conrxnmmxm, ‘
Document No 81(1)
January 15, 1969

CONSTITUTIONAL CONFERENCE
CONTINUING GOM1″II’i‘TEE_ OF OFFICIALS

Nosznrnom mun SECRETARIAT on REVISIONS TO THE ‘. ‘ ‘
NUMBERING ow PROPOSITIONS OP/SEC/WP/15 (Revigéd) * ;
AND CP/SEC/“VP/16 (Revised) — REFERENCE TABLE To “

msxc concspsos

op/sac/rm/7 (NszNev1§;eL1)NN_

CONFIDENTIAL
Document No. 81(1)
January 15, 1969

CONSTITUTIONAL CONFERENCE
CONTINUING COMMITTEE OF OFFICIALS

NOTE FROM THE SECRETARIAT ON REVISIONS TO THE NUMBERING
OF PROPOSITIONS AND MODIFICATION OF CP/SEC/WP/15 BASIC
CONCEPTS AND CF/SEC/WP/16 REFERENCE TABLE TO BASIC CONCEPTS.

Members of the Continuing Committee will recall that it
was agreed at the Fifth Meeting of the Committee that the
Secretariat would consolidate the propositions, CP/SEC/WP/15
and CF/SEC/W?/16 in one document which could be more easily
handled as reference material.

To this end the Secretariat has put together:

1. Propositions submitted by the governments up to

December 6, 1968.
2. CF/SEC/WP/15 (Revised to December 6, 1968)

5. Reference table to Basic Concegta
op/sec/up/15 (Revised January 5, 1969)

Propositions have been collated starting with those
from the most eastern province working west. They have been
listed on a continuous basis divided only by subject
headings where these were included and have been single
spaced to reduce the volume.

For ease of reference, a decimal system has been

. introduced which indicates first the province, second the

document page number and third the proposition number. The

indicators used for the provinces are as follows:

Newfoundland

Prince Edward Island
Nova Scotis

New Brunswick
Quebec

Ontario

Manitoba
Saskatchewan

Alberta

\O(D\”IG\\!\J?\Nl\)r-‘€)

British Columbia

1-‘
0

Federal Government

Thus 0. 2. 4. would identify proposition #4 on page 2
submitted by the Government of Newfoundland.

The basic working document CP/SEC/VP/15 has been
revised to December 6, 1968 end modified to reflect the new
proposition coding. In addition, for quick reference an
abbreviated provincial identification has been sdded to each
code number so that identification of the originator will be
shown throughout the document.

CP/SEC/WP 16, the Reference table to Basic Concepts, has
also been revised and modified. It now shows the page number of
GP/SEC/WP 15 and gives the page and paragraph reference to the
Summary Records of Proceedings where discussions of the

concepts are reflected.

fix”) 7.1‘l:2i”-“?”“]..r\’J.r

lho following propositions 0.1.1 to 0.3.12
were presented by the Government of Newfoundland
on 25 September, 1968.

§g§g§pT: ulsrc PRINCIPLES

0.1.1 The Constitution shall declare Canada to he
s sovereign nation comprising ton provinces
and two territories (with boundaries as
presently defined) which shall operate as a
democracy under a federal and parliamentary
system of government and shall recognize the
Queen as Head of State and maintain existing
ties with the British Commonwealth of Nations.

‘ 0.1.2 The Constitution shall provide for the

establishment and maintenance of a strong
Central Government representing all of the’
people of Canada and shall recognize the
primacy of the Central Government in inter-
national affairs and in all negotiations
involving foreign governments.

0.1.5 ‘The Constitution shall vest in the Central
Government all jurisdictions, powers and
authority necessary to achieve national
strength and unity and to implement policies
designed to develop the economy and welfare
of the nation as a whole or of any part of
the nation.

0.1.4 The governments of the various provinces
comprising Canada shall operate under a
parliamentary system and shall have the
necessary jurisdictions, powers and authority
to enable them, either by their own efforts
or in cooperation with the Central Government,
to develop their human and natural resources
to the fullest possible extent commensurate
with their needs and with the interests of
the nation ss a whole.

0.1.5 The Constitution shall contain appropriate
provision to permit the alteration of any
provincial boundaries or the formation of new
provinces in cases where it is deemed to be in
the national interest to do so but it shall
be expressly provided in the Constitution that
no existing provincial boundary shall be
amended to any extent without the prior consent
and mutual agreement of all of the provinces
whose boundaries are immediately affected and
of the Central Government.

0.1.6 The Constitution shall provide that all provinces
shall be equal in status, jurisdictions and
powers and that no province shall enjoy special
rights or privileges vis—é~vis other provinces.

0.2.8

0.2.9

0.2.10

0.2.11

Uux. Hi A/.2

The Conmbihubion sh .l recognize the Enwlion
‘and French no the foun.Lng “aces of Gan ”:
zmd 8hn’|l conimirx the nocc… my p1*ovi:;’ion:;

to ensL1c that citizens of French descent
residing in Canada outside Quebec shall

onjoy the some rights with respect to the
French language and the preservation of their
cultural heritagn as citizens of English descent
enjoy in Quebec nith regard to their language
and culture.‘

The Constitution shall give recognition to the
existence of serious regional disparities
throughout Canada in economic growth and
development, employment opportunities and levels
of public services and shall declare the need
to eliminate such disparities and the right

of all Canadians to enjoy, as nearly as may be,
equality of economic development, living
standards and public services without the
necessity of any province, in its efforts to
raise these standards and levels, having to
resort to taxation which imposes an unequal
burden upon its citizens bearing in mind their
capacity to pay.

SUBJECT: FUNDAMENTAL RIGHTS

The Constitution shall contain a charter of
fundamental rights and freedoms embracing,
inter alia, volitical, legal, egalitarian and
linguistic r xts, freedom of expression,
freedom of conscience and worship, freedom of
assembly and association, the exercise of
individual franchise, the security of the
person and the protection of property.

SUBJECT: OFFICIAL LANGUAG J

The Constitution shall contain provision for

the implementation of and shall give effect

to the recommendations of the Royal Conmission
on Bilingualism and Biculturalism relating to
the.use of the French language throughout Canada.

SUBJECT: REGIONAL DISP§§$TIES

The Constitution shall vest powers in the Central
Government to take such special measures, in
consultation with the provinces, as may be
necessary from time to time to combat and

eliminate regional disparities throughout Canada;
these measures to be either of general application
or, if the need exists, designed for the specific
purpose of dealing with problems existing in
individual provinces and the Central Government
shall not be limited or confined by the Constitution
with respect to the nature and extent of the action
which it may take to assist in solving this serious
problem in any particular area or area..

0.3.12

.’.i‘hu Com;
3

bution of powers
_ – nt and provincial
bearing in mind the existing dis
pone as determined by the Brit ch North
Amer an Act and court decisions, the changing
condi .owo ‘h h have taken place in Canada
since the pro -nt distribution was originally
determined and the problems whi h those changes
have created both for the Centr 1 Govcrnmenfi
and provincial governments.

The principle of set ing both “exclusive”
jurisdiction in certain apecifiod fields and
“shared” jurisdiction in others shall be
continued but the primary objective shall be
to effect a distribution of powers which will
facilitate the development of the greatest
possible strength and unity for Canada as

a whole and the highest possible standard of
prosperity and wellubcing for all Canadians.

COI’!,‘*”l I)J‘7I’!’.I’T’T/LL

‘The following propositions 2.1.1 to 2.5.17

were pro
22 July,

SUSJECT:

2.1.1

2.1.2

‘ed by the Government of Nova Scotlc on
LJL ‘

TUE OBJECTEVES AND PRINCIPLES OF CONFEDEXATION

The Constitution of Canada must provide a
framework in which Canadians of all races and
geographic areas are assured of a satisfactory
atmosphere in which to live happily, which
involves recognition of diversity in language
and culture and the assurance that all Canadians
have as nearly as may be equality of public
services without unequal burdens of taxation,
equal standards of economic wel1—be1ng and
equality of opportunity. – –

§yDJECT: REGIONAL DISPARITIES

It is of fundamental importance that the Constitution
provide for balanced regional economic development.
The Constitution must acknowledge the necessity for
and provide that:

(a) A frankly regional approach be taken to economic
development in Canada, and that great efforts be
made and massive sums of money be expended to this
end:

(b) Regional policies will in fact be followed in
all practical ways, such as in the application or
monetary and fiscal policies and in provision for
incentives:

(c) Planning of federal programs and expenditures
will be effected in the light of the urgent

, requirement for balanced regional economic

development in Canada.

EXPLANATION

1. At the Confederation of Tomorrow Conference in
Toronto and at the Constitutional Conference in
Ottawa representatives of Provincial Governments
acknowledged that regional economic disparity is
a critical problem for millions of Canadians,
and these representatives, we believe unanimously,
agreed in principle that steps should be taken
to correct this regrettable condition.

2. While the Constitutional Conference will deal
principally with constitutional questions of
a legal nature, surely one of the most important
considerations will be what do we want the
Constitution to do. One of the answers to this
question surely must be that it should provide
the best means possible for fostering balanced
regional economic growth. Balanced regional
development has bong been considered by many to
be one of the most pressing problems with which
Canadians must deal. Although cultural and
linguistic problems of the Constitution must be
the concern of all provinces, surely the existence
of adverse economic conditions in any province
of Canada requires that we place equal importance
on the subject of economic development.

3}.

no

COi:’II’I})}J1H’l.‘IAL

The political creation of Canada, in
effect, did create a “national policy”
under which people in all regions of
Canada bought and sold for the most part,
Canadian goods. Canada as a whole has
benefited. However, the “policy” has
been better for some regions of Candda
than it has for other regions. The
result of the “national policy” was to
center development in some regions while
other centers remained underdeveloped.

We in Canada need a contemporary “national
policy” to assist those regions which
remain underdeveloped after one hundred
years of applying a policy related to
conditions as they existed during the
period the nation was being assembled
politically. .

Several federal programmes have been
established which might have been designed
in such a way as to become part of true
regional policies. This was not often
done. A very good example of this is the
Area Development Agency programme. This
programme provides assistance to manufacv
turing industries in certain areas as
distinct from regions. Incentives to
industry provided by this programme are
precisely the same, whether the industry
wishes to establish a plant in Gaspe,

many miles from the nearest markets, or in
the Georgian Bay area, close to a great
concentration of wealth and population.

We submit that it is obvious that the more
remote regions have not much hope of
attracting industry with this incentive
when areas so close to the best market in
Canada offer the same incentive.

Nova Scotia submits that what is needed to
solve this problem of regional economic
disparity is a national policy which is
frankly regional in application and of
massive size. It must make a major contri-
bution by stimulating and encouraging
secondary manufacturing and other forms of
economic activity in these economically
underdeveloped regions.

If we are to take appropriate steps to
correct the economic imbalance to which we
have referred, the magnitude of Canada’s
financial commitments for this purpose will
indeed have to be great. The Prime Minister
of Ontario has made the suggestion that a
Federal fund of one billion dollars be made
available for the development of industry.
It is in these terms that we must be prepared
to act if any worthwhile progress is to

be made towards a solution of regional
economic imbalances.

2.3.2

2.3.3.

‘ C(HI*‘Ii)]Q§’1’Ll,I\L

Nova Scotia wishes to emphasize the
importance of dealing with this question

of regional economic disparity as a
Constitutional issue for three reasons:
First of all, revisions of the Constitution
may require months of deliberation, if we
are to pursue all the suggested changes we
have heard thus far. If we do not deal with
the problem of regional disparity as a
Constitutional issue of prime importance now,
when, one may well ask, will it be dealt
with? Second, and perhaps most important,
is the fact that these two problems of
constitutional rights and regional disparity
are at least of equal importance to Canadians
in every province. Third, there arc in all
likelihood more Canadians living in regions
which are economically underdeveloped, than
there are Canadians who would feel they have
derived benefit from changes in the Consti-
tution which recognize linguistic and
cultural demands.

The Federal and Provincial Governments in Canada

must each have sources of revenue within their

control which are sufficient to enable them to meet
their constitutional responsibilities. In order to
assure to the provinces the attainment of this
objective the Constitution must include provision for
full equalization of all provincial revenues, including
municipal revenues.

EXPLANATION

1.

An integral part of the problem of regional
growth is the disparity in the quality and
quantity of public services found across
Canada. These disparities were ably illus—
trated by the Economic Council of Canada in
Second and Third Annual Reviews. The
disparities in provincial—municipal
expenditures were found, as would be
expected, closely related to the disparities
in regional income.

The word equalization has acquired a specific
meaning in the course of Fedcra1~Provincial
financial arrangements in Canada. It is

used to describe the process of recognizing
that there are differences between provinces
in ability to raise money to provide public
services and of making efforts to offset the
difference, in part at least, by payments from
the Federal Treasury.

It is no longer necessary to argue that there
are such differences or that it is in the
national interest partially to offset the
differences by such payments. This has now
been accepted and done for many years.

.4.

\;:

2.h.4

2.4.

\;1

2.4..6

2.4.7

2.4.8

2.4.9

2.4.10

2.4.11

CONFIEENTIAL

H. In the discussions in 1966 bctwo-n the
Fedora and Provincial Governments that

led to ‘,vclopmc t of the now equalization
formula, hova ‘ hia submitted that the
proposed new equalization formula would not
amount to full equalization. This was because
the new calculation takes no account whatever
of municipal revenues, fiscal cu acities or
responsibilities. If this equal zation
formula had taken those municipal rcvcnuos
into consideration, we believe that public
services would be able to be taken care of

by nearly all provinces.

SUBJECT: O‘

CT OF THE REVIEfl

The Constitution should be more than a formal
legal document. By way of preamble or otherwise,
it should reflect the basic philosophy, objectives,
hopes and aspirations of the Canadian people. ~

The British North America Act should be brought up
to date so as to reflect Canadian political, social
and economic facts as they exist today or a new

Constitution should be enacted in Canada.

SUBJECT: BASIC PRINCIPLES

Canada should continue under a constitutional
monarolw and a parliamentaiy system of government.

Canada should continue to be a Federal State.

The Government of Canada must have sufficient
powers under the Constitution to discharge its
responsibilities in respect of all matters which
concern all the people of Canada.

Residuary powers should be vested in the Government
of Canada.

The Government of each province must have sufficient
powers under the Constitution to discharge its
responsibilities in respect of all matters which
concern its people as opposed to the interests of
all the people of Canada including fiscal resources
sufficient to discharge its constitutional respon~
sibilities.

SUBJEQEL FUNDANEYTAL RIGHTS

Each province should provide educational opportunities
for its English or French minority groups insofar as
those educational groups are concentrated in areas
that can be reasonably served provided that the
primary goal should be to achieve a reasonable degree
of bilingualism in Canada.

IO .

SUBJ 1’JCIl.‘:

2.5.15

SUBJECT:

2.5.14

CO] ijr”I. mil :’J‘.’|I/LL

The Constitution should recognize basic hvman
rights.

“Jv:2fl”LAI£A’1.‘I_Q_11

This should not be interpreted at this time
as proposing entrenchment of statements or
specific rights in the Constitution.

CONSTITUTIOE OF THE GOVERNMF”T OF AF
CONSTITUTION OF THE PROVINCIAL GOV»

1:..?‘1‘i$

The Constitution should contain a number of
provisions relating to the formation and the
continuance in Office of Government which are
now accepted as Constitutional Conventions.

CONSTITUTiON OF THE GOVEJHMENT‘OF CANADA

The Senate should continue but the method of
appointment of Senators and the composition and
functions of the Senate should be examined,
particularly the composition and function of the

_Senate as a body to represent regions of Canada.

SUBJECT: CONSTITUTION OF TfiE’JUDICIAL SYSTH1

2.5.16

2.5.17

Consideration should be given to the matter of the
composition of the Supreme Court of Canada and
particularly its suitability as a Court of last
resort to:

(5) Determine constitutional questions, and

(b) deal with matters involving the civil code
of Quebec.

SUBJECT: ggsmaxgumxoxz o1;3ow

The Constitution should provide for delegation of
legislative powers.

Mineral rights should continue to be vested in the
provinces, including off shore mineral rights.

(I.

CCIHIDb‘TIAL

The Following propositions 5.1.1 to 3.25.59

were prosvntnd by the Government of New flrunswick
on 9 July, 1908.

5.1.4

$UJJfiCT: THE NATURE OF CANADIAN SOClE‘Y

Canada is a north amerioan nation developing its
own identity as a community in which people of
two languages and many cultural origins have
shared a common land and a rich heritage of human
values, and purpose to build together a society
dedicated to human fulfillment, social justice,
and responsible conservation and utilization of
the natural legacy of Canada.

COMMENT:

1. The propositions of this section are by way

of fundamental statements suitable for the
development of a Preamble to a now constitutional
document, or for preamble placement in the proposed
Charter of Human Rights (federal and provincial).

2. something of this nature is indispensable to
colour any future major reconsideration of the
language of the Constitution whether it takes this
form or not. The successes of our present major
constitutional document have been considerable,
but it is woefully lacking in language that gives
focus and direction to the national purpose.

Canada is a federal state whose roderalism oxnrosses
not only the framework of its economic, political.
social, educational and administrative activities
within Canada, and the image and operations of Canada
in the world, but also the liveliness and variety

of Canada’s history and traditions.

Canada is a democratic society dedicated to liberty,
equality and human fulfillment for its citizens.

The benefits of the Canadian Society include the
right to participate in all activities of Government,
the right to non-discrimination, and the right to
participate in expressing the popular will that must
control state and government in a free society.

Preservation and full expression of Canada’s basic
linguist c and cultural duality I .;entia1 to the
achievement of the identity ano part -ularity of
Canada as a north american state and as a dynamic
member of the world community of nations.

I3.

C(DX’IE*‘IDn1‘J’I‘lAL

SUBJECT: THE OBJECTIVES OF CANADIAN COHFE’£.fl1Ch
5.2.6 The overriding objective of Canadian Confederation

is the good life for all Canadians within a
framework of Government that provides for stability,
security and creativity with equal opportunity for
all and the denial of a decent minimum to none.

COMMENT:

1. The Propositions of this section may also be
regarded partly as a mixture of Preamble or Charter
or Rights materials. .

2. In some respects, however, the propositions

of this section go further than either a preamble

or Charter should go because they seek to express

the dynamics of Canadian federalism, and also certain
social expectations not generally associated with
classic Bill of Rights formulations except insofar as
economic and social rights now appear in UN documents
and in the constitutions of many developing countries
as well as in Communist Esst—Europeen ones (the latter
phenomenon is not too encouraging for purposes of
Canadian emulntionl).

5. Nevertheless, something as fundamental as a
statement of objectives of this kind would provide a
functional and political foundation for some of

the details which follow later in some of the other
propositions. The propositions of this section also
attempt to indicate that a modern State must be greatly
involved with the consequences of the new technologies,
both for its own economic needs, as well as a matter
of economic and social fact. That being so, in the
current rewexamination of the allocation of juris~
dictions, Canada must take account of technological
and social trends in their impact on Government,

in order to maximize human and social benefits in our

adaptation to them.

4. Perhaps the wisest approach is to see in the
process of adaptation, the need for maximum
cooperation among all levels of government in
education, research, manpower training, assistance to
rural and urban entreprise, Canadian social goal-
setting, etc.

5. It is important for 5 statement of “objectives
of federalism” to reflect a kind of general Canadian
political philosophy about the good life, both for
Oenadians themselves and for people everywhere, and
to suggest the way in which Canadians hope that their
present and future feds-al system will he able to
achieve such objectives. Nee ‘ly the language
must be general but at lezmb : ids a tone
and direction that will have rt. . .ocxt
on propositions concerned with the ”
d.istr1′.bui;io:’. or division of not-‘e;*:«
institutions which must follow.

the concomitant

21+.

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.8

\ik‘il“‘] }):$I‘i’l‘1’AI:

’*‘-‘:u’.tJ’.:‘.l to Canadian con[‘.2dc.:‘}:tio~ L;-. the
ixztemxmzc 0;‘ a strong; 1-‘»:d<:x‘n]. (}o\.r:L‘1u=;o1:t
which nhnll be representative of all the
people of Canada and shall not on their
behalf to define and to achievc national
purposes at home and abroad.

COMHfl?h

1. Gathered up within the general statement of
his Proposition is the concern of the Government
of New Brunswick to ensure the “strength at the
centre of Canada that will makc possible strength
of development in all regions of Cfinada”.

2. The Government of New Brunswick would agree
with the statement that a dist “ct ve “internal
role of the federal goverxmmnt is to assist in the
b ilding of a strong economy.” Such federal

pr. eminence in this field is nece5:sm.‘y to make
possible the related regional development processes
of our federalism — e.5. the fiscal transfers,
equalization grants, etc. by which national
resources are directed to promote more Ea anoed and
effective regional development.

5. Beyond such economic or development objectives
referred to in 1) and 2) above, there are, of course,
the whole “cluster” of social and political purposes
that require fooussing at the centre through the
instrumentality of a strong national government.

Also essential to Canadian Confednration is the
maintenance of ProV‘incir«l Goverzuncrits. ~..’itl1 jm.*i.’:d.ic-
tions and resources enabling them to achieve

dynrxmic development of the human nnzi ;:r..tu7_‘n1 pote1nt:l.a1
within their jurisdictions: to realize the‘va1ues

of Canada’s regional and cultural éiversity: and to
contribute thereby to the attainment of the national
purposes.

-‘.)s.hadim’. Jonf.‘ed.ereti0n thus i‘eo_\Li1-e:.= the pJ”i.l.’lBCy of
the Federal Government for purposes of expressing
the national identity and will, and for mobilizing
and directing the economic and social stre ;th of
the nation; while recognizing that it is the
provinces and their munioipolitieo which do and must
have the most intimate and direct relations with
ci‘\:i2, doucstic and developmental concerns of Ganauians.

It; mu.:t no on obgiective of <;‘onfr=,riov.*:.-tion to achieve z;ntion.’21 unity both in spirit: one in fact tlzrouygh all {J,‘O\i(,‘I:.’ ental and all public ‘ f;hL‘O\lL’,h hm.’mm1izi.1:.g,’ the . – by a proper :.”c:’speot for eac‘ othcr’s Jurisdictions and rules: by an effective, fun ional balance among federal, proulncial and znuui i_r>:\J. pgovcrmncnts as they carry out th.~:i.r r<-2:2- pectivo du” and by a concerted nrfort to give l.’u.1]. national 0 ’>.rossion to Cm‘-ad?‘ two l;as’ic

/SC

5.4.11

3.4.12

5.4.13

5.4.14.

\’)(>?.’2?I Du. ‘ETIAL

~.

“do faces the continuing and u1 .
rosyonding, through its institutio and 5 social
and economic activities. to rapid and revolutionary
political and technological world forces, and it
must be an objective of Confedernti 4 to develop
powers, programs and institutions with the aid of
all Governments so as to steer change for human
benefit and social enhancement.

It is a further objective or Canadian confederation
that forces and institutions of co—operotion between
all levels of Government shall be developed that
will assist the full development of all refiions of
Canada, the overcoming of regional disparities, and
the solution of both urban and rural problems.

As members of a world community whose dangers and
hopes we share, a fortunate Canada has obligations
of compassion requiring of us acts of solidarity in
mankind’s search for peace and justice, and contri~
hutions to emerging societies anfi nations through
programs of economic and social assistance.

It is a prime objective of a ur‘tcd Canada to express
its national identity through its independence as a
north amorican people and state, dedicated to
co—oporation with its neighbours, but aware of its
particularity as 8 nation, determined to preserve it,
ind to contribute from its dynamics to n more open
and humane world society.

SUBJSCT: OFFICIAL LANGUAGJS AND CONFJDSXRTIOK

5.4.15

The English and French langu ” 5 are the official
languages or Canada. This pri ciple shall be
converted, as speedily no possible, into cc sti~
tutional rights and administrative operations,
federally and provinoially.

COF :MT:

1. This proposition repr sonts 0 basic
objective for all Canadiazxsz 9 all I‘,‘<)VeI‘r:!t;0nl;S.
It is z*ecoe,’:1ized that there may be (1 J. erenii

. ;rees of oovera e (see the next Fr nosition in
this Section), and different t’m . ales of
implementation as between the Fade Government
on the one side, and among the several Provinces
on the other.

:3. A valuable t1ppt‘C7.’:<,‘.h may he one that seeks
‘ earliest constitutional r-2r:’!7:’.<m<:ruz.<= f;, as
I Rrunswick is prepared to do. But Mlth or

wmvhout entrenchment, the Constitutional Conference
or Zv‘obru;-my l968 made it clear t) a

“net. nal commitment” which has . . the face,
:12, ‘.. lye and the function or Caexaaui. ‘ ty and
government. However, the various lo
monk may differ in their methods and timo—schcdu1es
in the process of implementation.

/6v

I1).~iN’l‘IAL

ch.‘ =h-Lxpenldmgg mu: fro‘ _ um.–.zu|”Lm1::
nlv:-11‘ have the cons Lhut.xoxzsxlly-ant:-ozu Kn‘. s-igm,
Lo be c<iucz;tcd in, 02- to have |'<21:\(;.io:’..~: .
.“”‘i5‘:1v!-lu\lI‘®S, ._;overn1‘..em,:=, mad, \,ou;”\.:: Sm am», or
1, 01.‘ me Of€‘i(:ia1 LunL;:uexL,cs; \v12or<-vver Lhcy may
live in Canada and wherever the .’3l;1’1xc.Lu1‘t‘ and
dist;1’bution of population 1.’equJ’.J‘<>s and makes
practical such rights.

COMI’h:‘.U’l :

1. Some important questions remain to be
fully explored – either ‘oi-]..ut;erally between

the Federal and Provincial Goverrwzeulzs concerned,
or by the £:ommi’ttee of Officials (its O1‘fi<:is:l
Ltmgguages S\1b-Connni’Ctee) and the Contitutional
C‘o.m‘oron<:e itself_ These (_1‘.1e:=.tiOt‘.-S clude the «:oIupler.Ieu1;m.‘y inL‘e1‘actior:23 between S.‘ .€e1‘z?.l Fwd provincial 1e(r,isalati.on in the development and an ‘nistration of the t\\’o—1anr~\;cx;::¢~> 3xo1.1‘_c.y

(am ortzzxm: examnles v1′..<s«é-vis new }’.:»un lick — 1‘. al 1->.<:t1.on required to mako Now B1.’u:..»wJ’.31<
o£I1.<:.xa]. lanlgguagcs policy ope1.‘e‘ci’:e in the couwos in the ligjght; of ti rsecent Appeal xloufl: Liecisioxl in New Eirmmswick: ensurixu; co~ord1:mtion of.‘ federal and p2:-ovincial programs). An ix::p01’1:o11t issucc its the sharing; 0,’: co:=sbs., Lztularly the heavy “::tu1‘i,~up” costs to be borne, for zzsczxmple, by New B:-urzswick .-‘-w:: ‘J 0 lrovince with 1 t;1:e 1nr.’;;est 1\‘rench-—Z£n lish p’Q1,s(>1‘tiOnB in
Can:-zcia, and therefore faciro‘, possi. Ly the lzigghost
:’c1a‘l;iv<: costs for total hi.-].i:.._;u:-.1.imtion.

*e1,hor1s of utilizing;
I..‘.za.bion: Media in
‘V, and relating

7. A further issue co11cez~ :
1.e<.te;‘&\lly-<lir<!c1:;3d national cor u
::uppo~:1, of the bwo—1an~*ua.g;es pifli.
such 1n<:\”xi.°. also to Provincial ..“.u<1 ei‘.;‘orts
(e.-_‘;. I-‘rovinces such as On’<;;1′.* .., .uc’u<:-2 FJIKG. New
’51-41:53‘. ick with a special t;:’snk in this .I*e,_1,’a.-xi).

I». ’Some lessons may be lezzmors too, as to how
to av<>.’1d possible di.(‘ficuli:i<:s by o’L>:3erviny_; ni-
12’x1{;ua.’£i-.sz:1 or multi—-lingua,’l.ism in ac‘Jvam<:ed countries
such as Belgium or Switzerland and here tlm studies
or the Royal Commission on B & is should prove
helpful. Equally, care will have to 1“ taken in any
proposed amending pro<:e:=ses to make cm-rain that
‘ulzey do not alter adversely some p1‘es3<:xLt program or _~~m:tices aznomxting to “rigghu ‘ u:-.d:2r the r)enomina—- nal righ(;s provisions of the -3;-ibish Ho:-(:11 Ax:\c:x_*§.c:.>. Act if these are 110\-I to be <;x).;\'<-.1‘te\L into uago rigghts programss. Thcrr re er;-rtmln inton- . tlxai; thought will have 1:-.7-hr: ‘zivon to the .- m’:e zaion of deno1ninea . n salvo} .r~i;;h1;ss i:;1;o lzazqtxmge autzonomy unit ,nr‘o;,’:.~m S 5.3‘! ‘Aer the :ic>nomi.~mh1′. :;’l,u

. 5 )1»].en1s ‘.;hich are
<,h x.~’i.‘u>r cyst:->1=: of.‘

i;I’:c ” IA Act may uaxrtover ‘.”1‘e<‘.:a1
ma‘: yet fully um‘1eI~sstoo

e 1*i;;;ht:s, not mnJ_j,’ in. 1:] .
o,‘ the 1~roxri.n<:e of Quebec ‘nut in 131.1. :,>.xblir~. «iocuxneunts.
31¢. H1“.))’rS’r1i0k has much 130 lean. 1,’1~on. v
1n:.d.«:1~:1ip of Quebec in bili1x5,‘.x:11i:;€.a2
‘ . v‘ou;;}1 the ‘n’1rti(:u].zar* app? icw” or tn Quebec
the (‘.:<;L£:t:in;’; p:“0‘»/iS‘10.’1:‘= 31‘ +.;h<». ‘. ;\<:L. I3, ‘,’-.6. 1c} 5.6.17 SUBJECT: 5.6.18 “«€>X}nI‘| I)I’LN’i‘IAL

fl. The language of the Tropooitien is drafted
in realistic, practical terms deliberately so as to
avoid “grand pronouncements” or “in principle”
statements in this field of constitutional provision
that fail of actual implementation. It is important
to tie the discussion ofi this principle to the
specifics of programs, administrative provisions,
educational arrangements and programs, etc.

The English and French languages shall have equality
for all federal parliamentary and administrative
purposes both within Canada and abroad, subject

only to the considerations of necessity and ooxwe-
nience in the effective management of individual
government operations.

COMMENT:

1. There is also the very special case or the
Ottawa area where the five governments concerned ~~
Federal, Quebec, Ontario, Ottawa and hull -— will

be moving toward some new concepts of bi—lingua1iaation
to express in the most practical and symbolic forms

the changing social race of Canada through the
demonstration of its successful alteration in the
capital area itself.

2. Bilingualiaation anywhere does not mean
uni—lingualism with reluctant concessions. While
mother tongues may predominate they will no longer
exclude, but this must work both ways. There must
be opportunities to acquire in both schools and

the public service a working knowledge of both
languages wherever this is desired, side by side
with the existence of schools essentially giving
instruction in a single mother tongue and preserving
the integrity of that mother culture accordingly.

A CHAHTER (OR BILL) OF FUVDAMEHTAL RIGHTS AND
COHFEDERATION

A Charter of fundamental rights and freedoms should
be entrenched in the Constitution. Such rights
and freedoms should embrace the classical civil
and political liberties we have known, to which
should be added refinements including language
rights (unless otherwise dealt with); proccdural
safeguards against abuses of the trial or edminis~
trative process; possible limitations on tke
legislative powers of both parliament and the
provincial legislatures; a general ‘due process‘
clause with both procedural and substantive
implications for the operations of both the
legislative and administrative processes: and
ouch other statements or rights and freedoms that
reflect the modern concern for “the individunlisa«
tion of justice”, in the face of ever growing
state power.

I2.

5.7.18

CONFIDENTIAL

COMENT:

1. Everyone is familiar with the continuing
debate over the limited success of the 1961
Canadian Bill of Rights as a statute of the
Parliament of Canada, The general reluctance
of the Courts to use the Bill has been explai-
ned both because of its particular terminology
on the one hand and its limited statutory form
and authority on the other. Nevertheless, it
marked a significant beginning —- along with
the Saskatchewan Bill of Rights, and together
with the various provincial statutes dealing
with non—discrimination in employment and
accommodation — toward a statement of broad
“rights” policy but amounting to a‘great deal
less than a modern comprehensive Constitutional
Charter. The recently completed Quebec State—
ment of Rights not yet enacted but which will
he introduced in the revised Quebec Civil Code
is also an important step toward meeting the
developing public demand for and its familia»
rity with Charters or Bills of Rights.

2. There are some major difficulties that
have to do with the scope of such a charter

and the role of paraflel provincial charters.
As to the first, the white Paper produced by
the Government of Canada for the February Con-
ference and entitled “A Canadian Charter of
Human Rights” sets out very well indeed the
main topics that might be included in any such
federally proposed bill and these are very
similar to the proposition set out above. The
white Paper is very conservative on the role of
economic and social rights and properly so.
(See next proposition in this section). Indeed
it includes the non—discrimination question under
other headings and this identifies the special

snues raised by economic and social rights pg;

gg, such as the right to employment, social
security, to an education, etc.

5. The other issue of technical and policy
significance is the effect of such a Bill of
Rights on any theory of legislative supremacy
which has dominated constitutional thought and
practice in the Anglo-Commonwealth system even
where written constitutions have been involved,
e.g. Canada and Australia. To some extent,
however, the introduction of a “due process
clause” will merely extend the already signifi-
cant limits on parliamentary supremacy that
exist in the decisions or the Courts concerning
Parliament and the Legislatures in applying the
BNA Act as it now stands. Nevertheless, such
an extension, if it includes the power of the
Courts to invalidate legislation for general
policy reasons, for its violation of some “due
process” standard affecting person of property
and not merely for reasons of the procedures
laid down in the statutes, will in fact change
the nature of our parliamentary system. For
to that extent the Counts will now have the
last word on the validity of legislation inde-
oendently of the question of division of powers

“I.

5.8.18

SUBJECT:

3.8.19

GOHII‘ 1’. .>l-ZN’i”IAL

and based instead upon broad concepts of
policy as the Courts evolve new limits
beyond which the theory of supremacy may
not go. Judging by United States’ expe-
rience, and the wide range applications of
the due process clauses of the leth and
15th amendments of the U.S. Constitution,
there may be many benefits but also serious
risks. There was a time indeed when from
the 1880’s to about 1935 when the U.S.
Supreme Court employed the 14th Amendment
as a means of striking down progressive
state legislation on the grounds that it
amounted to a taking of property without
due process of law. It is unlikely that
this particular U.S. e ericnce at the
height of 19th Century ‘1aissez«faire”videas
would find any similar application to a
future Canadian constitutional system.

A CHARTS} (OR BILL) OF FUNDAMENTAL RIGHTS
AND CONFEDERATION

In a Charter of Fundamental Rights, economic
and social rights may be alluded to in the
most general terms and should include state-
ments with respect to non-discrimination in
the matter of social claims and benefits
(employment, housing, eto.).

CONMEND:

1. Beyond such limited rig1ts and general
allusions, care must be taken not to attempt
to entrench social, economic and welfare
policies and objectives such as full employ-
ment, social security, minimum wages, hospia
talization, etc. in constitutional terms.
The consequences could be to provide a new
theory of state duties enforceable upon
Parliament of Legislatures through the appli—
cation of orders by the Courts on such issues.

The entrenchment of a Charter or Bill of Rights
in the constitution shall not preclude the
entrenchment of complementary or parallel

hills of rights in the constitutions of the
provinces.

CON!‘ “1” 2

1. It will be for the Courts to resolve

any conflict between Federal and Provincial
Charters or Bills, and their standards, and
to determine theories or supremacy, if any.

SUBJJCT:

COMMENT:

-3.9.21

CONFIDENTIAL

THE CONSTITUTION OF THE FEDERAL
GOVERNMENT AND ITS AMENDMENT

Within the Canadian Confederation, the
Federal Government shall be a system of
responsible government as that concept
has come to be known in the customs and
conventions of the present constitutional
system.

1. There are a number of very difficult
questions raised in the Propositions of
this Section. The first proposition
assumes the general continuity of our
parliamentary system of responsible govern«
ment, and with the Cabinet or executive
branch responsible to the House of Commons,
and selected from the Party able to command
a majority in the House.

2. Nothing is said here concerning
other variations, or the propriety or
impropriety of selecting Cabinet Ministers
from the Senate, an already existing but
infrequently employed practice.

3. Clearly the broad amending powers of
Section 91 (1) may require reconsideration in
the light of the general desire not to permit
the Parliament of Canada to do indirectly
through the amending process of 91 (1) what
it is not permitted to do directl . (see
final Proposition of this Section

#. Similarly,.there is something to be said
for including new approaches to the permanency
and impartiality of the Speaker in the federal
constitution, and perhaps there are lessons
about “Privileges and Immunities” of the House
and its members; about committees and other
matters — all of which are now under conside-
ration in reforming the rules and practices

of the House of Commons and the Senate, and
which might conceivably find their way into

a modern constitutional description of the
organization and operation of Parliament and
the Federal Government. Much technical study
may be required here to relate new rules of
the House of Commons and the Senate to
Constitutional reform.

Study shall be given to the question whether
the Legislative Branch of the hational
Government is to be unicamcrnl or bicameral.

The Executive Branch shall derive its authority
from the ability of the Government of the day
to command a majority of members in the House
of Commons.

2/.

3.10.24

§.10.25

3.10.26

SUBJECT:

5.10.27

CONFIDENTIAL

The Constitution shall describe the member-
ship of the House and the Senate, the means‘
whereby they are elected or appointed, the
length of term of the membership of indi.
vidual members or or the Government itself;
the requirements of election after a term of
years and such other matters as pertain to the
comgoaition, structure and operation of the
leg slstive and executive branches of the
Federal Parliament and Government.

The present principle of maintaining a balance
of representation by regions in the Senate

and in the House of Commons in order to preserve
certain minimum representation for these

regions shall generally be maintained in any
revision of the Canadian Constitution.

COMNT:

1. The reference to minimum representation
by regions is clearly designed to protect
areas from extreme swings in population. To
that extent the processes or redistribution
may have to be modified to ensure a certain
minimum representation from any Canadian
region.

2. It will be remembered that the Maritime
Provinces’ representation in the House of
Commons cannot fall below their basic repre-
sentation in the Senate (see discussion on the
Senate in Section “G”).

The Parliament of Canada shall have the
authority to amend its own constitution in
accordance with the general provisions for
amendment set out in section “L” below. The
rights of amendment by Parliament shall be
confined to those matters which in no wise
affect the Constitution or powers or the
legislatures of the provinces, or any power
of the Federal Government designed to implement
a generally entrenched right affecting either
the provinces or citizens of Canada.

THE CONSTITUTIONS OF THE PROVINCIAL

GOVERNMENTS AND THEIR AMENDMENT

Each of the provinces of Canada shall have a
Constitution whose central principle shall be
based on the customs and practices of
responsible government as described in

proposition §.2. 1.

COMENT:

l. The Propositions of this Section attempt
to give the Provinces considerable latitude in
setting up their legislative and executive
branch of government.

22.

3.11.27

5.11.29

5.11.50

CONFIDENTIAL

2. Nonetheless. Proxinces are required to
be consistent with some overall pattern of
responsible government theory and practice.
The Propositions of Section “F” frankly
reject either a French “presidential” theory
of government or a United States type of
“separation of powers” form of State orga-
nization.

3. The Propositions of this Section
generally assume that the “language rights”
problem will be resolved by more generally
adopted constitutional provisions – both
federal and provincial — although at
different times for different provinces,
unless an omnibus federally – entrenched
provision is made applicable to all provinces
directly or through a Charter or Bill of
Human Rights.

