there had been instances of
questionable legislation in the past and an entrenched

charter would offer some protection against momentary

whims of temporary legislative majorities in future.

5. It was suggested that the entrenohment of human rights
was a fundamental change of greater significance than
was perhaps commonly recognized. In effect, certain
decisions involving policy questions or interpretations
of social values would be taken away from the legislators
and put into the hands of the courts. For example, it
was observed that provisions dealing with criminal
procedure and provisions in legislation like the Lord’s
Day Acts or the Indian Act might be affected in this way.
The suggestion that it was preferable that such choices
should be made by the courts rather than by the elected

legislators was questioned. It was observed further

that experience in other countries suggests that
cntrenchment may lead to an enormous amount of
frivolous litigation, and sometines to criticism of
the judiciary when the value judgments of the judges
become involved in the resolution of social questions.
Another view was that while entrenchment would imply
some departure from the principle of the supremacy of
Parliament, the extent of the transfer of decision-
making to the courts might well be more limited than
was thought in some quarters. In effect, many of the
value judgments would be made in the process of
writing a Charter, and the choice left to the Courts
might be quite marginal in nature. Court decisions

would always be made within the context of the constitu-

tional provisions and precedents.

6. It was urged that care must be taken to ensure that
certain freedoms are not guaranteed to the extent
that they can be used to violate other freedoms. For
example, freedom of speech should not extend to the
point that defamation of character cannot be prevented;
criminal proceedings must not be unduly hampered or

the right to protection by the law may be weakened.

7. In addition to the classes of rights suggested in the
federal proposition and some provincial propositions
for entrenchment in the Constitution, mention was
also made in the Committee of “economic and social
rights”. Such rights might be considered to include
the right to work, the right to just conditions or
employment, the right to an adequate standard or
living, the right to social security, the right to
education, and the right to rest and leisure. It
seems to be generally accepted that it would be
unrealistic to think of ontrenching such rights in

a Constitution. Instead, it was thought by some that

that such rights might be declared as objectives which
the country would strive to realize ahd might find

their expression in a preamble to the Constitution.

8. The observation was made that the proposal to entrench
in the Constitution the many rights and freedoms which
had been considered during the Committee’s discussions
raised a large number of practical and technical

problems which should be examined in depth. The
suggestion was made that a sub-oommittee should be

established for this purpose.


The Committee has had a general but quite preliminary
discussion of this subject area in an attempt to this
stage a first appreciation of the kind of issues which will
arise in the detailed review of the distribution of powers.

It was hoped that this type of general discussion would be
helpful in considering what would be involved in the detailed

examination of this basic aspect of the constitutional review.

Few of the propositions which had been received by
the Committee by early December deal specifically with the
distribution of powers, with the exception of the submission
from the Quebec delegation. Other delegations have indicated
that propositions on this subject will be forthcoming a
little later in the process. Therefore, a considerable part
of the Committee’s discussion, so far, has revolved around
the approach which has been suggested by the Quebec delega-


The main points made during this discussion are

summarized below:
1. General Considerations –

(a) It was explained that the whole Quebec submission
was based on a conceptual framework, and that the specific
propositions on the division of powers were put forward
in that context. Those propositions reflected the view
that the demographic and sociological realities in Canada,
today, require a recognition of a special role for the
Government of Quebec to ensure the survival and develop-
ment of the French-Canadian culture and way of life.

(A summary of discussion on the question of a “special
role for Quebec” was included in this paper in the
section on “General Principles of the Constitution” –

pages 18 and l9.) Recognition of such a role implied,

according to this view, that the Government of Quebec
must be equipped with powers which would enable it to
take a comprehensive and integrated approach to fulfill-
ing this responsibility. It was observed this need not
mean a special assignment of powers to Quebec, however,
if other provinces were interested in having the same


(b) Several members of the Committee stressed the
fundamental importance of the distribution of powers

to the whole constitutional review. One view was that
current tensions within Canada could be attributed
largely to a distribution of powers which was inappro-
priate for the present Canadian situation. Also the
great complexity of this subject was recognized. It

was suggested that conclusions concerning any new
allocation of powers would have to be based on a careful
analysis of the interrelationships between the different
powers, and between these and the other elements of the
Constitution. It was suggested; further, that funda-
mental economic and social questions would have to be
taken into account. Some delegations indicated that

it was considerations such as those which had made it
difficult for them to submit, as yet, any detailed
propositions reflecting a point of view within their

governments concerning the distribution of powers.

(c) A variety of vimvswere expressed concerning Seneral

principles which might guide the distribution of


– One view was that the distribution of powers should
be based primarily on principles of functionalism and
efficiency: it should be determined which functions
of government could most effectively be carried out by

which level of government for the purpose of achieving

certain basic goals, taking account of domestic
considerations and international constraints.

– Another View was that a purely functional distribuw
tion between levels of government would not meet the
requirement of the country, and that unique circum-
stances in particular parts of the country should
have a bearing on the distribution of powers. (The
view that a special role for Quebec should he recog-
nized has been noted above.)

– A further View was that symbolic and doctrinal con-
siderations would have a bearing on the distribution
of powers, even if functional considerations were
paramount. It was suggested, further, that the
Canadian historical context would have to be borne
in mind, since there is a network of relationships
and expectations which are a fact of life in Canada
and which could put some limit on the amount of
change which can be carried out on the basis of other


(d) The observation was made that there would be a

direct relationship between the relative weights which
were assigned to the obgectives of the country and the
distribution of legislative powers designed to realize

those objectives.

(e) The view was expressed that the collective
responsibilities of governments to the public should

be borne in mind throughout the examination of the dis-
tribution of powers. It was desirable, therefore, for
governments to work together to define these respons-
imlities and to determine which level of government
was capable of serving the Canadian people most

efficiently in respect of individual functions.

2. General Nature of the Federation

A number of the points which were raised during the
discussion of distribution of powers may be related
to the basic question of the nature of the Canadian
federation. In the section of this paper on “General
Principles of the Constitution” it was noted that two
different points of View concerning the process by
which Canada assumes the federal form seemed to emerge
in discussions of Canadian federalism. One View is
that the people of Canada as a whole decide that their
country shall be of a federal form. A contrasting
View is that member states decide to join together as

a country, with a central government having certain
functions to carry out on behalf of all of them. These
views were reflected, at least in part, in some of the
points which have been expressed concerning the dis-

tribution of powers:

(a). One point of View envisages a considerable transfer
of legislative powers, including residual powers, to

the provinces. According to this view, the central
government should have only those responsibilities and
powers which all provincial governments agree to trans-
fer to it as a matter of common interest. It is argued
that major tensions in the country have been caused by
the Federal Government exercising powers which are not
accepted by all parts of the country as properly

belonging to the federal jurisdiction.

(b) Another View expressed concern about the implica-
tions of the transfer of federal powers suggested in
the Quebec submission. It was observed that if the
proposed transfers were carried out, the Federal Govern-
ment would be left basically with only certain classical

powers of 18th century mercantile states, while the

provinces would have the powers of modern indust,
states. According to this view, it would be doubtful
that the unity of Canada could be preserved if the
Federal Government had no functions which would enable
its electorate to feel a personal identification with
it. A further observation was that Canada is now one
of the most decentralized federations (it was stated,
for example, that not many federations leave control
over wages, prices and virtually all natural resources
in the hands of the states, as in Canada). Doubt was
expressed that there was much room left for furthcr
decentralization without seriously endangering the

existence of the country.

(c) A further observation was that any major transfer
of powers from the Federal Government to the provinces
could have ancillary effects with serious implications
for the country, and these would have to be evaluated
carefully to make clear the true social and economic
costs of the various alternatives. For example, it
was suggested that the transfer of responsibility for
family allowances and old age security from federal

to provincial jurisdiction, if accompanied by a
corresponding transfer of federal revenues, could
result in the Parliament of Canada losing a major tool
of economic stabilization pclicyl At the same time,

since the per capita yield from any tax transfer would

be very uneven from province to province, either the

programmes concerned would have to be reduced in the
lower-income provinces or there would have to be a

substantial increase in equalization payments.

3. Fiscal and Economic Considerations –

(a) It was observed that certain important government
activities involve the legislative powers of both the
federal and provincial governments; these include
economic growth, redistribution of income and social

security, taxation and spending powers.

(b) One view expressed was that if certain fundamental
economic objectives were accepted, they might have quite
important implications for the distribution of powers.
For example, if a recognized objective were to maximize
economic growth, it was suggested that this might influ-
ence the distribution of responsibilities and powers in
such fields as transportation and communications, industry,
financial institutions, commodity standards, and others.
The objective of reducing regional economic disparities,
it was suggested, could imply that the Federal Governw
ment should have powers to promote integrated action

across a wide range of fielos.

(c) Another view was that national economic policies

do not always have the appropriate effects for alleviat-
ing economic problems of a localized nature, and some
economists have been placing great emphasis on regional
solutions. A fundamental question would be whether

regional needs could be better handled on a regional or

a national basis.