4. No doubt many problems will arise as
consideration is given to the process of
provincial constitution — making and
amendment. Nowever, it is difficult to
accept any theory of provincial government
whereby its structures will differ materially
from the general political pattern of the
country as a whole — that is, of the other
provinces and of the federal system.

No province is obliged to have a bi—comera1
system but shall not be prevented from
acquiring such a system through its own ,
constitutional processes should it desire
to do so.

The executive branch of the Government shall
be expressed through a Governor of the
province to be appointed in a manner described
in the Constitution of the province.

UOPHEHJT:

1. This Proposition sugsests the elimination
of the Lieutenant Governor’s dependence upon
Federal appointment, and also changes the name of
the office to something less subordinate in

tone than the present description.

Ho province shall have any power to alter its
own boundaries or the general framework of its
system of responsible government without the
approval of the Parliament of Sanada in a
resolution affirmed by both Houses of Yarliament
and by a majority thereof. »

C0l‘lI‘i3fl‘¥‘1‘:

1. This Proposition should not be construed
as favouring a “freezing” of Canadian Provinces
and their structures.

2. On the contrary, it may come to be
recognized that the national interest favours
an adjustment or restatement of Provincial
boundaries, or at least certain new inter—
provincial structures or relationships of a
formal kind which will serve the growth and
development interests of a region.

23‘

5.12.50

5.12.31

5.12.32

comrlnlm-IAL

3. The Proposition affizms a fundamental
national interest in such provincial
re—de£ini¥1on, and suggests a mechanism
whereby that interest shall be expressed.

This matter has
in the x‘ o 2 e
on governmen a co—ora

now unaerwgg.

a certain timeliness

The Constitution of a province shall not in
any case contain provisions in violation of
the main principles or parliamentary
democracy expressed in the Constitution,

and in particular shall not contain provisions
that are inconsistent with the Charter of
Fundamental Rights and Freedoms.

COHPLENT :

1. It is very likely that several provinces
will adopt their own code of civil or human
rights and again the Courts will have to sort
out the relationships and effects of both
federal provincial systems of rights in such
bills or charters.

2. A good example or this difficulty is,

of course, the continuing debate before the
Supreme Court of the United States as to
whether all of the provisions of the United
States Bill of Rights (the first ten amendments
of the Constitution) apply to the state
legislatures. There is certainly an increasing
tendency to have then apply despite frequently
analagous, if not identical, state constitutional
provisions, and applied by the State courts as
they interpret them.

SUBJECT: THE SENATE

Propositions 5.12.52 to 3.15.55
inclusive are subgect to a decision under
proposition 3.9.22 that the legislative
branch of government shall be bicameral.

There shall be a Senate as presently defined
by the British North America not (Sections
l? to 56) but the Upper House shall now be
constituted under a system that will reflect
more accurately the opinions and interests
of the provinces as well as of the Federal
Government.

COHHENT:

1. Among the most controversial and
chronic of Canadian political and constitu-
tional problems has been the role and future
of the Senate. Originally, it was designed
as an Upper House, somewhat analogous to a
mixed House of Lords and United States Senate,
and was intended to give a strong sense of
regional representation independent of the
changing shifts of population and to grovido
also a mechanism for second thoughts about
legislation as it moved from the House of
Commons to the Senate. Unlike the United
States Senate where direct election gave the

17.

3.15.52

CONFIDENTIAL

Senators a very strong relationship with
the public and where American theories of
federalism viewed the Senators as a kind

of delegates from “Sovereign States” to the
Federal congress, the Canadian system,
relying upon appointment (with only the
House of Commons having a relationship to
the popular will) either by design or by
accident, meant a constitutionally weak
Senate almost from the very beginning. In
short, the democratic process and the
popular will do not touch the Senate
directly and therefore its claims to power
in a system of popular government are bound
to be essentially weaker than those of the
representative and elected House of Commons.

2. It is conceivable that the Senate has
been underestimated over the years as a
valuable instrument of Canadian federal
legislative machinery, particularly when its
work with the Committees and its occasional
insistence in taking a hard second look at
legislation enacted by the House of Commons
are both remembered. Equally, the Senate
occasionally has been the place of origin
for some types of controversial legislation
(e.g. the present roposals for the control
or Hate Propaganda and it is possible that
these functions could be enlarged upon in the
future. Now that there is an age limit on
senators of seventy~five, it does not have the
appearance of a home for retired politicians
that once so heavily characterized its image.

3. Nevertheless, it would be unrealistic
not to recognize that much dissatisfaction
with the Senate continues to exist. It would
be quite possible for Canada to get along
without the Senate by abolishing it (as one
major political party has suggested). It
would also be quite possible to strengthen

the Senate by providing for the direct election
of its members – perhaps following the
Australian practice. Abolition would probably
cause a certain feeling of grievance on the
part of those regions which believe they need,
on the grounds of population, size and economic
disparity, the weight of an U per Chamber so
organized as to give them an ‘impuct” or
representation additional to what they have in
the House of Commons or in the Cabinet.
Horeover, Canada is accustomed to an Upper
Chamber, no matter how weak and ineffective

it often seems to be. It is not likely that
public opinion in Canada is too anxious to
remove it, but only to improve upon it.

4. The propositions or this Section,
therefore, suggest a studied approach to the
Senate that will achieve both a more effective
regional role for the Upper House and a more
effective role in terms of general legislative
and governmental functions. It is suggested
that serious studies be undertaken to examine
the possibility of terms for Senators; the
role of the Senate as representative of the
regions of Canada. Certainly it would be most
useful to study jurisdictions where the forms
of responsible government follow our own practice,
but where direct election to an Upper House

is also provided for.

151

3.15.53

3.13.54

5-13-55

3.13.56

SUBJECT:

3-15-57

5-15-38

3.15-59

CONFIDENTIAL
Study shall be given to the duration of the
term of service of members of the Senate.

It is not contemplated that the constitutional
role of the Senate shall be altered in

relation to that of the House of Commons whichr

alone shall have the newer to introduce money
bills and whose membership shall continue

to form the basis of responsible government
in Canada. The Senate shall continue to be

a second chamber through which all legislation
must be enacted, whether originating in the
House of Commons or in the Senate itself,

and the Senate may be the source for the
origination of Bills other than money bills
at the discretion of the government of the
day.

The Senate and the House of Commons may
establish standing, joint or ad hoc
committees at their discretion.

Membership in the Senate will follow present
practice in providing for minimum representa-
tion from the regions of Canada.

A JUDICIAL SYSTEM FOR CONFEDERATION

A Judicial system for confederation with
particular reference to the Supreme Court
and its organizations.

All superior, district and county court
judges (as presently defined both for
Quebec and the other provinces by section
96 of the BNA Act) shall be appointed by
the Federal Government after consultation
with the respective provinces where such
appointments are to take place.

COMMENT:

1. The present system of exclusive federal
appointments to Superior, District and Oounty
Courts, without provincial participation,

may be an anachroniam.

Superior. district and county court judges
shall hold office during good behaviour
until retirement, and shall be removable
only by the Governor General upon address of
both Houses of the Parliament of Canada, in
accordance with present practice.

Study shall be given to the re—organization
of the Supreme Court of Canada into three
chambers namely, a Common Law Chamber, a
Civil Law Chamber and a Constitutional Law
Chamber.

,,’z.£>

3.14.39

§.l@.4O

3. 14.4].

5.14.42

5.14.45

CONFIDENTIAL
COMMENT:
l. The Propositions .1 .“ to §.l%.44
in this Section deal wi e compos ion

and functions of the Supreme Court of Canada.
They attempt to deal with a long standing
complaint that six of the Court 5 nine

members are common law trained and that
appeals from Quebec are heard by men twmrained
in the civil law and vice versa. Similarly,
criticism that a purely “federally” appointed
Court with a preponderance of non—Quebec
judges tends not to give adequate weight to
the civilian-Quebec approach to constitutional
law warrant the development of a Constitutional
Law Chamber as described. This method is
preferable to establishing a separate Supreme
Constitutional Court for a variety of reasons
the most important one of which is the fact
that a very large number or so—called consti-
tutional questions oome up the ordinary civil
law or common law route of a private law
action.” There is much to be said therefore
for the membership in the Court seized of its
general business to therefore be equally seized
of constitutional issues whether these arise
directly or indirectly through litigation or
reference.

2. The participation of the Provinces in
appointments to the Supreme Court will remove
the allegations a whether substantial or not —
of exclusive federal influence on appointments.
Finally, some mechanism for direct federal-
provincial or inter-provincial disputes
settlement has long been overdue as evidenced,
for example, by the gg hoc tribunal established
to deal with the FederaT:5askatchewan dispute
over seed grains a generation ago.

All apointments to the Court shall be made in
accordance with procedures similar to those
provided for appointments to superior, district,
and county courts subject to the effect of
propositions §.14.M1 and §.l4.42 following.

Study shall be given to the question whether

in the composition of the Supreme Court not
less than one—third of the membership shall be
appointed from the province of Quebec and
whether only such judges from Quebec shall sit
upon civil law appeals in the Civil Law Chamber
(if established)

Study shall be given to the question whether
only common law judges shall be members of
the Common Law Chamber of the Supreme Court
(if established)

Study shall be given to the question whether
the Constitutional Law Chamber, if established,
shall be made up of judges drawn from the other
chambers of the court.

1?-

5.15.44

CONFIDENTIAL

The jurisdiction of the Supreme Court shall
so far as possible be limited to ‘questions

of law or mixed questions or fact and law;
stated cases forwarded from provincial courts
of appeal; and references by the Federal
Government on any question upon which it
seeks the opinion of the Court. The Court
shall also have original jurisdiction in any
dispute between the Federal Government and any
province or between two or more provinces.

SUBJECT: INTERPROVINCIAL RELATIONS

5.15.45

“Interprovincial relations with and
without federal parliamentary or governmental
participation or supervision”.

The Constitution or Canada shall make provi-
sion for formal interprovincial dealings by
way of compacts, agreements and organizations
for their common interest, and whatever formal
agreements or institutions are established
ghalgi have the approval of the Parliament of
ana e.

COI”[MEN’.P:

1. It is clear that we have been moving for
some years in the direction of intex-provincial
consultations and arrangements. There are

many examples among the Atlantic Provinces
(Premiers‘ Conference; Atlantic Research Board;
Transportation Task Force; etc.) and the Prairie
Provinces, dealing with both informal and
sem’1—.forma1 consultations and arrangements.

2. Perhaps transportation questions are a
good illustration 01‘ recent consultations,
both on the part of the Prairie Provinces and
among the Atlantic Provinces.

5. The establishment 01‘ a more formal type

of machinery of a permanent character, embracing
all the provinces, is illustrated by the
Committee of Resource Ministers, with its
headquarters in Montreal and its own Secretariat,
This Committee engages in research, publishes
information, convenes meetings and has direct
and indirect relations with Federal officials
and departments, usually of a less “formal”
nature than the dealings between the Provinces
themselves.

1+. The real questions here are, 1) to what
degree the process of purely inter-provincial
co-operation shall be given constitutional
status; 11) whether it is implicitly acceptable
under the present British North America Act;
111) or whether it needs explicit encouragement,
approval, or framework through language 1n the
Constitution itself – and if so, whether some
forms of inter-provincial co-operation should
require the approval of the Federal Parliament,
while others might not.

J~!~

5.16.45

CONFIDENTIAL

5. The above Proposition seeks to point
to arrangements of a formal nature which
come to have thereby a “national” interest
or dimension, and which should therefore
receive the attention and approval of
Parliament.

The analagoue situation in the United
States is the frequent development of inter-
state compacts which require the approval
of Congress. Many of these exist. In recent
years particularly there has been a signi-
fioant increase in compacts dealing with the
sharing of common water basin resource benefits,
or resource development by two or more States.
(In this connection, Congress also has powers
to a prove agreements between States and
for? gn countries, but has never really done
so.

6. In the Canadian context, it would seem
useful to provide constitutionally for formal
arrangements that would require the approval
of the national Parliament.

In a period of rapid urbanization it is
distinctly possible that proper development
of the Canadian “megolopo1is”, for example,
might require new inter—provincial development
and planning arrangements. The same need
might well emerge with res ect to matters of
water conservation, pollut on control, etc.
in heavily urbanized areas of the nation,
as well as in less urban regions.

Again, current Maritime Union studies
might conceivably lead to new formal inter-
provinoial arrangements in the Maritime
Provinces that would contribute to more
effective over—all development in the region.
It would seem that there ought to be consti-
tutional provision that would encourage such
developments when found desirable, and that
would permit national sanction and approval
by action of Parliament.

7. In general, therefore, it is the purpose

of the Propositions of this Section to suggest
that some constitutional language seems necessary
to deal with this issue of inter-provincial
compacts and arrangements. The concern is not
to discourage such co—operation. At the some
time, it seems clear that the federal system

may not be able to tolerate two competing
co—operative structures ~ viz. an Interprov1n-

I oial structure and a federal—provincia1 structure.

8. For these reasons, it seems to be desirable
to require the approval of Parliament where
formal structures between two or more Provinces
are to be established. At the same time,

there would be no interference with the less
formal forms of co~operation in many fields —
particularly in those areas that appear to be
exclusively under the provincial jurisdiction
(e.g. education). This would be the case even
when these “informal” arrangements lead to rather
we1l~structured instruments for such
co-operation (e.g. the Maritime Provinces
Transportation Commission).

:19.

3.17.49

5.17.#6

3.17.47

CONFIDENTIAL

9. Much informul coaoporntion nlrendy
exists, and the art of constitutional
redesign here will be to encourage the
optimum development of such co—opeyation
without defeating the federal interest in
many forms of it; or the creation of a
parallel semi~federal interoprovincial
structure which excludes the Federal
Government and which, if pursued, may
undermine the essence of our federalism.

10. The comments attached to Proposition
5.11.30 above, apply also to issues raised
here.

Approval by the Parliament of Canada shall
not be required where informal processes of
consultation are undertaken as heretoror,

even if such informal processes lead to the

establishment of ad hoc or permanent machi-
nery to service aucE informs re a one.

A realistic distribution of powers for the
Federal Canada of the future must be related
to (4) an analysis of the existing distri-
bution of powers as determined by the
British North America Act and decisions of
the courts and (2) a very careful analysis
or present and future functions of Govern-
ment in Canada and at what level (provincial

or federal) existing or future governmental
functions can best be performed.

COMENT:

1. It is the View of the Government of
New Brunswick that the issues raised by

this Proposition require special, priority
study, and that it would be most unwise to
engage in a “sorting operation” with respect
to the Distribution of Powers without the
benefit of a most careful analysis of the way
the distribution has developed through one
lnumred years of our federal history, and
also without a clear realization of trends

in government in a future that will be
dominated by technological advance, increasing
interdependence among states, the need for
new political forms and processes to permit
the proper “steering” of society.

2. Any analysis of the Distribution of
Powers must take into account the details

of the present distribution as found in

the BNA Act (Sections 91 and 92, and elsewhere),
and that those provisions have had almost
one hundred years of interpretation by the
Courts. In scores of situations, embracing
activities both private and public, and to
which the BNA Act does not specifically or
directly refer, the Courts have had to apply
the present provisions as needs arose.
Therefore a revised Distribution of Powers
involves a clear appreciation of where these
powers now rest, based not only upon the

BNA Act, but also upon all of the major
decisions interpreting and further adding to
and distributing powers accordingly.

30.

5.18.47

CONFIDENTIAL

3. Equally significant is the need to
appreciate the very large number of adminis-
trative (or political) arrangements between

the Provinces and the Federal Government

which have assumed certain interpretations

of the distribution of powers by the very
nature of the agreements entered into –

e.g. ehared~cost programs; taxation; university
financing. These agreements have often implied
or expressed an interpretation both as to

where legislative power lies and where the
problems concerned can best be dealt with.

4. Many powers are clearly either shared
by virtue of the BNA Act or its interpretation,
or.are overlapping for the same reasons, and
a sorting out of this situation may lead to
some new propositions as to what functions
lend themselves to overlapping or sharing,
and which, for administrative, financial or
political reasons, should now be more
effectively allocated to the Federal or to
Provincial Government. Even if this process
takes place, much overlapping is inevitable
in a flexible federal system.

5. Attention must also be paid to such

issues as the dele*ation of powers among the
various levels of government; the equally
difficult issue as to where the “residual

power“ shall lie (presently on the Federal

side); and what is the scope of the exproprie—
tion and “emergency power” doctrines for any
modern State, at both the Provincial and national
levels.

6. In any discussion of the Distribution of
Powers, it is the view of the Government of
New Brunswick that special emphasis must be
placed on two things:

(1) a strong federal government which

is capable of controlling the economy,

of redistributing income among provinces,
and guaranteeing minimum resources for
essential human and social programs of
the Provinces so that there will be sound
levels of services for all Canadians

(ii) the problem of regional disparities
and its requirement for special federal»
provincial funds and programs without

the loss of provincial autonomy or the
essential ability to shape priorities
for sound provincial development.

7. Any revised allocation of Jurisdictions
must also take serious account of the fact of
social and political structures never envisaged
by those who framed the DNA Act. If the urban
regions of Canada are to develop soundly, without
posing insuperable problems of pollution, land
use and municipal financing, obviously some
account must be taken of urban (municipal) needs
and structures in any re-statement of distribu-
tion of powers.

3/.

3.19.47

CONFIDENTIAL

8. In view of the matters raised in the
foregoing comments, the Govexummnt of New
Brunswick believes that special sub~oommittees
or task forces will probably be necessary to
study the Distribution of Powers. The
Government of New Brunswick is not prepared

to set out preliminary judgments, apart from
this basic Proposition 5.17.47, until there
has been an opportunity to consult with all
Governments as to the most effective way to
deal with this central question of Constitutional
review.

SUBJECT: THE DECLARATORY EONER

3.19.48

SUB BOT:

5.19.49

A federal system may require special powers
in the national government to declare certain
works to be for the general advantage of Canada.

1. For reasons stateé in connection with
Proposition 5.17.4? of Section “J” (The Dis-
tribution of Powers), this mafitcr should be
studied together with other questions
concerning the distribution of powers.

CONSTITUTIONAL AMNDFEWT AND COUFLDERATIOK

The Constitution of Canada shall be vested
wholly in Canadian Federal and Provincial
Legislative processes without requiring any
further legislative participation on the part
or the Parliament at Westminster.

COMHNT:

1. It is the View of the Government of New
Brunswick that the very extensive studies

and discussions that led to the Fulton/Favreau
formula should be re-examined for the cons«
truotive ideas concerning repatriation,
amendment and delegation with which the
Fulton/Favreau proposals were concerned.

2. It would be an error to assume that the
very complex questions rererrec to in 1.
above could ignore the wealth of the debate
and the very general consensus achieved on
these issues as represented by the Fulton/
Favreau document. It will be recalled that
that formula received the approval of all
Governments, but with a later refusal to
accept it on the part of the Governmentof the
Frovince of Quebec.

3. Despite that result, considering how

much intergovernmental loboxug useful research,
and public discussion were represented by that
formula, it would be impossible to ignore it

as at least a basic point of departure for the
present process of constitutional review in

the matter of repatriation, the amending process,
delegation, etc.

.32

dONF[DENT1AL

3UHJfiOfl: WEDERAL«PROVINCIAL COOPERATICN AND
CONSULTATION

5.20.50 “Federal«provincial cooperation and
consultation, constitutionally entrenched
and otherwise”.

The Constitution of Canada shall reflect,
insofar as may be practicable, the formal
and informal experiences of all governments
in the matter of £ederal—provincial insti-
tutions and consultative procedures, by
providing a general constitutional framework
for their existence but in language that
does not necessarily go further than to
create a basis for existing cooperative and
consultative procedures, without unduly
limiting or anticipating forms that such
procedures may take in the future.

COMMENT:

1. There is a very large amount of
experience in Federal~Frovincial discussions
and with institutions of cooperation and
consultation. Existing forms range from the
most informal or Federal~Provincial Committees
dealing with minor matters, or with a few
provinces to such elaborate mechanisms as the
Tax Structure Committee, formal Federal-
Provincial Conferences, or the present
exercise in Constitutional Review which has
led to the creation of a twoatiered mechanism
(the Constitutional Conference and the
continuing Committee of Officials).

2. The issue is to determine how far it is
desirable to spell out such cooperative and
consultative forms in constitutional language
that defines it, encourages it, supports it,
or otherwise goes beyond the present pattern
of informal initiatives that have long been
undertaken by Federal and Provincial Govern-
ments.

3. As an example of one of the most
interesting and pertinent questions in this
area, it is useful to ask if the Tax Struc-
ture Committee itself will evolve into a
permanent compulsory instrument of consultation
dealing with budget planning, priorities
determination, etc., particularly as the budgets
of provinces and municipalities begin to

exceed those of the Federal Government itself.
In short, the shift in revenue magnitudes

from the Federal to the Provincial mxl
Municipal Governments has consequences for
national, fiscal and economic policy which in
turn may require quite sophisticated institu-
tional exeroises in order to coordinate all
revenue and expenditure patterns for the
benefit of the Governments directly and of the
economy, as a whole, indirectly.

33.

5.

L) 7T30′}’IG‘ ‘:

21.5

CONFIDENTIAL

4. Hence, to what oxtent these new
developments can or should be made a
matter of a constitutional statement
requiring cooperation and consultation

is a very difficult question to answer.
There are other mechanisms also that

have taken on many policy implications

for the management of Canadian federalism
and for which no constitutional provision
is made. Informal discussions between
Prime Ministers ano Premiers, between
Attorneys General, between Ministers of
Finance, between Resource Ministers take
place frequently on many subjects, to say
nothing of the proliferation of Committees
and informal meetings on the part of
officials of the various Governments. what
order can be brought out of this mélange

of techniques and processes, particularly
the technique that has crystolized into
frequent meetings of the Prime Ministers
and Premiers. of the Ministers of Finance
and sometimes of the Attorneys General.
Perhaps a special task force study is
required for this new complex but important
area in order to give the Committee of
Officials an accurate image of what in fact
is happening and to allow it to explore how
to achieve the best possible avenues of
cooperation and consultation without excessive
constitutional statements which may freeze
the pattern prematurely or give consultation
a role which may in fact out across other
aspects of a balanced federal structure.

5. It is also important to note in
connection with this Proposition, that an
effective attack on “regional disparities”
will almost certainly result in new am]
important forms of Fedcralwluc xcial planning
and program execution. If very large Federal
“inputs” are involved, it is relevant to seek
some constitutional from ork that will ensure
the possibility of Redo. “National” action
to overcome such disparit 05, while preserving
the proper and necessary degree of “rovincial
autonomy to operate programs under provincial
jurisdiction, and avoid serious flistortion

of provincial priorities.

FEDERAL~PROVIECIAL AND D
DISPUTES AND THEIR SETTL

X~YIO?INCIAL

mm

Any dispute between the Federal Government arm
one or more provinces, or between two or more
provinces themselves, may be referred to the
Supreme Court of Canada.

COMMENT:

l. The meaning of a “Dispute”, as referred
to in this Proposition, will require further
study before a formal definition is attempted.

3′}.

3.22.ffl

L2

5.22.52

UBJECT:

CONFIDENTIAL

2. However, it is clear that some method

of dispute settlement is required, and the
method proposed in the Proposition is

possibly the most practical nvnilahle.
Certainly it is better then setting up ad hog
tribunals or having no procedures at al .
There will be some difficulty in defining what
is a dispute. The U.S. Constitution gives the
Supreme Court original jurisdiction in
controversies between States, and no doubt
analagous language could be found to define
those situations which would vest jurisdiction
accordingly in our own Supreme Court.

EXTERNAL OR FOREIGN RELATIONS AND THE
CONSTITUTION

Canada, the Federal State, is the only legal
person competent to speak for the Canadian
people in the international community and it
alone is competent to enter into binding
legal obligations with other foreign states
or international persons.

C0i‘1l‘1l:IN T :

1. This problem has given rise to much
controversy and will require a very frank
and detailed study and discussion by the
Committee. But the principles outlined in
the above proposition would seem to protect
the interests of all concerned and to give
much flexibility to the Provinces in dealing
“informally” with foreign countries and
agencies where they may have a real cultural
or educational interest that requires admi-
nistrative relationships.

2. The grey area here lies on two sides.

It is first of all the extent to which there

is already an obligation on the part of the
Federal Government, or whether there should

be clearly designed constitutional language
creating such an obligation, to involve
provincial Governments and their represen-
tatives whenever the subject matter constitutes
an area or domestic jurisdiction exclusive

to the Province. On the other side, the grey
area relates to the extent to which many
existing, informal dealings between Provinces
and neighbouring or foreign States (e.g.
American States the United Kingdom and France)
already raise no real issues, while other
dealings do come close to involving a Province
situations which have a degree of formality
that may go beyond the line into areas that

are exclusively Federal, viz. by creating

an image of “international personality” or

the impression of an “enforceable” international
agreement binding on the “parties” entering
into it. The difficulty of course is that

as the Ontario studies, in preparation for the
Roberts Conference indicated, and as some
academic studies also have shown, there has
been a large amount of trans-border activity
by Provinces with foreign governmental entities,
some of which had Federal knowledge and
approval and some which did not.

33′-

5.25.52

3-25.55

3.23.54

> 3-25-55

CONFIDENTIAL

5. Moreover, there is the additional
technical relevance of the procedures of
adopting parallel legislation as in the
case of the enforcement of Maintenance;
Orders by way of an understanding, say
between Ontario and the United Kingdom or
Ontario and New South wales, where the
respective legislatures, in order to
protect families from deserting husbands,
enacted complementary legislation without
having a “formal” agreement about the issue
as such, although the passage of the
legislation reflected negotiations,

discussions, etc. -— in some cases apparently

with the full knowledge of the Department

of External Affairs, in other cases, plssibly
not. There is no doubt, however, that the
Canadian Federalism Constitution could not
tolerate, without danger to itself language
which permitted direct dealings, creating
binding obligations between Provinces and
foreign States, without clear Federal
approval or by way of an umbrella agreement
or otherwise. Any other approach would run
the risk of creating quasi—internationa1
legal personality for the Provinces, and the
threat to Federal unity from an increasingly
fragmented world image may be greater indi-
rectly than the direct consequences of such
dealings themselves.

The distribution of powers within Canada,
which gives exclusive jurisdiction over some
subjects to the provinces, does not vest in
those provinces the right to deal formally
or Juridioally with foreign states or to enter
into binding legal obligations with them,
except insofar as appropriate arrangements
are made in cooperation with the Federal
Government facilitating and providing for
such relations between provinces and foreign
states. (arrangements for such agreements
is within the exclusive federal competence
in dealings with foreign states.)

In all cases where the province has exclusive
jurisdiction over subject matter for purposes
of legislative conmetence within Canada, it
shall have the ‘right’ to be consulted by the
Federal Government, including the ‘right’ to
representation on the federal delegation ~
that is, whenever the Federal Government is
dealing with foreign states where the subject
matter is exclusively within the competence,
(for domestic constitutional purposes),

of the province or provinces concerned.

The formal exclusive competence of the Federal
Governmenbfor international purposes, and the
formal exclusive competence of the provincial
legislatures for domestic constitutional
purposes shall not prevent provinces from
having “informal” dealings with foreign
governments or their agencies, providing

such dealings are brought to the attention of
the Federal Government and do not in any way
lead to negotiation, or entering to by the
provinces of binding legal obligations, or
encroach upon the exclusive jurisdiction of
the Government of Canada over the foreign
policy of Canada and over relations generally
with foreign states on behalf of the people
of Canada.

3%.

;3U‘3Jla‘O’I.‘:

3.24.56

GONEIUENTIAL

DESUETUDE AND OBSOLETE PROVISIONS
AND POWERS

The powers now existing in the Canadian
Constitution which provide for the right

of the Governor in Council to disallow
legislation by the provinces or to instruct
the Lieutenant—Governor to reserve his
signature to a Bill for the signification

of the Queen’s pleasure and provisions that
may be regarded as having no longer the
relevance, or the validity, for the Canadian
Federal system eviaaged for them in the
early decades of confederation, and therefore
should be removed in the course of current
constitutional revision.

COMMENT:

1. The power of disallowance and the power
of reservation are clearly no longer going to
be used and were, in any case, a hold—over
from the relationship of the Imperial
Sovereign to the colonies now transferred
from London to the new Federal Perliauent in
relation to the Provinces. They were
designed to prevent “unacceptable” or perverse
provincial enactments and no doubt in the
early period of Confederation, had some
rational basis for their-presence. This is,
of course, no longer true.

2. Similarly, any revision would have to
take into account a very larme amount of
obsolete early Confederation uagfiage that the
present BRA Act carries, both in lnnsuage and
in some substantial provisions —— all of which
may be refined, up—dated or in warm oases
eliminated.

Any revision of the Constitution of Canada shall
provide for the removal or zsolcte provisions
(such as provisions reshapeo ;y events; by

BNA Act amendments; particularly those provisions
describing conditions under which certain
provinces entered confederation) and consti-
tutional languagge that retains :-. colonial tone
from the era during which the ‘utish North
America Act had its origins.

TRANSITIOUAL PROVISlCK$

The Constitution of Canada will require, in
the period between repatriation and decisions
about the amending or delegating powers,
transitional provisions permitting limited
amending procedures and other constitutional
needs to be met until the process of
constitutional review and revision on the one
side and repatriation on the other have been
completed.

COMMENT:

1. The transitional provisions question is
essentially a technical one though it has
certain policy implications. A special
technical task force probably is required to
give a brief but early report on the issues
involved.

3?.

SH BJ’1’£C’i‘ :

‘5‘-29.59

COKFiJEN$IAL

NOfi—CON$TITUTIONAL OR UON—dHTSfiNCHED CONCEPTS
AND METHODS FOR “IMPROVING” THE OIQRATIONS OF
FEDERAL—FROVINCIAL RELATIONH AND SOCIAL
PMNAGEPIENT WITH PARTICULAJC I%Ii.'<“u.<3?J‘lG}S TC
“RE:IONAL DISPARITIES” AND TH£IR RESOLUTION.

Any future Canadian Constitution should include
as an objective of Confederation the elimi-
nation of regional disparities and include

also provision for regional, as well as
national, planning facilities for the
implementation of that objective.

COMENT:

1. The regional disparity question is of
particular concern to New Brunswick and the
Atlantic Provinces as well as to large parts

of Quebec, Eastern Northern Cntario, parts of
the prairies, Yukon and the other Territories.
In short, there is a peculiarly “national”
content to the concept of “regional disparities”
and it may be necessary to link this concept
with the generally new approach being developed
towards the problem of hard core poverty that
is now attracting the attention of all
Governments. It woula not be difficult to
discover a strong unity both oi method and of
geographic identification between the disparity
and poverty questions. Whether constitutional
language can be found, other than through
statements of general objectives, to institu-
tionalize the approach towards regional dispa-
rities and hard core poverty is another

matter and this question may deserve deeper
study by the areas primarily concerned before
the Continuing Committee cxuxcomc to any more
specific conclusions.

2. This Proposition has obvious links with
Propositions and Co vents stated above «

e.5. lnter~provincinl and Federal—Provincial
relations; the Distribution of Powers
(especially with reference to now planning
and program mechanisms that may be required);
the Objectives of Confederation; the Nature
of Canauian Society.

5. It is raised here as a reminder that the
constitutional structures decided on for our
federalism have a very distinct hearing on the
kinds of non«constitutiona1 mechanisms and
social development processes that will be
possible in the future. Some general constitu—
tional provision may be necessary to ensure
effective and flexible “non-constitutional”
operations tha, W1 contribute to the elimi-
nation of regional disparities.

CONFIDENTIAL

The following propositions 4.1.1 to 4.2e.u9 were
presented by the Government of Quebec on 24 July, 19@8,

SUBJECT: METHODOLOGY

4.1.1. The new canadien constitution might include
the following chapters:

PREAMBLE: GENERAL OBJECTIVES

I. General Provisions

II. Central Government
III. Constitutions of Member—States
IV. Judicature

V. Division of Legislative Powers
VI. Public Property
VII. Intergovernmental Relations

VIII. Human Rights
IX. Adoption and Amendment of the Constitution
X. Transitional Provisions

COMMENTS

1. This division is based on the conclusions of
the Constitutional Conference, on the sdgges~
tions made by the federal delegation to the
Continuing Committee of Officials and on the
text the present constitution.

2. It is also intended to serve as a framework
for proposals submitted to the Continuing
Committee.

SUBJECT: PREAMBLE: GENERAL OBJECTIVES
STATEMENT OF PRINCIPLES

4.1.? The Canadian constitution should set forth in
its preamble a number of principles which
embody its spirit, explain its nature and aims
and facilitate its interpretation.

COMMENTS

1. A country’s constitution is not intended
merely to establish its political struc~
turee and form of government. It must
also offer guidance and have the power to
inetil pride and loyalty in the whole
population, to promote understanding and
friendship, to encourage concerted action
in pursuit of a common ideal. It must
therefore be built on certain fundamental
principles which both citizens and govern-
ments can spontaneously endorse.

3?.

4.2.2

“.2.3

4.2.4

COMMENTS

2.

SUBJECT:

In this respect, as in many others, the
1867 constitution left much to be desi-
red. whus, it has too often been a
source of misunderstanding and conflict
rather than an instrument for cohesion
and harmony. It seems to us that one
of the most pressing requirements in
Canadian life is respect for the
country’s supreme law. Still, the cons-
titution must be designed to command
such respect, by the loftiness of its
purposes and the clarity of its arran-
gement and style.

For the first time in their history,
Canadians are undertaking to provide
themselves with a wholly Canadian cons-
titution, made in Canada, for all
Canadians. This great endeavour should
not only produce institutions and rules
of government perfectly adapted to our
country’s present needs, but also foster
a fresh spirit and new habits of co~opera-
tion and solidarity.

PREAMBLE: GENERAL OBJECTIVES
SOVEREIGNTY

It should be affirmed that, while acknow1edg—
ing her obligations to the international
community, Canada is a sovereign country
independent of all others and absolute master
of her own constitution.

comnms ,

1.

SUBJECT:

The first principle to be asserted in our
constitution is unquestionably that of
Canada’s absolute sovereignty, which in
no way rules out recognition of her
obligations to the international community
and to organizations committed to main—
taining world peace. Sovereignty is not
isolation. It means however that Canada
today cannot recognize a constituent
authority which would be eituated, even
theoretically, outside her borders.

This principle of Canada’s complete so-
vereignty epplies to the whole country
and not to any particular government or
order of government.

This principle will find some of its appli~
cations in the manner of proclaiming the
new constitution (see Chapter IX).

PRFAFBLE: GENERAL oswomvas
mu: PRINCIFLE or nmvxocxmcv

It should be affirmed that Canada is a

democratic country and that her consti—

tution must be the expression of the
.popular will.

L{0.

4.5.4

4.5.5

COMMENTS

1.

2.

SUBJECT:

This principle enables us to state more
clearly where the constituent authority
lies. Such authority can lie only in
Canada since she is a sovereign country.
And because she is also a democratic
country, the constituent authority can
rest only with the C”“adian people.

However, the Canadian people is not
homogeneous. Just as Canada, though

a single country, consists of several
political entities, most of which existed
even before Confederation, so the Canadian
population is composed of various elements.
More specifically, it includes two large
linguistic and cultural communities, or two
nations in the sociological sense of the
word; this encompasses not only the two
ethnic groups or founding peoples, but
also all other Canadians of diverse origin
who participate in either of our two
national cultures.

PREAMBLE: GENERAL OBJECTIVES
THE PRINCIPLE OF‘FUNDAMEKTAL RIGHTS

It is important to recognize that there are
fundamental rights, both individual and
collective, which precede any constitution
and which no majority may legitimately
infringe; that is the case. in particular.
for the freedoms inherent in the human
person or the natural rightof nations or
peoples to self—determination.

COMMENTS

1.

This proposal does not in any way ppejudge
the division of powers and responsibilities
between the two areas of government with
respect to protection and enjoyment of these
fundamental rights. It simply establishes
the principle that constitutions are made
for men and not men for constitutions.

It is even fair to say that constitutions
exist primarily for the protection of
individuals and minorities. Mnjorities
have other means of protecting themselves
and may be tempted to abuse their power.
An injustice does not become a just act
merely because it has been approved by a
majority. Thus, there are moral rules

and natural limits which majorities cannot
set aside without becoming tyrannical.

One of the principal objectives of any
constitution is to establish the rules and
limits within which governments must act in
order to make legality coincide as much es
possible with legitimacy.

4/.

SUBJECT: IWEAHBLE: GENERAL OBJECTIVES

THE NATURE OF THE CANADIAN UNION

To take into account the basic realities

which give our country its distinctive
character, flanada will have to be conceived
and organized as both a federation of states
and an association of two nations, states and
nations which agree to establish common
structures for the management or their common
interests, while retaining their individuality,
historic rights and essential freedoms within
the framework of the constitution.

COMMENTS

1. Canadian federalism owes its originality
to the fact that its components are of two
different kinds. The first are territorial
or political, that is, states or provinces,
which now number ten. The second are
sociological, that is. two nations, sociew
ties or cultural communities united by
history, one of which has had its roots
implanted in Canadian soil for over three
and a half centuries.

2. This is the dual aspect of Canadian reality
which Québec referred to in her earlier
communications as a “ten—partner Canada” and
a “two—partner Canada”. This is not simply
a matter of federating states; it also
entails organizing the harmonious coexis-
tence of our two nations in Canada as a
whole and in each federated state.

5. The 1867 constitution gave only implicit
recognition to this two—partner Canada.
Our next constitution, we feel will have
to recognize explicitly that Canada is a
country with two languages and cultures,
English and French,\and must be organized
to reflect this fact. For, asthe ?re1imi-
nary Report of the Laurendenu—Dunton ,
Commission points out, it is in the two»
partner Canada that the present crisis
centres.

4. A strong Canada cannot result from the

forced amalgamation or integration or

our two communities. but only from their
voluntary union, combining the values and
dynamism characteristic of each.‘ Anything
which tends to erect a wall of misunder—u
standing and distrust between them ine~
vitably weakens the whole country. Canada
will be strong to the extent that the
Canadian duality is perceived and accepted
by each community not as a necessary evil,
and still less as an obstacle to progress,
but rather as a source of enrichment and

a rare historic opportunity.

5. If we agree from the outset that the next
constitution must be the product of an
agreement not only between the federated
states, but also between our two nations,
we shall have done a great deal to break
down the psychological barriers which have
too long separated our “two solitudes”.
The ultimate aim must not be to eliminate
our differences, but to harmonize them.
The only base for a strong union is frieno
ship.

‘/2.

‘._,1

~a

SUBJECT: PREAMBLE: GENERAL OBJECTIVES
GENERAL AIMS OF THE CONSTITUTTON
The Canadian Constitution must tend to

ensure prosperity, freedom, peace and
public order to all citizens, economic
equality to the federated states and

cultural equality to the two nations.

COMMENTS

1.

“J

SUBJECT:

Here again, these are general principles
whose application will have to be set
forth in other sections of the constitu-
tion.

Equality is an ideal to be striven for

in every way possible. Be they French ~
or Eng1ish—epeaking and wherever they may
live, all Canadians must be full citizens,
having in principle the same rights, the
same responsibilities and the some
opportunities for aelf~fulfillment.

However, if we are to achieve equality.
we must go beyond mathematical formulas
or rigorous legal provisions, for we
shall not do so by extending the same
measure of assistance to all: on the
contrary, those who most need help must
be given more. Just as economic equality
can be brought about only by the fairest
possible equalization of wealth between‘
states and between regions within each
state, so the more imperilled of our two
national cultures must receive greater
support if cultural equality is to be
attained.

Accordingly, we feel that the Canadian cons-
titution must give special attention to the
survival and growth of French culture, not
because it has any more value or rights
than English culture, but because it starts
at a disadvantage attributable to three
main factors:

(a) the demo rn hic —— French Canadians
account $01‘ only some 3!) Wu‘ cent of
the country’s total population;

(h) the olitical -— French Canadians are

1n the magority in Just one of the
eleven governments;

(c) the eo ra his »— North America has
77b milgion English—speekinn _ ple.
but only six million whose language
is French.