(d) A further observation was made agreeing that
fiscal and economic considerations woulfi have to be
taken into account when distribution of powers was
being examined. It was suggested that these considera-
tions could lead in three possible directions:
(i) toward greater centralization of power

with the Federal Government;

I should remain with the Federal Government.

(ii) toward careful definition of exclusive
responsibilities for both levels of
government and development of appropriate
machinery for cooperative action;

(iii) towards provision of concurrency of powers

in a number of areas.

In this connection, one view«waa expressed that the
best solution might be found in a combination of (ii)

and (iii).

4. Residual Powers –

(a) One View was that the residual powers should be
assigned to the provinces. According to this view,
this would correspond to the constitutional situation

in most other federations, and it was more logical for
the central government to have only those powers which
were accepted as being appropriate for the central
authority by all parts of the federation. It was argued,
further, that the present system in Canada had led to
tensions when the Federal Government had assumed new
functions which were not specified in the original
Constitution but which were regarded by at least some

provinces as being more appropriate for the provincial



An opposing View was that the residual powers

It was
suggested that if new functions arose, it would be best
that they should first come under the authority of the
one government which represents all Canadians. A
further suggestion was that the psychological effect
of such a transfer of power could do damage to the

concept of a united Canada.

(c) There were differences of View as to how radical
a change was implied by a transfcy of the residual
power. One opinion was that residual powers had, in
effect, already been given to the provinces to a con-
siderable degree through judicial interpretations of
the property and civil rights clause. Another View
was that the general federal residual power was ncver-
theless still a very significant one, and that it
could become more significant in future, in View of

the increasingly rapid technological evolution which

was occurring.

5. Allocation of Sources of Revenue –

One general principle was seen by many to be very
basic to the distribution of powers: the federal and
provincial governments should have surficient sources
of revenue to enable them to discharge their constitun
tional responsibilities. while this principle seems
to offer little difficulty, when stated in these general
terms, variations in View appear concerning its practical


(a) The observation was made that the distribution

of responsibilities and the allocation of revenue

sources are not in balance under the present Consitution,
leaving the provinces with a financial problem. A con-

trasting View was that the provincial governments’ access

to tax fields is generally comparable in quantitative

terms to that of the Federal Government.

(b) One interpretation of this general principle would
seem to be that if a new distribution of responsibilities
and powers is settled upon, then a new allocation of
revenues would be called for. Certain suggestions were

made concerning the method of allocating revenues:

– one View was that not only sources of revenue but
shares of the revenues collected should be allo-

cated by the Constitution;

– a further suggestion was that both levels of govern-
ment should have eccess to the major sources of.
revenue, leaving very few sources to the exclusive

use of one level or the other. An elaboration of

this view was that an intergovernmental commission
might be established to make recommendations concern-

ing the sharing of revenues from jointly occupied tax


(c) A related point of view advanced by some delega-
tions is that under new constitutional arrangements, one
government should not be enabled to influence the legis-
lative actions of other governments within their own
jurisdictions through the exercise of its syending power.
At the same time, some delegations expressed the View

that the central government must have the powers and
financial resources to enable it to contribute effectively
to the redistribution of income within the country and

to the reduction of economic and social disparities from

one region to another.

6. Flexibility in the Exercise of Powers

A View was expressed that there should be some flex-
ibility within the Constitution regarding the dis-
position of powers, to permit adjustments to diverse
situations enxl to allow a variety of relationships
between governments. A number of possible approaches

to this end were identified:

– differences in the constitutional allocation of

powers between provinces;

– a similar initial allocation of powers to the
provinces but with provision for delegation of
powers to the central government hy those provinces
which wish to do so;

– a variable application of some of the central
government’s powers from region to region;

– a more extensive use of parallel powers and con-

sultative arrangements relating to these.

7. Approach to the Study of Distribution of Powers

In addition to its preliminary discussions of the general
issues relating to the distribution of powers, the
Continuing Committee has given some consideration to the
question of how to approach the detailed study of this
basic element of the Constitution. The following observa
tions have been made:


It was suggested that governments might first wish
to consider analyses which have been or might be made of

the existing distribution of powers, as determined by
the British North America Act and the decisions of the
courts, including assessments of the rationale behind
this distribution and the difficulties now being

encountered with it. Key questions which have been
raised about the present distribution of powers, such
as those concerning the use of the spending power and

the allocation of revenue sources, could be studied

as a part of this approach.