PREAMBLE: GENERAL OBJECTIVES
QUEBEC’S ROLE

The Canadian constitution must take into account
the fact that Quebec has a special role to play
in bringing about cultural equality.

43.

4.6.8

4.6.9

COMMENTS

1.

SUBJECT:

‘agreeable to Québec.

This proposal stems from the special position

of French culture in Canada and North America.
If French Canadians were in the minority every-
where in the country, including Quebec,

cultural equality would be difficult indeed

to attain and any concept of French Canada

would be different from what it is today. As
the Laurendeau-Dunton Commission pointed out

in the General Introduction to its Report,
particularly in paragraphs 85, 89 and 90, the
chances for cultural equality lie mainly in

the fact that 85 per cent of French-speaking
Canadians live in Quebec where they constitute
81 per cent of the population and where they
have been able and can therefore continue to
provide themselves with leaders, institutions
and an environment adapted to their own cul-
ture. Such equality is possible because a
French—Canadian society (in this sense, a nation)
has thus come into being and proved its capacity
to maintain itself. to develop distinctive
characteristics and institutions which have made
it in every respect a people, a situation in
which no ethnic minority in Canada finds itself.

Although all governments must contribute in
varying measure to the achievement of cultural
equality, the demographic situation and
Canada’s historical and political evolution
have vested and will continue to vest the
Québec Government with special responsibilities
in this regard. This fact does’nof necessarily
imply, for the future. recognition or special
status for Québec. Nevertheless, she must
possess all the powers and means of action
required to go on discharging her natural obliu
gations to the French-Canadian nation. Should
the other states desire identical powers and
means of action, thie would be perfectly

The question of special
status will not even arise unless some or all
the other states prefer to entrust the central
government with full or Joint responsibilities
which Quebec must assume alone because of her
special position.

I —~ GENERAL PROVISIONS
PRIHACY OF THE CONSTITUTION

It would be well to declare in formal terms the
primacy of the constitution as the supreme law
of the land and the constitutional equality of
all governments, each within its sphere.

COMENTS

1.

The supremacy of the constitution over the
country’s other laws is one characteristic
essential to any federal system. For

reasons related both to Judicial interpre—
tation and the political education of citizens,
it would be useful to have this principle
incorporated in the constitution.

Wf.

4.9.9

4.7.10

COMMENTS

2. The constitutional equality of all governments,
each in its sphere, is another fundamental
principle of federalism. Any claim vmntever
to paramountcy on the part of one order of
government is likely to cause conflict, as has
been variously demonstrated by the constitu-
tional history of the U.S.A. and the early
years of Canadian Confederation.

5. The rights of reserve and disallowance, relics
of our colonial past which have long been
inoperative, would be formally abolished.

SUBJECT: I —- GENERAL PROVISIONS

OFFICIAL NAME OF CANADA

The Official name of Canada should reflect the
country’s political and sociological nature,
that is, a federation of states and an associa-
tion of nations. Among the designations which
could be considered, Quebec suggests that of
“The Canadian Union”.

COMMENTS

1. According to the present constitution, Canada
is a “Dominion”. This designation was a
legacy from the Empire and has lost its
meaning over the years; it has no relevancy
to the ordinary language of international law.

2. On the other hand, the name “Canada” alone
cannot officially designate the country.
England, for example, officially calls
herself the United Kin dom of Great Britain
and Northern Ireland, rance the French
Republic, Switzerland the Swiss Confederation.
In short, all sovereign countries have an
official name, and Canada should be no excep-
tion to the rule.

3. The proposed name of “Canadian Union” has the
advantage of suiting both the union of federa-
ted states and the union of two nations. The
word “union” is currently used to designate
a federation: in the U.S.S.R., the Indian
Union and, under another form, in the United
States of America. It also appears several
times in the present constitution of Canada.

SUBJECT: I ~~ GENERAL PROVISIONS

FORM OF GOVERNMENT

It would be preferable for the Canadian Union
to become a republic, while remaining in the
Commonwealth.

COMMENTS
1. At this point, a Canadian presiaent heading

the Union would be more conducive to Canadian
unity than is the British Crown.

4.8.11

4.8.12

4.8.15

COMMENTS

2.

6.

SUBJECT:

Because it is more easily identified with
sovereignty of the people, the republican’
form or government is more closely allied
with most Canadians‘ conception of the
nature of their political institutions.

Adoption of a republican form of government
would provide the ideal opportunity to
reform several of our political institutions
so as to make them more effective.

A republican form of government would
render Canada’s sovereignty and independence
more evident to the rent of the world.

However, this reform, at the Union level,
is not of such importance that on overall
priority should be attached to it.

As to Quéhec, she would like to have the
power immediately to become a republic
within the Canadian Union.

I »- GENERAL PROVISIONS
NUMBER OF MEMBER-STATES

The constitution should mention that the Union
is made up of ten states and two territories.
It should provide for admission of new states
and for amalgamation of states.

COMENTS

1.

SUBJECT:

The term “state” should replace “provincefi
another vestige of the Empire which
implies subordination and which, particu-
larly in French, has a pejorative sense.

Administration of the territories could
be left to the central government but
their admission to the Union of states
should be governed by a special procedure.

I e» GENERAL PROVISIONS
STATE BOUNDARIES

State boundaries should be defined in an
Appendix to the constitution after discus—
sion between the interested parties.

COMMENTS

1.

waters which Canada considers to be inland
seas -~ such as the Gulf of S-int Lawrence
and Hudson Bay »— clearly should belong

to the bordering states. according to the
agreements worked out between them.

Any boundary at issue between two states
should he submitted to arbitration.

‘I6,

4.0.14

“.“.l6

.”i!H3.1I~”,()”‘: T —— GiC!.’i*2R/11. PR(‘-VII3T()I~3Il

–._C&Ei& w-

Tt is essential that English nnd French be
declared the official languages of the
Cnnndian Union. Their use could be governed
by provisions based on the recommendations
contained in Bonk I of the Report by the
Commission on Bilingualism and Biculturalism
and protected by an intergovernmental
commission made up of an equal number of
Eng1ish—speaking and French—speaking members.

COMMENTS

1. Québec’s attitude on this matter was
clearly set forth in her Brief on the
Constitution and will be explained in
more detail within the Sub-Committee formed
to study the question.

2. It goes without saying that. unlike the
British North America Acts of 1867 to
1965, the new Canadian constitution
should be drafted in English and French,
both versions to be official and of
equal value.

SUBJECT: I —~ GENERAL PROVISIONS

DECENNIAL CENSUS

A general census including A separate enumeration
of state populations should continue to be taken
every ten years. Information concerning ethnic
origin, mother tongue and languages spoken should
also be made available.

COWMENTS

1. A 9tnte~by—state decennial census is required
for several purposes, more particularly to
ensure proportionate representation in the
central Lower House.

2. Information concerning ethnic origin, mother
tongue and languages spoken is necessary in
order to judge matters hearing on the respec-
tive situations of the two nations and their
mutunl relationshin.

SUBJECT: I —~ GENERAL PRCVTSTONS
THE CANADIAN CAPITA1n__

It would be well to declare that the cities of
Ottawa and Hull are the seat of Government of

the Union, without changing the constitutional
nowers of the governments or existing bounda~
Ties. Steps ehould be taken so that the
linguistic nnd cultural values of hoth national
groups may be reflected in both cities nnd all
Cwnadians may look to their onnitvl with feelings
of pride, commitment and affection.

V7.

4.10.16

COMMENTS

1. The present constitution Stflbefi that Ottawa
is the “seat or Government or Canada”, a
fact which may have prevented the establish—
ment of government building in the City of
Hull. More and more people find that loca-
ting such buildings in Hull would be desi-
rable as a means of stressing the bicu1~
tural nature of the Canadian Union.

2. The capital of the Canadian Union should
be a symbol of the cultural equality we
should strive to attain. A realistic way
of reaching that goal would be to set up a
tripartite “Canadian Capital Commission”
where the three governments most directly
concerned —- the central, Ontario and
Quebec governments —— would enjoy equal
prerogatives, each delegating to the
Commission the necessary administrative
powers over an appropriate area and
assuming a proportional share of the
Commission’s total expenditures.

SUBJECT: II -~ CENTRAL GOVERNMENT

4.10.17

TYPE OF POLITICAL ORGANIZATION

It would be desirable to weigh the advisability
of replacing the present parliamentary system
by a congressional system similar to that of
the United States of America.

CONENTS

1. Undoubtedly, the parliamentary system as it
originated in Britain has more than won its
spurs in implanting democracy. Yet, the
requirements of 5 modern state have concen—
trated so many responsibilities at the
executive level that one may wonder if 3
separation of powers on the American model
might not be better suited to present
conditions of government.

2. The relative instability of governments in
recent years also argues in favour of the
American system.

5. Cabinet responsibility to the House of Commons
restricts the flexibility which should prevail

within a federal system with respect to

adaptation to regional needs and circumstances.

4. The American system would be better adapted

to the member~states, particularly in view of

their limited population.

SUBJECT: II —— Central government.

THE CHIEF EXECUTIVE

4.10.18

The constitution should define the title, monner
of selection and powers of the chief executive
for the Union. It would be desireble to distin-

guish between his duties as Head of the Union and

as chief executive of the central government, as
well as to confirm the principle of alternation
between English — and French—speaking holders of
this office.

45’,

4.11.18

§QflflENT3

1. The present constitution does not explicitly
provide for crention of the office of
governor genernl, which still derives from
the royal prerogative. Even if the monnrchi»
col form and parliamentary system of
government are retained, it would be fitting
to replace the term “governor general” by a
title which does not reflect Canada’s colonial
past.

?. The custom, now becoming a practice, of alter~
nating between French — and English~speaking
chief executive of the Union could be
enshrined in the constitution as an outward
sign or the two nations‘ association.

SUBJECT: II —- CENTRAL GOVERNMENT

4.11.19

CENTRAL LEGISLATURE

As is now the case, the centrallegislnture could
be composed of A chief executive, an Upper House
and a Lower House.

COMMENTS

1. This proposal requires no special comment.
It could apply as easily to en Americnn—
style system as to the present Canadian
system.

SUBJECT: IT —- CENTRAL GOVERNMENT

4.11.90

THE UPPER HOUSE

If the parliamentary system is maintained, it
would be preferable to have the members of the
Upper House act as spokesmen for the state
governments; to this end, they should be appoin~
ted by the states for a limited period. The
Upper House might have power merely to delay
passage of legislation, similar to that exercised
by the British House of Lords. The number of
members for each state could equal the number of
senators each province has now, although state
populations might profitably be taken into closer
account.

conmnngg

1. The measures taken to ensure state partici-
pation in the central legislature’s work
vary greatly from one federation to another.
In most cases, however, such participation
is an essential element of the federal system.

2. The Senate, which was to perform this function
in Canada, has failed completely, mainly
because senators are appointed by the central
government and remain in office until age
eeventy—five.

3 If the Upper House is truly to represent the
states, its members must be appointed by the
stnte governments and for a limited period of
time.

¥?.

4.lP.?fl

4.12.

4.12.

22

COMMENTS

4. To prevent some or all states from paraly-
zing the central legislature, the Upper
House should not be allowed to stop legis-
lotion but merely to delay it.

5. In the long run, effective state partici~
pation in its work does not weaken the
centrallegislature but rather confers on
it prestige and authority that it can
hardly obtain otherwise. An well, it is
an important guarantee of harmonious rela-
tiogs between the central and state govern-
men s. ‘

SUBJECT: II -~ CENTRAII GOVERNMENT

THE LOWER HOUSE

As now, the constitution should guarantee that
each constituent state have, in the Lower House,
9 number of representatives proportionate to its
population. .

COMMENTS

1. This proposal implies periodical censuses and
appropriate reapportionments in the number
of members elected by each state.

2. As now, there could be a provision stating
the minimum number of members for each
constituent state.

SUBJECT: II —— CENTRAL GOVERNMENT

LIFE OF A LEGISLATURE AND
FREQUENCY OF SESSIONS

If the present parliamentary system is maintained,
it would be well to keepime existing constituti-
onal provisions concerning the maximum life of o
legislature and the holding of annual sessions.

COMMENTS

1. This proposal does not call for any special
remarks. ~

SUBJECT: III —— CONSTITUTIONS OF MEMBER—STATE$

Member-states should have complete freedom to
draft and promulgate their internal constitu-
tions which, provided they are compatible with
the Canadian constitution, would have the value
of fundamental law. Ehch state would be enti-
tled to decide on the title, method of selection
and powers of its chief executive who would he
Ex officio. The Crown‘5 representative for the
ET?airs of the state should the Union maintain
the monerchical form of government.

fl.l“.?1

4.13.24

C_()_Pj!MEN’PS

1.

{U

SUBJECT:

It is very desirable that membermstatcs have
all the latitude required to establish inter-
nal political institutions which correspond
to their special needs. Indeed, the present
constitution already acknowledges this
principle. except as regards the office of
lieutenant—governor.

For its own internal government, a state
might decide to adopt a system of the
American type even if the Union maintains the
monarchical system. If this were to happen.
the head of such state would automatically
be the Crown’s representative.

It would be desirable to make explicit a
state‘s power to adopt, for its internal
administration, a constitutional text which
would have precedence over all that state’s
other legislation.

IV -— JUDICATURE

CQNSTITUTIONAL COURT

It would be advisable that the constitution
provide for establishment of a constitutional
court, determining its composition and jurie-

diction.

At least two thirds of this court’s

judges should be appointed by state governments.

COMENTS

1.

In any federal system, the tribunal which,
in the last resort interprets the consti-
tution plays the role of arbiter between
the twoorders of government; it is there—
fore esoential that its establishment
composition and Jurisdiction be determined
by the constitution itself, as it is in
most federations.

The Constitutional Court should of course
have Jurisdiction over interpretation of the
Canadian constitution. This Jurisdiction
should be exclusive, all constitutional
questions being automatically referred to it.
It would also be necessary to stipulate how
the Court’s opinion might be obtained by
means of referrals. should this procedure be
retained.

The Court could also be empowered to rule on
other special questions such as, for example,
the protection of citizens’ constitutional
rights or disputes between governments.

Its composition might be as follows: four
Judges appointed by the central government;
one by the Atlantic states, appointing
Jointly or in turn; three by Québec; three
by Ontario; one by the Prairie states,
appointing jointly or in turn, and one by
British Columbia »— 1% judges in all.

Once appointed, Constitutional Court judges
would hold office until retirement age.
Dismissal of a judge would require joint
notion by the federal legislrture and that
of the state which appointed him or is his
stnte of origin.

SI

4.14.94

4.14.25

COMMENTS

6. A question that would concern only the central
government and one particular State should be
adjudicated by a bench comprising an equal
number of Judges designated by ench of the
parties.

SUBJECT: IV – JUDICATURE

FEDERAL COURT OF APPEAL

The central legislature could be authorized to
establish a Federal Court of Appeal having

final jurisdiction over interpretation of legis-
lation on matters under federal authority.

States which so desire could confer on this court
final Jurisdiction over the interpretation of
their own legislation.

COMENTS

l. The present Supreme Court of Canada could
remain the court of last resort in inter-
preting legislation on matters falling
within federal powers.

2. The states would have the option to empower
the Federal Court of Appeal to pass final
judgment on the interpretation of all or
some or their enactments. This procedure
could facilitate standardization of statuw
tes, when this is desirable.

SUBJECT: IV — JUDICATURE

4.14.26

OTER COURTS

Generally speaking, the states should provide
for setting up other courts and appointing
their Judges for the application of both fede—
rnl and state law. The central legislature,
however, should retain its present power of
establishing federal courts to administer its
own laws. The independence of judges should
be guaranteed by the constitution.

oonnmvtrs

1. This proposal merely continues present
practice except with regard to appointing
superior, county and district court Judges.

2. The central government‘s practice of appoint-
ing judges to certain provincial courts has
been a constant source of legal uncertainty
and an obstacle in reforming the judicial
system. Obviously. states should be res-
ponsible for salaries and pensions of judges
they have appointed.

5. The constitution could provide for judges
such conditions needed to ensure their
impartiality as salaries, pensions and
grounds for removal. These guarantees would
apply to both federal and state Judges.

SUUJECT: V -— DIVISON OF LEGISLATIVE POWERS

4.15.97

4.15.28

GENERAL SCHEME

As is the case in most other federations, the
member—stotes should retain all powers not
expressly granted to the government of the
Union.

COMMENTS

1. Most federal constitutions, particularly
those created after the Second World war.
follow the example of the United States
where all residual powers remain with the
states.

2. Because of the great financial resources at
the central government’s disposal, assigning
the residual powers to it might well open
the door to excessive centralization. If,
on the contrary, they remain with the cons-
tituent states, we have a better idea where
the central government’s jurisdiction begins
and ends and we may expect a substantial
reduction in the friction arising from
centralizing encroachment. Hence, leaving
the residual powers with member~states
provides for a better equilibrium between
the two orders of government.

3. By assuming from the start that all powers
belong to the constituent states except
those that obviously relate to the common
interest of all Canada, we avoid the danger
that some novel situation might give rise to
major conflicts jeopardizing the country’s
federal structure.

SUBJECT: V —~ DIVISION OF LEGISLATIVE POWERS

ELEMENTS OF FLEXIBILITY

In the constitution, it would be well to provide
elements of flexibility, particularly by recourse
to concurrent Jurisdiction and delegation of
legislative powers.

COMMENTS

l. If a federal constitution is to serve for a
long time as the fundamental law for so
diversified a country as Canada, it is
imperative that it contain many elements
of flexibility. These elements will in
substance make it possible to cope with
the greatest possible number of situations,
while taking into account the diversity of
the interests at stake.

P. we believe that, by extending the field of
concurrent jurisdiction RIC making it
possible to delegate powers from one area
of government to the other, it will be
easier to conclude practical arrangements
based on needs without having repeatedly to
amend the country’s fundamental law, which
must be marked by its stability.

K. Financial compensation machinery should be
established so that a constituent state’s
citizens will not suffer undue hardship
from the processes of concurrent jurisdic-
tion or delegated powers.

53

SUBJECT: V ~— DIVISION OF LEGISLATIVE POWERS
EXCLUSIVE FEDERAL POWERS
4.16.29 The list 01 exclusive federal powers could
include the following:

(a) Defence and the armed forces

(b) Foreign policy and diplomatic relations,
subject to the powers residing with
member—states in this field;

(c) The central bank, commercial banks,
currency and exchange rates;

(d) Tariffs and international trade:

(9) Regulation of monopolies and restrictive
trade practice in private business;

(f) Weights and measures;

(3) Bills of exchange and promissory notes;

(h) Patents, trade marks and copyrights;

(1) Canadian citizenship;

(J) Postal services;

(k) International and interprovincial sea and
air transport, international and interpre-
vincial railways;

(1) The federal civil service;

(m) Establishment of government corporations
for federal purposes;

(n) Establishment of private corporations in
fields falling specifically under federal
jurisdiction.

COMMENTS

1. The above list is not necessarily exhastive.

2. In certain fields. such as criminal law,

fisheries, interprovincial trade and

unemployment insurance, the Québec dele-

gation is not yet ready to make proposals.
SUBJECT: V —- DIVISION OF LEEISLATIVE POWERS

4.16.5”

CONCURRENT POWERS «

Matters under concurrent jurisdiction could
include the following:

(8)
(b)
(0)
(:1)
(0)
(f)
(8)

Agriculture

Immigration;

Statistics;

Censuses;

Bankruptcies;

Radio and television broadcnsting, and cinema;

Marketing of agricultural products, foods
and drugs.

1§¥f.

n_1v,zo

I3 CNI‘n1£I\”J.’L$

1.

SURJWCT:

4.17.31

#.l7.59

Should 8 conflict arise, precedence could

be given to either the legislation of the

Union or that of the member-states, depen-
ding on the subject-«matter.

V -— DIVISION OF LEGISLATIVE POWERS
EDUCATION

Education in all its forms, nt all levels and
by whatever means must belong exclusively to

the

states.

COMMENTS

l.

SUBJECT:

The importance of education as a field
exclusively reserved to the States
warrants an explicit proposal.

In light of Canadian history, it is
necessary to make clear that the powers
of the States extend to the whole field
of education, in its broadest sense.
There should be no doubt for instance
that universities. adult education and
educational TV are nothing but sectors
of the general field of education.

V —— DIVISION OF LEGISLATIVE POWERS
SOCIAL FOLICY

Social security, including all social allowances,
old age pensions, family allowances, health and
hospitals, manpower placement and training,
should come under the exclusive jurisdiction

of the constituent states.

COMMENTS

1.

In her Brief on the Constitution, Québec
explained why she’helievea that it is
absolutely essential for the constituent
states to have exclusive control over all
social security matters.

The simultnneous presence of two governments
in this area thwarts all effective planning,
makes for contradiction between the various
programmes and loads to waste nnd adminis-
trative overlap.

Social security measures as n whole bear
directly on the culture of n people,
enabling them to express themselves col-
lectively. Quebecers cannot be deprived
of their own social security system any
more than they can do without their own
legal or educational system.

Through appropriate financial machinery,
attribution of all social security

measures to the member—stetes can be
reconciled with fair redistribution of
income, with manpower mobility throughout
Canada and with effective economic policies.

The proposed provisions for delegation of
powers would allow the States so desiring
to entrust the central government with some
of those functions.

05-

4.18.55

SUBJECT: V ~— DIVISION OF LH§TSLATIVE POWERS

OTHER EXCLUSIVE POWERS OF THE STATES

For greater clarity, the constitution should
specify that federal powers do not govern
the following fields, which will be added to
those now belonging to the provinces:

(a) Marriage and divorce;

(b) Establishment of companies and corporations,
except those specifically mentioned as being
under federal jurisdiction;

(c) Securities trading and control over financial
institutions other than banks, especially
savings and credit unions, insurance
companies, co~operativea, foundations and
trust companies;

(d) Labour relations and working conditions
of all private concerns operating within
state territory;

(a) Road transportation, whatever its origin
or destination;

(r) Integration of immigrants;

(3) All works and undertakings located within
state territory, except those related to
a field under federal jurisdiction;

(h) Rehabilitation of prisoners;

(1) Exploration, conservation and development
of resources;

(3) Land use and development;

(k) Municipal organization, town planning,
housing and urban renewal;

(1) Recreation, leisure and sports.

SUBJECT: V -« DIVISION OF LEEISIATIVE POWERS

4.18.3M

INTERNATIONAL RELATIONS

within the limits of oanadian foreign policy.
member-states should have a recognized capacity
to negotiate and sign their own agreements with
foreign governments on matters subject to their
internal jurisdiction. State governments should
also he regularly invited to participate in
Canadian delegations at international conferences
and at meetings of international organizations
of which Canada is 3 member, and which touch

on fields of state competence. Similarly, they
should be empowered to attend international
conferences that interest them and in which
Canada is not a participant. Finally, state
governments should have the right to a more
substantial role in external aid.

QQMMENTS
1. In her Brief on the Constitution, Québec

explained the reasons which militate in
favour of the proposed arrangement.

Sé.

4.19.50

COMMENTS

2.

SUBJECT:

Firstly, given the growth of international
relations in fields of state jurisdiction
and the close connection which exists
between international agreements and day-
to—day implementation of policies, the
central government cannot exercise n
monopoly on international relations without
gradually taking over, in fact if not,

in law, powers which fall outside its
competence.

Secondly. Quebec in particular needs to
establish direct contacts with the
French—speaking world; indeed, these are
necessary to achieve cultural equality
between the two nations.

Thirdly, Canad“ stands to gain by having
her member—states take the greatest pos—
sible interest in international life
because in the final analysis, they have
the human and institutional resources which
could make the Canadian contribution truly
effective.

Direct state participation in international
relations must remain compatible with the
integrity of Canadian foreign policy, as
defined by the government of the Union.
Machinery will have to be set up to ensure
such compatibility and to settle disputes.

V —— DIVISION OF LEGISLATIVE POWERS
TAXATION

To fulfil their constitutional responsibilities,
member~state$ as well as the government of the
Union should have access to all sources of tax

revenue .

Only few fields should be reserved for

exclusive use —— property tax and succession
duties by the states, customs revenue by the
central government.

COMMENTS
1. In today’s world, it is generally futile

rs)

to divide taxes by type in w9ter~tight
compartments, or to try to set up n system
revenue apportionment able to adjust
automatically to needs.

On the other hand, the governments must pay
continual attention to co~ordinating their
fiscal policies and distributing revenue
fairly. They must also set up machinery
for intergovernmental co~operntion to this
end (see chapter VII).

The two orders of government should enjoy
equal rights in collecting their respective
taxes and no government should be pflid in
preference to the others.

,.

4.20.36

SUBJECT: V ~— DISTRIBUTION OF LEGISLATIVE POWERS

SPENDING POWERS OF THE CENTRAL GOVERNMENT

The constitution should restrict the central
government’s spending powers to matters under
its jurisdiction. These would none the less
include the right to make unconditional grants
to state governments. on the basis of a
general equalization formula or in order to
stabilize their revenue.

Provided definite limits can be set on the
action of the government or the Union, it
should also be authorized to take, alone or
Jointly with the states, certain measures
designed to ensure economic equality between
the states through development of disadvan-
taged regions.

COMENTS

1. Use made by the federal government of its
alleged general right to spend in order
to launch a variety of joint programmes
in areas falling under the exclusive
jurisdiction of provincial governments
has been one of the main reasons for the
deterioration of federa1—provincia1 re-
lotions.

2. Besides their centralizing tendency; shared-
cost programmes do not gibe with provincial
priorities and often lead to 111-advised
use of public funds; they make it harder
to plan provincial programmes and introduce
an element of inflexibility which thwarts
progress.

u

Unlimited spending power at the central level
encourages governments to outbid one another.

4. Except in areas under common Jurisdiction,
joint programmes would therefore be aboli-
shed.

5. on the other hand, the evolution of fiscal

relations in Canada has made it possible

to devise general equalization and stabili-
zation formulas which fulfil a legitimate,
worthwhile role and which should be maintai-
ned. even improved.

6. The central government must assume prime
responsibility for the balanced economic
growth of the country as a whole, achieving
a certain economic parity between the states
and ensuring general distribution of whealth
between them through equalization. The
states should assume prime responsibility for
the balanced economic growth of their various
component regions, achieving, to the largest
extent possible, economic equality between
these regions and distributing collective

areas, particularly through social security

education accessible to all and decentrali-
zation of culture.

51? »

4.9l.*6

4.21.57

7. Special circumstances may require the
central government to take special
measures. As in the case of equaliza-
tion, it would then be necessary to
fix specific criteria so that all states
in like situations could derive equal
benefit from such measures.

SUBJECT: V —v DIVISION OF LEGISLATIVE POWERS

UNRESTRICTED MOVEMENT OF GOODS AND PERSONS

Unrestricted movement of goods and persons
within the Union should be guaranteed by
the constitution.

COMMENTS

1. By virtue of the present constitution,
goods produced in one province are
admitted duty—free into all other pro-
vinces. This principle should be
maintained.

2. Freedom of movement throughout the Union
should be formally guaranteed to all
citizens.

SUBJECT: VI —- PUBLIC PROPERTY

4.91.38

STATE PROPERTY

The present principle whereby the constituent
states own the public domain should be retained
and it should be specified that this domain
includes the continental shelf. The states’
powers or expropriation should be unlimited,
except with respect to federal property.

COMMENTS

1. The present constitution recognizes that,
in principle, the public domain belongs
to the provinces. In this regard, the
creation of new provinces gave rise to
many conflicts which happily ended in
roaffirmation of the principle. This
situation can only be maintained.

5‘J

. The continental shelf is pnrt of the
public domain and there is no reason
why it should not be considered in the
some light as the territory to which it
is adjacent.

5. The right of constituent states to ex-
nropriete any private property in return
for compensation should be absolute.

4. The rights of Indians and Eskimos to lands
which have been reserved for their use
should be clarified, taking into account
rights acquired by usage, treaties or
existing laws.

4.22.39

4.22.40

SUBJECT: V1 -~ PUBLIC PROPERTY

FEDERAL PROPERTY

Federal property should be strictly limited
to what the Union government requires in
pursuit of its own ends; when this use
ceases, property should automatically revert
to the states. Federal power or expropria-
tion should be limited and should not extend
to state property.

COMMENTS

l. The central government should be able to
acquire and hold only property necessary
for its immediate ends.

2. The central government should return to
the states all property, particularly
parks and other recreational areas,
which it now owns but which is not
directly related to matters within its
competence.

3. The central government could acquire and

maintain sites and buildings of historical

interest to the whole country. It could
also continue to provide the Canadian

capital with a library, museum, art gallery

and arts centre in the service of the
whole Canadian flnion.

4. That property no longer used for federal
ends should revert automatically to the

states is only a corollary to the princi-

ple of general state ownership in the
public domain.

5. The central legislature could grant ex-
propriation powers to the agencie it
has the competence to create; yet such
expropriation should use the procedures

and means set forth in expropriation acts
adopted by the states. This should like-

wise apply to expropriatione effected
directly by the federal government.

6. In principle, state property should not

be subject to expropriation by the central

government.

SUBJECT: VII -— INTERGOVERNMENTAL RELATIONS

THE PRINCIPLE OF SOLIDARITY

The Canadian Union implies the adhesion of
each memberwgovernment to the principle of
solidarity and mutual aid, with all govern-
ments respecting the constitutional rights
or each.

COMMENTS
1. Federalism rules out any subordination
of one government to another, but does

require that the efforts of all be co-
ordinated for the good of the whole.

‘go.

:”.1IRJI”.C’J‘:

VTI —~ TNTERGOVEHNMENTAL RELATIONS
RECIPROCAL CONSULTATION AND PARTTCTPATTON

4.93.41 Economic policies and their fiscal, monetary,
trade and other components should normally be
arrived at by continuing and systematic
consultation and participation by member-states
nnd the federal government; they should be
implemented by all governments acting in con-
cert, each in its own area of constitutional
jurisdiction.

COMMENTS

1. Even in matters over which it has exclusive
jurisdiction, no government can act in a
vacuum, without concern for others‘ legi-
timate interests. Co—ordination is even
more necessary in areas where the two
sectors of government exercise Joint or
complementary jurisdiction.

SUBJECT: VII —~ INTERGOVERNMENTAL RELATIONS
INTERGOVERNMENTAL AGREEMENTS

4.25.4? The constitution should provide for reaching
intergovernmental agreements which would be
constitutionally binding on all subscribing
parties and, in case of conflict, could be
interpreted by the constitutional court.
COMMENTS
1. This providion could use the American

inter—state compacts as a guide. The
legal status of intergovernmental agree-
ments is i1l—defined at the present time;
it is certain, for instance, that they
are not binding on legislatures.

9. Not all agreements between governments
would necessarily hnvo constitutional
values; this form should be reserved for
the most important.

5. A special procedure could be set up for
reaching constitutional agreements, for
example, ratification by the legislature
of each party to such agreements.

SUBJECT: VII -~ INTERGOVERNMENTAL RELATIONS
HEADS OF GOVERNMENT CONFERENCE
4.?%.4Z The constitution should provide for an annual

conference of Union and member-state heads of
government.

COMMENTS

1.

The role played by federnl—provincia1 con-
ferences has become so important in Canada
that, in some respects, these now seem to
be nn essential mechanism in our federation.
Giving them official status would only
reflect this obvious fact.

QI,

4.84.45

commgq

2. A constitutional provision to this effect
would, without unduly restricting the whole
country, show the interdependence of the
states and the Union government as well as
the importance attributed by all concerned
tg exchanging information and to consulta-
t on.

5. Organizing the conference, its procedure
and its permanent staff could be the sub—
Jeot of intergovernmental agreements.

4. Conferences at the ministerial level would,
by implication, also have official status.
without requiring any specific mention in
the constitution.

S. The annual Conference of Provincial Prime
Ministers and Premiers has not yet acquired
sufficient importance to fiarrant constitution-
al mention. It could eventually attain
official status by intergovernmental agree-
ment.

6. It goes without saying that the Heads of
Government Conference would remain a mere
forum for discussion and that its “decisions”
would have no legal value.

SUBJECT: VII —— INTERGOVERNMENTAL RELATIONS

4.24.4#

COMMISSION ON TAXATION

The constitution should provide for the esta-
blishment of a standing intergovernmental
commission on taxation which would be made up

of representatives from all governments and
whose role would be to prepare taxation arran-
gements for set periods, taking into account
available and forecast tax resources, programmes
planned and priorities involved.

COMMENTS

1. Considering the proposed distribution of
fiscal resources. it is essential that the
governments of the Union periodically
reach agreement on tax sharing and the tax
structure.

2. Owing to the importance of these arrange-
ments, it would he advisable to institu-
tionalize the intergovernmental machinery
designed to prepare them.

5. This commission might report to the Heads
of government Conference.

SUBJECT: VII »— INTERGOVERNMENTAL RELATIONS

4.24.45

INTERGOVERNMENTAL TAXATION

In theory, no government should be empowered
to tax another government or any of its agents.
However, intergovernmental taxation should

be permitted by mutual consent.

Q2.

4.75.45

ggvxmmms

1. Since “the power to tax involves the power
to destroy”, it is necessary to retain the
principle whereby each area of government
is exempt from others‘ taxes.

2. On the other hand, it may be desirable
from the administrative standpoint for
government activities to be subject to
ordinary taxes on a reciprocal basis.
This should be permitted by the constitu-
t on.

SUBJECT: VIII — HUMAN RIGHTS

4.25.46

LEGISLATIVE IMPLEMENTATION AND JUDICIAL
SANCTION OF HUMAN RIGHTS

It would be well to specify that implementing
the basic rights of the human person belongs
both to the Union —— for matters within its
competence —— and to the states —— for matters
under their constitutional authority.

The constitutional court would have exclusive
jurisdiction over any legal action in which
recognition of basic human rights is at issue.

COMENTS .

1. In a federal context. it seems to us
essential that implementing basic rights
should not trespass directly or indirec~
tly on any government’s competence as
established under the constitution. Each
government must remain responsible to its
constituents for the way it carries out
its constitutional duties.

2. Obviously, a law contrary to the constitu-
tional declaration of rights could be
declare‘ unconstitutional.

3. The Constitutional Court should have exclu-
sive jurisdiction over all litigation which
might lead to declaring a law unconstitutio-
nal because it infringes the basic rights of
the human person. Any action of this sort
should automatically come before the Consti-
tutional Court.

SUBJECT: IX —- ADOPTION AND AMENDMEHT OF THE

4.25.47

CONSTITUTION
AMENDMENT PROCEDURE

The constitutional amendment procedure should
provide several means for making changes,
varying in rididity with the nature of what
is to be amended.

£3£L1″l!.”.1’Z*\.‘.’1l~°:

1. Unlike the present constitution, the new
constitution should not include any
provision which can be amended by the
unilateral action of a single government.
Provisions of this sort have their place
in ordinary statutes but not in a oonsti~
tution.

/

:93.

u.2».n/

4.26.48

COWMENTS

Z’.

3.

SUBJECT:

Ordinarily, no constitutional provision
should be capable of amendment except
in the manner in which it was adopted.

Yet certain specific provisions might
lend themselves to a less cumbersome
amendment procedure.

It would be well to indicate specifically
where the right of initiative for consti-
tutional amendment resides.

IX —— ADOPTION AND AMENDMENT OF THE
CONSTITUTION
REPATRIATION

Ultimate sovereignty rests with the Canadian
people; thus, there is no need whatever for

a formal gesture “repatrieting” the constitu-
tion. All that is needed is to promulgate
the new Canadian’oonst1tution in Canada.

COMMENTS

1.

Sanction by the Canadian people, not by
Westminster, will vest the Canadian
constitution with its authority. Hence,
it would be inappropriate to approach in
any way the parliament of another country
at the very moment when Canada is defining
herself and asserting her eovereignty.

Following in this respect the example set

by India in 1949, the new Canadian consti-
tution, once adopted democratically, would
be promulgated in Canada and, by this fact
alone, become the country’s supreme law.
Thereafter the British Parliament could,

on its own initiative, repeal its legisla-
tion respecting Canada’s former constitution
which, in the nature of things, would have
become obsolete.

C4.

GUN J*’.LJJ1$h‘J‘ .L.u.

.Thc following propositions 5.1.1 to 5.9.17 _ ‘_
entcd by the Government of Ontario on 25 September,

,..__»‘3U“J1£“_=._9.1?_~l17.€?fi_‘ 03!‘ 13.1

5.l.1

“The British North America Act should be examined

in order to decide whether it should be amended or
‘rewritten.

EXPLANATION

l.

3,.

4.

In embarking on an exercise of this magnitude
and significance, all governments should at

the outset have a clear idea about the aims

of the endeavour, and should agree on what they
are trying to accomplish.

To forestall the subordination of one authority
to the other, a federal union requires at least
part of its constitution to be written, defining
the distribution of powers between the two
levels of government.

The approach which we have now taken to a general
review of our constitutional arrangements may
lead to significant changes in_the constitution..
The attempt to define basic objectives first,

and then to diocuss the structure and operation
or our federal system implies a scope and
perspective which may involve extensive rewriting
of the BNA Act and may even involve the writing
of a wholly new document.

The written constitution of Canada should reflect
the aspirations of the country‘s citizens, should
educate them to their rights and responsibilities,
and should contribute to a sense of national
achievement and identity. These purposes should
be kept in mind in the present examination of the
BNA Act.

As a minimum the Constitutional Conference should
review the language and terms of the British North
America Act, repeal obsolete clauses, and revise
those inconsistent with the character of the Act as
Canada’s written constitution.

EXPLANATION

1.

The language of the Act is that of a nineteenth
century British statute. It fails to provide

the necessary inspirational or educative tone
appropriate to a constitution. The Constitutional
Conference should attempt to rephrase some sections
of the Act to render them more relevant to an
independent state.

Many of the provisions of the Act are now spent,
obsolete, or out of keeping with Canada’s
present fully sovereign status and should be
removed.

The following sections of the Act should be
repealed because their provisions are spent or
because they are now provided for by appropriate
legislation:

Sec. 19 — First session of the lhrliament of Canada
40 — Original federal electoral districts
U1 — Election laws in force in 1867

65.

5.2.2‘

4.

GOUEJDEHTIAL

Soc. 65 – ion 01’ E.\cucu1;1vc Council for
Ontario and Que ‘

70 — Provincial electoral districts for
Ontario

72 ~ Constitut1on,of Quebec Legislative
Council

75 — Qualification of Legislative Councillors

77 ~ Speaker of Quebec Legislative Council

85 ~ Duration of Legislative Assemblies in
‘Ontario and Quebec

105 [Salary of the Governor General
10? Transfer of‘stocks at time of Union
119 Special grant to New Brunswick

122 : Provincial customs and excise laws

12% Lumber dues in New Brunswick

130 Transfer of officers to Canada

134 Appointment of Executive Officers for
Ontario and Quebec

141 Penitentiary of Ontario and Quebec

142 — Arbitration respecting debts

146 — Power to aamit other colonies

147 — Representation of Newfoundland and
Prince Edward Island in the Senate

The following sections of the Act should be
updated and consolidated to correspond to the
existing situation:

Soc. 5 — List of the four original provinces
6 – Definition of Ontario and Quebec
7 – Definition of Nova Scotia and
New Brunswick
68 Seats of provincial governments

I

The following sections of the Act should be
redrafted to take account of Canada’s’status as
an independent state:

Sec. 16 — Royal discretion as to Seat of Government
18 — Restriction on privileges and immunities
of Members of Parliament
55 ~ Royal discretion as to assent to
legislation

The following sections of the Act should be
repealed:

Sec. 56 — Disallowance
57 ~ Reservation ‘
’90 — That part which deals with assent,
disallowance and reservation of provincial
legislation

The following sections of the Act relate solely
to the internal conduct of the House of Commons,
and need not be regulatog in the constitution:

$ec. 44 — Election of Speaker
45 ~ Vacancy of Office of Speaker
#6 « Function of Speaker ‘
47 ~ Provision for absence of Speaker
48 ~ Quorum of House

These rules shouli become part of one Standing _
Orders or the Houae, to be regulated by rcsolutlon
of the Houso.

The above enumeration does nofi purport to be
exhaustive. Furthermore, those changes do not
exclude any which.might be de».rmble for other
reasons. ‘

éé.

‘ (IONIVII .1)I:I}‘l”J3.|.T\].

bit: to the
-.-1IxI1»J.L: should
of tho Canadian people and thcir

on to pr

l. A constitution should reflect the hopes and
aspirations of citizens, stipulate their rights

1, and hence create a sense
of national accomplishment and identity.

2. The present British North America Act is defective
in achieving these aims. It mentions the colonial
status of the original provinces, the importance
of the British Empire, and the authority of the
British Parliament in creating the new political
union. Its modernization could emphasize the
aspirations of the Canadian people, and the
principles and objectives on which they base

The alleviation of regional economic disparities is
a goal of the Canadian Federation. and should be
recognized as such in the written Canadian Constitution.

5-5-3 Con J0″nticn nhould_bc gi
Hi. .n co.. bu ion of On Jan. The
set out the ‘
ruammr; J’.’oJ” p1‘<:s.’.o1‘vix‘:[; z.\ [‘ogl<:1.‘z~)”l. u11i011.
and rosponsibilit“
their federal union.
SUBJECT: 0BJhCUflVES OF CONFEDERfiTION
5.3.4
5.5.5

All Canadian parents should, as a matter of eouity,
be able to have their children educated in either
or both of the official languages.

lX

“.’I‘IO_I\:

1. If Canada is to be a bilingual country, it is
vital to ensure that parents be permitted to
have their children educated in either or both
of the official languages. This is particularly
important for parents and children of the minority
official language group in any province.

2. It is necessary to ensuro that children of the
minority official language group.acquiro a sound
command of the official language of tho majority
in their province.

3. At present, the provision of education in either-
language or both languages cannot be exercised
everywhere to the same degree. To a great extent,
it will depend on the concentration of students
and on the availability of teachers and facilities.
In some cascg, classes will bc‘startcd at the
elementary or secondary level in the instruction
of the minority language alone. Other areas may
be able to provide much more. The ideal would
be to have an entire school in which there wcro
enough to warrant a complete French —- or
English~languago program. –

4. The methods of extending this provision as
widely as possible are more complex. Each
province has a separate educational system, and
has different percentages of the two official
language groups. The Council of Ministers of
Education should play an important role in
furthoring the prov” ‘on of education in French
and English by fuci toting oxchnny 3 of personnel
and information, and furthering the
French xno nglish on languuw.s
at all love”

suBJEc0:’
5.4.6

5.4.7

()UK’lL”Ll)I’Jl‘(‘i‘J.u n

Q§§IC rnimgggx 3

Vcanada should continue to have a federal system of
government. , ‘

EXPLANATIOH

1. The history of the pre~Confederation legislative
union amply demonstrated that the diversities of
regions and attitudes in Canada are difficult to
compound into n unified culture, economy or
polity.‘ Since then, Canada has greatly expanded
geographically, and the creation of new provinces
has accentuated regional diversities. Particularly
since the “quiet revolution” commenced in Quebec,
problems arising from our cultural diversity,
especially between French~ and Eng1ish~ speaking
Canada, have bocomo increasingly critical.
Furthermore, Quebec is not the only province
that wishes to preserve its individuality.

2. In 1867 the Fathers of Confederation concluded
that only a federal system or government could
satisfy the demands of the various regions.- ,
This situation has not changed today. Regional
and provincial differences must be recognized
as a basic condition of federalism, not merely
as an inconvenience to be grudgingly tolerated.

3. The national interest is not to be identified
with the federal government only, but with the
sum total of the interests of the federal
government and the provincial governments.

4. It must be’recognized that the federal government
has a place of primacy among the governments or
Canada. In its jurisdictions, it is sovereign.
The federal government, in turn, must accept the
sovereignty of its provincial counterparts in
their fields, and deal with them on this basis.

The Central Government of Canada should continue to
be a parliamentary democracy.

EXPLANATIOE

For sound historical, cultural and political
reasons, Canada»choso to combine federalism with
a parliamentary form of government. As their
experience with self—governmont has matured and
evolved, Canadians have come to appreciate the
particular advantages associated with this form
of government. ‘

The written constitution of Canada must bo flexible
enough to be adaptable to fundamental social and
economic changes.

EXPLANATION

To be effective, a constitution should reflect the
prevalent ideas and values of the country it serves.

As Canada’s federal structure makes some form of
written constitution imperative, any review of the
constitution and changes to it must ensure that the
document is sufficiently flexible and/or possesses the
necessary instruments to cope ith future change without
the necessity of u fu1]»scu1e review of tho wholn

_adocumant such as we are undsrtaking at present.

6 X .

5.

1|».

).f,.‘) ‘|‘}=-* (l<:nl;x‘u] and )7“o\”‘\n’
.) oi:h..*’r.”.<7 <‘:om.:

” CON l*‘ID]‘IN’.|‘Il’I\]L

Haven
«kLlOh1l juri:

: maul; ‘1’~::.<.:})or.“l;
.dlcLjono.

tutions in federal countries attempt to

ributc moot of the powers of government

between the mtral and the local governments.

Each Juriodi .on has its own to ponoibilitios,

and can not legitimately only \ thin its own
assigned powers. Changes in th distribution

can be brcugh1 about by constitu ional amendment
(which aosumoa a high degree of national consensus),
by judicial interpretations of the constitution,

or by such devices as delegation.

In recent years, formal constitutional amendment
to the BNA Act has been difficult to attain.
Judicial interpretation has been subject to much
criticism. As a result, a more subtle and
indirect method of jurisdictional change has been
employed in Canada. The federal government has
claimed as its right and duty the introduction

of new national programs, particularly in the
broad field of social security. However, the

DNA Act assigns most responsibilities in this
field to the provincial governments, thereby
excluding the federal government from direct
action. Consequently, the federal government

has undertaken to use its constitutional spending
power to bring financial pressure on the provinces
to adopt these federally desired programs. This
pressure has been so strong, especially on the
less well—endoued provinces, that provincial
governments have yielded to many federal initiative:
in spite of different priori s to which they
may have wished to direct the ~ resources.

This indirect federal invasion of provincial
jurisdictions has created a great deal of public
confusion about the federal system. No longer

is the citizen sure to which level of government

to turn for the solution or various problems.

Nor is he sure which level of government is
politically responsible for introducing a partioulan
program. Governments themselves use this confunicn
to deny their responsibility for problems or to
blame other governments. The result is a growing
disvespect for and impatience with federalism.

Federalism is a complex system of government.

If it 1$ to prosper and provide progressive and
f.-f‘.’(‘io.i.cn1; adn\i.11is5tra1t.1′.on £01.‘ Canada, governments
must not flout its principles.

5.5.30 The relationships of the provinces with the federal
government need not be uniform in all respects.

. alism was accepted in 1867 as the most
practic 1 form of national political organization
to whic) the British North American colonies were
’ ‘ Each colony had been
chz).1-ncterimd by its own part:’.cu.lz)r trac11‘b:i.ons

é‘7.

5.6.10

5.6}1l

0

<_. 3. 5. . CONFIDENTIAL Since 186?, there have been constitutional provisions which recognize the special and different needs o£\tho provinces. On the other hand, the DNA Act,’w1th few exceptions, treats all provinces on an equal basis in the distribu- tion or powers and in the basic operation of the ‘ federal system. In contomnorary Canada, substantial differences among the provinces and regions have remained. Canadian federalism is thus complicated by vast disparities among its units in area population, natural resources, industrial capacity, and economic development, in addition to some basic variations in culture and language. The written Canadian constitution.should recognize these differences and make allowances for them. A variety of arrangements would reflect the complexity of our federal system and would permit each province or group of provinces to exercise powers according to differing local or regional abilities and needs. The nature and extent of these arrangements will have to be clearly defined to ensure the maintenance of a federated national entity. It is possible that these disparities in size and capacity among the provinces will be alleviated. However, as long as they remain, it will be essential that the written constitution provide for such differential arrangements. ‘ S Canada should be a bilingual country while retaining its multicultural character. EXPLANATION 1. 2. The historical and linguistic heritage of Canada has developed from two predominant communities: one French~speaking, the other English—speaking. Together with the many immigrants from other language groups. these two couwunities have moulded the shape and character of Canada. Canadians whose mother tongue is neither French nor English are aware that they must learn one (or both) to participate fully in the life of the country. This fact does not detract from the quality of Canadian citizenship they can acquire. All Canadians must enjoy the same rights and privileges as any Canadian whose ancestors have been here for generations. The bilingual nature of Canada includes the dimension or the country’s multicultural character. Today, the English~speaking community in Canada is a heterogcneous one, continually changing with the infusion of many;cultura1V influences. Aslmore immigrants join the French- speaking community, this concept may also come to apply to that community. To speak of our bilingual, multicultural heritage simply reflects- the dual~raceted character of Canada — a country whose workin% languages are English and French, and whose cu tunes are the product of many lands. 76. I SUBJECT: 5-‘7. 13>

SUBJECT:
5.7.1“

.

CONFIDENTIAL

All govornmonts in Canada should provide, wherever
gpraoticablc. public services in the English and

French languages.

. Exx>Im_I>’…«:L3Iolv..

11 In principle, the concept or a bilingual Canada
must include the recognition that all citizens
should be able to deal in either of the two
official languages with the various levels of
government with which they come into contact.
In practice, it will be necessary to provide
ouch services wherever the minority is large
enough, e.g., ten per cent or more of on area’s
population. These services would include such
matters as education, justice, Parliament and
the provincial legislatures, and all government
administration.

2. The emphasis would not be to create a country
in which all the citizens would speak or would
have to speak two languages. Rather, it would
be to create a country where the principal
public institutions would provide services in
both of the two official languages.

FUNDAMENTAL RIG§$§

-The fundamental rights of Canadians should be clearly

expressed and guaranteed by positive legislative
enactment. .

EXPLANATION

1. The fundamental rights of Canadians, both

political and legal, have received protection

by statutory and customary means since 1867.

In order that all Canadians may better understand
and uniformly benefit from those rights, their
clearer and more permanent expression is now
desirable.

2. Any restatement of these rights must meet the
requirements of our federal system of government
in a manner consistent with the spirit of Canadian
law and custom. Entrenchment is not necessarily
contrary to this spirit (e.g. Sees. 95: 153 of
the BNA Act).

5. These rights should be expressed in a form which
will reflect their development in our laws over
the years; any new expression of them must_be
applied so as not to diminish any existing right
recognized by low or usage.

4. These rights, once expressed, should be invoked
and applied by Parliament and the legislatures
of the provinces in all relevant statutory
enactments within their respective jurisdictions,
and by the courts and administrative tribunals
in all cases which come before them.

THE CONSTITUTION OF THE JUDICIAL SYSTEM

The constitution should establish the Supreme Court
of Canada as the Federation’s final Court of Appeal.

1. In u federal system, it is desirable to ensure
that the final court of appeal is placed beyond

?I.

5.8.14

5.

4.

CONFIDENTIAL

‘the ordinary control of either the conhral or
the provincial governments. _

The BNA Act makes no.spcc1fic mention of the
Supreme Court of Canada, which was-established
by statute in 1875. Until 1949, the final
court of appeal remained the Judicial Committee
of the Privy Council in Grcat‘Britain. After
Canada abolished appeala to the Privy Council,
this function was assumed by the Supreme Court
of Canada. . – ‘

The Supreme Court Act has acquired a quasi-
constitutional status, to the extent that no
government would dare to treat it simply as
another statute. Nevertheless, the constitution
should ontrcnch the position of the Court.

Ac the final court of appeal, the Supreme Court
or Canada would have the specific authority to
hear cases involving constitutional issues.

5.8.15 ‘ Subject to age and good behaviour fiudges of the
Supreme Court of Canada should be granted constitutional
guarantees of security in tenure and remuneration.

EXPLANATION

1.

\

Constitutional provision for security in the
office and salary of Suprenm Court judges would
be primarily of symbolic importance, underlining
the change of status in the Court from that of _
a creation or the Federal Parliament to that of
a creation and instrument of the Constitution
agreed upon by all governments in Canada.

At present, Section 99 of the BNA Act refers to
the tenure of Superior Court judges, but says
nothing about salaries. There is even some debate
whether Supreme Court judges are included. as

the Superior Courts arc the highest courts to
which the Act specifically refers.

SUBJECT: DISTRIBUTION OF POWERS

5.8.16 (a) Basic for distribution of powers.

Fcdcral—provinciu1 tax sharing arrangements must be
adequate to enable each government to discharge
effectively its constitutional obligations.

EXPLANATION

1.

One of the most serious defects in the Canadian
federal system has been its failure to provide
sufficient revenue to the provinces to enable
them to meet their responsibilities. The result
for one level of governmcnt has been insufficient
money to perform its tasks, and for the other a
more comfortable financial position which has
prompted it to intervene in provincial areas of
Jurisdiction. This feature has been especially
aggravated since the Second World War with the
sharp increase in the costs of provincial1g—
assigned programs involving education, social
security, and highways.

‘$2.

SUBJ 1501‘ :

5-9-17

\I\J4|.’J…4.M-J.J.1.\.AJ

2. The thcoww of feéoruli 1 requires each
level of government to act in peutly within
its jurisdictions. Such ixmepondonco is
seriously impaired when one level oi govcrn—
mcnt must approach the other for financial
aid to discharge its basic responsibilities,
for its decisions are subject to review and
to pressure fox change by its pressing need
for Ilmds. The not result is a blurring of
the federal system’s distribution of powers
and a decrease in efficiency of government
and of public satisfaction.

3. The written constitution must therefore
attempt to distribute revenues between the
two levels of government according to a
method fair to both of them. Such a method
must be flexible enough to ensure that
revenues will increase or decrease as the
dimensions of a government’s jurisdictions
grow or lessen. –

4. In order to ensure that the distribution
of revenue meets the needs of provinces with
widely different fiscal capacities, an equali-
zation formula is essential.

ANEHDNWNT ?ROCEDURE . V

An amending formula must be a part of the
written Constitution of Canada.

EXPLANATION

1. At present there is no completely
satisfactory method of amending the Canadian
Constitution. Certain changes which Canadians
might desire must now be ratified by the
Parliament at Westminster. This procedure

is incompatible with Canada’s independent
status.

2. Agreement on an amendment procedure which
relies solely on Canadian institutions must
accompany any serious consideration of changes
to the present Canadian Constitution.

5. Consideration should be given to re-exa~
mining the principles contained in the draft
Act to Provide for the Amendment in Canada of
the Constitution of Canada (October, 1964).

The following propositions 5.9.18 to 5.18.40

were submitted by the Government of Ontario on
December S, 1968.

_s1rzeJ:sg:_g:_ __i_Jv_.’§1:c PBIIIGIPLES

5.9.l8

Any mattcm included in the writte‘ oonstitu—
tion should not be capable of unilateral
amendment by any jurisdiction.

__ iwxoz;

1. The writtcn~constitution of a federal
count y should utlino the nature of the
vol’ 1 should describe the
government, and should

:-

ins utions OA

13,

35.10.19

SUBJECT:

5.10.20

5.10.21

C-UITFID

establish the distribution of powers. These
matters are placed in the constitution

to ensure their re}ative permanence

i.o., to ensure that they cannot easily be
altered. .

2. Those matters mddch are less imp vtnnt
and which can be amended by one Ju isdiction
should not be included in tho.wrifit
constitution.

Tho reservation of provincial legislation by
tho 1i enant governor and its ‘i
the Governor General in flauncil are in-
‘compatlblo with Vhe principles and practices
of conteugorary federalism. These powers
should be removed from the Constitution.

EXPLANATION

Each order of government must have
the right to act 1 p dently within
its area of fiurisfifl. on. If provincial
legislation in capubk of being reserved
or disallowed on the instruction of the
Federal government, the provinces cannot
be considered independent within their spheres.

CONSTITUTION OF THE CENTRAL GOVERNTQKW

(a) Head of State ané Chief Executive

The monarch should continue to be the
Head of Stave of Canada.

EJCPLIJVATIOZI

1. Constitutional monarchy has been an
integral part of Canada’s form of‘govozuv
ment throughout its history. Si ca 1367
Canada has evolved from colonir ‘
to semi—independonce, and £in~1 J
plate independence. During tL1s_tima,

the monarchy has provided for Canadians

a tie with the past and has demonstrated
its capacity to adapt to changing circur~V
stances.

2. Any change from a constitutional monarchy
would require clear ugrcemenx by the

Canadian people. At present, fiany Canadians
remain strongly wedded to the symbol of the
monarchy, partly because it helps to muin~
tain our distinctive identity in North

America. To challenge this symbol may well
prevent progress on more substantive issues.

a

The monarch, on the afi ‘C6 of the Prize
Minister, should app . 5 ronrcscntat

to exercise the functions of flead of
in Canada.

O

EXI’I»A!.’ AT1 OH

This proposition makes the present
situation explicit. It recognizes that the
holder of this office is appointed by the

.,nonarch on the advice of the prime ministar

of the day.
-7‘!

.-;owancc by

S.ll.22

5.ll.25

CUHE1DENT1AL

-‘ :1′.v;; in (Jan:-do :3hoU.1.(L

1. This proposition formally recognizes
the present practice.

2. It would also be desirable for the
mouorch‘s representative to be bilingual
and to continue the custom of alternating
appointments between persons of Englkxh
mother tongue and-those of French mother
tongue. This practice, however, should
remain in the realm of custom.- ‘

The monarch’s representative should be
appointed for ten years. In the event

of his death, incapacity, or absence, his
office should be held on an interim basis
by the Chief Justice of the Supreme Court
of Canada.

EXPLANATION

1. At present, fine monarch’s representative
is appointed for five years, with the option
of a renewable term. Since the five year
period gives the holder of the office u
transient cha ctor and since renewals have
been the practice, a ten your term is
suggested.

2. The second part of this proposition
is intended to cover emergency situations.

5. Incapacity, absence and the ability
to so declare should be clearly defined by
statute. Such definition should make clear
the length of the interim period.

4. ’ The present practice provides for the
Chief Justice of the Supreme Court of Canada
to exercise the powers of the monarch’a
representative in emergency situations.

It would be desirable to make this practice
explicit in the written constitution.

5. The Chief Justice of the Supreme Court
of Canada is an appropriate officer to exer—
cise the powers or the monarch‘s represcnta~
tive in emergency situations because he is
not elected, is therefore politically neutral,
and has sufficient prestige and respect to
carry out the functions or the office on

an interim basis.

6., If a further designation of persons

to fill the office of the monarch’s representa~
hive on an inn rim basis is thought to be
necessary, this designation should be
statutorily dcfiqed. Such persons might be

the other justices of the Supreme Court or
Canada. \

7. On a non~emcrgcncy basis, the monarch’5
representative should be able to appoint a-
doputy or deputies on the authori’.tiou of
the monarch to excrci 0 some or ull of his

. tuna ens, .- s nnv.pro ufl in
on lll» cu“ ‘the. I51“: 310; 2;}. A‘-vo. .. fu;1;.

3-5’.

5.3.2._24

5.12.25

5.12.26

5.12.27

‘ CONFIDENTIAL

The written conbtitution ohould idnntify
the various powers or the monuroh’s
representative.

1~:>o)1;1uvwv1_<>_13

the Monaroh’s representative wide powers.

As developments over the past hundred years
have limited the independent exercise of those
powers, the written constitution should
reflect these developments.

The BNA Act and Letters Patent give

(b) Executive of the central government

The written constitution should clarify the –
position and responoiblities of the different
parts of the executive of the central govexm—
mont. ’ ‘

EXPLANATION

1. The BNA Act now recognizes only the
Privy Council. It makes no mention of the
Cabinet or of the Ministry. These important
institutions should be included in the
written constitution.

2. The full Privy Council meets rarely

if atall. A careful review or its position
should be undertaken, including the possibi1—
ity of restricting its membership to members
of the government or the day.

3. In Cunaaian practice, the cabinet

and ministry are oowoxtonsivo. It is
possible, however, for a situation to

evolve in whioh_there will be ministers

who will not be members of the cabinet. The
constitution should not exclude this possibi1~
ity.

(0) Parliament

The Parliamont of Canada should continue
to consist of a Head of State, a Lower
House, and, if the decision is taken to
retain it, an Upper House.

EXPLANATION

1. This proposition in no way determines
the kinds of changes which should be made
in the role and structure or an Upper House
afid in the method by which its members are
c osen.

2. However, if no such changes can be
agreed upon, consideration should be given
to abolishing the Upper House.

(d) The House of Commons
As a general orinciple representation by

population should apply to the House of
Commons.

I‘2XPLl\)‘.‘A”‘ ‘ON

1. – It is an nxion oi dnmoorucy ihat
representation in the popularly elected
chamber should be on the basis of popu1a—

tinn.
94 .

5.15.23

\;1

xx

70
\O

‘ CO1 LU i).‘:‘H’l‘] AL

to be given to

on pJ:ovincc:_: :u”o

_ ‘:onta’tion, and

“o the allowances for‘the rritorics and
possible new provinces or groups of provinces;

5. The suggestion contained in this
proposition is to ensure the closest adhor—
once to the principle of representation

by population that is compatible with

the particularities of the Canadian situ—
ation . –

The internal rules of procedure of the
House of Commons should not be contained in
the written constitution but should be
regulated by custom by statute or by the
standing orders of the House.

ޤPLANATIOH

The internal rules of procedure of
the House of Commons, including provisons
relating to the quorum of the House and
the selection of the Speaker, should not
be included in the written constitution.
They should,instead, be regulated by ous—
tom, by’stntue or by the Standing Onaers
of the House .

(e) The Senate

The Senate should be reformed to represent
more effectively the interests of provinces
or groups of provinces.

EXPLANATION

1. The Senate was originally envisaged
as fulfilling two main functions: to take
a second look at legislation; and to
represent and protect provincial and/or
regional interests.

2. The Senate has been useful in
fulfilling the first function. Senators
have often made valuable suggestions

for improving legislation, and have
participated in a variety of worthwhile
committees of enquiry and research.

3. However, the‘Seuate has been much

less successful in fulfilling its second
function. ?rovincial and rcgioanl reprcsenta~
tion has instead oevolved on the Fcirral
cabinet and on the provincial governments

1+. There are three areas‘ to consider if the
Senate is to be reformed to represent these
interests more effectively:

1) the pattern of representation in the
Senate;

ii) provincial participation in the process
by which senators are chosen; and

‘3 and rcaponoibilitcn nsnlgned
note .

4?.

SUBJECT:

5.14.30

5.14.31

C()fll“l’D33l¥’3‘IAL

J. Rcprevcntotion yatborn — Rcprosont3—
tion in < and cxumbcrs is not ordi .r’ly on the bugle of opulation. In federations, such representation is usually based on the federated units having equal or weighted representation. The latter . method is the one now used in Canada, though in reviewing the Sonata serious examlna~ tion should be made of the former method particularly if reprosontntion by population 15 to be applied more rigorously in the Lower House. 6. The selection process ~ At present, senators are appointed by the Federal government. If the Senate is to represent more effectively the interests of provinces or groups or provinces, and if the federal character of Canada is to be preserved, provision must be made for provincial participation in the process by which senators are chosen. ‘ 7. Powers and responsibilities of the Senate — While there are many considerations under this topic, one deserves special mention at this time. The increasing 1m~ portancc of foderal—provincial relationships within the Canadian federation warrants a forum for those matters to be oisouoscd publicly, most su. bly in a prominent, national institut‘ n. The Federal cabinet is unable to provide such a public forum. Consideration should, therefore, be given to assigning the Upper House a specific and major role in the discussion of rederalwprovinoial affairs. THE CONSTITUTIOFS OF PROVINCIAL GOVHHEEFTS Consideration should be given to the possibility of changing the geomrayhicol divisions of the federation. EJCPLAI-EA‘I.‘].’O!_l 1. Nothing in the propositions under this subject category should be interpreted as entronching the existing geographical division of Carma into provinces and territories. 2. within the context of an inclusive constitutional review, the desirability and feasibility of.reorganlzing the present pattern on more regional and/or runotionul lines should be considere . ‘ Any changes in provincial boundaries would be subject to negotiations and agreement among the provinces concerned and, where and if applicable, the Federal government. EXPu,:mTIo’:z \ 1. It may become desirable to adjust the present provincial boundar1es. If so, any action should involve the provinces concerned and, if applicable, the Ecdoral government. ?~P. V. ‘:-t \:1 \,. \~s 5.15.54 : ‘‘l.‘J’A.L _ should be nmzortnken … . ‘ : UNA Act of 1371 ‘ Pflfiflldiflfi the r gcctive responsibilities of rh Foéc al ld‘provinciul governments in the ol tion of territorial boundaries. Syecial at ention sho ld be paid to the questions of initiative and consultation. :1″ ; J.’c’:-ape! of the p The titular head of the executive branch of the provincial government should be appoint- ed by tho monerch’s representative on the advice of the Prime Hinistcr of the province and the name of the office changed to conform with this new situation. __]’;XI-‘I)AIL‘.’l“ I OH 1. At present, the Lieutenant Governor is appointed and paid by the Federal government, and holds office during the pleasure of the monarch’s representative. 2. The title, method of appointment, and tenure are inconsistent with a con- cept of federalism consisting of goverxw monks equal in their respective spheres of jurisdiction. If any province chooses to have its own written const tution, provisions in such a constitution must not conflict with any provision of the Constitution of Canada. EXPLANATION The written constitution of Canada should spec5.I,’icalJ.3/’ pei-nxit any province to adopt a written constitution as long as that constitution is consistent with the provisiono of the constitution of the Federation. Provinces should be free to adapt the parliamentary system to their particular needs. EXPLANATION 1. The BNA Act allows the provinces to amend their constitutions except as regards the office of lieutenant governor — Section 92(1). The degree of flexibility that this provision actually provides the provinces will depenlultimately on an interpretation of the imylications of the terrn ‘office of lieutenant governor‘. 2. One of the aims of Canada’s federal .syatem should be to reflect such flexibility in regional preferences. The wri constitution ::h.oulL”. 1;he1‘c!‘o1‘(: permit the provinces to adapt the parliamentary / system of democracy to their particular needs, with the proviso that the principle of responsible government is retained. 3. If this flexibility were introduced, it would have to be com; lhlc wuth the effic1ent.conduct of int rgovernmental relationships Jn Canada. 4?.‘ S! I 3.7.) HOT: 5.16.35 SUBJECT: 5.16.56 ‘l‘1(1′.’ C(3EJ-‘.$C’L‘§J’l‘!I‘.[‘J.0i¥'(I\.~‘ ’}.‘:’1’i§ JUD’:’C.I.A]) ‘ THE EACKIHERY FOR INTERGOVERN CONFIDENTIAL fli Tho appoint’\nt of judges to the Supreme Court of Cuaada should rufilcot the federal nature of Canada. EXPLANATION 1. In a federal system, an impartial body independent of both the central and local governments, must Rake judgments about the moaning of the constitution in general and the distribution of powers in particular. In Canada, this role has been assigned to the Supreme Court of Canada. 2. However, the appointment of Judges to the Supreme Court is the exclusive res- ponsibility of the Federal government, that is, a possible participant in constitu- tional disputes. While this procedure does not affect the independence of the judges, it should be altered to take account of the federal character of the country. Provision should therefore he made for provincial participation in the appointment of judges to the Supreme Court. 3. As’thc final court or appeal, the Supreme Court hours cases dealing with areas of law under provincial jurisdiction. This is an additional reason for the provinces to have a role in the appoint- ment of judges who will be called upon to review provincial low decisions. €RTAL RELATIONS The written constitution should recognize intergovernmental consultation and coopcra~ tion as an essential element in the effioient,administration of the federation but it should not attempt to prescribe in too much detail the precise forms of intergovernmental machinery. EXPLANATlOH 1. Many rosponsiblities of sovernmont— pollution control, economic policy, borrowing activities — affect more than one jurisdiction; governments cannot oporate in a vacuum. Since the distribution of powers can never be clear-out and absolute, provision for intergovernmental cooperation is essential. 2. However, since intergovernmental machinery develops in response to particular needs at particular times, attompts to specify in the constitution too many of the details of this machinery could freeze the con- sultative mechanisms in shopos apPF°PTi8t9 only to the time of writing. 3. Ncvnrtholoss, it is highly desirable to establish one or two general provioions in the ur ttcn constitution for inter» 1 4 on and cooperation ~ u should uL.1o-ct fa. 5.17.58 SUBJECT: 5-17-39 COEx’I”ll)§-.‘§ {T1 1-,); lE‘.)CT’.T.ANA‘l‘TO_I‘{ 1. The scope of government activity is enlarging yuar by year. Inovitably, many matters under consideration by government are neither purely local nor purely national, and the need for cooperation within, between and among different jurisdictiono is clear. 2. Hachino” for cooperation and eoordina» ‘coo consists of a maze of formal al intergovernmental contacts. Frequency of Contact and quality of relation- ship vary widely from one area of concern to smother dcpcrming on the sophistication of muchinory. 5. A permanent intergovernmental affairs secretariat staffed by intergovernmental officials, anfl working with designated centres in each government, could rationalize the existing network of intergovernmental -relationships. It could improve the quality and frequency of consultation, facilitate exchange :f’information, and conduct studies on other possible forms of intergovernmental relationships. Initially, it could conccutrahe on the area of economic and fiscal policy where the need for coordination and information exchange is constant and vital. It should be possible for all the provinces, or for a number of the provinces, to call a rcderal~provincial con” ronoe at either the ministerial or the official level. §.‘_‘gC_P£’L.!’!A’J2‘IO1\‘ kmere all or a nmnbcr of provinces believe that a certain problem requires discussion, they should be able to call a federal- provincial conference for this purpose. EKTEKFRL RELATIONS The Government of Canada should have the chief rosponoiblity for the international relationships of all Canadian governments. W nin this framework the written constituw tlon must provide for participation by the provinces in those decisions on external re- lations affecting matters under their juris- diction. 1. To be effective, the foreign policy of any country must be prosecuted in a logical and consistent manner. This compatibility can best he assured in a federation if tfic 001 l movornncn carries the chief ronpone ity for U .. policy. b 77.. .:U,1 lain,‘ S:‘n:H: L3 ’ it. J-*‘.“’ L53‘ rm that the federal nutuvo of C: ado incrc S’: y,c.cl sumscm: 5 . 18 .40 2:omvi1>;aM\1:AL

the complexity of the situation, as
increasingly the subject matter of many
international dealings falls under the
solo jurisdiction or the provinces.

5. ’ Therefore, the written constitution
must make explicit provision for formal
machinery by which the central government
will regularly and closely consult the
provinces and by which the provinces will
make their views known particularly on
those matters of external relations which
come under, or in any way affect, their
jurisdiction. The machinery’wou1d

deal with such issues as the adoption of
treaties, provincial representation at inter»
national conferences, and external aid.

GENERAL PROVISIONS

The Constitution should declare Ottawa-
Hull and appropriate surrounding areas as
the Capital of Canada.

EXPLANATIOII

1. . After appropriate negotiations are con-
cluded among the governments now conerned,
the Constitution should declare the

agreed upon areavas the national capital
territory which would incluue land on

both sides of the Ottawa River. On the
Ontario side, the logical boundaries éhould
be those of the regional municipality of
0ttawe~Caloton. while on the Quebec side,
the boundaries should include Bull and

the surrounding area considered appropriate
by the Government of Canada.

2. The Constitution should also state that
within this agreed upon territory, the English
and French languages should be used in all

its public services. Provision should also

be made for a central planning agency with
clear fowers to ensure that the national
oapita is developed along striking one
imaginative lines so that it uecomes a

place of pride for all Canadians.

.942 f

The following propositions 7.1.1 to 7.2.14 were

prescntod by the Government of Saskatchewan on 5 July, 1968.

7.1.1

7.1.2

7.1.3

7.1.4

7.1.5

7.1.6

7.1.7

7.1.8

7.1.9

The objectives of the Constitution should be the

,following:

(1) To establish for Canada a federal system of
government based on democratic principles;

(2) To protect fundamental democratic rights;

(5) To promote national economic, social and
cultural development, the general welfare
and equality of opportunity for all
Canadians;

(4) To contribute to the achievement of world
pence and security, social progress and
better standards of life for all mankind.

Canada should be a federal state of which the
Queen is Head of State.

Canada should he a fully sovereign parliamentary
democracy.

Canada should take whatever steps are necessary
to take into its own hands by constitutional
amendment the power to amend its constitution
without reference to the British Parliament.

The B.N.A. Act should be taken as the framework
of the constitution and be amended where
necessary to bring it up—to—date.

y

There shall be a strong and effective central
government with the jurisdiction, powers and
authority necessary to achieve national strength
and unity and to enable it to develop the eco—
nomy and welfare or the nation as a whole and the
parts thereof.

The central government must have adequate economic
and fiscal powers to ensure stable economic growth,
cope with unemployment, combat inflation and de-
flation and to promote equalization of opportunity
in the various provinces and areas of the nation.

The constitution shall provide that the governments
of the various provinces shall operate under a
parliamentary system and shall have the same status
and powers. .

The Parliament of Canada shall not have the power
to make special arrangements with any province in
respect of federal programs which are by their
nature applicable across the nation.

S73.

7.2.10

7.2.11

7.2.12

7.2.13

7.2.14

3 The linguistic rights provided in the B.N.A.

Act shall continue to be guaranteed as at
.present, and the matter of education in

‘French or English and the use thereof shall
remain with the provinces so that the provinces
may proceed with the development of bilingual
programs as is being done in most provinces.

That a Bill of Rights guaranteeing fundamental
democratic rights be made part of the consti-
tution.

The Supreme Court of Canada shall continue to
be the final court of appeal in all matters
including those involving the constitution.
and the court shall continue to be bound by
precedent.

That representation in the Senate should reflect
more adequately the population of the regions and
provinces of Canada. ‘

The constitution shall recognize the primacy of
the federal government in international affairs
and in all negotiations involving foreign govern-
ments.

94.

(lOT!1PI[l)1$fl’.l,‘3′ IL

Thu following propositions 8.1.1 to 8.11.11″
were presented by the Government of Alberta on
November 1, 1968.

8.1.1 Alberta does not accept the proposition that
the basis of Confederation was a union of
two races and two cultures. The historic
fact is that Confederation was a union of
provinces. In the negotiations leading to
Confederation, the-concept of the union
being one of two races, two cultures and two
languages was not the reason for, and in no
sense a condition of the union.

8.1.2 A Canadian objective should be to develop
a nation in which all citizens without regard
to race, colour or creed, or ethnic origin,
can find full satisfaction in their citizen—
ship anywhere in Canada and maximum enjoy-
ment from their particular linguistic and
cultural heritage.

8.1.5. The embodiment of so-called “language rights”
into the Canadian Constitution, or Bill or
Rights, will not produce the desired results
which in the last analysis, will depend
primarily on the attitudes and responses
of the Canadian people as a whole.

It is the firm belief of the Government
of Alberta that the proposed legalistic
approach to alleged language rights will
engender resentment and oppositions that
will retard the voluntary acceptance of
bilingualism for its own intrinsic value
and have a divisive, rather than unifying,
effect on Canadian nationhood.

8.1.4 The Government of Canada has proposed in its
document: “A Canadian Charter of Human
Rights”, a constitutional Bill of Rights
in which would be entrenched linguistic
rights and language guarantees as defined
and recommended by the Royal Commission on
Bilingualism and Bioulturalism. The proposal
or the Government of Canada is unacceptable
because:

(a) The enactment of such a Bill of Rights
‘ would necessitate fundamental revisions
of Section 95 and Section 155 of the
British North America Act, 1867,
revisions which cannot be carried out
unilaterally by Parliament by reason of
the restrictions imposed by Section 91.
Head 1 of the British North America
‘ Act, 1867, as amended;

(5) It is unrealistic to anticipate that the
unanimity of agreement necessary to’
implement the federal proposal for the
entrenchment of a Bill of Rights can
be attained in the near future;
witness the rejection of the Fulton-
Faverenu formula involving issues
much less controversial than the
constitutional changes proposed in the
recommendations of the Royal Commission
on Dilingua ”.m and_Biculturalism.

81>”:

8.2.7

(c) The proposed constitutional Bill of
Rights is o legalistic approach, which
would produce the undesirable con»
sequences stated in Proposition 5.

The implementation of the recommendations of
the Royal Commission on Bilingualism and
Biculturalism, that is to say:

(1) that English énd French be formally
declared the official languages of the
Parliament of Canada, of the federal
courts and of the Federal Government;

(2) that the provinces of New Brunswick and
Ontario declare that those rovinces
recognize English and Frenc as
official languages; .

(5) that any province (other than Ontario
and New Brunswick) whose French»
language minority reaches or
exceeds ten per cent should recognize
French and English as official languages;

(4) that bilingual districts be established
throughout Canada in areas where
French~speaking citizens represent ten
per cent or more of the local population;

is objectionable and unacceptable for the
reasons indicated in Proposition 4 above.

It is unacceptable also because, by giving
the French language an official status equal
with English, bilingualism will become a
requisite to promotion within the public
service and armed services of Canada. This
will have the effect of penalizing the non-
bilingual majority of Canadian citizens*gho
would be required to learn a second, and in
the case or many, a third language, before
being eligible to hold a responsible position
in the public service and armed forces or
their country even though they already are
fluent in the working langue of the majority
or Canadian citizens.

The proposed constitutional amendments will

not have a favourable effect on public attitudes
and responses in regions other than those

whose people are predominantly French—Canadian.
The course proposed understandably will not

be acceptable to the one—third of Cenadian.«
citizens whose mother tongue is neither

English nor French but who in various Canadian
communities, respresent a local majority

equal to or greater than the ten per cent
proposed by the Royal Commission on Bilingualism
and Biculturalism to qualify for recognition

as an Englishwfirench bilingual district.

What is required to provide the real essence

of true oneness and unity between French~
speaking and Englishwspeeking Canadians is

a voluntary appreciation of the languae

and culture of the one~third of Canude’s’citizene
or French origin, not on the basis of constitu-
tional rights but because of the practical

value and enjoyment of being able to converse

. fluently in at least the two languages which

296.

8.§.8.

8.5.9

8. 51.10

8.3..ll

arc the mother tongues of the vast majority
of all Canadians. The efforts of the
federal and provincial governments should
be directed, therefore, to the encourage-
ment of such voluntary appreciation.

The Government of Alberta challenges the
assumption that the constitutional or legalistic
approach is the only approach or the best
approach to the problem at hand.

Alberta holds that the results desired will
be more readily and extensively obtained by
efforts designed to stimulate and encourage
English—Fronch bilingualism on the basis or
its intrinsic value and its cultural enrich~
ment to individual citizens and to Canadian
society at both community and national levels.

To this end, the Government of Alberta has
extended educational opportunities in the
French language, not on the basis of a
constitutional right nor confined to isolated
bilingual districts as proposed by the

Royal Commission on Bilingualism and
Biculturalism but, generally, throughout

the province on the basis that individual
students who desire to enrich their lives

by becoming fluent in Canada’s major languages
will have the opportunity and encouragement
to o so. >

Matters of language, culture, religion and
politics are matters of individual heritage
and personal decision and are not matters
which properly should be given some special
constitutional status beyond what was mutually

agreed to as a condition of federal union. \\-

The major concern and objective should be

the development of a Canadianism in which
citizens of all races, oreeds and cultural
backgrounds will feel and share a ‘ustifiablc
price. This never will be achieve until
there is an’abandonment of the hyphenated
Canadian concept which perpetuates the
emphasis of ethnic origin.