It was suggested that governments might also wish
to consider the present and future functions of govern

ment which would appear to be most appropriate for Canada,
in View of changing social and economic factors within

the country and the kinds of problems and goals which are

likely to face Canadians in the future. Under an approach

of this kind, in attempting to determine the level of

government at which those functions might best be
performed, account would also have to be taken of such

considerations as:

– the suggestion that the Government of Quebec should
have a special role in ensuring the survival and
fulfillment of the Fronch-speaking way of life in


– the objective of reducing disparities in social and
economic conditions in the various regions of the

country; and

– the argument that powers should be distributed on

a functional basis.

(c) It was also observed that an approach such

as this would have to include consideration of

the many fields in which modern governmental problems

were growing and to which the present Constitution gave
little if any recognition. Certain examples were referred

to in the Committee:

– rban development, along with the related problems
of housing and transportation, is a major problem
area now which could not be foreseen in 1867. There
are differences in view as to what the responsibilities
of the various governments should be with respect to
this matter. Some feel the problem is extensive enough
to warrant federal involvement; at the same time,
provincial and local institutions are intimately

– Scientific research wasn’t even thought of as a
government concern in 1867, but it is now regarded
as a key factor in the continuing development of a

modern economy.

– Radio and television, including the spacemuge
phenomenon of satellite communication, didn”˜t exist
in 1867. while this has been taken largely as a
federal responsibility, doubts have been expressed
in some quarters that this field should be a matter

entirely under federal jurisdiction.

– Recreation and leisure is another area in which
government activity has been growing, and which
promises to become increasingly important in the

future. It was a parish problem, then a municipal

matter, is now a major provincial concern, and

questions have been raised as to whether it is

becoming a national concern.

8. Timing of work on the Distribution of Powers –

During the Committee’s discussions, the following points
were raised which relate to the timing of detailed work

on distribution of powers:

(a) One point of view was that detailed discussions
concerning distribution of powers might best proceed in
the light of conclusions concerning certain other
elements of the constitutional review – fundamental
rights, official languages, institutions of federalism.
In other words, the allocation of powers between govern-
ments could be carrieo out more logically if it were
known which matters would be placed beyond legislative
enactment, how the basic rights of individuals would be
protected, and to what extent regional and cultural
interests would be reflected in the central institutions
of federalism.

(b) A contrasting View was that it might be easier for
some provincial governments to accept the entrenchment
of certain rights if they knew first what the new

distribution of powers was going to be, since the
enforcement of entrenched rights would be an important
jurisdictional question. A further view was that a
high priority must be placed on settling the distribu-
tion of powers, since present stresses in Confederation
arise primarily out of day-to-day functional processes
and questions concerning which government should carry

out what functions and how this should be paid for.

(c) An observation was also made that it was desirable
that no government should take a firm position on the
distribution of powers, until a careful analysis could
be carried out, because this could have a harmful effect
on the constitutional review process. It was suggested
that the constitutional review had been envisaged as a
joint venture, and that it would be particularly important

to approach the distribution of powers in this way.

9. Method –

There was also some discussion concerning the method
which might be followed to carry out the more detailed
work which would be required on distribution of powers,
if the Committe’s interpretation of its task were
approved by the Constitutional Conference. One View
was expressed that a detailed study, item by item, of
sections 91 and 92 of the British North America Act
would be called for and that this work could best

be carried out by a special sub-committee which could
sit for weeks at a time. Other views were expressed
that it would be necessary for the Continuing;
Committee of Officials first to have further dis-
cussions on this subject to define more precisely

the nature of the detailed work which might be under-

taken. This could be done more meaningfully in the

light of additional propositions which might be
forthcoming from governments. it was noted that
because of the many and varied considerations which
seemed to have a bearing on this subject, it was
possible that a number of special sub-committees or
working groups might be required, from time to time,
to clarify particular questions within the context

of the Continuing Committee’s examinations.

– 57 –


During its discussions on “General Principles of
the Constitution”, the Continuing Committee examined a number
of propositions relating to the form of government. Certain
propositions suggested that consideration should be given to
adopting the republican form and the congressional system in
Canada. (This discussion is summarized on pages l3 to 15 of

this paper.)

In its more detailed discussions on “the constitu-
tion of the central government”, the Committee’s attention
centred mainly on the question of what constitutional changes
might be desirable in respect of existing Federal Government
institutions, assuming that the basic system of government
did not change. Most of the detailed propositions which were
concerned with the Federal Government institutions suggested
little change from the present situation, except in the case

of the Senate.