Canadians must be able to live and move
freely throughout Canada, finding their
satisfaction as citizens in the fact that
they are Canadians rather than.in an
identity with a particular ethnic group
or region. . .

To minimine regionaldissatisfactions in

the economic sphere, there is need to develop
a more equitable distribution of the financial
means to moot clearly~defined federal and
provincial responsibilities and a formula

that will ensure the basic social requirements
of all Canadians without Widespread disparity
in the standards of service or cost to the
individual citizen.

At the same time, care must be taken to
avoid retarding further growth by unjustly
penalizing those regions of Canada whose
economic development contributes most to
national revenues nud’to’the gvoss’natinnal

‘ product on which tho profiperity of the nation

depends.

99.

C()lfl-‘I!)J§I1’.l.‘l4LT«

The follofiing pvopositiona 9.1.1 to 9.1.2

were-presented by the Province of British Columbia on
19 June, 1968.

SUBJECT:

9.1.1

9.1.2

BRITISH COLUMBIA PROPOSALS CONCERNING
CONSTITUTIONAL MATTERS

I propose that we agree upon the desirability
of Canada’s taking into its own hands by
constitutional amendment the competence to
amend its own constitution in Canada.

Secondly, I propose that we agree to intro»
duce into the constitution the principle of
delegation of powers for the purpose of
permitting Jurisdictional flexibility between
national and provincial governments which
the present constitution does.not permit.

3?.

‘0;?05i‘.;‘2.ous 10.1.). ta 10.14.5<>
by we A-(.\)K:lP.K1, Cuo’;c:*1:men’t; or; 1:2‘. July,

IVER} OT” 00} IFE])bI!tA’[“.T.()If

SUBJECK‘: OBJ‘

1.0.1.). To establish for Canada a federal system or
goverzment based on dmnocratic m-inoiple:-1.

10.1.2 To p1‘ot;eot basic human 1.’ig§h’CS which shall
include linguistic rir3.1;s.

10.1.?» To promote national economic, social and
cultural development, the gezxoral welfare
and equality of oppor1;u.nity for all Caxmaiians.

10.1.4 ’.‘L‘o coma-ibutzo to the achievement oi‘ world peace
and security, social progress and better
standrwds of life for all mankind.

FUNIM3-’H:‘LU‘l‘AL 1fIG}I‘L‘3

JUBJ

T110 following; p:’OpOSi1;i0‘n on Funmxruorxtzxl R:i,;:f117s
was presented by the Federal Goverrunent on October 31,
1968.

10.1.5 A Charter of Fundwnental Rirflxta should be
exxbronched in the Constitut on .-and should
include the following provisiozxs.

1. The Clxnvter tshould I-ecoljmfze amt ,«’;uax’anto<:
in C:maJ’ the follo‘-:.’u.,_; I’xum. 1’.‘uzn1m:xr tal .1‘;:’c:c:1ox::s:

(:3) .\“r-ecdom oi co:xs<:}.¢:n<;c 112.. :L~<;).i{;i.o:;;

(D) £1.-eeniom os.

aspccchg

(<2) i‘1‘cc-lion: oi (cl) [‘1H3c¢’U::1 of 31.4) ‘)1″osza:, 1 (e) [>r:.”.’3on,
xlom‘ for‘. L‘1\0=‘cof.
pr‘o<‘.(,>.’;,J 01′ lm ;

(I) the r‘ t of the
, . t 0′.‘
not to |;C ‘.(.
zxccorclin; to 3.n.w:

(1,) 131:0 :”L\;}‘.t 01.’ 5.2111,
equal pr’otc<.:cJ.o1:

{J11 ISI7.L1″IC*II 1

V‘
‘ “‘v1.‘;’a ‘ ‘
<:c:ou3” (See A
:, ‘D~ 19).

‘it.

10.2.6

2.

CONFXDENTIAL

The Charter should also recognize and
guarantee in Canada the following rights:

(a.) the right of the individual to be
sccure against unreasonable nearches
and seizures; ‘

(b) the right of a person who has been
arrested or detained

(i) to be infoxwed promptly of the
reason for his arrest or
detention;

(ii) to retain and instruct counsel
without delay, and

(iii) to the remedy by way of h b
cor us for tho determinatl
€59 validity of his detention
and for his release if the
detention is not lawful;

(c) the right of a person not to give
evidence before any court, tribunal,
commission, board or other authority
if he is denied counsel, proton on
against self~criminution, or other
constitutional Safeb

(d) one right or n p
hearing in coco
principles of fu In ontnl Just \
for the determination of his r.;‘
and obligations;

(0) the righb of a person charged with an
offence to be presumed innocent until
proved guilty according to law in
a fair hearing by an independent
and partial tribunal, and the right
not to he denied reasonable bail
without just cause;

(f) the right of a person to the assis~
tance of an interpreter in any
proceedings in which he is involved
as a party or witness, before a
.conrt, commission, board or other
tribunal, if he does not understand
or speak the language in which such
proceedings are conducted;

(g) the right of a person not to be held
guilty of an offence on account or
arm act or omission which at the time
of its commission or omission did
not constitute an offence, and the
right of a person on being found
guilty of an of ence not to be sub-
jected to a penalty heavier than the
one applicable at the time the
offence was committed;

(h) the right of a person not to be
subjected to cruel and unusual
treatment or punishment.

9.7.4

10.5.7

10.3.5

COL’ 14‘ l Di-.IN”L‘ IAL

COMMENT ON SflOTION 2

This section includes most of the traditional
“legal” rights protected by the Jdnadian Bill of
Ri-hts. The rights referred to in paragraphs la)
ang lg) have been proposed in addition.

5. The Charter should also provide that every
individual in Canada is entitled not to be
discriminated against by reason of race,
colour, national or ethnic origin, religion.
or sex

(a) in employment or in membership in any
professional, trade or other occupo~
tional association;

(b) in owning, renting, holding or otherwise
possessing property;

~(c) in obtaining public accommodation,
facilities and services.

.COMNEWT ON SECTION 2

This section states the rights against dis-

crimination broadly, in effect forbidding both

public and private discrimination in such matters.
while it is not clear how such a right could in

all cases be enforceable as against private citizens
it would have some effect. Obviously for such rights
to be realized in many cases it would be necessary

to have supporting legislative action by the
appropriate legislative body.

A. The Charter should ulso.recu5nize and guarantee
with respect to the English and the French
language

(a) the right of the individual to the use
of either language in the Houses of
Parliament of Canada and in the legis-
latures of all the provinces;

(D) the right of the individual to have
access, in both languages, to records,
journals, and enactments of

(i) the Houses of I~”ar1iamcnt of Canada,

(ii) the legislatures of New Brunswick,
Ontario, and Quebec,

(iii) the legislature of any province in
which each language is the mother
tongue of at least ten per cent of
the population, :u’.d

(iv) the loggislaturc 01′ any province
where that legislature has
declared that Em‘; ish and 1?‘:-cnclt:
are the official languages or the
province.

‘ n, statutory orders, etc., as it was thov
the the required complexity of desclipt’on won
be unsuitable for a constitutional Uhartei.

73.

10.4.8

CONFIDENTIAL

(c) the right of the individual to use
either language, without prejudice by
reason of the language he employs, in
guy pleading or process in or issuing

rom

(1) any judicial or quasi-Judicial
body established by the Consti-
tution or Parliament of Canada,

(ii) the superior courts of New
Brunswick, Ontario, and Quebec,

(iii) the superior courts of any _
province in which each language
is the mother tongue of at least
ten per cent of the population,
and

(iv) the superior courts or any
province in which the legislature
has declared that English and
French are the official languages
of the province.

COMMENT ON PARA. go‘

The effect of such a guarantee would probably
be that, in the courts referred to, parties,
witnesses, and counsel could use either language
as they choose. Because it is provided that each
person can exercise this right without prejudice
to his interest, there would be an implied obli~
gation on the courts in some circumstances to
provide translation services to translate his
evidence or submission.

Although the Royal Commission on Bilingualism
and Bioulturalism recommended a full range of court
facilities in both languages in “bilingual districts”,
including lower courts, they are not dealt with
here. It appeared preferable to leave this matter
for legislative action in each province.

(d) the right of the individual to communi-
cate in either language

(i) with the head office every
department and agency of the
Government of Canada,

(11) with the head office of every
department and agency of the
governments of New Brunswick,
Ontario, and Quebec,

(iii) with the head office of every
department and agency of the
government of any province in
which each language is the
mother tongue of at least ten
per cent of the population,

(iv) with the head office of every
department and agency of the
government of any province in
which the legislature has
declared that English and French
are the official languages of
‘he province, and

(V) with the principal offices of
every department and agency of

‘H.

10.5.8

10.5.9

COEF13‘ AL

the Goverrmmnt of Cnncdp, or the
principal offices of the Qovcrnmcnt
of a province, in any area where a
substantial propo tion of the popuu
lotion has that language as its
mother tongue.

COMMENT ON PARA. d V

It will be noted that bilingual districts ~
where, the Royal Commission recommended, there
should be a full range of bilingual facilities –
are not referred to as such in this proposition.
The general principle of the “substantial propor-
tion” is stated in this paragraph and it is
suggested that a constitutional declaration of rights
may not be able to go any farther in attempting to
provide for the mechanics of applying the basic
principle.

The Royal Commission reconmended that bin
lingual services also he provided by local govern-
ments in bilingual districts. It appeared prefe-
rable to leave this matter for legislative action
in each province.

(e) the right of the individual to have
English or French as his main language
of instruction in publicly-supported
schools in areas where the language of
instruction of his choice is the
language of instruction of choice of a
sufficient number of persons to justify
the provision of the necessary facilities.

GENERAL COMENT5 OH SECTION 4

These suggested guarantees follow the general
pattern of, and do not derogate from, the language
rights recommended by the Royal Commission on
Bilingualism and Biculturalism. The Royal Commission
dealt with a broad range of requirements, both
constitutional and legislative, and it was not
thought feasible to translate all of these into a
declaration of individual rights.

5. It should be provided that, without restricting

the generality of any right or freedom

referred to in the Charter, neither Canada

nor any province shall abrogatc or abridge

any such right or freedom, and ony law

whether enacted in the past or future should

be invalid to the extent that it interferes
with these rights and freedoms.

OOH?“ 1 ON ”ECTIOH Q

This is intended to make very clear what is
otherwise implicit ~ that any law or official notion
which purports to abridge guaranteed rights end
freedoms shall be invalid, and the courts may so
declare. The reference to laws “enacted in the oust
or future” would overcome problems which have
nr sen in connection with the Lanna ”
(.06 A Canadian Charter of Human ‘ cos, pp. l,—.
However, the section states clearly that it is not
to be taken as restricting other efjocts of the
guarantees contained in the Char or, such as the
prohib ‘ion of private acts which n U ahrid;e
these rights and freedoms. Such ac woulfi be
urohlblheu by the more general provitions of the
Charter.

95.

10.6.10

10.6.11

C ONFI DENTIAL

6. It should be provided that nothing in the
Charter shall be deemed to confer any
legislative authority on the Parliament of
Canada or on the’1egielature of a province
which Parliament or the legislature did not
respectively enjoy before the adoption or
the Charter.

COMMENT ON SECTIOR 6

. This section is intended to make clear that
no enhancement of the legislative power of either
Parliament or the legislatures is to be affected

3 the adoption of the Charter. No legislative
power of enforcement of the guaranteed rights is
to he transferred from the legislatures to Parlia~
meat, or vice versa. (The Charter will, of course,
diminish to some extent the legislative powers of
both Parliament and the legislatures to the extent
that it puts fundamental rights beyond legislative
interference.)

with such a provision in the Charter it would
also be clear that some responsibility for enfor-
cement of the Charter would rest with the same
governments which now have jurisdiction in these
respective fields. The Charter would in some ways
he self—executing, in that it would forbid certain
forms or governemental or private action which would
violate it. where the courts had the opportunity
they could aptly the sanction of invalidity to
statutes, regulations, executive acts, private
contracts, etc., which contravened the guaranteed
rights. But in other areas — for example, in the
prohibition of discrimination in employment or the
provision of counsel or interpreters in judicial
proceedings – some positive governmental action would
be required to make the rights effective. In such
cases Parliament or the legislatures would have the
power to give effect to these rights, depending on
whether the matter involved pertained to federal
or provincial areas of jurisdiction.

r7. It should be provided that where Parliament

has declared a state or war, invasion or insurrec-
tion, real or apprehended, to exist, legislation
enacted by Parliament which expressly provides
therein that it shall operate notwithstanding this
Charter, and any acts authorized by that legislation,
shall not be invalid by reason only of conflict with
the guarantees of rights and freedoms expressed in
the Charter.

COWHEHT ON SECTIOR Z

In all western democracies it has been found
necessary to limit certain of the ordinary human
rights and freedoms during wars and similar emer-
goncies.

when the Canadian Bill of Bi hts was passed,
the war Measures Kat was amended go provide that
upon a proclamation of war duly approved by
Parliament, nothing done under that Act should be
deemed to abridge rights or freedoms in the
Canadian Bill of Rights. Section 7 as proposed
a ove wou require no only a general declaration
of a state of war, but also an express statement
by Parliament in its legislation of an intention

to abridge rights in the Charter of Human Rights,
‘for any law to have that e co .

‘7é.

COi4′}I‘I!)2IX?7’IAL

SUBJECT: THE STATE

10.7.12 Canada is a sovereign state of which the
Queen is }I<-mu of State.

SUBJECT: HEAD OF STATE

10.7.13 The Governor General shall exercise all the
functions of the Head of State.

10.7.14 The Governor General shall be appointed by
the Head of State on the recommcnaation of
the Prime Minister. He shall hold office
at pleasure but shall only be removed before
the expiry of five years from the date of
assumption of office for cause by 9 Joint
address of both Houses of Parliament.

10.7.15 Provision shall be made for the functions
of the Head of State to be assumed by an
Administrator in the evenv of the death,
incapacity or absence of the Governor General.

10.7.16 The Governor General shall be empowered to
appoint Deputies to carry out all or part of
his duties without affecting the exercise of
these powers by the Governor General himself.

10;?.17 The Governor General shall be authorized to
exercise powers he acquires under statutes
on advice of Council or of a minister.

10.7.18 The expression Governor General in Council
shall be construed as referring to the
Governor General acting by and with advice
of Council.

10.7.19 The Governor General shall receive the salary
and allowances and other benefits specified
according to statute.

5UBJEC’: EXECUT1VE
13.7.20 The executive authority shall reside in the

Head of State.

10.7.21 There shall be a Privy Council for Canada
appointed by the Governor General and sworn
as Privy Councillors. Councillors may be
removed by the Governor General.

SUBJ L-DOT: l’AKI;IAl”lJflI’1‘

10.7.22 Canada shall have one Parliament consisting
of the Head of State, and 3 o Houses.

10.7.23 There shall be a session of 3:r1iament once

at least: in every year.

10.7.24 Privileges and immunities and powers shall
be defined by statute. –

‘IV,

10.8.25

10.8.26

10.8.27

10.8.28

10.8.29

10.8.50
10.8.51

1.0.8. 52

10.8.33

lO.8.54

10.8.55

10.8.36
10.8.57

10.8.38

GO:’v’?-‘ E §)]:ZI3’J‘.T.AL

SUBJIECT: HOUSE Ob‘ COI*.’]‘ZO11IJ

The House of Commons shall be cloc:<” suffrage; it shall provide ~ basis of population except by the constitution. Readjustment of representation between the provinces shall be made after each decennial census accoxfling to prescribed rules. The number of members in the House may be increased provided the proportionate representation of the provinces is maintained. The Parliament of Canada shall legislate in regard to all matters concerning election to the house of Commons. Senators shall be excluded from membership in the House of Commons. The Governor General shall summon raziiament. The House shall elect its Speaker at its first meeting and fill a vacancy with all practicable speed. The Speaker shall preside at all meetings. The quorum of the House shall be set at 20 including the Speaker. Questions shall be decided by a majority of those present excluding the Speaker who shall only vote in the case of a tie. The House shall be automatically dissolved five years from the day of the return of writs. A House of Commons may in time of war he continued by Parliament if such continuation is not opposed by the votes of more than one third or the membcro of such House. The Governor General shall be empowered to dimwolve Parliament. Money bills shall originate in the House of Commons. Appropriation of public funds shall only be approved on a recommendation of the Sovernor General. The Head of State shall signify assent to bills passed by the Houses of Parliament. COWfifiH% The requixement for assent siould he maintained. withholfling assent would be contrnzy to the principle or responsible government a 1 should be deleted. Reservation for the Queen’s pleasure, in practice review by the nited K ” Government, was used 22 timce in the .Lrst t decades of Confederation, last in 18 6, although in 1896, 1906 and 1916 its possible use was considered. The Imperiat Conference of 1926 recognized it to be obsolete. It should be deleted. 7?. 10.9.59 SUBJECT: *su13JEc’:: ‘Pm: Queen on the udvice of the Yinitcd King&om Government may disnllov Cunalinn lepgislsction within two years. 3- 56 This power has only been exercised once, in 1873, and was declared to be obsolete by the Imperial Conference of 1926. The provision should be deleted. CROWN’S CAPACITY TO CONTRACT As A legal personality the Crown has full capacity to contract and to entu into legal agreements and relationships, subject to the necessity of legislative a proval of any expenditure. TREATY Pfiwufi Under English constitutional law, the conduct of foreign relations, and the making of war and peace are prerogatives of the Crown. They were retained by the Imperial Crown after Confederation until their final delegation by Letters Patent in 1947. To enable imperial Lre¢Uios to have effect within C: ado Section 132 was inserted in the original constitution. t gives exclusive juri iiction to the Fade‘-1 Parliament even though the trcan affects only one of the rovinces. \hmn the question.of inmlowcntin a Canadian treavy, as distinct fro. An Empire treaty, first arose in the R 3’0 cusc, one around for concedixm f d 1 juris- diction was that such a tr« J bring clearly outside anything in Section 98, it fell within the residuary clause. Only as a secondary reason was radio broadcasting included in the interprovinoial tele— graph: of Sections 92 ~ 10(n). 7 >
‘5 1?‘ r, in the ].L.‘. Convc
bl: present rule ~
t implc cntation followed
. -ibutiou of powers in Sections 91 and
02. But in that same case, the

7?‘.

10.10.40

10.10.41

10.10.42

10.10.45

10.1034

1o.1o.us

10.10.46

10.10.47

J0.10.&8

CONFIDENTIAL

Supreme Court of Canada held that the fed xal
government alone had the power to negotiate

and ratify the conventions in question. The
judgement of the Privy Council did not disturb
this ruling. This holding or course does not
interfere with the prerogative power of the
Crown in right of the provinces to make contracts
with individuals and bodies outside the province,
such as purchasing property abroad, borrowing
money abroad, or engaging personnel for provin~
cial purposes.

SUBJECT: FEDERAL RBSPONSIBILITI£S AND AUTHORITY

The general conduct of Canada’s foreign relations
is the responsibility of the federal government.

Canada is an international person and member or
the international community.

The Government of Canada has the exclusive
authority for concluding international agreements
binding in international law.

The Government of Canada has the exclusive autho-
tity for exchanges of diplomatic and consular
representatives with foreign governments, sending
delegations to intergovernmental conferences and
accrediting representatives to international
organizations.

The executive branch of the federal government has
the exclusive power to advise ratification of
international agreements.

SUBJECT: PROVINCIAL AUTHORITY

The provinces have the power, in general agreement
with the federal government, to establish contacts
and liaison with foreign governments on matters

of provincial interest, including the establislmwnt
or offices abroad. Such contacts and liaison must
be conducted within the framework of Canadian
foreign policy.

The Provinces have the power to enter into under-
standings, informal administrative arrangements

an other similar commitments with foreign juris-
dictions. They may also enter into private
contracts with such jurisdictions and, with the
express authority of the Canadian Government, other
binding commitments.

The province or provinces concerned have the right
to be consulted yricr to the ratification by Canada
of any international agreements that require
provincial legislative or other action.

The Government of Canada, in appointing delegations
to international conferences, must pay due regard
to the bilingual character of Canaca and to the
general and specific interests of the provinces.

/D0.

10.11. 49

CON)“l1)’:II\”{‘l’AI,

SUBJECT: DISTRIBUTION OF ¥0HEiS

Consideration of a detailed distribution of
powers must be ‘pre<1icatod on :1 common under- standing of the situation as it now exists. The discussion of the distribution of legis- lative powers in the revised constitution should therefore begin with an analysis of the principles underlying the existing constitution. The B.N.A. Act, as interpreted by the courts, now distributes legislative authority on the following principles; (a) The Parliament of Canada has exclusive legislative authority over those matters which are in the common interest of Canadians. This is based on the concept that Parliament is best able to regulate these matters in the interests of efficiency, harmony, or the preservation of the bonds of nationhood. (b) Each provincial legislature has exclusive legislative authority within the province over those matters which are of a local or private nature. This is based on the concept that the provincial legislature is best able to regulate these matters in the interests of efficiency, local diversity or the preser~ vation of distinctive local institutions. (c) The Parliament of Canada and each provincial legislature has concurrent legislative authority over agriculture and immigration. In the event of conflict the legislation of Parliament prevails. (d) The Parliament of Canada has legislative authority over any matters not identified and described as falling within the jurisdiction or the provincial legislatures. (e) The power to legislate with respect to certain matters is specifically withheld. For example, neither Parliament nor the provincial legis- latures can impose tariffs on the movement from one province to another of the products of any province. Parliament cannot tax provincial property, nor can any provincial legislature tax the property of Canada. Neither Parliament nor the legislatures can amend certain portions of the constitution. The guarantees of language and separate schools also limit the legislative authority of Parliament and certain provincial legislatures. I0! CONI“ 1 l)}’1N‘l‘l AL Ehe following propositions 10.12.90 to 10-14-59 were presented by the Federal Government on 11 September, 1968. 10.12. 50 10.12.51 10.12. 52 SUBJECT: CONS”l‘I’I.‘U’I‘ION OF GOVEiiNl”fla‘N’I‘ OF CANADA There shall be a Prime Minister designated and sworn ho to office by the Governor General to be the Head of the Government. He shall be the leader with the support of a majority in the House of Commons, or when this is not clear, the person, who, in the Judgment of the Governor General, is most likely to be supported by a majority in the House. EXPLANATION 1. This proposition would give recognition in the constitution to the position of the Prime Minister and require him to take an oath of office as such. It recognizes the situation inherent in our present system whereby the Prime Minister’s mandate comes ~ from vhe Head of State, who is responsible for assuring that the country is not without a Government, and is exercised subject to the approval of a majority of the House of Commons. The Prime Minister shall be a member of the Privy Council or shall be summoned to the Privy Council and shall be, or shall become, a member of the House of Commons. EXPLANATION 1. This enunciates the existing requirement that the Prime Minister should be a member of the Privy Council and the now firmly established convention that he should sit in the Rouse of Commons. It does not suggest a delay in which he must acquire a seat, leaving this as a matter of political judgment to cover —cases where s Prime Minister might be personally defeated in an election or be selected from outside the membership of the House of Commons. The Prime Minister continues in office until he dies or until a successor is sworn to office. The Prime Minister may resign and shall flo so ir he fails to obtain a vote of confidence in the House of Commons at a time when the Governor General considers that he is not entitled to a dissolution of Parliament or if, in 8 general election, another person has obtained who support of a clear majority of she House of Commons. EXPLANATION 1. This provides for continuity in the office of Prime Minister and specifies in general terms the circumstances in which he would be required to resign. It does not, however, attempt to specify what consitutes a vote of confidence since this is regarded as a matter for determination by the House or Oommons itself, nor does it attempt to legislate circumstances in which a Governor General might consiaer that a Prime Minister is not entitled to a dissolution of Parliament, 3 point which was covered in earlier propositions. I01 . l0.l5.55 lO.l3.54 10.13.55 lO.l5. 56. CONFIDENTIAL In the case of the Prime Minister’s incapacity a person designated as acting Frime Minister will assume the duties of the Prime Minister until the latter recovers or until a successor is designated by the Governor General. EHTLANATION 1. This proposition provides for the continuity of government enuncinting the present practice whereby an Acting Prime Minister assumes the duties of the Prime Minister in the event of the latter’s incapacity. The Prime Minister shall select ministers and recommend their appointment, replacement or removal to the Governor General. The resignation of the Prime Minister shall carry with it the resignation of all of the ministers. EXPLANATION 1. This proposition confirms the Prime Minister’s responsibility for the selection of ministers and their maintenance in office. It affirms the established convention that the resignation of the Prime Minister carries with it the resignation of all his ministers. Cabinet shall consist of the Prime Minister and those ministers he designstes as members of the Cabinet. EXPLANATION 1. The general terms of this proposition are designates as members of the Cabinet. EXPLANATION 1. The general terms of this proposition nre designed to preserve the existing freedom of the Prime Minister in the selection of his Government. No attempt is made to specify the present conventional practice regarding regional and other representation in the Cabinet, nor to specify the number of ministers, these being regarded as essentially questions of political judgment. Equally the proposition would not exclude the possibility of the Cabinet being limited to selected ministers. Where it is required that the Governor General act on the advice of council, only those privy councillors who are ministers may participate in submitting such advice. EKiLAHATION 1. This proposition enunciates the existing convention inherent in the concept of responsible government whereby only those Privy Councillors who are members of the Government of the day participate in the approval of orders in council. I03 1.0.14. 57 10.14.58 10. 14.59 COIWJ” DF.’N’1‘ IAL Kiniotors shall be appointed by commission urwer the Great Seal on the npprova1’by the Governor General of the recommendation ox the lwime Minister. They shall be sworn to orfice by the Governor General after they have been summoned and sworn to the Privy Council. EXPLANATION 1. This proposition sets out what is now the practice. A Minister shall be or shall become a member of the House of Commons or a Senator. EXPLANATION 1. As with the Prime Minister, it is a eonstitu~ tional convention that ministers shall be in Parliament. This is today regarded as an essential element of parliamentary government, but the proposition does not suggest that ministers might not be senators nor does it specify a time limit within which those selected from outside Parliament or defeated in an election must obtain a seat in Parliament. Ministers shall have the duties, powers and functions specified by statute or by order in council and those assigned to them by the Prime Minister. E)CPLANA’l‘ 101% 1. The proposition describes the three sources of responsibility exercised by ministers and in particular confirms the authority of the Prime Minister to assign duties to the Cabinet. /C>‘/

CONFI I)I*Jh”flIAL

The following; propositions 10.15.80 to lO.l5.Cvl

were presented by the Federal Government on 1 November, 1968.

10.15.60

10.15.61

JUBJEC : PROVINCIAL CONSTITUTIONJ

Each province shall have the power to establish
and to amend its internal constitution, which
must respect the text and the objectives of
Canada’s constitution and the fundamental rights
of’individun1s as defined in the constitution, and
which shall include provision for the election of
a legislative Chamber not less frequently than
every five years and for annual sessions of the
Chamber.

COMMENTS:

1. In the new Canadian constitution each province
should continue to have the legislative power
to amend its own constitution. However, this
constitution should respect certain basic
principles subscribed by the various govern-
ments which form the Canadian federation.

2. In any federation concerned with the preservation

of the rights of the citizen, it follows that

all the governments should undertake to protect
these rights. In the propositions already
submitted to the continuing committee, the
Canadian government has committed itself to
respect the fundamental rights of the indi-
vidual, to hold general elections at least

every five years and to summon Parliament
annually.

Each provincial constitution shall provide for an
office of Lieutenant-Governor who shall continue
to be the Crown’s representative within provincial
governments .

CONENT“:

1. Since the Canadian government has decided to
retain the constitutional monarchy as an
integral part of the Canadian federation, it
follows that, for the purpose of uniformity,
the Crown should be maintained not only at
the Federal level, but also in each province.

2. The retention of the office of Lieutenant-
Governor nevertheless allows the provinces a
great deal of freedom with regxnd to their
political institutions.

The 1’°11°Wine propositions 10.15.52 to

10.19.78 were presented by the Federal Government
on December 2, 1968.

l0.l5.

SUBJECT: THE SENATE

Introductory remarks concerning the propositions
on the Senate:

Federal systems generally provide in their
central legislature for an Upper House
which in one way or another permits repre~
sentation of the particular interests of
the component states and their people.

/05’.

10.16.

10.16.

10.16.62

10.16.63

lO.l6.6#

10.16.65

10.16.66

lO.16.67

in Canada it is also possible to identify
certain special interests of the people

of the respective provinces or regions.
some of these interests relate to matters
which may also be affected by the decisions
of Parliament. Other interests relate

to matters within federal jurisdiction

but with respect to which there are points
of view particular to a province or region.
These interests require a full opportunity
for public expression in a federal insti-
tution such as the Senate. But, while
membership in the Canadian Senate is allo-
cated on a regional basis, all Senators
are selected by the federal government.

As a result, the provincial or regional
interests referred to may not be, or at
least may not appear to be, adequately
represented in the Senate. The Government
of Canada therefore proposes participation
by the provincial governments in the
selection of Senators.

In defining the powers of the Senate,
however, it must be recognized that the
House of Commons is the body directly
elected by all the people of Canada to

deal with those matters within federal
Jurisdiction. Thus the respective powers

of the two Houses must be balanced so as

not to limit unduly the power of those
directly elected by the people or to destroy
the principles of responsible government.

The Senate should be reorganized so as to
provide for the expression in it in a
more direct and formal manner than at
present of the interests of the provinces
and regions of Canada.

The Senate should be partly selected by
the Federal Government and partly
selected by provincial governments.

The method of selection of senators
representing the provinces should he

by nomination of the provincial governments,
acting with or without the approval of

the provincial legislature, depending

on the provincial constitution.

The term of office for senators should

be limited to a specific number of years « —
perhaps six, with the possibility of
renewal.

The government should continue to be
responsible only to the House of Commons.

The Senate of Canada should have the powers
it now possesses, together with certain
additional powers, to approve nominations
by the Federal Government of judges of

the Supreme Court of Canada, ambassadors
and heads of cultural agencies. In the
general legislative process, the Senate’s
rejection of a bill may be overcome by

the lower House acting in accordance with
specific procedures while, in respect of
certain matters concerning, for example,
nominations of Judges of the Supreme Court
of Canada. official languages and human
rights, the authority of the Senate should
not be thus resigicted.

G.

lO.l7.68

10.17.69

10.77.70

10.17.71

10.17.72

CONFIDFWTIAL

Consideration should be given to revising
the basis of distribution in the senate
as between the various regions and
provinces of Canada.

SUBJECT: JUDICATURE

Introductory remarks concerning the

propositions on the Judicature

The following propositions are put forward
with the view to establishing an Appellate
Court of last resort by the Constitution
and to assuring thereby the appointment,
tenure and judicial independence of the
Judges of that Court. A special proposal
respecting appointment is advanced for

the purpose of achieving a substantial
consensus in the selection of those judges
who will ultimately become the final
adjudicators on the meaning and application
of the new Constitution.

The Constitution should establish a

general court of appeal for Canada to be known as
the Supreme Court of Canada consisting

of nine Judicial offices, including the

Office of Chief Justice of Canada, whom

at least three shall be appointed from

the Bench or Bar of Quebec.

The general provisions of the present
Constitution respecting appointment,
tenure and independence of the Judiciary
should be made applicable to the Court.

Nominations of persons to the Supreme
Court of Canada could be placed before
the Senate for approval prior to
appointment.

The constitution should authorize the
Supreme Court of Canada to depa;t from

a previous decision when it appears right
to do so.

EXPLANATION

It was thought important to acccrd the
Supreme Court the freedom necessary to
interpret the constitution as a living
document. Thus, it should be authorized
to depart from precedent where, in its
opinion, circumstances demand it. Neither
the Judicial Committee of the Privy Council
nor the Supreme Court of the United States
have been bound by precedent and in 1966
the House of Lords stated that it no
longer would consider previous decisions
binding although they would carry great
weight. A proposition has therefore been
put forward to ensure that the Supreme
Court will likewise not consider itself
bound by precedent.

’03.

10.18.75

10.18.74

10.18.75

10.18.76

Persons appointed judges of the Court
should have at least ten years‘ standing
at the Bar of the Province from which
they are appointed or a combined standing
at the Bar and on the Bench or at least
ten years.

Provision should be made in the Constitution
that the Court will enjoy ultimate
appellate jurisdiction in any action or
other proceeding in which.any validity

of any act or enactment of the Parliament
of Canada or of a legislature is in issue
and that the remainder of the Court’s
Jurisdiction, whether appellate or advisory,
and its remaining constitution, powers

and procedure will be prescribed by act

of the Parliament of Canada.

EXPLANATION

It is intended that the Court’s Jurisdiction
in relation to all constitutional matters

be established in the Constitution itself
but, in order to preserve reasonable and
necessary flexibility, the Court’s other
jurisdiction is left open for later
prescription by Act of Parliament.

Provision should also be made that five
judges of the Court shall constitute a
quorum for the hearing and determination
of appeals except in cases where the
constitutional validity of an act of
Parliament or of a legislature is in issue
in which case the quorum shall be seven
Judges; and when dealing with appeals
from the Province of Quebec; the three
Judges appointed from that province shall
sit on and act in the determination of
those appeals.

In the event that one or more of the

three judges appointed from the Province
of Quebec are unable to act in the >
disposition of appeals from that province,
the Chief Justice or, in his absence,

the Senior Puisne Judge, shall have
authority to designate one or more members
of the superior courts of Quebec to sit
as ad hoo Judges of the Court by way of
replacement.

EXPLANATION

These propositions are intended to ensure,
not only that constitutional questions
are decided by an almost complete court.
but also that, in the disposition of
Quebec appeals, all the Quebec judges,
together with a substitute for anyone

who is unable to act, will be members

of the court.

/08.

10.19.77

10.19.78

The Constitution should continue to
provide that the Parliament of Canada
has jurisdiction to establish a national
court or courts for the better adminis-
tration of the laws of Canada, and it
should further provide that the general
provisions of the Constitution respecting
the appointment. tenure and independence
of the Judiciary should be applicable

to the Judges of any court or courts so
established.

EXPLANATION
This proposition is submitted to provide

for the continuation and modification
of existing federal courts. ‘

(C) Aggointment of Judges of Sugerior
ountx a a riot ourts

The Conavitucion should continue to

provide for the appointment of Judges

of superior, county and district
courts by the central executive.

h97‘>

CONF lDEN’1‘JIAL

DOCUMENT Ho. 99
REVISED To
December 6, 1968

CONSTITUTIONAL CONFESRENCE

CON‘l‘II\’UING GOYMITTEE OF OFFICIALS

WORKING PAPER

SUBMITTED BY THE SECRETARIAT

A
LISTING OF BASIC CONCEPTS AND RELATED PROPOSITIONS

(CATEGORIES I TO XIII)

GP/SEC/UP/1 5

Category’
Number

I.
II.

III.

IV.

VI.
VII.

VITI.
IXX
X.
XI.
XII.
XIII.

OP/Sec/VP/1 5

TABLE OF CONTENTS

Cabegogl
OBJECT OF THE REVIEW

OBJECTIVES OF CONFEDERATION

GENERAL PRINCIPLES TO BE REFLECTED IN THE
CONSTITUTION

SPECIFIC ELEMNTS TO BE PROVIDED FOR IN THE CONSTITUTION

FUNDAMENTAL RIGHTS
THE CONSTITUTION OF THE CENTRAL GOVERNMENT

ag Head of State and Chief Executive
b Executive of the Central Rovernment
c) Parliament

dg House of Commons

9 Senate

THE TE CONSTITUTIONS OF PROVINCIAL GOVERNMENTS
THE CONSTITUTION OF THE JUDICIAL SYSTEM
THE DISTRIBUTION OF LEGISLATIVE POWERS

a Basis for distribution of powers
b Powers of the central government
c Provincial powers
d Shared fiowers
e) Limits on powers of both levels of
government
E!) Residual powers
g) Interpretation and administration
of powers
Eh) Delegation of powers
1) Declaratory powers
INTERGOVERNMNTAL RELATIONS
EXTERNAL RELATIONS
AMENDMENT PROCEDURES
GENERAL PROVISIONS
TRANSITIONAL PROVISIONS
ADOPTION OF THE CONSTITUTION

ANNEX A — REFERENCE TABLE

//3

Page

1 – 2

5 – 15
14 – 31
52 — 46
47 – 49
50 — 55
56 — 61
62 ~ 64
65 – 68
69 – 72
75 – 78
79 – 83
84

85

86

87 ~ 89
90

91

99

95

94 – 99
100 — 10k
105 – 106
107 — 109
110
111

— 1 –

Object of the Review

BASIC CONCEPT:

The object of the Constitutional Conference is to
review the Canadian Constitution in its entirety
.and to determine the extent to which it should be
consolidated and amended or rewritten.

RELATED PROPOSITIONS:

5.1.1 (Ont) The British North America Act
should be examined in order to
decide whether it should be
amended or rewritten.

5.1.2 (Ont) As a minimum the Constitutional
. Conference should review the
language and terms of the
British North America Act,
repeal obsolete clauses, and
revise those inconsistent with
the character of the Act as
Canada’s written Constitution. 1/

2.4.5 (NS) The British North America Act
should be brought up to date so
as to reflect Banndian political,
social and economic facts as they
exist today or a new Constitution
should be enacted in Canada.

7.1.5 ($85k) The B.N.A. Act should be taken as
the framework of the constitution
and be amended where necessary to
bring it up-to—date.

1/ Your attention is drawn to the explanation
accompanying this proposition which details
those articles of the B.N.A. Act which could
be repealed, updated, redrafted, dropped etc.

IISZ

Obiect of the Review

BASIC CONCEPT:

As part of the constitutional review, a preamble
to the written Constitution should be developed
setting forth the objectives and aspirations of
the Canadian people.

RELATED PROPOSITIONS :
#.l.2 (Que)

5.3.5 (Ont)

2.4.4 (NS)

The Canadian Constitution
should set forth in its
preamble a number of prin-
ciples which embody its
spirit, explain its nature
and aims and facilitate its
interpretation.

Consideration should be given
to a preamble to the written
Constitution of Canada. The
preamble should set out the
aims of the Canadian people
and their reasons for preser
Vina a federal union. –

The Constitution should be more
than a formal legal document.
By way of preamble or otherwise
it should reflect the basic
philosophy, objectives, hopes
and aspirations of the Canadian
people.

I/é.

CATEGORY:

I — Objectives of Confederation

BASIC CONCEPT:

To promote Canadian socisl,cultural and economic
development and the general welfare of and
equality of opportunity for all Canadians.

RELATED PROPOSITIONS:
lO.l.3 (Fed)

3.1.1 (NB)

3.1.3 (NB)

3.2.6 (NB)

5.4.1.1 (NB)

4-5-‘7 (Qué)

To promote national economic,
social and cultural develop~
ment, the general welfare and
equality of opportunity for
all Canadians.

Canada is a North American nation
developing its own identity as a
community in which people of two
languages and many cultural origins
have shared a common land and a
rich heritage of human values,
and purpose to build together a
society dedicated to human
fulfillment, social Justice, and
responsible conservation and
utilization of the natural legacy
of Canada.

Canada is a democratic society
dedicated to liberty, equality
and human fulfillment for its
citizens.

The overriding objective of
Canadian Confederation is the
good life for all Canadians
within a framework of government
that provides for stability.
security and creativity with
equal opportunity for all and
the denial of a decent minimum
to none.

Canada faces the continuing and
urgent challenge of responding.
through its institutions and its
social and economic activities,

to rapid and revolutionary politic-
al and technological world forces,
and it must be an objective of
Confederation to develop powers,
programs and institutions with
the aid of all governments so as
to steer change for human benefit
and social enhancement.

The Canadian Constitution must

tend to ensure prosperity,

freedom, peace and public order

to all citizens, economic equality
to the federated states and cultural
equality to the two nations.

H9″ Cont’d p. It

(Continued)

2.1.2 (N.S.)

0.2.8 (Nfld)

8.1.2 (Alta)

7.1.1 (Sask)

The Constitution of Canada must
provide a framework in which
Canadians of all races and gco~
graphic areas are assured of a
satisfactory atmosphere in which

to live happily, which involves
recognition of diversity in language
and culture and the assurance that
all Canadians have as nearly as

may be equality of public services
without unequal burdens of taxation,
equal standards of economic well-
being and equality of opportunity.

The Constitution shall give recog—
nition to the existence of serious
regional disparities throughout
Canada in economic growth and
development, employment opportunities
and levels of public services and
shall deolarethe need to eliminate
such disparities and the right of all
Canadians to enjoy as nearly as

may be, equality of economic develop-
ment, living standards and public
services, without the necessity of
any province, in its efforts to raise
these standards and levels, having

to resort to taxation which imposes
an unequal burden upon its citizens
bearing in mind their capacity to pay.

A Canadian objective should be

to develop a nation in which all
citizens without regard to race,
colour or creed. or ethnic origin,
can find full satisfaction in

their citizenship anywhere in Canada
and maximum enjoyment from their
particular linguistic and cultural
heritage.

To promote national economic, soc1a1
and cultural development, the
general welfare and equality Of
opportunity for all Canadi8D5§

H6-

CATEGORY:

-5-

I — Objectives of Confederation

BASIC CONCEPT:

To promote the full development of all regions of Canada.

RELATED PROPOSITIONS:
5.4.l2(NB)

2.1.2 (us)

2.3.5 (NS)

5.5.4 (Ont)

0.2.8 (Nfld)

It is a further objective of Canadian
Confederation that forces and institu-
tions of co—operation between all levels
of government shall be developed that
will assist the full development of all
regions of Canada, the overcoming of
regional disparities, and the solution
of both urban and rural problems.

It is of fundamental importance that the
Constitution provide for balanced
regional economic development. The
Constitution must acknowledge the ne~
oessity for and provide that:

(a) A frankly regional approach be taken
to economic development in Canada,
and that great efforts be made and
massive sums of money be expended
to this end;

(b) Regional policies will in fact be
followed in all practical ways,
such as in the application of
monetary and fiscal policies and
in provision for incentives;

(0) Planning of federal programs and
expenditures will be effected in
the light of the urgent requirement
for balanced regional economic
development in Canada.

The federal and provincial governments

in Canada must each have sources of
revenue within their control which are
sufficient to enable them to meet their
constitutional responsibilities. In order
to assure to the provinces the attainment
of this objective the Constitution must
include provision for full equalization

of all provincial revenues, including
municipal revenues.

The alleviation of regional economic
disparities is a goal of the Canadian
Federation, and should he recognized as
such in the written Canadian Constitution.

The Constitution shall give recognition

to the existence of serious regional
disparities throughout Canada in economic
growth and development, employment
opportunities and levels of public services
and shall declare the need to eliminate
such disparities and the right of all
Canadians to enjoy, as nearly as may be,
equality of economic development, living
standards and public services without tlw
necessity of any province, in its efforts
to raise these standards and levels, having
to resort to taxation which imposes an
unequal burden upon its citizens bearing in
mind their caoecity to pey.

ii‘; Cont’d p.6

(Continued)

8.3.11 (Alta)

To minimize regional dissatisfactiona
in the economic sphere, there is need
to develop a more equitable distribu-
tion of the financial means to meet
clearly-defined federal and provincial
reaponsibilitzies and a formula that
will ensure the basic social require-
ments of all Canadians without wide-
spread disparity in the standards of
service or cost to the individual
citizen. ‘

At the same time. care must be taken
to avoid retarding further growth by
unjustly penalizing those regions of
Canada whose economic development
contributes most to national revenues
and to the gross national product on
which the prosperity of the nation
depends.

(SLO .

CATEGORY:

I – Objectives of Confederation

BASIC CONCEPT:

To promote Canadian unity.

RELATED PROPOSITION:
5.5.10 (NB)

8.5.10 (Alta)

It must be an objective of Confederation
to achieve national unity both in spirit
and in fact through the effective use

of all governmental and all public and
private institutions; through harmonizing
the relations of governments by a proper
respect for each other’s jurisdictions
and roles; by an effective, functional
balance among federal, provincial and
municipal governments as they carry out
their respective duties; and by a
concerted effort to give full national
exppession to Canada 5 two basic cultural
and linguistic configurations.

The major concern and objective
should he the development of a
Canadianism in which citizens of
all races, creeds and cultural
backgrounds will feel and share a
justifiable pride. This never
will be achieved until there is

an abandonment of the hyphenated
Canadian concept which perpetuates
the emphasis of ethnic origin.

Canadians must be able to live and
move freely throughout Canada, finding
their satisfaction as citizens in

the fact that they are Canadians
rather than in an identity with

a particular ethnic group or region.

I2/.

CATEGORY:

BASIC CONCEPT:

_I – Objectives of Confederation

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

RELATED PROPOSITIONS:
4.5.7 (Qué)

3.1.S(NB)

0.2.7 (Nr1a)

The Canadian Constitution must tend
to ensure prosperity, freedom, peace
and public order to all citizens,
economic equality to the federated
states and cultural equality to the
two nations.

Preservation and full expression of
Canada’s basic linguistic and

cultural duality is essential to the
achievement or the identity and
particularity of Canada as a North
American state and as a dynamic member
of the world community of nations.

The Constitution shell recognize the
English and French as the rounding
races of Canada and shall contain
the necessary provisions to ensure
that citizens of French descent
residing in Canada outside Quebec
shell enjoy the same rights with
respect to the used or the French
language and the preservation of
their cultural heritage as citizens
of English descent enjoy in Quebec
with regard to their language and
culture.

(3 3

CATEGORY:

I — Objectives of Confederation

BASIC CONCEPTS:

To retain 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 satisfaction in their citizen»
ship and maximum injoyment from their particular
linguistic and cultural heritage.

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

‘ RELATED PROPOSITIONS:

5.6.11 (Ont)

2.1.1 (NS)

8.1.1 (Alta)

8.1.2 (Alta)

7.2.10 (Sack)

Canada should be a bilingual
country while retaining its
multicultural character.

The Constitution of Canada must
provide a framework in which
Canadians of all races and
geographic areas are assured of

a satisfactory atmosphere in
which to live happily, which
involves recognition of diversity
in language and culture and the
assurance that all Canadians have
as nearly as may be equality of
public services without unequal
burdens of taxation, equal
standards of economic well—being
and equality of opportunity.

Alberta does not accept the
proposition that the basis of
Confederation was a union of

two races and two cultures.

The historic fact is that
Confederation was a union of
provinces. In the negotiations
leading to Confederation, the
concept of the union being one of
two races, two cultures and two
languages was not the reason for,
and in no sense a condition of the
unions.

A Canadian objective should be to
develop a nation in which all
citizens without regard to race,
colour or creed, or ethnic origin,
can find full satisfaction in their
citizenship anywhere in Canada and
maximum enjoyment from their particu«
lar linguistic and cultural heritage.

The linguistic rights provided in
the B.N.A. Act shall continue to be
guaranteed as at present, and the
matter of education in French or
English and the use thereof shall
remain with the provinces so that
the provinces may proceed with the
development of bilingual programs
as is being done in most provinces.

#23 .

CATEGORY:

I — Objectives of Confederation

BASIC CONCEPT:

To ensure the fullest development of Canada’s linguistic

duality.
RELATED PROPOSITIONS:
10.1.2 (Fed)

3-1-5 (NB)

5.5.10 (NB)

5.6.11 (Ont)

5.3.5 (Ont)

4.9.14 (Qué)

o.2.7“(Nr1d)

To protect basic human rights which shall
include linguistic rights.

Preservation and full expression of Canada’s
basic linguistic and cultural duality is
essential to the achievement of the identity
and particularity of Canada as a North
American state and as a dynamic member of
the world community of nations.

It must be an objective of Confederation to
achieve national unity both in spirit and
in fact through the effective use of all
governmental and all public and private
institutions; through harmonizing the rela-
tions of governments by a proper respect for
each others jurisdictions and roles by an
effective functional balance among federal,
provincial and municipal governments as
they carzy out their respective duties; and
by a concerted effort to give full national
expression to Canada’s two basic cultural
and linguistic configurations.

Canada should be a bilingual country while
retaining its multicultural character.

All Canadian parents should, as a matter or
equity, be able to have their children
educated in either or both of the official
languages.

It is essential that English and French be
declared the official languages or the
Canadian Union. Their use could be gover-
ned by provisions based on the recommenda-
tions contained in Book I or the Report by
the Commission on Bilingualism and
Biculturalism and protected by an Inter-
governmental Commission made up of an equal
number of English—speaking and French-
sneakins members.

The Constitution shall recognize the English
and French as the founding races of Canada
and shall contain the necessary provisions
to ensure that citizens of French descent
residing in Canada outside Quebec shall
enjoy the same rights with respect to the
use of the French language and the preser-
vation of their cultural heritage as
citizens of English descent enjoy in Quebec
with regard to their language and culture.

Gont’d p. 11

\2l¥

(Continued)

5.2.7 (um)

what is required to provide the
real essence of true oneness and
unity between French-speaking and
Engl1sh—speaking Canadians in a
voluntary appreciation by the
Eng1ish—speak1ng majority of the
intrinsic worth of the language
and culture of the one-third of
Canada’s citizens of French
origin, not on the basis of cons-
titutional righte but because of
the practical value and enjoyment
of being able to converse fluently
in at least the two languages which
are the mother tongues of the vast
majority of all Canadians. The
efforts of the Federal and the
Provincial Governments should be
directed, therefore. to the
encouragement of such voluntary
appreciation.

_ 12 _

CATEGORY:

I — Objectives of Confederation

BASIC CONCEPT:

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

RELATED PROPOSITIONS:

10-1-2 (Fed) To protect basic human rights which

shall include linguistic rights.
5.1.4 (NB) The benefits of the Canadian society
include the right to participate in
all activities of government, the
right to non—disorimination, and the
right to participate in expressing the
popular will that must control state
and government in a free society.
4.3.5 (Qué) It is important to recognize that there
are fundamental rights, both individual
and collective, which precede any
Constitution and which no majority
may legitimately infringe; that is the
case in particular, for the freedoms
inherent in the human person or the
natural right of nations or peoples to
se1f~determination.
5-7-13 (Ont) The fundamental rights of Canadians
should be clearly expressed and
guaranteed by pooitivo,logislative
enactment.

2.5.12 (NS) The Constitution should recognize
basic human rights.

7.1.1 (Sask) To protect fundamental democratic

rights.

12.4 .

CATEGORY :

I ~ Objectives of Confederation.

BASIC CONCEPT:

To maximize the contribution of Canadians to world peace
and security and to promote the eooial, cultural and
economic progress of the world society.

RELATED PROPOSITIONS:

10.1.4 (Fed)

3.4.15 (NB)

5.4.14 (NB)

7.1.1. (Seek)

13-

To contribute to the achievement of

world peace and security, social

progress and better standards of
ire for all mankind.

As members of a world community whose
dangers and hopes we share, a fortunate
Canada has obligations of compassion
requiring of us acts of solidarity

in mankind’s search for peace and (justice,
and contributions to emerging societies
and nations through programs of economic
and social assistance.

It is a prime objective of a united Canada
to express its national identity through
its independence as ex North American
people and state. dedicated to co—operstio
with its neighbours, but aware of its
particularity as a nation, determined

to preserve it, and to contribute from
its dynamics to a more open and humane
world society.

To contribute to the achievement of
world peace and security, social
progress and better standards of
life for all mankind.

/1?,

-1’-I»…

CATEGORY:
11;- General Principles

BASIC CONCEPT:

The primacy of the Constitution as the supreme law of
the land should be declared formally.

RELATED PROPOSITION:
4.6.9 (Que) It would be well to declare in formal
terms the primacy oi‘ the Constitution
as the supreme law oi‘ the land and
the constitutional equality of all
governments, each within its sphere.

1.21:5’-

_ 15 –

CATEGORY:

II — General Principles

BASIC CONCEPT:

The Constitution shall change the name of the country
to reflect its political and sociological nature.

RELATED PROPOSITION:

4-7-10 (Que) The official name of Canada should
reflect the country’s political
and sociological nature, that is,
a Federation of States and an
Association of Nations. Among the
designations which could be considered,
Quebec suggests that of “The Canadian

Union”.

/2?.

CATEGORY:

— 16 —

II « General Principles

BASIC CONCEPT:

The Constitution shall provide for a sovereign democracy.

RELAT§Q_PROPOSITIONS:

10.7.12 (Fed)

5.4.7 (Ont)

4.2.} (Que)

4.2.4 (Que)

0.1.1 (Nfld)

5.1.5 (NB)

5.1.4 (NB)

7.1.5 (Sack)

Canada is a sovereign state of
which the Queen is Head of State.

The central government of Canada
should continue to be.a parliamentary
democracy.

It should be affirmed that, while
acknowledging her obligations to
the international community, Canada
is a sovereign country_independent
of all others and absolute master
of her own Constitution.

It should be affirmed that Canada
is a democratic country and than
her Constitution must be the
expression of the popular will.

The Constitution shall declare
Canada to be a sovereign nation
comprising ten provinces and two
territories (with boundaries as
presently defined) which shall
operate as a democracy under a
federal and parliamentary system
of government and shall recognize
the Queen as Head of State and
maintain existing ties with the
British Commonwealth of Nations.

Canada is a democratic society
dedicated to liberty, equality and
human fulfillment for its citizens.

The benefits of the Canadian Society
include the right to participate in
all activities of governmenv, the
right to non—discrimination and the
right to participate in expressing
the popular will which must control
state and government in a free
society.

Canada should be a fully sovereign
parliamentary democracy.

L30 .

CATEGORY:
II – General Principles

BASIC CONCEPT:

-17..

The Constitution shall provide for a federal system of

government.

RELATED PROPOSITIONS:
10.1.1. (Fad)

5.4.6 (Ont)
2.4.7 (ms)

7.1.1. (Sask)

5.1.2 (NB)

4.4.6 (Que)

0.1.1 (Nfld)

To establish for Canada a federal
system of government based on
democratic principles.

Canada should continue to have a
federal system of government.

Canada should continue to be a
Federal State.

To establish for Canada a federal
system of government based on
democratic principles.

Canada is a Federal State whose
federalism expresses not only the
framework of its economic, poli-
tical, social. educational and
administrative activities within
Canada. and the image and operations
of Canada in the world, but also

the liveliness and variety of
Canada’s history and traditions.

To take into account the basic
realities which give our country

its distinctive character, Canada
will have to be conceived and?
organize as both a Federation of
States and an association of Two
Nations, states and nations which
agree to establish common structures
for the management of their common
interests, while retaining their
individuality. historic rights and
essential freedoms within the frame-
work of the Constitution.

The Constitution shall declare Canada
to be a sovereign nation comprising
ten provinces and two territories
(with boundaries as presently defined)
which shall operate as a democracy
under a federal and parliamentary
system of government and shall recog-
nize the Queen as Head of State and
maintain existing ties with the
British Commonwealth of Nations.

I13/.

– 18 _

CATEGORY:

I1 — General Principles

BASIC CONCEPTS:

The Constitution shall provide for Canada to be a monarchy.

The Constitution shall provide for Canada to be a republic.

RELATED PROPOSITIONS:
10.7.12 (Fed)

0.1.1 (Nfld)

4.7.11 (Que)

2.z+.e (us)

7.1.2 (Sask)

Canada is a sovereign state of which
the Queen is Head or State.

The Constitution shall declare Canada
to be a sovereign nation comprising
ten provinces and two territories
(with boundaries as presently
defined) which shall operate as a
democracy under a federal and
parliamentary system of government
and shall recognize the Queen as
Head of State and maintain existing
ties with the British Commonwealth
of Nations.

It would be preferable for the
Canadian Union to become a
republic,while remaining in the
Eommonwealth.

Canada should continue under a
constitutional monarchy and

a parliamentary system of govern~
ment.

Canada should be a federal state
of which the Queen is Head of
State.

_ 19 _

CATEGORY:

II — General Principles

BASIC CONCEPTS:

The Constitution shall provide for a parliamentary system
of government.

The Constitution shall provide for a congressional system
of government.

RELATED PROPOSITIONS:

5.4-7. (Out) The central government should continue
to be a parliamentary democracy.

5-9-21 (NB) within the Confederation, the federal
government shall be a system of
responsible government as that concept
has come to be known in the customs
and conventions of the present
constitutional system. (See NOTE below)

0-1-1-(Nfld) The Constitution shall declare Canada
to be a sovereign nation comprising
ten provinces and two territories
(with boundaries as presently defined)
which shall operate as a democracy
under a federal and parliamentary
system of government and shall recog-
nize the Queen as Head of State and
maintain existing ties with the
British Commonwealth of Nations.

4-10-l7 (QU9) It would be desirable to weigh the
advisability of replacing the
present parliamentary system by a
congressional system similar to that
of the United States of America.

2.4.6.(NS) Canada should continue under a
constitutional monarchy and a
parliamentary system of govern-
ment.

711.3. (Sack) Canada should be a fully sovereign
parliamentary democracy.

NOTE: Comment No. l of 5.9.21 (N.B) states in part that
this proposition assumes the general continuity
of our parliamentary system of responsible government.

I33,

CATEGORY:
II ~ General Principles

BASIC CONCEPT:

-90..

The Constitution shall provide for a strong central
government representing and speaking for all Canadians.

RELATED moeosmxons:
o. 1. 2 (mm)

0.1.5 (Nfld)

3-3-7 (NB‘

2.4.8 (NS)

7.1.6 (Sask)

The Constitution shall provide for
the establishment and maintenance
of a strong central government
representing all of the people of
Canada and shall recognize the
primacy of the central government
in international affairs and in all
negotiations involving foreign
governments.

The Constitution shall vest in the
central government all Jurisdictions,
powers and authority necessary to
achieve national stren th and unity
and to implement polio ea designed
to develop the economy and welfare
or the nation as a whole or of any
part of the nation.

Eaaential to Canadian Confederation

is the maintenance of a strong federal
government which shall be representa-
tive of all the people of Canada and
shall act on their behalf to define
and to achieve national purpose at
home and abroad.

The Government of Canada must have
sufficient powers under the Consti-
tution to discharge its responsibi-
lities in respect of all matters
which concern all the people of
Canada.

There shall be a strong and effec-
tive oentral government with the
Jurisdiction, powers and authority
necessary to achieve national
strength and unity and to enable
it to develop the economy and
welfare of the nation as a whole
and the parts thereof.

_ 21 –

CATEGORY:
XI – General Principles

BASIC CONCEPT:

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

RELATED PROPOSITIONS:

5.3.8 (NE). Also essential to Canadian Confede-
ration is the maintenance of provincial
governments with jurisdictions and
resources enabling them to achieve
dynamic development of the human
and natural potential within their
Jurisdict1ons;‘to realize the values
of Canada’s regional and cultural
diversity; and to contribute thereby
to the attainment of the national

purposes.

6.1.4. (Nfld) The governments of the various
provinces comprising Canada shall
operate under a parliamentary system
and shall have the necessary juris-
dictions, powers and authority to
enable them,either by their own
efforts or in cooperation with the
central government, to develop their
human and natural resources to the
fullest possible extent commensurate
with their needs and with the interests
of the nation as a whole.

2.4.10 (NS) The Government of each province must
have sufficient powers under the
Constitution to discharge its res-
ponsibilities in respect of all
matters which concern its people as
opposed to the interests of all the
people of Canada including fiscal
resources sufficient to discharge
its constitutional responsibilities.

‘ 35’.

-22..

CATEGORY:
II – General Principles

BASIC CONCEPTS:

The Constitution shall provide for the primacy of
the central government.

The Constitution shall provide for the constitutional
equality of the provinces.

The Constitution shall provide for the constitutional
equality of all governments within their spheres of

jurisdiction.

RELATED PROPOSITIONS:
3.5.9 (NB)

4-7.9 (Que)

0.1.5 (Nfld)

7.1.8 (Seek)

Canadian Confederation thus requires
the primacy of the federal government
for purposes of expressing the
national identity and will and for
mobolizing and directing the economic
and social strength of the nation;
while recognizing that it is the
provinces and their municipalities
which do and must have the most
intimate and direct relations with
citizens with regard to many of the
most vital domestic and developmental
concerns of Canadians.

It would be well to declare in formal
terms the primacy of the Constitution
as the supreme law of the land and
constitutional equality of all
governments, each within its sphere.

The Constitution shall provide that
all provinces shall be equal in
status, Jurisdictions and powers
and that no province shall enjoy
special rights or privileges vis-
a—vis other provinces.

The Constitution shall provide that
the governments of the various
provinces shall operate under a
parliamentary system and shall have
the same status and powers.

l3é»_

-25..

CATEGORY:

II — General Principles

BASIC CONCEPT:

The Constitution shall take into account the
fact that Quebec has a special role to play
in bringing about cultural equality.

RELATED PROPOSITION:

4-5-8 (Que) The Canadian Constitution
must take into account the
fact that Quebec has a
special role to play in
bringing about cultural
equality.

.6.

I37.

CATEGORY:

II – General Principles

BASIC CONCEPT:

– 24 –

The Constitution shall ensure the respect of each
other’s Jurisdiction by both levels of government.-

RELATED PROFOSITIONS:
5-5-9 (Ont)

4.22.40 (Que)

5.3.10 (NB)

The central and provincial governments
must respect each other’e constitutional
jurisdictions. –

The Canadian Union implies the adhesion
of each member—government to the
principle of solidarity and mutual

aid, with all governments respecting
the constitutional rights or each.

It must be an objective of Confederation
to achieve national unity both in

spirit and in fact throush the effective
use of all governmental and all public
and private institutions; through
harmonizing the relations of governments
by a proper respect for each other‘s
jurisdictions and roles; by an effective,
functional balance among federal,
provincial and municipal governments as
they carry out their respective duties;
and by a concerted effort to give full
national expression to Canada s two
basic cultural and linguistic confi-
guratlons.

I38‘ –

BASIC CONCEPT:

RELATED PROPOSITIONS:

CATEGORY:

25-

II- General Principles

The Constitution shall provide for institutional
machinery to promote co—ordination and co~operation
between the levels of government.

5.,4.12 (ma)

3.20.50 (NB)
3.21.50

It is a further objective of
Canadian Confederation that
forces and institutions of
co-operation between all levels
of government shall be developed
that will assist the full
development of all regions of
Canada, the overcoming of
regional disparities, and the
solution of both urban and
rural problems.

The Constitution of Canada shall
reflect, insofar as may be
practicable, the formal and
informal experiences of all
governments in the matter of
federal~proVinclel institutions
and consultative procedures,

by providing a general con-
atitutional framework for

their existence but in language
that does not necessarily go
farther than to create a basis
for existing co-operative and
consultative procedures, without
unduly limiting or anticipating
forms that such procedures may
take in the future.

The Constitution should provide
for an annual conference of
union and member—state heads of
government.

13?.

-25..

CATEGORY:

II — General Principles

BASIC CONCEPT:

Intergovernmental relationships should be flexible,
allowing for a variety of arrangements between the
provinces and the central government, taking into
account the diversity of circumstances across the
country.

RELATED PROPOSITIONS:

5-5-10 (Ont) The relationships of the provinces
with the federal government need
not be uniform in all respects.

0.1.6 (Mm) The Constitution shall provide that
all provinces shall be equal in
status, jurisdictions and powers
and that no province shall enjoy
special rights or privileges vis-
é—vis other provinces.

7.1.9 (Sask) The Parliament of Canada shall not
have the power to make special
arrangements with any province in
respect of federal programs which are
by their nature applicable across

_ the nation.

/‘#15 .

-27-

CATEGORY:
II – General Principles

BASIC CONCEPT:

The Constitution shall provide for English and French
to be the official languages in-Canada.

RELATED PROPOSITIONS:

10-1-2 (Fed-) To protect basic human rights which
shall include linguistic rights.

5-6-ll (Ont) Canada should be a bilingual country

‘ while retaining its multicultural
character. .

5-4-15 (NB) The English and French languages are

the official languages of Canada.
This principle shall be converted.

as speedily as possible, into
constitutional rights and administra-
tive operations, federally and
provincially.

4-9-14 CQU9) It is essential that English and
French be declared the official
languages of the Canadian Union.
Their use could be governed by
provisions based on the recommen~
dations contained‘in Book I of
the Report by the Commission on
Bilingualism and Bioulturalism and
protected by an inter—governmenta1
commission made up of an equal
number of Eng1ish—speaking and
French-speaking members.

0.2.7 (Nfld) The Constitution shall recognize
the English and French as the found-
ing races of Canada and shall
contain the necessary provisions
to ensure that citizens of French
descent residing in Canada outside
Quebec shall enjoy the some rights
with respect to the use of the French
language and the preservation of
their cultural heritage as citizens
of English descent enjoy in Quebec
with regard to their language culture.

7-9-10 (585K) The linguistic rights provided in
the B.N.A. Act shall continue to be
guaranteed as at present, and the
matter of education in French or
English and the use thereof shall
remain with the provinces so that
the provinces may proceed with the
development of bilingual programs
as is being done in most provinces.

Cont‘d p. 23

I‘f/.

(Continued)

8.2.7 (Alta)

– 23 –

what is required to provide the real
essence of true oneness and unity
between French—speaking and English-
speaking Canadians is a voluntary
appreciation by the Eng11sh—speak1ng
majority of the intrinsic worth of the
language and culture of the one—third
of Canada’s citizens of French origin,
not on the basis of constitutional
rights but because of the practical
value and enjoyment of being able to
converse fluently in at least the two
languages which are the mother tongues
of the vast majority of all Canadians.
The efforts of the Federal and the
Provincial Governmenta should be
directed, therefore, to the encourege—
ment of such voluntary apyreciation.

/‘$57,

– 29 –

CATEGORY:
II — General Principles

BASIC CONCEPT:

The Constitution shall recognize and guarantee the basic
rights and freedoms of Canadians.

RELATED PROPOSITIONS:

10-1-2 (Fed) To protect basic human rights which
shall include linguistic rights.

5-7.15 (09t) The fundamental rights of Canadians
should be clearly expressed and
guaranteed by positive, legislative
enactment. ‘

4-5-5 (Que) It is important to recognize that
there are fundamental rights, both
individual and collective, which
precede any Constitution and which
no majority may legitimately infrbnge;
that is the case, in particular,
for the freedoms inherent in the
human person or the naturaalrights
of nations or peoples to se1I~

determination.
5-5-18 (NE) A charter of fundamental rights and
3-7-18 freedoms should be entrenched in the
5~8-15 Constitution. Such rights and

freedoms should embrace the classical
divil and political liberties we

have known, to which should be added
refinements including language

rights (unless otherwise dealt with);
procedural safeguards against abuses
of the trial or administrative
process; possible limitations on the
legislative powers of both Parlinmnet
and the provincial legislatures; a
general “due process” clause with
both procedural and substantive
implications for the operations of
both the legislative and administra-
tive processes; and such other
statements of rights and freedoms
that reflect the modern concern for
“the individualisation of justice”,
in the face of ever growing state

power.

2-5-12 (NS) The Constitution should recognize
basic human rights.

7.1.1. (Sask) To protect fundamental democratic
rights;

8-5-9 (Alta) Matters of language, culture,

religion and politics are matters
of individual heritage and personal
decision and are not matters which
properly should be given some
special constitutional status
beyond what was mutually agreed to
as a condition of federal union.

/«’3.

-30..

CATEGORY:
II – General Principles

IC CONCEPT:

The Consticution shall provide for unrestricted
movement of goods and persons within Canada.

RELATED PROPOSITION :

4.21.57 (Qua) Unrestricted movement of seeds
. and persons within the Union
should be guaranteed by the
Constitution.

/44.

.. 31 ..
CATEGORY:
II -. General Principles

BASIC CONCEPT:

The written Constitution shall include a number
of the present constitutional conventions.

RELATED PROPOSITION:

2.5.13 (NS). The Constitution should contain
a number of provisions relating
to the formation and the continuance
in office of government which are
now accepted as constitutional
conventions.

_§2-

CATEGORY:

III – Fundamental Rights

BASIC CONCEPTS:

A charter of fundamental rights shall be entrenched in
the Constitution.

It shall be beyond the legislative competence of
the central or provincial governments to abrogate
or alter the rights entrenched in the charter.

The entrenchment of the charter shall be subject
only to a declaration of nationd,emergency.

RELATED PROPOSITIONS:
10.1.5 (Fed) A charter of fundamental rights
should he entrenched in the
Constitution and should include
the following provisions.
10.5.9 (Fed) It should be provided that, with-
out restricting the generality

of any right or freedom referred

to in the Charter, neither Canada
nor any province shall abrogate

or abridge any such right or
freedom, and any law whether enact-
ed in the past or future should

be invalid to the extent that it
interferes with these rights and
freedoms.

10-6-11 (Fed) It should be provided that where
Parliament has declared a state

of war, invasion or insurrection,
real or apprehended, to exist,
legislation enacted by Parliament
which expressly provides therein

that it shall operate notwithstanding
this Charter, and any acts authorized
by that legislation. shall not be
invalid by reason only of conflict
with the guarantees of rights and
freedoms expressed in the Charter.

5.6.18 (NE) A charter of fundamental rights and
3.7.18 freedoms should be entrenched in the
5.8.18 Constitution. Such rights and freedoms

should embrace the classical civil
and political liberties we have known,
to which should be added refinements
including language rights (unless
otherwise dealt with); procedural
safeguards against abuses of the
trial or administrative process;
possible limitations on the

I O
#6‘ Cont‘d p. 55

3.8.20 (NB)

5.7.15 (Ont)

5.5.9 (Alta)

7.2.11 (Seek)

– 33 –

legislative powers of both Parliament
and the Provincial Legislatures;

a general “due process” clause with
both procedural and substantive
implications for the operations of
both the legislative and administra~
tive processes; and such other
statements of rights and freedoms
that reflect the modern concerns

for “the individualisation of
Justice“, in the race of ever growing
state power.

The entrenchment of a Charter or
Bill of Rights in the Constitution
shall not preclude the entrenchment
of complementary or parallel Bills
of Rights in the Constitutions of
the provinces.

The fundamental rights of Canadians
should be clearly expressed and
guaranteed by positive. legislative
enactment.

Matters of language,cu1ture, religion
and politics are matters of individual
heritage and personal decision and are
not matters which properly should be
given some special constitutional
status beyond what was mutually agreed
to as a condition of federal union.

That a Bill of Rights guaranteeing

fundamental democratic rights be
made part of the Constitution.

I 4 Q .

CATEGORY :
III – Fundamental Rights

BASIC CONCEPT:

The Constitution shall provide for the implementation
of the entrenched rights in accordance with the
legislative responsibilities of both levels of

government.

RELATED PROPOSITIONS:
4.25.46 (Que)

5.7.13 (Ont)

10.6.10 (Fed)

It would be well to specify that
implementing the basic rights of
the human person belongs both to
the Union -« for matters within
its competence ~— and to the
states —— for matters under their
constitutional suthority.

The Constitutional Court would
have exclusive Jurisdiction over
any legal action in which recog—
nition of basic human rights is
at issue.

The fundamental rights of Canadians
should be clearly expressed and
guaranteed by positive legislative
enactment.

It should be provided that nothing
in the Charter shall be deemed to
confer any legislative authority on
the Parliament of Canada or on the

. legislature of a province which

Parliament or the legialsture did
not respectively enjoy before the
adoption of the Charter.

/44’ .

-35..

CATEGORY:

III — Fundamental Rights

BASIC CONCEPT:

The charter shall provide specifically for the
recognition of political, legal, egalitarian
and linguistic rights.

RELATED PROPOSITION:

0.2.9 (Nfld) The Constitution shall contain a
charter of fundamental rights and
freedoms embracing, inter alia,
political. legal, egalitarian and
linguistic rights, freedom of
expression. freedom of conscience
and worship, freedom of assembly
and association, the exercise of
individual franchise, the security
of the person and the protection of

property.

/‘:49

CATEGORY:

III – Fundamental Rights

BASIC CONCEPT:

-35-

The charter shall specify the political rights to be

recognized.

RELATED PROPOSITIONS:
3.6.18 (NB)
8

3.8.18

0.2.9 (Nfld)

lO.l.5 (Fed)

A charter of fundamental rights and
freedoms should be entrenched in
the Constitution. Such rights and
freedoms should embrace the
classical civil and political
liberties we have known, to which
should be added refinements
including language rights (unless
otherwise dealt with); procedural
safeguards against abuses or the
trial or administrative process;
possible limitations on the
legislative powers of both Parliament
and the Provincial Legislatures; a
general ‘due process’ clause with
both procedural and substantive implin
ogtignaifor the operagions gr both

e es s at ve and a m n a rat ve
processes; and such other statements
of rights and freedoms that reflect
the modern concern for “the individua-
lisation of Justice“ in the face or
ever growing state power.

The Constitution shall contain a
charter of fundamental rights and
freedoms embracing, inter alia,
political, legal, egalitarian and
linguistic rights. freedom of
expression, freedom of conscience
and worship, freedom of assembly
and association, the exercise of
individual franchise, the security
of the person and the yroteotion of
property.

The Charter should recognize and
guarantee in Canada the following

human rights and fundamental

freedoms:

(a) freedom of conscience and religion;
(b) freedom of speech;

(c) freedom of assembly and association;

(d) freedom of the press;

– 37 _

cmsoony:
III – nmaamentéal‘ Rights

BASIC CONCEPT:

The charter shall specify the legal rights to
be recognized.

RELATED PROPOBITIONS:

5.6.18 (NE) A charter of fundamental rights and
3.7.18 freedoms should be entrenched in the
5.8.18 Constitution. Such rights and £ree~

dome should embrace the classical,
civil and political liberties we have
known, to which should be added
refinements including langue e rights
(unless otherwise dealt with ; pro-
cedural safeguards against abuses of
the trial or administrative process;
possible limitations on the legisla~
tive powers of both Parliament and

the Provincial Legislatures; a

general ‘due process‘ clause with

– both procedural and substantive

implications for the operations of
both the legislative and administrative
processes; and such other statements

of rights and freedoms that reflect

the modern concern for the individualisav
tion of justice“, in the face of ever
growing state power.

0-2-9 (Nfld) The Constitution shall contain a
charter of fundamental rights and
freedoms embracing, inter alia,
political, legal, egalitarian and
linguistic rights, freedom of
expression, freedom of conscience
and worship, freedom of assembly
and association, the exercise of
individual franchise, the security
of the person and the protection
of property.

10.1.5 (Fed) (e) the right of the individual to
_ life, liberty and security of
the person, and the right not
to be deprived thereof except
by due process of law;

(f) the right of the individual to
the enjoyment of property, and
the right not to be deprived
thereof except according to law;

(g) the right of the individual to
the equal protection of the law.

Cont’d p. 38

10.9.6 (Fed)

-38..

The Charter should also reooguino
and guarantee in Canada the following
rights:

(a) the right oi‘ the individual to
bb secure against unreasonable
searches and seizures;

(b) the right of a person who has
been arrested or detained

(1) to be informed promptly
of the reason for his
arrest or detention;

(ii) to retain and instruct
counsel without delay, and

611) to the remedy by way of
habeas corgus for the
e erm no Qn of the
validity of his detention

and for his release if
the detention is not lawful;

(C) the right of a person not to give
evidence before any court,
tribunal, commission, board
or other authority if he is
denied counsel, protection
againet self—criminotion, or
other constitutional safeguards;

(d) the right of a person to a fair
hearing in accordance with the
principles of fundamental
justice for the determination
of his rights and obiigatione;

(c) the right of a person charged
with an offence to be presumed
innocent until proved guilty
according to law in a fair
hearing by on independent arm
impartial tribunal, and the
right not to be denied reasonable
bail without just cause;

(f) the right of a person to the
assistance of an interpreter in
any proceeding in which he is
involved as a party or witness,
before a court, commission,
board or other tribunal, if
he does not understand or
speak thelanguage in which
such proceedings are conducted;

(g) the right of a person not to be
held guilty of an offence on
account of any act or omission
which at the time of its commission
or omission did not constitute an
offence, and the right of a person
on being found guilty of an
offence not to be subjected to u
penalty heavier than the one
applicable at the time the offence
was committed;

(h) the right of a person not to be
subjected to cruel and unusual
treatment or punishment.

/522.

~59-

CATEGORY:

III — Fundamental Rights

BASIC CONCEPT:

The charter shall specify the egalitarian rights
to be recognized.

RELATED PROPOSITION:

10.5.7 (Fed.)’ ‘ The Charter should also provide that
– every individual in Canada is entitled
not to be discriminated against by
reason of race, colour, national or
ethnic origin, religion or sex

(a) in employment or in membership
in any professional, trade or
other occupational association;

(b) in owning, renting, holding or
otherwise possessing property;

(0) in obtaining public accommodation.
facilities and services.

/53.

CATEGORY:

III — Fundamental Rights

BASIC CONCEPT:

-$§9b§h:§§g§n§::él specify the linguistic rights

RELATED PROPOSITIONS:

5.4.15 (N.B.) The English and French languages are
the or icial languages of Canada.
This principle ehall be converted as
speedily as possible, into constitu—
tional rights and administrative

operations, federally and provincially,

5.5.16 (N.E.)
5.6.16 .

English-speaking and French—speaking
Canadians shall have the constitutionally-
entrenched ri ht to be educated in, or

to have relat one with legislatures,
governments, and courts in one, or both,
of the official languages wherever they
may live in Canada and wherever the
structure and distribution of population
requires and makes practical such rights.

The English and French languages shall
have equality for all federal parlia-
mentary and administrative purposes
both within Canada and abroad, subject
only to the considerations of necessity
and convenience in the effective mana-
gement of individual government
operations.

5.6.17 (N.B.)

All governments in Canada should provide
wherever practicable, public services
in the English and French languages.

i7J2(%tJ

All Canadians parents should as a matter
or equity. be able to have their
children educated in either or both of
the official languages.

5-3.5. (0nt;.)

It is essential that English and French
be declared the official languages of
the Canadian Union. Their use could
be governed by provisions based on the
recommendations contained in Book I of
the Report by the Commission on
Bilingualism and Biculturaliem and
protected by an intergovernmental com~
mission made up of an equal number of
English-speaking and French-speaking
members. –

4.9.1u (Que.)

The Constitution shall contain provision
for the implementation of and shall give
effect to the recommendations of the
Royal Commission on Bilingualism and
Biculturalism relating to the use of the
French language throughout Canada.

0.2.10 (Nf1d.)

Cont‘d r. 41 .

/5‘/.

(Continued)

0.2.7 (Nfld)

2.4.11 (NS)

8.1.5 (Alta)

8.1.4 (Alta)

-41-

The Constitution shall recognize the
English and French as the rounding
races of Canada and shall contain
the necessary provisions to ensure
that citizens of French descent
residing in Canada outside Quebec
shall enjoy the same rights with
respect to the use of the French
language and the preservation of
their cultural heritage as citizens
of English descent enjoy in Quebec
with regard to their language and
culture.

Each province should provide educa-
tional opportunities for its English
or French minority groups insofar as
those educational opportunities are
desired by the minority groups and
the minority groups are concentrated
in areas that can be reasonably
served provided that the primary
goal should be to achieve a reaeo~
nable degree of bilingualism in
Canada.

The embodiment of so—called “language
rights” into the Canadian Constitu-
tion, or Bill of Rights, will not
produce the desired results which,

in the last analysis, will depend
primarily on the attitudes and
responses of the Canadian people

as a whole.