Several of these propositions did suggest that many
of the conventions which now apply to government institutions
and practices should be included as specific provisions within
the written Constitution. Some reservation was expressed
about the extent to which this should be done; it was suggested
that many such provisions might best be dealt with by ordinary
federal legislation, and that the Constitution could be
reserved for those matters which should only be amended through
constitutional processes. A contrasting view was that the
Constitution should be sufficiently descriptive so that anyone
reading it could get a clear understanding of the structure
of government in Canada.

There was considerable discussion within the

Committee on propositions concerning the Senate. Several

propositions reflected a View that the Constitution should

continue to provide for a second chamber, but certain changes

should be considered to enable that bouy to better reflect

regional interests and to function more fully as an institu-

tion of federalism.

The main points which emerged during

this discussion are summarized below:

Main Points Arising out of Discussion

1. The Appointment of Senators

(a) Two main views were expressed concerning possible
changes in the method of appointment of Senators; one
view suggested that a proportion of these appointments
should be made by the provincial goveznments, while the
other view was that the provinces should be empowered
to appoint all the Senators. It was observed that those
who were suggesting a partial transfer of appointment
authority to the provinces were not yet indicating how

far this transfer should go. It was suggested that unless
provincial appointments constituted a large propor-

tion of the total, then the change would not be of much


(b) During the discussion of these two approaches, it
was suggested that if only a part of the appointments
were made by the provinces, fiifficulties could arise
from the fact that there would be two types of Senators.
On the other hand, it was suggested that a totally
provincially appointed Senate might tend frequently to
hamper the actions of the Federal Government, even if

it were given only a temporary suspensivc veto.

(c) A question was raised concerning the possible
advantages of an elected Senate. The View was expressed
that this would not improve the Senate’s capacity for
representing regional interests, since elected Senators
would presumably be subject to the same system of party

discipline that prevails in the House of Commons.

(d) Regarding the question of the length of appoint-
ment, certain propositions expressed Views favouring
a limited term. It was suggested that the new term

of appointment should not be so short that Senators
might tend to act as spokesmen for the governments
which appointed them, or so long that the Senators
might become less representative of their regions.

Arguments were put forward in support of both a three-

year term and a six-year term.

2. The Regresentationel Pattern –

(a) It was observed that seats in the Senate have

been allocated on a regional basis. A block of 24 seats
in the Senate had originally been designated for each
of four regions: the Maritime Provinces, Quebec,
Ontario, and the western Provinces. when Newfoundland

entered Confederation, it was assigned 6 Senators.

(b). One point of view assumed that a regional basis
for the allocation of Senators should continue, while
recognizing that there might be reason for re-assessing
the present distribution. Another View was that the
basis should be changed so that there would be an

allocation of Senators by province which was more in

proportion to population.

(c) A question was raised concerning the validity of
the regional groupings which have been mentioned. It
was doubtful, according to one view, that the four
western Provinces should be classed as one region. It
was also observed that Northern Canada had not been

provided for in this classification.

3. Powers and Responsibilities –

Certain propositions suggested additional powers and

responsibilities which might be considered for the

Senate. These inclined powers to approve nominations
by the Federal Government for certain key posts such
as judges of the Supreme Court, ambassadors, and heads
of cultural agencies. Further responsibilities were
suggested in the areas of official languages and human
rights. Another suggestion was that the Senate might
act as a forum for an on-going discussion of federal-
provincial affairs. At the same time, certain proposi-
tions expressed the View that the Senate’s power to
reject Federal Government legislation could be converted

to a power to delay legislation for a limited period.

4. The Approval of Appointments –

The suggestion that the Senate be given the power of
approval in respect of Federal Government nominations
for certain posts raised a number of points in the


(a)- It was observed that this proposal, when considered
with the proposal for provincial appointment of some o£
the Senators, provided for provincial participation in
the selection of persons to fill posts which are of

particular concern to the provinces.

(b) Another observation was that the proposal involved
a decrease in the executive power of the Federal Govern»
ment in general, and the Prime Minister’s Office in
particular. In one view, however, the resulting effect
on the executive power would not be that significant,
and might well be outweighed by the advantages resulting
from having such appointments reflect provincial view»

(c) It was noted that the idea was rather unusual for

a country with a parliamentary tradition, although

legislative approval of appointments was an established

practice in the United States. It was suggested that
the system in the United States had been designed to

overcome the absence of ministerial responsibility in

the congressional system; since Canada has a parliament-

ary system of government, the same practices were not

necessarily appropriate here.

(d) Additional discussion of this proposal related
directly to the appointment of judges to the Supreme
Court, and a summary of this appears in section XI –

“The constitution of the judicial system”.