It is the firm belief of the
Government of Alberta that the
proposed legalistic approach to
alleged language rights will
engender resentment and opposition
that will retard the voluntary
acceptance of bilingualism for its
own intrinsic value and have a
divisive, rather than unifying,
effect on Canadian nationhood.

The Government of Canada has proposed
in its document: “A Canadian Charter
of Human Rights“, a constitutional
Bill of Rights in which would be
entrenched linguistic rights and
language guarantees as defined and
recommended by the Royal Commission
on Bilingualism and Biculturalism.
The Proposal of the Government of
Canada is unacceptable because:

(a) the enactment of such a Bill
of Rights would necessitate
section 95 and section 135 of
the British North America Act,
1867. revisions which cannot
be carried out unilaterally by
Parliament by reason of the
restrictions imposed by section
91, Head I of the British North
America Act, 1867. as amended:

(b) it is unrealistic to anticipate
that the unanimity of agreement
necessary to implement the
federal proposal for the

/5 5 ‘ Cont’d p. 42

8.1.4 (Alta)
(Cont’d)

8.2.5 (Alta)

-42-

(b) entrenchment of a Bill of Rights
can be attained in the near
future; witness the rejection
of the Fulton-Favroau formula
involving issues much less
controversial than the consti-
tutional changes proposed in
the recommendations of the
Royal Commission on Bilingualism
and Biculturalism;

(c) the proposed constitutional Bill
of Rights is a legalistic
approach which would produce the
undesirable consequences stated
in Proposition 5.

The implementation of the recommenda-
tions of the Royal Commission on
Bilingualism and Biculturalism, that
is to say:

(1) that English and French be
formally dolcared the official
languages of the Parliament of
Canada, of the Federal Courts
and of the Federal Government;

(2) that the provinces of
New Brunswick and Ontario
declare that those Provinces
recognize English and French
as official languages;

(3) that any Province (other than
Ontario and New Brunswick) whose
Frenoh—1anguage minority reaches
or exceeds ten per cent should
recognize French and English as
official languages;

(4) that bilingual districts be esta-
blished throughout Canada in areas
where Frenoh~speaking citizens
represent ten per cent or more of
the local population;

is objectionable and unacceptable for
the reasons indicated in Proposition 4
above (See page 35)

It is unacceptable also because by
giving the French language on offi—
cial status equal with English,
bilingualism will become a requisite
to promotion within the public
service and armed services in Canada.
This will have the effect of
penalizing the non—bil1ngual majority
of Canadians citizens who would be
required to learn a second, and in
the case of many, a third language.
before being eligible to hold a
responsible position in the public
service and armed forces of their
country even though they already

are fluent in the working language of
the majority of Canadian citizens.

’56 . Cont‘d p. 43

8.2.5 (Alta)

8.2.7 (Alta)

8.5.8 (Alta) ‘

\

-14.}-

The proposed constitutional amend-
ments will not have a favourable
effect on public attitudes and
responses in regions other than

those whose people are predominan~
tly French-Canadians. “The course
proposed understandably will not

be acceptable to the one-third of
Canadian citizens whose mother

tongue is neither English nor French
but who, in various Canadian
communfies, represent a local majority
equal to or greater than the ten per
cent proposed by the Royal Commission
on Bilingualism and Biculturaliam.

to qualify for recognition as an
Eng1ish—Frcnch bilingual district.

What is required to provide the real
essence of true oneness and unity
between French-speaking and English-
speaking Canadians is a voluntary
appreciation of the language and
culture of the one—third of Canada’s
citizens of French origin, not on the
basis of constitutional rights but
because of the practical value and
enjoyment of being able to converse
fluently in at least the two langua-
ges which are the mother tongue of
the vast majority of all Canadians.
The efforts of the federal and
provincial governments should be
directed, therefore, to the encou-
ragement of such voluntary apprecia-
on.

The Government of Alberta challenges
the assumption that the constitutional
or legalistic approach is the only
approach or the best approach to the
problem at hand.

Alberta holds that’the results desi-
red will be more readily and exten-
sively obtained by efforts designed
to stimulate and encourage English»
French bilingualism on the basis of
its intrinsic value and its cultural
enrichment to individual citizens
and to Canadian society at both
community and nationallevels.

To this end, the Government of Alberta
has extended educational opportunities
in the French language, not on the
basis of a constitut onal right nor
confined to isolated bilingual
districts as proposed by the Royal
Commission on Bilingualism and
Biculturalism but, generally, through~
out the Province on the basis that
individual students who desire to
enrich their lives by becoming

fluent in Canada’s major languages
will have the opportunity and en-
couragement to do so.

‘5’}. I Cont’d p. 44

nbh-

The Charter should also recognize and
guarantee with respect to the
English and French language

(a) the right of the individual to
the use of either language in
the Houses of Parliament of ’
Canada and in the legislatures
of all the provinces;

(b) the right of the individual to
have access, in both la ages,
to records, journals, egg“
enactments of

(1) the Houses of Parliament
of Canada,

(it) the legislatures of New
Brunswick, Ontario and
Quebec,

(111) the legislature of any
province in which each
language is the mother
tongue or at least ten
per cent of the popula-
t1on,~and

(iv) the legislature of any
province where that
legislature has declared
that English and French
are the official languages
of the province.

(c) the right of the individual to
use either language, without
prejudice by reason of the
language be employs, in any
pleading or process in or
issuing from

(1) any judicial or quasi-
Judicial body established
by the Constitution or
Parliament of Canada,

(11) the superior courts of New
Brunswick, Ontario, and
Quebec,

(111) the superior courts of any
province in which each
language is the mother
tongue of at least ten per
cent of the population, and

(iv) the superior courts or any
province in which the
legislature has declared
that English and French are
the official languages or
the province.

(d) the right of the individual to
communicate in either language

(1) with the head office of
every department and
agency of the Government
of Canada

:s*§‘.
Cont’d p. 45

7.2.10 (Sask)

_ 45′-

(e)

(ii) with the head office of

every department and agency
of the governments of

New Brunswick, Ontario,

and Quebec,

(iii) with the head office of

every department and agency
or the government of any
province in which each
language is the mother
tongue of at least ten per
cent of the population,

(iv) with the head office of
every department and agency
or the government of any
grovince in which the legis-

ature has declared that
English and French are the
official languages of the
province, and

(v) with the principal offices
of the department and agency
of the Government of Canada,
or the principle offices of
the government of a province.
in any area where a subs-
tantial proportion of the
population has that language
as its mother tongue.

the right of the individual to
have English of French as his
main language of instruction

in publiclyasupported schools
‘in areas where the language of
instruction of his choice is

the language of instruction of
choice of a sufficient number of
persons to Justify the provision
of the necessary facilities.

The linguistic rights provided in the

B.N.A. Act shall continue to be
guaranteed as at present, and the
matter of education in French or
English and the use thereof shall
remain with the provinces so that
the provinces may proceed with the
development of bilingual programs

as is being done in moat provinces.

CATEGORY:

III — Fundamental Rights

BASIC CONCEPT:

Economic and social rights shall be declared as
objectives to be realized.

RELATED PROPOSITION:

In a charter of fundamental rights,
economic and social rights may be
alluded to in the most general terms
and should include statements with
respect to non-discrimination in

the matter of social claims and
benefits (employment, housing, etc.).

3.8.19 (N.B.)

._‘

/(,0.

-47-

CATEGORY:
IV – Constitution of the Central Government
(a) Head or State and Chief Executive

BASIC CONCEPTS:

The Constitution should define the title, manner of
selection and powers of the Chief Executive and
distinguish between his duties as Reed of State and
as Chief Executive.

The Queen is the Head of State.

The Governor General shall exercise all the functions
of the Head of State.

The Governor General shall be appointed by the Head
of State on the recommendation of the Prime Minister

of Canada.
RELATED FROPOSITIONS:

4.%9.&g (Qué) The Constitution should define the

“v – title, manner of selection and
powers of the chief Executive for
the Union. It would be desirable
to distinguish between his duties
as Head of the Union and as Chief
Executive of the central govern—
ment, as well as to confirm the
principle of speaking holders of
this office.

10.7.12 (Fed) ‘ Canada is a sovereign state of which
the Queen is Head of State.

7.1.2 (Sack) Canada should be a federal state of
which the Queen is Head of State.

0.1.1 (flfld) The Constitution shall dec1are.Canada
‘ to he a sovereign nation comprising
ten provinces and two territories
(with boundaries as presently defined)
which shall operate as a democracy
under a federal and parliamentary
‘ system of government and shall
recognize the Queen as Head of State
and maintain existing ties with the
British Commonwealth of Nations.

5.10.20 (Ont) The Monarch should continue to be the
Head of State of Canada.

5.11.21 (Ont) The Monarch, on the advice of the
Prime Minister. should appoint a
representative to exercise the
functions of Head of State in Canada.

5.11.22 (Ont) The Honarch’s representative in
Canada should be a Ganadian citizen.

5.11.24 (Ont) The written Constitution should
identify the various powers of the
Honarch’s representative.

10.7.13 (Fed) The Governor General shall exercise
all the functions of the Head of State.

/6’/_
Cont’d p. #8

l0.7~14 (Fed)

10.7.15 (Fad)’

5.11.25 (Ont)

10.7.19 (Fed)

-48..

The Governor General shall be appoin-
ted by the Head of State on the
recommendation of the Prime Minister.
He shall hold office at pleasure

but shall only be removed before

the expirytof five years from the
date or assumption of office for
cause by a joint address of bath
Houses of Parliament.

Provision shall be made for the
functions of the Head of State to
be assumed by an Administrator in
the event of the death, incapacity
or absence of the Governor General.

The Honarchfs representative should
be appointed for ten years. In the
event of his death, incapacity, or
absence, his office should be held
on an interim basis by the Chief
Justice of the Supreme Court of
Canada.

The Governor General shall receive
the salary and allowances and other
benefits specified according to
statute.

CATEGORY:

-49..

1V- Constitution of the Central Government

(a) Head of State and Chief Executive

BASIC CONCEPTS:

The Governor General shall be empowered to appoint
Deputies and to exercise the powers he acquires
under statutes on the advice of Council or a

minister.

The Governor General shall be empowered to summon
and dissolve Parliament.

RELATED PROPOSITIONS:

10.7.16 (Fed.)

10.7.17 (Fed.)

10.7.18 (Fed.)

10.13.60 (Fea.>

10.8.30 (Fed.)

10.8.35 (Fed.)

The Governor General shall be
empowered to appoint Deputies
to carry out all or part of

his duties without affecting
the exercise of these powers

by the Governor General himself.

The Governor General shall be
authorized to exercise powers
he acquires under statutes on
advice of Council or of a
minister. ‘

The expression Governor General
in Council shall be construed
as referring to the Governor
General acting by and with
advice of Council.

Where it is required that the
Governor General act_on the
advice or Council, only those
Privy Councillors who are
ministers may participate in
submitting such advice.

The Governor General shall
summon Parliament.

The Governor General shall be
empowered to dissolve Parliament.

lé‘3.

_ 90 –

CATEGORY:

IV— Constitution of the Central Government

(b) Executive of the central government

BASIC CONCEPT:

The executive authority shall reside in che Eead
or State.

The constitution shall define the position and
responsibiiities of the different parts offithe
executive of the central government.

RELATED PROPOSITIONS:

10.7.20 (Fed) The executive authority shall
reside in the Head of State.

5.12.25 (Ont) The written Constitution should
clarify the position and respon-
sibilicies of the different parts
of the executive or the central
government,

/44.

CATEGORY:

-51-

IV – Constitution of the Central Government

03) Executive of the central government

BASIC CONCEPT :

There shall be a Privy Council for Canada appointed
by the Governor General.

Only those Privy Councillors who are ministers shall
participate in submitting advice of Council.

RELATED PROPOSITIONS:
10.7.21 (Fed.)

10.15.56 (Fed.)

There shall be a Privy Council
for Canada appointed by the
Governor General and worn as
Privy Councillors. Councillors
may be removed by the Governor
General.

Where it is required that the Governor
General act on the advice of Council,
only those Privy Councillors who
areyministers may participate in
submitting such advice.

I65“.

,—s2-

CATEGORY:

IV 5 Constitution of the Central Government

(b) Executive or the central government

BAS IC CONCEPT:

The Executive of the central government shall derive
its authority from the ability of the government 0:
the day to command A majority of members in the House

of Commons.

RELATED,PROPOSITIONS:
5.9.23 (N.B.)

10.12.50 (Fed.)

The executive branch shall derive
its authority from the ability of
the government of the day to
command a majority of members in
the House of Commons.

There shall be a Prime Minister
designated and sworn to office
by the Governor General to be the
Head of the Government. He shall
be the leader with the support

of a majority in the House of
Commons, or when this is not clear,
the person, who, in the judgement
of the Governor General. is most
likely to be supportea by a
majority in the House.

Iéé.

-5}-

CATEGORY:

IV 4 Constitution of the Central Government

(b) Executive of the central government

BASIC CONCEPT:

Cabinet shall consist of the Prime Minister and those
ministers he designates as members of the Cabinet.

RELATED PROPOSITION:

10.15.55 (E95,) Cabinet shall consist of the

Prime Minister and those ministers
be designates as members of the
Cabinet.

/4?.

CATEGORY:

IV 4′ constitution of the Central Government

(b) Executive or the central government

BASIC CONCEPT:

Provision shall be made for the appointment by
the Governor General or a member of the Privy
Council and the House of Commons who commands the
support of the House of Commons as Prime Minister
and Head of Government and for the conditions
under which he shall hold office.

RELATED PROPOSITIGHS

There shall be a Prime Minister
dfisisnated ana sworn to office

by the Governor General to be

the Head of the Government. He
shall be the leader with the
support of a majority in the House
of Commons, or when this is not
clear, the person, who, in the
judgement of the Governor General,
is most likely to be supported

by a majority in the House.

The Prime Minister shall be a
member of the Privy Council or
shall be summoned to the Privy
Council and shall be, or shall
become, a member of the House of
Commons.

10.12450 (Fed.)

10.12.51 (Fed.)

The Prime Minister continues in
office uncil he dies or until a
successor is sworn to office.

The Prime Minister may resign and
shall do so if he fails to obtain
a vote of confidence in the House
of Commons at a time when the
Governor General considers that he
is not entitled to a dissolution
of Parliament or if, in a general
election, another person has obtained
the support of a clear majority

of the House of Commons.

10.12.52 (Fed.)

The Prime Minister shall select
Ministers and recommend their
appointment, replacement or removal
to the Governor General. The
resignation of the Prime Minister
shall carry with it the resignation
of all of the Ministers.

10.13.5u (Fed.)

In the case of the Prime Minister‘s
incapacity, a person designated

as Acting Prime Minister will
assume the duties of the Prime
Minister until the latter recovers
or until a successor is designated
by the Governor General.

/98.

10.15.55 (Fed.)

CA TEGORY :

IV -Constitution of the Central Government

(12) Executive of the central government

BASIC CONCEPT :

Provision shall [be made for the selection and appoint»

ment of ministers who shall be members of the Privy
Council and o! the House of Commons or Senate and for
the conditions under which they shall hold office and

exercise authority.

RELATED PROPOSITIONS :
10.15.51; (Fed.)

1o.1t+.S7(Fe:1.)

10.14.58 (Fed.)

lO.ll+. 59 (Fed.)

The Prime Minister shall select
ministers and recommend their
appointment, replacement or
removal to the Governor General.
The resignation of the Prime
Minister shall carry with it
the resignation or all of the
ministers.

Ministers shall be appointed

by commission under the Great
Seal on the approval by the
Governor General of the recom-
mendation of the Prime Minister.
They shall be sworn to office
by the Governor General after
they have been smamoned and
sworn to the Privy Council.

A minister shall be or shall
‘become a member of the House
of Commons or a senator.

Ministers shall have the duties
powers and functions specified
by statute or by Order in Council
and those assigned to them by the
Prime Minister.

/4.9.

CATEGORY:

-56..

IV – Constitution of the central Government

(0) Perliament

pAsIc CONCEPT:

The Parliament of Canada shall consist of the Head
of State (Chief Executive) and two Houses.

1ité2I.A‘1‘ED PROPOSITIONS:
10.7.22 (F‘ed.)

4.11.19 (Que.)
3.9.22 (N.B.)

5.12.26 (Ont)

Canada shall have one Parliament
consisting of the head 01‘ State,
and two Houses.

As is now the case, the central
legislature could be composed of
a chief executive, an upper house
and a lower house.

Study shall be given to the question
whether the legislative branch or
the national government is to be
unicemerel or bicamerel.

The Parliament of Canada should
continue to consist of a Head of
State, a Lower House, and, if
the decision is taken to retain
it, an Upper House.

/31¢ _

CATEGORY :

-57-

IV — Constitution of the Central Government

(c) Perl 1 ement

BASIC CONCEPT:

The Constitution shall describe the nature of the
membership of ‘both Houses.

RELATED PROPOSITIONS:

3.10.24 (N;B.)

5al0.25 (N.E.)

10.7.24 (Fed.)

10.8.28 (Fed.)

10.8.29 (Fed.)

The Constitution shall describe
the membership of the House and
the Senate. the means whereby
they are elected or appointed,
the length of term of the mem-
bership of individual members
or or the government itself;
the requirements of election
after a term of years and such
other matters as pertain to the
composition, structure and
operation of the 1e ,1s1at1ve
and executive bx-anc es of the
Federal Parliament and Government.

The present principle of maintaining
a balance of representation by regions
in the Senate and in the House of
Commons in order to preserve certain
minimum representation for these
regions shall generally be maintained
in any revision of the Canadian
Constitution.

Privileges and immunities and powers
shall be defined by statute.

The Parliament of Canada shall
legislate in regard to all matters
concerning election to the House
of Commons.

Senators shall be excluded from
membership in the House of Commons-

4?/.

CATEGORY :

IV ~Consti.t;ut1on of the Central Government

(3) Parliament;

BASIC CONCEPT:

‘ The Constitution shall include provisions concerning
the maximum life of a Parliament and the frequency of

its sessions.

RELATED PROPOSITIONSX
14.12.22 (Que.)

10.7.23 (Fed.)

10.8.34 (Foch)

5.10.214 (N.B.)

If the present parliamentary 3 stem
is maintained, it would be wel to
keep the existing constitutional
provisions concerning the maximum
life of a legislature and the
holding or annual sessions.

There shall be a session of Parliament
once at least in every year.

The House shall be automatically
dissolved five years from the day
or the return of writs. A House
of Commons may in time :2! war be
continued by Parliament if such
continuation is not opposed by the
votes of more than one third of
the members or such House.

The Constitution shall describe the
membership of the House and the
Senate, the means whereby they are
elected or appointed, the length of
term of the membership of individual
members or or the government itself;
the requirements oi‘ election after a
term of years and such other matters
as pertain to the composition,
structure and operation 01‘ the
legislative and executive branches of
the Federal Parliament and Government.

l5?a?,

-59..

CATEGORY:

Iv -Const1tut1on of the Central Government

(c) Parliament

BASIC CONCEPT:
The Head’of State shall signify assent to bills paesedv

by the Houses of Parliament.

RELATED PROPOSITION:

10.8.§8 (Fed.) The Head of State shall signify
assent to bills passed by the
Houses of Parliament.

(Secretariat comment:

Propositions 5.24.56 (NE) and 10.23.38 and 10.9.39 (Fed.).
and 5.1.2 ((mt.) refer to the deletion of obsolete
provisions in the existing Constitution regarding the
withholding of assent and the dieallowanoe of bills.
These deletions are taken up in Category X — Amendment
Procedure).

_Qf_L_’I.‘}’lGOiiY :
TV – Constitution of th

(c) Parliament

eASIC CONCEPT:

so ._’

e Central Government

Parliament shall have the authority to amend its own

Constitution, subj

RELATED PROPOSTTION:
5.10.26 (N.B.)

(I3 §ee 5.i§.K§ ?N.E.)

ect to certain conditions.

The Parliament of Canada shall have
the authority to amend its own
Constitution in accordance with the
general provisions for amendment

set out in section “L”(l) below.

The right of amendment by Parliament
shall be confined to those matters
which in no wise affect the Consti-
tution or powers of the legislatures
or the provinces, or any power or
the federal government designed to
implement a generally entrenched
right affecting either the provinces
or citizens of Canada.

-61..

CATEGOIIY :

IV – Constitution of the Central Government

(0 ) Parliament

BASIC CONCEPT:

The Senate and the House of Commons may establish
Joint or ad hoo committees at their discretion.

RELATED PROPOSITION :

3.13.35 (N.B.) The Senate and the House of
Commons may establish standing.
joint or ad has committees at
their discretion.

..6;3..

\?A’l‘EGORY :
IV -Constitution or the Central Government

((1) House of Commons

BASIC CONCEPT:

The House oi‘ Commons shall be elected by universal
suffrage with representation on the basis of
opulation. maintaining a proportionate provincial
distribution of members.

RELATED PROPOSITIONS :

10.8.25 (Fed.) The House of Commons shall be
elected by universal suffrage;
it shall provide representation
on the basis of population except
as otherwise provided by the
Constitution.

10.8.26: (I~‘ed.) Readjustment of representation
between the provinces shall be
made after each decennial census
according to prescribed rules.

10.8.2’? (Fed.) The number oi‘ members in the House
– may be increased provided the
proportionate representation oi‘
the provinces is maintained.

4.12.21 (Que.) As now, the Constitution should
guarantee that each constituent
state hae,in the Lower House,
a number of representatives
proportionate to its population.

5.10.25 (N.B.) The present principle or maintain»
in; a balance of representation by
regions in the Senate and in the
House of Commons in order to
preserve certain minimum represen-
tation for these regions shall
generally be maintained in any
revision oi‘ the Canadian Constitu-
‘ on.

5-12-37 (Om?) As a general principle representa-
tion by population should apply to
the House of Commons.

CATEGORY:

IV ~Ccnstitution of the Central Government

(d) House of Commons

BASIC CONCEPT:

The Constitufiion shall descsibe some House procedures._

RELATED PROPOSITIONS:

10.8.51 (Fed.) The House shall elect its Speaker
at its first meeting and £111 a
vacancy with all practicable
speed. The Speaker shall preside
at all meetings.

‘10.8.52 (Fed.) The quorum of the House shsll be

set at 20 including the Speaker.

10.8.53 (1“e<1.) Questions shall be decided by a msaority or those present exclu- ding the Speaker who shall only vote in the case of a tie. 5.15.28 (Ont) The internal rules of procedure of the House of Commons should >not be contained in the written
Constitution but should be
regulated by custom, by statute
or by the standing orders or the
House.

F}?.

– 54 _

CATEGORY :

IV—Const1tution of the Central Government

(<1) House of Commons 1>ASlC CONCEPTS
Money bills shall originate in the House of, Commons.

App1~opriat1on of public funds shall only be apyroved
on the recommendation of the Governor General.

RELATED PROPOSITIONS:

10.8.56 (Fed.) Moneg bills shall originate in
the ouee oi.‘ Commons.

10.8.37 (Fed.) Appropriation or public_ funds
shall only be approved on a
recommendation of the Governor
General.

CATEGORY:

(o) Senate

BASIC CONCEPT:

amuse PROPOSITION:
3.13.34 (NB)

2.5.l# (NS)

10.16.66 (Fed.)

IV — Constitution or the Central Government

The Senate shall continue to be a second chamber through
which all legislation must be enacted.

It is not contemplated that the
constitutional role of the Senate
shall be altered in relation to

that oi the House of Commons which
alone shall have the power to
introduce money bills and whose
membership shall continue to form

the basis of responsible government
in Canada. The Senate shall continue
to be a second chamber through which
all legislation must be enacted,
whether originating in the House of
Commons or in the Senate itself, and
the Senate may be the source for the
origination of bills other than money
bills at the discretion of the govern-
ment of the day.

The senate should continue but the
method of appointment of senators
and the composition and functions
of the senate should be examined,
particularly the composition and
function of the Senate as s body
to represent regions of Canada.

The Government should continue
to be responsible only to the
House of Commons.

13?.

CATEGORY:

-66..

IV – Constitution of the Central Government

(e) Senate

BASIC CONCEPT

The Constitution shall specify certain powers of
the Senate of Canada.

A’ ATED PROPOSITIONS:

10.16.67 (rem)

3.15.54 (NB)

4.11.20 (Que.)
4.12.20

The Senate of Canada should

have the powers it now possesses,
together with certain additional
powers, to approve nominations
by the Federal Government of
judges of the Supreme Court of
Canada. ambassadors and heads

of cultural agencies.’ In the
general legislative process,

the Senate s rejection of a

bill may be overcome by the Lower
House acting in accordance with
specific procedures while, in
respect of certain matters
concerning, for example, nomina~
tions of judges of the Supreme
Court of Canada, Official
Languages and Human Rights, the
authority or the Senate should
not be thus restricted.’

It is not contemplated that the
constitutional role of the Senate
shall be altered in relation to
that of the House of Commons which
alone shall have the power to
introduce money bills and whose
membership shall continue to form
the basis of responsible govern~
ment in Canada.~ The Senate ahall
continue to he a second chamber
through which all legislation
must be enacted, whether origiw
noting in the House of Commons

or in the Senate itself, and the
Senate may be the source for the
origination of hills other than
money bills at the discretion

of the government of the day.

If the parliamentary system is
maintained, it would be preferable
to have the members of the Upper
House not as spokesmen for the
state governments; to this end,
they should be appointed by the
states for a limited period. The
Upper House might have power merely
to delay oaasase of legislation,

slmilal to that exercised by the
British House of Lords. The number
of members for each state could
equal the number of Senators each
province has now, although state
population might profitably be
taken into closer account.

Hfo.

CATEGORY:

-57..

IV — Constitution of the Central Government

(e) Senate

BASIC CONCEPT:

The Senate shall be constituted so as to reflect
the opinions and interests or both the central
and provincial governments.

RELATED PROPOSITIONS:

5.12.52
3.13.32

10.16.62 (Fed)

10.17.68 (Fed)

7.2.13 (Seek)

4.11.20
4.12.20

5-15.29

(NB)

(Qué)

(Ont)

There shall be a Senate as
presently defined by the
British North America Act
(Sections 17 to 36) but the
Upper House shall now be cons-
tituted under a system that will
reflect more accurately the
opinions and interests of the
provinces as well as of the
federal government.

The Senate shall be reorganized
so as to provide for the expres-
sion in it in a more direct and
formal manner than at present of
the interests of the provinces
and regions of Canada.

Consideration should be given to
revising the basis of distribu~
tion in the Senate as between

the various regions and provinces
of Canada.

That representation in the Senate
should reflect more adequately
the population of the regions and
provinces of Canada.

If the parliamentary system is
maintained, it would be prefera-
ble to have the members of the
Upper House act as spokesmen for
the state governments; to this

end, they should be appointed

by the states for a limited period.
The Upper House might have power
merely to delay passage of legis-
lation, similar to that exercised
by the British House of Lords. The
number of members for each state
could equal the number of Senators
each province has now, although
state population might profitably
be taken into closer account.

The Senate should be reformed to
represent more effectively the
interests of provinces or groups
of provinces.

/6‘/,

-68..

QhTEGORY:
TV – Constitution of the Central Government

(e) Senate

BASIC CONCEPT:

Provision shall be made for the selection and
appointment of senators and the conditions under
which they shall hold office and exercise authority.

RELATED PROPOSITIONS:
10-15-55 (Fed) The Senate should be partly selected
by the federal government and partly
selected by provincial governments.
10’16’6“ (Fed) The method of selection of senators
representing the provinces should be
by nonination of the provincial
governments. acting’with or without
the approval of the provincial
legislature, depending on the
provincial Constitution.

The Senate should continue but the
method of appointment of Senators
and the composition and functions
of the Senate should be examined
particularly the composition and
functions of the Senate as a body
to represent regions of Canada.

2.5.14 (NS)

3-13.55 (NB) Study shall be given to the duration
of the term of service of members of

the Senate.

Membership in the Senate will follow
present practice in providing for
minimum representation from the
regions of Canada.

5.13.§6(NB)

If the parliamentary system is
maintained, it would be preferable

to have the members of the Upper House
act as spokesmen for the state govern»
ments; to this end. they should be
appointed by the states for a limited
period. The Upper House might have
power merely to delay passage of
legislation, similar to that exercised
by the British House or Lords. The
number of members for each state could
equal the number of senators each
province has now, although state po-
pulation might profitably be taken
into closer account.

#.ll.20 (Qué)
4.12.20 –

The term of office for senators should
be limited to a specific number of
years ~- perhaps six, with the
possibility of renewal.

lO.l6.65 (Fed)

/All .

– 69 ;
cM3sooRg_:_

V – Constitutions of Provincial Governments

BASIC CONCEFTS:
Each province shall have an internal constitution.

The constitutions of the provinces shall not contain
grovlsions which are repugnant to provisions in the
anadian Constitution.

RELATED PROPOSITIONS:

5.10.27 (NB) Each of the provinces of Canada
7 shall have a constitution whose
central principle shall be based
on the customs and practices of
responsible government as des-
cribed in proposition 21. ‘

5.12.51 (NB) The constitution of a province
shall not in any case contain
provisions in violation of the
main principles of parliamentary
democracy expressed in the Cons-
titution, and in particular shall
not contain provisions that are
inconsistent with the charter of
fundamental rights and freedoms.

4.12.25 (Qué) Hember—states should have complete

#.13.25 freedom to draft and promulgate
their internal constitutions which,
provided they are compatible with
the Canadian Constitution, would
have the value of fundamental law.
Each state would be entitled to
decide on the title, method of
selection and powers of its Chief
Executive who would be ex officio
the Crown’s representative for the
affairs of the state, should the
Union maintain the monarchical
form or government.

0.1.4 (Nr1d) The §overnments of the various
prov noes comprising Canada shall
operate under a parliamentary
system and shall have the necessary
Jurisdictions, powers and authority
to enable them, either by their own
efforts or in cooperation with the
central government, to develop their
human and natural resources to the
fullest possible extent commensurate
with their needs and with the
interests of the nation as a whole.

10-15.60 (Fed) Each province shall have the power
to establish and to amend its
internal constitution, which must
respect the text and the objectives
of Canada’s constitution and the
fundamental rights of individuals
as defined in the constitution, and
which shall include provision for
the election of a legislative Chamber
not less frequently than every five
years and for annual sessions of the
Chamber.

7.1.8 (Sack) The constitution shall provide that
the governments of the various pro-
vinces shall operate under a parlia-
mentary system and shall have the
same status and powers.

I83.

3.1 .

Cont’d o.70

5.19.55 (Ont)

5.15.54 (Ont)

~70-

If any province chooses to have its
own written Constitution, provisions
in such a Constitution must not
conflict with any provision of the
Constitution of Canada.

Provinces should be free to adapt

the parliamentary system to their
particular needs.

(84.

CATEGORY:

—,7l—

V – Constitutions of Provincial Governments

BASIC CONCEPTS :

Each province will decide on the tit1e,method of I
selection and powers of its Chief Executive.

The executive authority of a provincial government
shall reside in e Governor appointed in a manner
to be described in the provincial constitution.

RELATED PROPOSITIONS :

4.12.25 (Qué)
4.15.25

5.11.29 (NB)

10.15.51 (Fed)

5.15.52 (Ont)

Member-states should have complete
freedom to draft and promulgate
their internal constitution which,
provided they are compatible with
the Canadian Constitution would
have the value of fundamental law.
Each state would be entitled to
decide on the title, method of
selection and powers of its Chief
Executive who would be ex ofricio,
the Crown’s representative or
the affairs of the state, should
the Union maintain the monerohical
form of government.

The executive branch of the govern-
ment shall be expressed through
3 Governor of the province to be
appointed in a manner described
in the constitution of the province.

Each provincial constitution shall
provide for on office or Lieutenant-
Governor who shall continue to he
the Crown’s representative within
provincial governments.

The titular head of the executive
branch or the provincial government
should be appointed by the Honarch’s
representative on the advice of the
Prime Ministers of the Province and
the name of the office changed to
conform with this new situation.

» 72 –
CATEGORY:
V ~ Constitution of Provincial Governments

BASIC CONCEPT:

Each province shall have the option of instituting
for itself either a unicamerel or bicameral legis-
lature.

RELATED’PROPOSITION:

3.11.28 (NE) N0 province is obliged to have
a bicameral system but shall
not be prevented from acquiring
such a system through its own
constitutional processes should
it desire to do so.

CATEGORY :

VI – The Constitution of the Judicial System

BASIC CONCEPTS:

The constitution shall establish a general court of
appeal for Canada to be known as the Supreme Court of

Canada.

The Jurisdiction of the Supreme Court shall be limited
to questions or law or mixed questions of law and facts.
to stated cases forwarded by provincial courts or appeal,
to raterenoee from the federal government. and to die-
putss between the federal government and any province

or disputes between provinces in which cases the Court
shall have original Jurisdiction.

The central ls islature shall establish a federal

court of appea

with final Jurisdiction over the inter-

pretation of legislation under federal authority.
The Supreme Court shall continue to be bound ‘by

precedent .

The Supreme Court shall be authorized to depart from
a previous decision when it appears right to do so.

RELATED raoposxmxons:
10.17.69 (Rea)

5.7.114 (Ont)

. e

3.45.44 (NB)

4.14.25 (Que)

10.l7.72(Fed)

7.2.12 (Sask)

The constitution should establish
a general court of appeal for
Canada to be known as the Supreme
Court of Canada consisting of nine
gudicial offices, including the
fries of Chief Justice of Canada,
of when at least three shall be
appointed from the Bench or Bar of
Quebec.

The constitution should establish
the Supreme Court of Canada as the
feds:-ation’s final court of appeal.

The Jurisdiction of the Supreme
Court shall so far as possible be
limited to questions of law or
mixed questions of fact and law;
states cases forwarded from pro-
vincial oourts of appeal; and
references by the federal govern-
ment on any questions upon which
it seeks the opinion of the Court.
The Court: shall also have original
Jurisdiction in any dispute between
the federal government and any pro-
vince or between two or more provinces.

The central legislature could be
authorized to establish a federal
court of appeal having final Juris-
diction over interpretation of
legislation on matters under federal
authority. States which so desire
could confer on this court final
Jurisdiction over the interpretation
of their own legislation.

The constitution should authorize the
Court to depart from a previous deci-
sion when it appears right: to do so.

The Supreme Court of Canada shall
continue to be the final court of
appeal in all matters including
those involving the constitution,
and the Court shall continue to be
bound by precedent.

/8?.

– 74 _

CATEGCRY:

VI — The Constitution of the Judicial System

BASIC CONCEPTS:

The Constitution shall eatablish a Constitutional
Court.

The Supreme Court of Canada shall have three chambers,
namely a Constitutional Law Chamber, a Common Law
Chamber and a Civil Law Chamber.

The Constitution shall prescribe that the Supreme
Court of Canada enjoys final appellate jurisdiction
in any proceeding where a constitutional question
is an issue.

RELATED PROPOSITIONS:

4.13.24 (Que.) It would be advisable that the

4.14.24 Constitution provide for establishment
of a Constitutional Court, determining
its composition and Jurisdiction.
At least two thirds of this Court’s
judges should be appointed by state
governments.

5.15.69 (N.B.) Study shall be given to the re»
3.14.59 organization of the Supreme Court of
Canada ingo threebChambe§:,ina§e1y,
a Common aw Chem er aw v 1 aw
Chamber and a Constitutional Law
chamber.
10.18.74 (Fed) Provision should be made in the
Constitution that the court will
enjoy ultimate appellate jurisdiction
in any action or other proceeding in
which any validity of any act or
enactment oi the Pariiameng of Canada
or of a eg slature a in ssue an
that the remainder of the court’s
jurisdiction, whether appellate or
advisory. and its remaining
constitution, powers and procedure
will be prescribed by Act of the
Parliament of Canada.
2.5.15 (N.S.) Consideration shoulfi be given to the
matter of the composition of the
Supremg Court of Canaéa and ¥a§ti€u1ar1y
its su tability as 8 court 0 as
resort to:

(a) determine constitutional
questions, and

(h) deal with matters involving
the Civil Code of Quebec.

7.2.12 (Saek.) The Supreme Court of Canada shall
continue to be the final court or
appeal in all matters including
those involving the Constitution,
and the court shall continue to
be bound by precedent.

I55‘-

_ 75 _
CATEGORY:
VI ~ The Constitution of the Judicial System
BASIC CONCEPTS:

The Constitution shall describe the nature of
membership and grocedure for nominations of judges
or the Supreme curt.

RELATED PROPOSITIONS:

10.17.69 (Fed.) The Constitution should establish a
general court of appeal for Canada to
be known as the Supreme Court of Canada
consisting of nine Judicial offices,
including the Office of Chief Justice
of Canada, of whom at least three shall
he appointed from the Bench or Bar of
Quebec.

10.17.70 (Fed.) The general provisions of the present
Constitution respecting appointment.
tenure and independence of the Judiciary
should be made applicable to the Court.

10.18.13 (Fad.) Fbrsons appointed judges or the Court
should have at least ten years‘
standing at the Bar of the province
from which they are appointed or a
combined standing at the Bar and on the
Bench or at least ten years.

10.17.71 (Fed.) Nominations of persons to the Supreme
Court of Canada could he placed before
the Senate for approval prior to
appointment.

3.14.40 (N.B.) All appointments to the Court shall

be made in accordance with procedures
similar to those provided for appoint-
ments to Superior, District, and
County Courts subject to the effect of
propositions 41 and 42 following.

3.14.41 (N.B.) Study shall be given to the question
whether in the composition of the
Supreme Court not less than one-third
of the membership shall be appointed
from one province of Quebec and whether
only such Judges from Quebec shall sit
upon civil law appeals in the Civil
Law Chamber (if established).

5.14.42 (N.B.) Study shall be given to the question
whether only common law Judges shall
be members of the Common Law Chamber of
the Supreme Court (if established).

3.l4.#5 (N.B.) Study shall be given to the question
whether the Constitutional Law Chamber.
if established, shall he made up of
judges drawn from the other chambers
of the Court.

5.16.55 (Ont.) The appointment of judges to the
Supreme Court of Canada should reflect
the federal nature of Canada.

5.8.15 (0nt.) Subject to age and good behaviour
Judges of the Supreme Court of Canada
should be granted constitutional
guarantees of security in tenure and
remuneration.

/X9.

CATEGORY:

-76-

V1 ~ Constitution of the Judicial System

RASIC CONCEPT:

Provisions shall be made regarding quorum and
related procedures in the Supreme Court.

1‘-an mzoyosmrous:
10.18.75(Fed)

10.18.76 (Fed)

Provision should also be made that
five Judges of the court shall
constitute a quorum for the hearing
and determination of appeals except
in cases where the constitutional ‘
validity of an act of Parliament or
of a Legislature is in issue in which
case the quorum shall be seven
Judges; and when dealing with appeals
from the province of Quebec, the
three judges appointed from the
Province shall sit on and act in the
determination or those appeals.

In the event that one or more of
the three judges aPP§inted from the
province of Quebec are unable to
act in the disposition of appeals
from that Province, the Chief of
Justice or, in his absence, the
Senior Puisne Judge, shall have
authority to designate one or more
members of the superior courts of
Quebec to sit as ad hoc Judges of
the court by way 0? replacement.

CATEGORY:

77-

VI -~ The Constitution of the Judicial System

BASIC CONCEPT:

Provinces shall establish courts for the application
or both federal snd provincial law. and appoint the
Judges to these courts.

The central government shall have the authority to _
establish courts to administer the laws of Canada.

RELATED PROPOSITION:
4.14.26 (Que)

10.19.77 (Fed)

Generally speaking, the states
should provide for setting up
other courts and appointing
their judges for the applica-
tion of both federal and state
law; The central legislature.
however, should retain its
present power of establishing
federal courts to administer
its own laws. The independence
of Judges should be guaranteed
by the constitution.