The Continuing Committee has so far not had the
time to give an equivalent amount of attention to all the
subjects which are a part of the const tutional review. To
date, it has had only a brief introductory discussion on the
constitutions of provincial governments. The main points which

arose during this discussion are noted below:

Main Points Arising out of Discussion

1. On the assumption that each province should have an
internal constitution relating to its own institutions,
there was some discussion concerning the extent to which
an individual province should have the power to amend
its constitution. One View was that a province should
have the freedom to establish and amend its own internal
constitution, provided that in so doing it did not in
any way violate the provisions of the Canadian Consti-
tution. In discussion of the kind of limitations which
might be provided on such provincial action by the

Canadian Constitution, some differences in view emerged:

(a). One View was that the Canadian Constitution should

be written in such a way as to leave as much freedom as
possible with the provinces concerning their own consti»
tutions. According to this view, some fundamental rights
might be protected from unilateral provincial action
through entrenchment in the Canadian Constitution, but
each province should be left with a substantial measure

of freedom with regard to the form of its institutions.
This freedom, for example, would onablo a province to
choose between retaining the parliamentary form of govern-

ment or adopting the congressional form.

(b) Another View was that there should be certain
provisions in the Canadian Constitution concerning
provincial political institutions which would limit

the power of a provincial government to make certain
basic changes. In this connection, specific suggestions
were made concerning universal suffrage, the election
of a legislative chamber every five years, and annual
sessions of the chamber.

(d) A further View was that the provinces should be

constitutionally bound to retain the parliamentary system.

2. There was some discussion, also, concerning propositions
relating to the Office of the Lieutenant-Governor, and

a variety of views were expressed:

(a)One View was that the Office should continue as at

present, with appointments being made by the Federal


(b) An opposite View was that the provinces should be
entitled to decide on the title, method of selection, and
powers of the formal heads of provincial governments;

(c) A further View was that the titular head of govern-

ment for a province should be appointed by the Crown’s

representative in Canada, on the advice of the First Minister

of that province;


Office of Lieutenant Governor should be changed to something

Another suggestion was that at least the name of the

less subordinate in tone.

3. A View was expressed that the Federal Government should not
have any powers to reserve or disallow provincial legisle-
tion, and that if there were still any doubt that such

powers which had been included in the British North America

Act were now obsolete, then this doubt should be removed.


Again, the Continuing Committee has had time
for only only a brief introductory discussion of this

Main Points Arising out of Discussion


The Committee’s main discussion on the judicial
system so far has centred on the suggestion that
appointments to the Supreme Court should be subject
to the approval of the Senate, assuming that certain
changes in the character of the latter institution
were made. (This proposal was noted in section IX –
The constitution of the central government.) The

main points that arose are noted below:

(a) The purpose behind the above suggestion was to
ensure that a provincial point of view could be
brought to bear on the composition of the Supreme
Court, a fundamental institution of federalism in
Canada. In this connection, it was observed that this
change might not be very significant unless the
proportion of provinoially appointed Senators was a
Substantial one.

(b) A contrasting View was that a more effective way
to ensure that provincial interests were adequately
reflected in the’Supreme Court would be to provide
for direct appointment of a proportion of the judges
by the provincial governments. One reaction to this
View was that such a procedure might do some harm to
the status of the Court; indeed, this might lead to
the thought that there are two kinds of judges who
represent contesting parties, and the Court must be
above the ebb and flow of jurisdictional contests.
An observation was made that this potential difficulty
could be avoided if judges were appointed for life,
since they would then tend not to repre
sentational role.

(C) Doubt was expressed that it would be desirable
to expose the men and women who would be nominated for
these high offices to public scruhiuy by a legislative
body. A contrasting View was that the nominees to

this Court would recognize the importance of the

function for the whole country, and so would uocept

the procedure as a desirable thing.

(d) A further suggestion was mane that .t might be
possible to avoid the public legislative scrutiny, and
yet obtain provincial participation in the appointment
of the judges, by providing for a consultative process
by which the Federal Government would discuss with pro-

vincial governments proposed appointments to the Court.

2. The possibility that the Supreme Court should be
provided for in the Constitution, rather than in a
federal statute as at present, was discussed briefly in
the Committee, The reasoning behind this proposal was
that the Supreme Court, as the final court of appeal
and the arbiter of jurisdictional differences between
governments, was a key institution of federalism which
logically should be defined in the Constitution. An
opposing view was that such a step should only be
considered if the need for n fundamental change of this
kind had been satisfactorily demonstrated.

3. Another proposition advanced the View that a separate
Constitutional Court should be established for adjudi
cating on questions involving interpretation of the
Constitution, and that a proportion of the judges on
this Court should be appointed by the provincial
governments. This proposition and others which suggest
changes in the nature of the Supreme Court have not yet
been examined in detail by the Committee.


The Committee’s examination of regional dis-
parities has so far been of a preliminary nature, and
concerned primarily with general objectives and principles.
In particular, discussions on the propositions which were
summarized as objectives (a) and (b) on page 6 of this
paper were pertinent. These two objectives are:

“To promote Canadian social, cultural and

economic development, and the general

welfare of and equality of opportunity for

all Canadians.”

“To promote the full development of all

regions of Canada.”

From this initial discussion, the need for careful defini-
tion of these objectives became clear, and a number of
questions requiring clarification were identified (see
pages 8 and 9 in the section of this paper on “Objectives

of Confederation”).

The main points which have arisen out of the
Committee’s preliminary discussion of the propositions
concerning regional disparities are described briefly

Main Points Arisinn out of Discussion

1. It was suggested that reference to the desirability of
reducing regional disparities might be included in a

preamble to the Constitution as a goal of the federation.
At the same time, as reported in the section of this
paper dealing with Objectives of Confederation, it was
recognized that because of the potential implications
of the possible different interpre
objective, care would
of such a goal in a

2. A view was expressed that there should be some
specific constitutional provision respecting a
federal role and responsibility in the reduction
of regional disparities. One suggestion was that
the federal government must have the fiscal and
economic powers to enable it to contribute through
redistribution of income measures to the welfare
of individuals, as well as to implement economic
development programmes for the benefit of a region

as a whole.

3. Another view was expressed that the problem of

regional disparity could best be met by federal

measures taking the form of equal. .ng the fiscal
position of provincial governments which, in turn,
would pursue the objective of equality of indivi-

duals within their boundaries.

4. A view was expressed that the Constitution should

provide for a fixed method by which the equalization
of provincial revenues would be achieved. At the
same time, it was poinhed out that equalization of

provincial revenues and reduction of regional

economic disparities were very different matters.

Unless the latter were dealt with, the former would

have to continue indefinitely.

5. In general, some delegations reaffirmed that their
governments placed great importance on the recognition
by the country that regional disparities must be dealt
with, and that a frankly regional approach should be
taken to economic development in Canada. In this view,
commitments for careful planning, cooperative federal
and provincial efforts, and substantial expenditures
would be called for.

6. Another point of View suggested that while the problems
of regional disparities must be dealt with, care must
be taken at the same time to ensure the optimum growth
for the country as a whole. It was observed that the
rapid rate of economic growth in certain parts of the
country contributes to the prosperity of the nation as
a whole. There would have to be judicious allocation
of government resources to alleviate disparities in
some regions while at the same time ensuring that the
momentum of economic growth in the other regions was

not adversely affected.











(a) Head of State and Chief Executive
(b) Executive of the Central Government
(c) Parliament
(d) House of Commons
(e) Senate




(a) Basis for distribution of powers
(b) Powers of the central government
(c) Provincial powers
(d) Shared powers
(e) Limits on powers of both levels of government
(f) Residual powers
(g) Interpretation and administration of powers
(h) Delegation of powers
(i) Declaratory powers







1. Recognition by this Conference that, as
proposeo by the Royal Commission on
Bilingualism and Biculturalism and as a
matter of equity, Frenoh-speaking Canadians
outside of Quebec should have the same rights
as English-speaking Canadians in Quebec.

2. Recognition, as the Royal Commission on
Bilingualism and Biculturalism has
recommended, of the desirability of

proceeding by governmental action as speedily
as possible, in ways most appropriate in each
province and without diminishing existing

rights, recognized by law or usage.

3. Establishment of a special committee to

examine the Report of the Royal Commission on
Bilingualism and Biculturelism and the views
expressed at this Conference on the Report,

and on other matters relating to language

rights and their effective provision in practice,
and to consult on methods of implementation,
including the nature of possible federal
assistance, and on the form and the method of
constitutional amendment.


1. We recommend that English and French be formally
declared the official languages of the Parliament of
Canada, of the federal courts, of the federal govern-
ment, and of the federal administration. (para. 270)

2. We recommend that the provinces of New Brunswick
and Ontario themselves declare that they recognize
English and French as official languages and that they
accept the language régimes that such recognition
entails. (para. 293)

3. We recommend that any province whose official»
language minority reaches or exceeds 10 per cent
declare that it recognizes French and English as
official languages and that it accepts the langua e
régime that such recognition entails. (para. 303)

4. We recommend that the provinces other than Quebec,
New Brunswick, and Ontario declare that both English
and French may be used in the debates in their
legislatures and that these provinces provide appro-
priate services in French for their French-speaking
minorities. (para. 324)

5. We recommend that bilingual districts be
established throughout Canada and that negotiations
between the federal government and the provincial
government concerned define the exact limits of each
bilingual district. (para. 341)

6. Should the negotiations between the federal
government and a province break off before agreement,
we recommend that each, acting in its own right,
immediately declare officially bilingual, for its
purposes, areas which it has itself delineated.
(para. 346)

7. We recommend the establishment of a federal-
provincial review council whose main duties would
be: a) to recognize as bilingual districts or as parts
of bilingual districts new areas where the official»
language minority attains or surpasses 10 per cent,
and b) to remove from officially bilingual districts
those areas where the numerical importance of the
official-language minority has substantially decreased.

(para. 347)

8. We recommend that provincial governments amend
their municipal legislation to remove all obstacles
to the use of both the French and English languages
in local government. (para. 359)

9. For the federal capital area we recommend: a) that
the English and French languages should have full
equality of status throughout the area; b) that all
services should be available at all levels of public
administration in the two languages; c) that the use
of both English and French should be permitted in the
deliberations of all local government bodies, that all
by-laws and regulations should be recorded and printed
in the two languages, and that all important public
documents and all administrative services should be
available in both languages; d) that all courts should
permit pleadings in the two languages, and that lower

courts should be equipped to function in both; e) that
publicly supported education should be as available in
French as in English and should be of the same quality;
f) that the two provincial governments concerned and
the federal government should discuss and negotiate
the necessary measures. (para. 380)

10. We recommend that the right of Canadian parents
to have their children educated in the official language
of their choice be recognized in the educational systems,
the degree of implementation to depend on the concentra-
tion of the minority population. (para. 389)

11. We recommend that the following paragraph, to be

known as section 93A, be added to the B.N.A. Act:

Every province shall establish and maintain elementary
and secondary schools in which English is the sole

or main language of instruction, and elementary and
secondary schools in which French is the sole or main
language of instruction, in bilingual tricts and
other appropriate areas under conditions to be determined
by provincial law; but nothing in this section shall be
deemed to prohibit schools in which English and French
have equal importance as languages of instruction, or
schools in which instruction may be given in some other
language. (para. 414)

12. We recommend the adoption of a new version of
section 133, which might read as follows:

1. English and French are the two official languages
of Canada.

2. Either the English or the French language may be
used by any person in the debates of the Housesof
Parliament of Canada and in the legislatures of all
the provinces, and both those languages shall be used
in the respective records and journals of the Houses
of the legislatures of the provinces of New Brunswick,
Ontario, and Quebec, and either may be used by any
person in any pleading or process in or issuing from
any Court of Canada established under this Act, and
in or from any of the Superior Courts of the provinces
of New Brunswick, Ontario, and Quebec. The Acts of
the Parliament of Canada and the legislatures of the
provinces of New Brunswick, Ontario, and Quebec shall
be enacted and published in both English and French.

3. The provisions of subsection 2 shall apply to
any additional province in which those persons whose
mother tongue is either English or French shall reach
or exceed 10 per cent of the population of the
province; and to any province which declares that
English and French are official languages.

4. Uhenever in any province the English» or French»
speaking population of the appropriate administrative
unit reaches a substantial proportion, this unit shall
be constituted into a bilingual district, and there
shall be enacted federal and provincial legislation
making judicial and administrative services in such
bilingual district available in both official languages.

5. Nothing in this section shall be taken to

diminish or restrict the use, as established by present

or future law or practice, of any other language in Canada.
(para. 418)

13. We recommend: a) that the fedcral Parliament adopt
a federal Official Languages Act; b) that the Governor
in Council appoint a Commissioner of Official Languages
charged with ensuring respect for the status of French
and English in Canada. (para. 439)

14. We recommend: a) that the legislature of each
officially bilingual province adopt an Official Languages
Act; b) that each officially bilingual province establish,
for its own purposes, a point equivalent to that of the
Federal Commissioner of Official Languages. (para. 448)

*Note that “sole or main language of instruction” is
wrongly translated into “unique langue d’enseignement”.

* Note that 12(2) in the English version does not cover
the records the journals of the Parliament of Canada
while the French version does.

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