The constitution should continue

to provide that the Parliament of
Canada has jurisdiction to establish
a national court or courts for the
better administration of the laws

of Canada, and it should further
provide that the general provisions
of the constitution respecting the
appointment, tenure and independence
of the Judiciary should be applicable
to the judges of any court or courts
so established.

19/.

-78..

CATEGORY:
VI « The Constitution of the Judicial System

BASIC CONCEPTS:

The Constitution shall guarantee the independence of
the Judiciary.

The Constitution shall provide for the appointment
of Judges to Superior, District and County Courts.

\TED PROPOSITIONS:

10.17.70 (Fed) The general provisions of the
Constitution respecting
appointment, tenure and inde~
pendence of the judiciary should
be made applicable to the Court.

10.19.77 (Fed) The Constitution should continue
to provide that the Parliament
of Canada has jurisdiction to
establish a national Court or
Courts for the hotter adminis-
tration of the laws of Canada,
and it should further provide
that the general provisions of
the Constitution respecting the
appointment, tenure and indepen-
dence of the judiciary should be
applicable to the judges or any
court or courts so established.

#.l4.26 (Que) Generally speaking, the states
should provide for setting up
other courts and appointing
their Judges for the application
of both federal and state law.
The central legislature, however,
should retain its present power
of establishing federal courts
to administer its own laws. The
independence of judges should be
guaranteed by the constitution.

10.19.78 (Fed) The Constitution should continue
to provide for the appointment
of judges of Superior, County
and District Courts by the
central executive.

3.13.57 (NB) All Superior, District and County
Court judges (as presently defin
ned both for Quebec and the other
provinces by section 96 or the
B.N.A. Act) shall be appointed
by the federal government after
consultation with the respective
province where such appointments
are to take place.

5.15.58 (NB) Superior, District and County
Court judges shall hold office
during good behaviour until re-
tirement, and shall be removable
only by the Governor Guneral
upon address of both Houses of
Parliament of Canada, in nccor~
dance with present practice.

13:2

CATEGORY:

– 79 _

VII – Distribution of Powers
(a) Basis for distribution of powers

BASIC CONCEPT:

A realistic distribution of powers for the future

should be based on:

(1) an analysis of the existing distribution of
powers as determined by the BNA Act and
decisions of the Courts;

(2) an analysis of present and future functions
of government in Canada and the level at which
these might best be performed.

RELATED PROPOSITIONS:

10.11.49 (Fed)

Consideration of a detailed dis-
tribution of powers must be pre-
dicated on a common undertstanding
of the situation as it now exists.
The discussion of the distribution
of legislative powers in the revi-
sed Constitution should therefore
begin with an analysis of the
principles underlying the existing
Constitution.

The B.N.A. Act, as interpreted by
the Courts, now distributes
legislative authority on the fol~
lowing principles;

(a) The Parliament of Canada has
exclusive legislative authority
over those matters which are in
the common interest of Canadians.
This is based on the concept that
Parliament is best able to regu-

late these matters in the interests

of efficiency, harmony, or the
preservation of the bonds of
nationhood.

(b) Each provincial legislature has
exclusive legislative authority
within the province over those
matters, which are of a local
or private nature. This is
based on the concept that the
provincial legislature is best
able to regulate these matters
in the interests of efficiency,
local diversity or the preser-
vation of distinctive local
institutions.

(c) The Parliament of Canada and each
provincial legislature has con~
current legislative authority
over agriculture and immigration.
In the event of conflict the
legislation of Parliament pre-
veils.

(d) The Parliament of Canada has
legislative authority over any
matters not identified and dis-
cribed as falling within the
Jurisdiction of the provincial
legislatures.

:93 fl-,..l – in

3.17.47 (NB)
3.18.47
a.19.I+7

0.2.11 (Nfld)

0.3.12 (Nfld)

(if) —

I
«

(e) The power to legislate with respect to
certain matters is specifically withheld.
For example, neither Parliament nor the
provincial legislatures can impose
tariffs on the movement from one province
to another of the products or any
pnovince. Parliament cannot tax provin~
clal property, nor can any provincial
legislature tax the property of Canada.
Neither Parliament nor the legislatures
can amend certain portions of the Consu
titution. The guarantees of language
and separate schools also limit the
legislative authority of Parliament and
certain provincial legislatures.

A realistic distribution of powers for the
Federal Canada of the future must be related
to (1) an analysis of the existing distri-
bution of powers as determined by the
British North America Act and decisions of
the Courts and (2) a very careful analysis

of present and future functions or government
in Canada and at what level (provincial or
federal) existing or future governmental
functions can best be performed.

The Constitution shall vest powers

in the central government to take

such special measures, in consultation
with the provinces, as may be necessary
from time to time to combat and eliminate
regional disparities throughout Canada;
these measures to be either of general
application or, if the need exists,
designed for the specific purpose

or dealing with problems existing

in individual provinces and the central
government shun not he lfiw
confined by the Constitution
respect to the nature and ext t of
the action which it may take to

assist in solving this serious problem
in any particular area or arses.

The Constitution shall make provision
for a realistic distribution of powers
between the central government and
provincial governments bearing in mind
the existing di5tributio* or powers as
determined by The Britl North America
Act and Court decisions, the cwanminm
conditions which have touch 91309 in
Canada since the present distribution
was originally determined and the
problems which these changes have
created both for the central government
and provincial governments.

The principle or setting both “exclusive”
Jurisdiction in certain specified fields
and “shared” jurisdiction in others shall
be continued But the primary objective
shall be to effect 3 distribution of
powers which will faciligatc the develop-
ment of the greatest possible strenwth

and unity for Canada as a whole and

the highest possible standard of
prosperity and well-own; for all Canadians.

I754’

Cont‘d p. 8‘

2.4.8 (NS)

2.4.10 (NB)’

7.1.6 (Seek)

7.1.7 (Bask)

_ 51 –

The Government of Canada must have
sufficient powers under the
Constitution to discharge its
responsibilities in respect or all
matters which concern all the people
or Canada.

The Government of each province must
have sufficient powers under the
Constitution to discharge its
responsibilities in respect of all
matters which concern its people

as opposed to the interests of all
the people of Canada including fiscal
resources sufficient to discharge

its Constitutional responsibilities.

There shall be a strong and effective
government with the Jurisdiction.
powers and authority necessary to
achieve national strength and unity
and to enable it to develop the
economy and welfare of the nation as
a whole and the parts thereof.

The central government must have
adequate economic and fiscal powers
to ensure stable economic growth,
cope with enemployment, combat in-
faltion and deflation and to promote
equalization of opportunity in the
various provinces and areas of the
nation.

/95

gurscoxzy :

~ 82 –

VII — Distribution of Powers

(a) Essie for distribution of powers

BASIC CONCEPTS:

The federal and provincial governments must have sufficient
sources of revenue to discharge their constitutional

“responsibilities.

The Constitution should provide for all sources of revenue
to be open to both levels of government, except for customs
revenue (federal) and property tax and succession duties

(provincial).

RELATED PROFOSITIONS:

5.8.16 (Ont)

2.3.5. (NS)

‘Ir-19-55 (Qué)

2.4.10 (NS)

8.*.ll (Alta)

Federalmprovincisl tax sharing arrange-
ments must be adequate to enable each
government to discharge effectively its

_constitutionel obligations.

The federal and provincial governments
in Canada must each have sources of
revenue within their control which are
sufficient to enable them to meet their
constitutional responsibilities. In
order to assure to the provinces the
attainment of this objective, the
Constitution must include provision
for full equalization of all provincial
revenues, including municipal revenues.

To fulfil their constitutional rcspon«
sihilities, memher—states as well as
the Goverumnt of the Imion should have
access to all sources of tax revenue.
Only few fields should be reserved for
exclusive use —~ property tax and suc-
cession duties by the States, customs
revenue by the Central Government.

The Government of each province must
have sufficient powers under the
Constitution to discharge its respon—
sibilities in respect of all matters
which concern its people as opposed to
the interests of all the people of
Canada including fiscal resources
sufficient to discharge its
Constitutional responsibilities.

To minimize regional dissatisfactions

in the economic sphere, there is need

to develop a more equitable distribution
of the financial means to meet clearly-
definod federal and provincial respcn~
sibilities and a formula that will
ensure the basic social requirements or
all Canadians without widespread
disparity in the standards of service or
cost to the individual citizen.

/‘/e

fl«%bIfl _ nu

8.3.11 (Alta)

7.1.7 (Soak)

-85..

At the same time, care must be taken
to avoid retarding further growth by
unjustly penalizing those regions of
Canada whose economic development
contributes most to national revenues
and to the gross national product on
which the prosperity of the nation
depends.

The central government must have
adequate economic and fiscal powers
to ensure stable economic growth,
cope with unemployment, combat in-
flation and deflation and to promote
equalization of opportunity in the
various provinces and areas of the
nation.

W}

VII ~ Distribution of lovers

(b) lowers of central government

4 .331’. C COEEUJZE “T:

The Constitution shall assign certain powers exclusively
to the central government.

The list of exclusive powers could
include the following;

(a) defence and the aimed forces;

(h) foreign policy one diplomatic
relcti “ ct ‘ ‘“f
‘er~rtntos

(C) the central bank commercial banks
,
currency and exchange rates;

(d) tariffs and international trade-
.
(e) regulation of monopoliee ano
restrictive trade practice in
prlvate business;
(I) wei hte and measures;
5

($) bills of exchange and promissory
notes;

(h) patents, trade marks and copy~
rights;

(1) Canadian citizenship;

(3) postal services;

Ck) international and provincial flea
and air transport, international
and interprovincial railways;

(1) the federal civil service;

(m) establishment of government
corporations for federal purposes;

(n) es’ublishment of p ivate corpora-
tions n fields falling specifi-

cally under federal jurisdiction.

I76’

CATEGORY:

– 35 –

VII – Distribution of Powers

(c) Provincial powers

BASIC CONCEPT:

The Constitution shall assign certain powers exclusively
to the provincial governments. –

RELATED PROPOSITION:
4.18.35 (Que)

4.l7.5l (Que)

4.17.32 (Que)

2.5.17 (NS)

For greater clarity, the Constitution
should specify that federal powers do
not govern the following fields, which
will be added to those now behonging
to the provinces:

E23
(6)

(<1) (8) EB marriage and divorce; establishment of companies and corporations, except those speci- fically mentioned as being under federal jurisdiction; securities trading and control over financial institutions other than hanks, especially savings and credit unions, insurance companies, co- operatives, foundations and trust companies; V labour relations and working condi- tions of all private concerns operating within state territory; road transportation, whatever its origin or destination; integration of immigrants; all works and undertakings located within state territory, except those related to a field under federal Jurisdiction; rehabilitation of prisoners; exploration, conservation and development of resources; land use and development; municipal organization, town planning, housing and urban renewal; recreation, leisure and sports. Education in all its forms, at all levels and by whatever means must belong exclusively to the states. Social security, including all social allowances, old age pensions, family allowances, health and hospitals, manpower placement and training, should come under the exclusive Jurisdiction of the constituent states. Mineral rights should continue to be vested in the provinces, including off shore mineral rights. /’79. — 86 — -“, ‘«”.”rI(‘rf>RY:

VII — Disxtribution of 1’owm~n

(d) Shared powers

,Z11’C Q(‘rN(‘1EP‘I‘:

The Constitution shall assign certain powers concurrently
to both levels of government.

. D T’ROPCSI’1‘ION:
4_16_3o (Que) Matters under concurrent jurisdiction
q.17‘5O could include the followmng:
A ~ Agriculture;
B — Immigration;
C —- Statistics;
D — Cenauses;
E — Bankruptcies;
F — Radio and television broadcasting,
and cinema;
G – Marketing of agricultuzfll products,

foods and &rugs.

._ 57 ..
CATEGORY:
VII — Distribution or Powers

(e) Limits on powers of both levels of government

BASIC CONCEPT:

The Constitution should provide that no government is
empowered to tax another government or any of its agents,
except by mutual agreement.

RELATED PROPOSITION:

4.21-t.1+5 (Que) In theory, no government should be

4.25.45 empowered to tax another govern-
ment or any of its agents. How-
ever, intergovernmental taxation
should be permitted by mutual
consent.

.£!o/

– 33 _

CATEGORY:
VII — Distribution of Powers

(9) Limits on powers of both levels of government

BASIC CONCEPT:

The Constitution should restrict the central government’s
spending power to matters under its Jurisdiction,

without excluding unconditional grants and with some
flexibility to permit measures designed to remove re»
gional economic disparities.

§ELATED PROPOSITION:

4.20.56 (Que) The Constitution should restrict

4.24.36 the central government’s spending
powers to matters under its
Jurisdiction. These would none
the less include the right to
make unconditional grants to state
governments, on the basis of a
general equalization or in order
to stabilize their revenue.

Provided definite limits can be set
on the action or the government

of the Union, it should also be
authorized to take, alone or jointly
with the states, certain measures
designed to ensure economic equality
between the states through developv
ment of disadvantaged regions.

.2<73

CATEGORY :

-59..

VII — Distribution of Powers

(e) Limits on powers of both levels of government

BASIC CONCEPTS :

The Constitution shall provide that the provinces own
the public domain including the continental shelf.

The Constitution shall limit property ownership by the
central government to that needed for federal use.

RELATED PROPOSITIONS:

4.21.35 (Que)

4.22.59 (Que)

2.5.17 (NS)

The present principle whereby the
constituent states own the public
domain should be retained and it
should be specified that this
domain includes the continental
shelf. The state’s poyggrs of
exproprist: on should be unlimited,
except with respect to federal
property.

Federal property should be strictly
limited to what the Union government
requires in pursuit of its own ends;
when this use ceases, property should
automatically revert to the states.
Federal ower of e :00 riation should
Se limited and should not extend to
state. property. .

Mineral rights should continue to
be vested in the provinces, includimr,
off shore mineral rights.

.2 GL3

– go _
CATEGORY:
VII — Distribution of powers

(f) Residual powers

_:z_2§1‘<; cowcnpr: The Constitution should assign to the central govern- ment all powers not expressly granted vo the provinces. The Constitution should assign to the provinces all powers not expressly granted to the central govern- ment. RELATED PROPOSITIONS: 2_4.9 (ms) Residuary powers should be vested in the government of Canada. As is the case in most other federations, the member—states should retain all powers not exressly granted to the govern- ment of the Union. 4-15.27 (Que) \. 9 -1- -91.. CATEGORY: VII – Distribution of Powers (3) Interpretation and administration or powers BASIC CONCEPT: There should be some flexibility within the Constitution to permit adjustments to aiverse situations and a variety of relationships between governments. ‘ RELATED PROPOSITIONS: 5.4.8 (Out) The written Constitution of Canada must be flexible enough to be adaptable to fundamental social and economic changes. 4.15.28 (Que) In the Constitution, it would be well to provide elements of flexibility, particularly by recourse to concurrent jurisdic~ tion and delegation of legislative powers. 7.1-9 (SEEK-) _‘ The Farliament of Canada shall not‘ have the power to make special arrangements with any province in respect of federal programs which are by their nature applicable across the nation. .4 ‘ ‘ EGOHY : VII — Distribution of powers (h) Delegation of powers BASIC CONCEPT: The Constitution should provide for delegation of powers from one level of government to another. REl.A‘l‘ED PROPOSITIONS: 9.1 .2. (BC) ‘ 4.15.28 (Que) 5.5.10 (Ont) 5.6.10 2.5.16 (NS) “Secondly, l propose that we agree to introduce into the Constitution the principle of delegation of powers for the purpose or permit- ting jurisdictional flexibility between national and provincial governments which the present Constitution does not permit.“ In the Constitution, it would be well to provide elements of flexibility, particularly by recourse to concurrent jurisdiction and delegation of legislative powers. The relationships of the provinces with the federal government need not be uniform in all respects. The Constitution should provide for delegation of legislative powers. .9}. CATEGORY: ’VII~. Distribution of powers (1) Declaratory powers BASIC CONCEPT: A tederal system may require special powers in the central government to declare certain works to be for the general advantage or Canada.‘ RELAIELD PROPOS IT ION : 3.19.48 (NE) A federal agstem may require special powers in 1: e national government to declare certain works to be for the general advantage of Canada. .20? CATEGORY: _ 9“- VIII – Intergovernmental Relations BASIC CONCEPT: The Constitution should provide the basis for institutions to promote consultation and cooperation between governments. ‘ EEEATED PROPOSITIOHS: 5.20.50 (NB) 3.21.50 5.4.12 (NB) 5.17.46 (NB) 5.16.36 (Ont) 5.17.58 (Ont) The Constitution of Canada Shell reflect, insofar as may be practical, the formal and informal experience of all governments in the matter of federal-provincial institutions and consultative procedures, by providing a general constitutional framework for their existence but in language that does not necessarily go further than to create a basis for existing cooperative and consultative procedures, without unduly limiting or anticipating £orme that such procedures may take in the future: It is a further objective of Canadian Confederation that forces and institutions of coaoperation between all levels of government shall be éevelopea that will assist the full development or all regions or Canada, the overcoming of regional disparities, and the solution of both urban and rural problems. Approval by the Parliament of Canada shall not be required where informal processes of consultation are undertaken as heretofore, even if such informal processes lead to the establishment of ad hoe or ermanent machiner” to service such informal relations. The written Constitution should recognize intergovernmental con- sultation end cooperation as an essential element in the efficient administration of the federation but it should not attempt to prescribe in too much detail the precice forms of intergovernmental machinery. It should be possible for all the provinces, or for a number of the provlncee. to call a federal» provincial Conference at either the ministerial or the official 1mm1_ lag CATEGORY: -95- VIII – Intergovernmental Relations BASIC CONCEPT: The Constitution should provide for: — an annual conference of heads of government ~ a permanent intergovernmental secretariat – a standing intergovernmental commission on taxation. V RELATED PROPOSITIONS: 4.25.41 (Qué) 5.17.57 (Ont) #.24.44 (Qué) The Constitution should provide for an annual conference of Union and member-state heads of government. In the written Constitution. there should be provision for a permanent intergovernmental affairs secretariat. The Constitution should provide for the establishment of a standing intergovernmental com- mission on taxation which would be made up of representatives from all governments and whose role would be to prepare taxation arrangements for set periods. taking into account available and forecast tax resources, programmes planned and priorities involved. lot; (3A’I‘E(?ORY: BASIC CONCEPT: -06.. Intergovernmental machinery should be provided to coordinate the development and execution of programs aimed at reducing regional disparities. RELATED PROPOSITIONS: ,3. 25 . 59 (NB) 3.4.12 (NB) 2.1.2 (NS) “.2.ll (Nfld) Any future Canadian Constitution should include as an ob active of Confederation the el mination of regional disparities and include also provision for regional, as well as national, planning facilities for the implementation of that objective. It is a further ohjeotive_of Canadian Confederation that forces and institutions of co-operation between all levels of Government shall be developed that will assist the full development of all regions of Canada, the overcoming or regional disparities, arm the solution of both urban and rural problems. It is of fundamental importance that the Constitution provide for balanced regional economic development. The Constitution must acknowledge the necessity for and provide that; (a) A frankly regional approach be taken to economic development in Canada, and that great efforts be made and massive sums of money be expended to this and; (b) Rogional policies will in fact be followed in all practical ways, such as in the applies» tion of monetary and fiscal policies and in the provision for incentives; (c) Planning of federal programs v and expenditures will be effec- ted in the light of the urgent requirement for balanced regional economic development in Canada. The Constitution shall vest powers in the Central Government to take such special measures, in consulta- tion with the provinces, as may be necessary from time to time to combat and eliminate regional dis- parities throughout Canada, these measures to be either or general application or, if the need exists, designed for the specific purpose of dealing with problems existing in individual provinces and the Central Government shall not be limited or confined by the Constitu- tion with respect to the nature and extent of the action which it may take to assist in solving this serious problem in any particular area or areas. 12:0 CATEGORY: V111 .. Intergovernmental Relations BASIC CONCEPT: with due regard to the division of powers, general -economic policies should be developed through systematic consultation between governments. RELATED PROPOSITION: 4.25-‘+1 (Q!-Ié) Economic policies and their fiscal, monetary, trade and other components should normally he arrived at by continuing and systematic consu1‘ca- tion and participation by member—atates and the federal government; they should be implemented by all governments acting in concert, each in its own area of constitutional jurisdiction. -98- CATEGORY: VIII – Intergovernmental Relations BASIC CONCEPT: The Consuitution should provide for the making of formal birding agreements between governments. RELATED PROPOSITIONS: ..__._..______.___ , 5.15.43 (NB) The Constitution of Canada shall ’ 16.45 make provision for formal inter- »-17-45 provincial dealings by way of compacts, agreements and organiza- tions for their common interest, and whatever formal agreements or institutions are established shall have the approval of the_Par1iament of Canada. 4.25.42 (Que) The Constitution should provide for reaching intergovernmental agreements which would be constitutionally binding on all subscribing parties and, in any case of conflict, could be interpreted by the Constitutional Court. 313 CATEGORY: -99.. VIII — Intergovernmental Relations BASIC CONCEPT: Any dispute netween the federal government and one or more provinces, or between provinces, may be referred to a Court. HEATED PROPOSITIONS: 4.25.42 (Que) 5.21.51 (NB) 3.22.5] The Constitution should provide for reaching intergovernmental agreements which would be constitutionally binding on all subscribing parties and, in case of conflict, could be interpreted by the Constitutional Court. Any dispute between the federal government and one or more pro- vinces, or between two or more provinces themselves, may be referred to the Supreme Court of Canada. . ;2/L3 — 100 – CATEGORY: IX ~ External Relations BASIC CONCEPT: zggtcznetitntion shell recognize the primacy of the h r government for the direction and conduct of t e external relations of Canada. RELATED PROPOSITIONS: 1°»10-“O (Fed) The general conduct of Canada’s foreign relations is the responsibility of the federal government. 10-10-41 (Fed) Canada is an international person and member of the international community. 2 (NB) Canada, the federal state, is the only 2 legal person competent to speak for the Canadian people in the interna- tional community and it alone is competent to enter into binding legal obligations with other foreign states or international persons. The distribution of powers within Canada, which gives exclusive 3uris~ diction over some subjects to the provinces, does not vest in those provinces the right to deal formally or Juridically with foreign states or to enter into binding legal obliga- tions with them, except insofar as appropriate arrangements are made in cooperation with the federal govern- ment facilitating and providing for such relations between provinces and foreign states. (Arrangements for such agreements is within the exclusive federal competence in den- ling with foreign states.) 5.2§.$‘ (NB) The Constitution shall provide for the establishment and maintenance of n strong central government representing all of the people of Canada and shell recognize the primacy of the central government in international affairs and in all negotiations involving foreign governments. 0.1.2 (Nfld) The Constitution shall recognize the primacy of the federal government in international affairs and in all negotiations involving foreign governments. 7.2.14 (Sask) 3.17.59. (Ont) The government of Canada shcum have the chief responsibility for the internationfil relationships of fill Canadian governments. within this framework the written Constitution must provide for participation by the provinces in those decisions on external relations effecting matters under their Jurisdiction. 211/ CATEGORY: IX – External Relations BASIC CONCEPTS: 101 — In the conduct of external relations the central government must properly reflect the bilingual character of Canada. In the conduct of external relations the central government must pay due regard to the general and specific interests of the provinces, consul- ting them prior to retification of any interna- tional agreements on subjects within their legislative Jurisdiction. RELATED PROPOSITIONS: 10.10.#8 (Fed) 10.10.97 (Fed) 5.23.54 (NE) 4.18.54 (Que) 4.19.3a 5.17.39 (Ont) The Government of Canada, in appointing delegations to international conferences, must pay due regard to the bilingual character of Canada and to the general and specific interests of the provinces. The province or provinces concerned have the right to be consulted prior to the ratification by Canada of any interns» tional agreements that require provin~ cial legislative or other action. In all cases where the province has exclusive jurisdiction over subject matter for purposes of legislative competence within Canada, it shall have the ‘right’ to be consulted by the federal government, including the ‘right‘ to representation on the’ federal delegation —— this is, whenever the federal government is dealing with foreign states where the subject matter is exclusively within the competence, (for domestic constitutional purposes), of the province concerned. Within the limits of Canadian foreign policy, member—states should have a recognized capacity to negotiate and sign their own agreement with foreign governments on matters subject to their internal jurisdiction. State govern- ments should also be regularly invited to participate in Canadian delegations at international conferences and at meetings of international organizations of which Canada is a member, and which touch on fields of state, competence. Similarly, they should be empowered to attend international conferences that interest them and in which Canada is not A participant. Finhlly state governments should have the right to u more substantial rdle in external aid. The government of Canada should have the chief responsibility for the interna- tional relntionships of all Canadian governments. Within this framework the written Constitution must provide for participation by the provinces in those decisions on external relations nfFec— ting matters under their jurisdiction. 2/5’ CATEGORY: ‘ 102 ’ ‘ IX — External Relations BASIC CONC£PT: Ego central government shall have the exclusive authority – enter into binding legal obligations with other foreign states or international persons, — exchange diplomatic and consular representatives with foreign governments, — send delegations to intergovernmental conferences, – accredit representatives to international organiza~ 011$ . §ELATED PROPOSITIONS: 10.lO.#2 (Fed) The Government of Canada has the exclusive authority for concluding international agreements binding in international law. The executive branch of the federal government has the exclusive power to advise ratification of inter— national agreements. The Government of Canada has the exclusive authority for exchanges of diplomatic and consular repre- sentatives with foreign governments, sending delegations to intergovern« mental conferences and accrediting representatives to international 10.10.44 (Fed) 10.10.47: (Fed) organizations. 3-22-52 (N8) Canada, the federal state, is the 5.23.52 only legal person component to speak for the Canadian people in the international community and it alone is competent to enter into binding legal obligations with other foreign states or in— ternational persons. The distribution of powers within Canada, which gives exclusive jurisdiction over some subjects to the provinces does not vest in those provinces the right to deal formally or juridioally with fo- reign states or to enter into binding legal obligations with them, except insofar as appro- priate arrangements are made in cooperation with the federal government facilitating and pro- viding for such relations between provinces and foreign states. (Arrangements for such agreements is within the exclusive federal competence in dealing with foreign states.) The Constitution shall provide for the establishment and maintenance of a strong central government representing all of the people of Canada and shall recognize the ori- mecy of the central government in international affairs and in all negotiations involving foreign governments. The Constitution shall recognize the primacy of the federal government in international affairs and in all ne- gotiations involving foreign governments. .210 3.23.5} (NB) 0.1.2. (Nfld) 7.2.14 (Sask) CATEGORY -103… IX — External Relations BASIC CONCEPT: Within the framework of Canadian foreign policy, the provincial governments may with the cooperation of the central government, negotiate with foreign governments on matters within their legislative Jurisdiction, negotiate and sign their own agreements with foreign governments on matters within their legislative Jurisdiction, with the agreement of the central government establish contacts and liaison with foreign governments on matters of provincial interest, including the establishment of offices abroad, enter into understandings, informal administra- tive arrangements and other similar commitments with foreign Jurisdictions, enter into private contracts with such Jurisdictions, and, with the express authority of the central government, other binding commitments, attend international conferences in which Canada is not a participant, assume a more substantial role in external aid. RELATED PROPOSITIONS: 5-23.55 (NB) 5-23-55 (NB) The distribution of powers within Canada, which gives exclusive Jurisdiction over some subjects to the provinces, does not vest in those provinces the right to deal formally or Juridically with foreign states or to enter into binding legal obligations with them, except insofar as appro- priate arrangements are made in cooperation with the federal government facilitating and providing for such relations between provinces and foreign states. (Arrangements for such agreements is within the exclu- sive federal competence in dea- lings with foreign states.) The formal exclusive competence of the federal government for international purposes, and the formal exclusive competence of the provincial legislatures for domestic constitutional purposes shall not prevent provinces from having “informal” dealings with foreign governments or their agencies, providing such dealings are brought to the attention of the federal government and do not in any way lead to negotiation, or entering to by the provinces of binding legal obligations, or encroach upon the exclusive Juris~ diction of the government of Canada over the foreign policy of Canada and over relations generally with foreign states on behalf of the people of Canada. JI7 Cont’d p. 10“ 10.10.49 (Fed) 10.1036 (Fed) ~ 104 ~ The provinces have the power, in general agreement with the federal government, to establish contacts and liaison with foreign govern~ ments on matters of provincial interest, including the establish- ment of offices abroad. Such contacts and liaison must be conductea within the ironwork of Canadian foreign policy. The provinces have the power to enter into understandings, infor- mal administrative arrangements and other similar commitments with foreign jurisdictions. They may also enter into private contracts with such Jurisdictions and, with the express authority of the Canadian Government,other binding commitments. within the limits of Canadian foreign policy, memberastates should have a recognized capacity to negotiate and sign their own agreements with foreign governments on matters subject to their internal Jurisdiction. State governments should also be regularly invited to participate in Canadian delega- tions at international conferences and at meetings of international organizations of which Canada is a member, and which touch on fields of state competence. Similarly, they should be empowered to attend international conferences that interest them and in which Canada is not a participant. Finally, state governments should have the right to a more substantial role in external aid. .2)? .. 105.. CATEGORY: X — Amendment Procedure BASIC CONCEPT: The Constitution shall provide for the means for its amendment within Canada. RELATED PROPOSITIONS: 9.1.1 (BC) “I propose that we agree upon the desirability of Canada’s taking into its own hands by constitutional amendment the competence to amend its own Constitution in Canada.” 3.19.49 (NB) The Constitution of Canada shall he ‘ vested wholly in Canadian federal and provincial legislative processes without requiring any further legis— lative participation on the part of the Parliament at Westminster. 5.9.17 (Ont) An amending formula must be a part of the written Constitution of Canada. 5.4.8 (Ont) The written Constitution of Canada must be flexible enough to he adap- table to fundamental social and economic changes. 25.47 (Que) The constitutional amendment procedure 4 should provide several means for making changes, varying in rigidity with the nature of what is to be amended. 7-1-4 (sask) Canada should take whatever steps are necessary to take into its own hands by constitutional amendment the power to amend its constitution without reference to the British Parliament. 5-9-18 (Ont) Any matter included in the written Constitution should not be capable of unilateral amendment by any Jurisdiction. -106 – CATEGORY: X – Amendment Procedure BASIC CONCEPT: Any revision of the existing Constitution shall provide for the removal of obsolete provisions. RELATED PROPOSITIONS: 5.24.56 (NB) The powers now existing in the Canadian Constitution which rovide for the right of the Governor-in- ouncil to disallow legislation hi the provinces or to »inetruct the ieutenant—Governor to reserve his signature to a Bill for the signification of the Queen’s pleasure and provisions that may be regarded as having no longer-the relevance, or the validity, for the Canadian federal system envisaged for them in the early decades of Confederation, and therefore should be removed in the course of current constitutional revision. Any revision or the Constitution of Canada shall provide for the removal of obsolete provisions (such as provi- sions reshaped by events; by B.N.A. Act amendments; particularly those provisions describing conditions under which certain provinces entered Confederation) and constitutional language that retains a colonial tone from the‘era during which the British North America Act had its origins. 3.24.57 (ma) lO.9.59 (Fed) The iederal government proposes, without providing a specific text, that the following article in the B.N.A. Act. declared obsolete by the Imperial Conference or 1926, be deleted: The Queen on the advice of the United Kingdom Government may disallow Cana- dian legislation within two years. (8.56) 1.2 (Ont.) As a minimum the Constitutional 2.2 Conference should review the language and terms of the British North America Act, repeal obsolete clauses, and revise those inconsistent with the character of the Act as Canada’s written Constitution. 5.10.19 (Ont) The reservation of provincial legis- lation by the Lieutenant-Governor and its disallowance by the Governor General in Council are incompatible with the principles and practices of contemporary federalism. These powers should be removed from the Constitution. 220 _ 107 – CATEGORY: XI ~ General Provisions BASIC CONCEPT: The Constitution shall define the boundaries of Canada, its provinces and territories and the procedures for altering such boundaries. RELATED PROPOSITIONS: 4.8.12 (Que) The Constitution should mention that the Union is made up of ten states and two ter- ritories. It should provide for admission of new states and for amalgamation of states. 4.8.15 (Que) State boundaries should be defined in an appendix to the Constitution after discus- sion between the interested parties. 5.11.30 (NB) ‘ No province shall have any power to alter 3.12.30 its own boundaries or the general framework of its system of responsible government without the approval of the Parliament of Canada in a resolution affirmed by both Houses of Parliament and by a majority thereof. 0-1-5 (Nf1d) The Constitution shall contain appropriate provision to permit the alteration of any provincial boundaries or the formation of new provinces in cases where it is deemed to be in the national interest to do so but it shall be expressly provided in the Constitution that no existing provincial boundary shall be amended to any extent without the prior consent and mutual agree— ment of all of the provinces whose bounda~ rieo are immediately affected and of the central government. 5.14. 30 (Out) ‘Considerabinn should be given to the possibility of changing the geographi- cal divisions of the federation. 5. 14.51 (Ont) Any changes in provincial boundaries would be subject to negotiations and agreement among the provinces concerned and, where and if applicable, the federal government. 252! — 108 ~ CATEGORY: XI ~ General Provisions BASIC CONCEPT: The Constitution shall provide for a genéral census every 10 years. RELATED PROPOSITION: A general census including a separate enumeration of state populations should continue to be taken every ten years. Information concerning ethnic origin, mother tongue and languages spoken should also be made available. 4.9.15 (Que) .l:l51 _ 109 — CATEGORY: XI — General Provisions BASIC CONCEPT: The Constitution shall provide for the declaration of the cities of Hull and Ottawa as the seat of toe central government. RELATED PROPOSITION: 4.9.16 (Que) 4.10.16 5.18.40 (Ont) It would be well to declare that the cities of Ottawa and Hull are the seat of government or the Union, without changing the constitutional powers of the governments or existing boundaries. Steps should be taken so that the linguistic and cultural values of both national groups may be reflected in both cities and all Canadians may look to their capital with feelings of pride, commitment and affection. The Constitution should declare Ottawa~Hu11 and appropriate surround- ing areas as the capital of Canada. Jé13 CATEGORY: _ 1;o – XII — Transitional Provisions BASIC CONCEPT: During the period of constitutional review some transitional constitutional provisions may be required. RELATED PROPOSITION: 5.24. 58 (NB) The Constitution of Canada will require, in the period between repatriation and decisions about the amending or delegating powers, transitional provisions permitting limited amending procedures and other oonetitun tional needs to be met until the process of constitutional review and revision on the one side and repatriation on the other have been completed. 42% -—111- CATEGORY: XIII — Adoption of the Constitution BASIC CONCEPT: A method for the adoption of the new Constitution will have to be developed. RELATED PROPOSITION: 4-35-‘+8 (Qué> Intimate eovereignty rests with
the Canadian people; thus, there
is no need whatever for a formal
gneture “repatriating” the
Conetitution. All that is needed
is to promulgate the new
Canadian Constitution in Canada.

gfi

CONFIDENTIAL
Document No. 80(1)
January 7. 1969

CONSTITUTIONAL CONFERENCE
CONTINUING COMMITTEE OF OFFICIALS

REFERENCE TABLE T0 BASIC CONCEPTS

GP/Sec/VP/16
(Revised)

27?

WP/15
Page

OBJECT OF THE REVIEW

Reference to Records
of proceedings

C?/2/SR — Page 5
(paras 6~8)

*2’

Basic Concegts

The object of the Constitutional
Conference is to review the
Canadian Constitution in its
entirety and to determine the
extent to which it should be
consolidated and amended or
rewritten.

As part of the constitutional
review, a preamble to the written
Constitution should be developed
setting forth the objectives and
aspirations or the Canadian people.

~3

WP/15
Page

(DVG\\.n

10
ll

12

15

I OBJECTIVES OF CONFEDERATION

Reference to Records

of proceedings
CP/2/SR — Pages 6-7

CF/2/SR — Pages 8—9

CP/2/SR — Pages 8-9
CP/2/SR – Pages 11-13

CP/2/SR — Page 24

CP/2/SE — Pages 14-15

OP/2/SR ~ Page 26

Basic Concept

To promote Canadian social,
cultural and economic development
and the general welfare of and
equality of opportunity {or all
Canadians.

To promote the full development
of all regions of Canada.

To promote Canadian unity

To ensure cultural equality for
the two rounding linguistic
communities.

To retain 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 satisfaction
in their citizenship and maximum
enjoyment from their particular
linguistic and cultural heritage

To ensure that the union or the
provinces will be maintained while
keeping the constitutional linguistic
provisions in their present form.

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

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

To maximize the contribution or
Canadians to world peace and
security and to promote the social
cultural and economic progress

or the world society.

VP/15
Page

1“

15

17
16

18

19

20

21

22

25

24

25

26

II GENERAL PRINCIPLES

Reference to Records
of Proceadige

GP/H/SR – Page 6
(para. 12)

GP/2/BR – Page 26

OP/2/SR – Page 27

OP/2/SR — Pages 29«3l

GP/5/BR — Page 7

GP/5/BR – Pages 8-11

GP/4/BR ~ Page 6
(paras. 15-14)

OP/5/SR – Page 12

GP/3/SR — Page 1)—1#

GP/4/SR – Pa e 9
(Paras. 15-13)

Basic Concepts

The primacy of the Constitution as
the supreme law of the land should
be declared formally.

The Constitution shall change the
name of the coutry to reflect
its political and sociological
nature.

The Constitution shall provide for
a federal system of government.

The Constitution shall provide for
a sovereign democracy.

The Constitution shall provide for
Canada to he a monarchy.

The Constitution shall provide for
Canada to be a republic.

The Constitution shall provide for
a parliamentary system of govern-
ment.

Theconstitution shall provide for
a central government representing
and speaking for all Canadians.

The Constitution shall provide for
stron§ provincial governments
oapab e of dynamic development of
the human and natural potential
within their Jurisdiction.

The Constitution shall provide for
the primacy of the central govern-
ment. –

The Constitution shall provide for
the constitutional equality of the
provinces.

The Constitution shall provide for
the constitutional equality of

all governments within their
spheres of Jurisdiction.

The Constitution shall take into
account the fact that Quebec has
a special role to play in cultural
equality.

The Constitution shall provide
means to ensure the respect of
each other’s Jurisdiction by both
levels of government.

The Constitution shall provide for
institutional machinery to promote
coordination and cooperation
between the levels of government.

Intergovernmental relationships
should be flexible, allowing for
a variety of relationships between
the provinces and the central
government, taking into account
the diversity of circumstances
across the country.

13!.

UP/15

Page

37
28
29

50

31

Reference to Records
of groceediggs

CP/2/SR » Page 25
CP/3/SR – Page 16

cP/5/sn — Page 16
OP/5/SR – Page 15

/#/SR – P 9
ginrs. 0) age

Basic Cggcegts

The Constitution shall provide for
English and French to be the
orrioisl languages or Canada

The constitution shall recognise
and guarantee the basic rights and
Iresdoms of Csnsdisns.

The Constitution shall provide tor,

unristricvod movement or goods
and persons within Canada

The written Constitution should
include a number or the present
constitutional conventions.

2″31.

UP/15
gage

52
55

55

56

37

III FUNDAMENTAL RIGHTS

Reference to Records

of grogegdgngg

GP/Q/BR ~ Pa 3 18

(parse. 40-h

OP/4/BR — Pa
(paras. #5-R

fie 19

Basic Concepts‘

A Charter of fundamental ri hoe
shall be entrenched in the oneti-
tution.

It shall be beyond the legislative
competence or the central or
provincial governments to alter or
ebrogete the rights entrenched in
the charter.

The entrenchment of the charter
ahall be subject only to e decla-
ration of national emergency.

The Constitution shall provide for
the implementation of the entrenched
rights in accordance with the
legislative responsibilities of both
levels of government.

The charter shall provide speci-
fically for the recognition of
golitical. legal, egalitarian and
inguiatic rights. 4

The charter shall specify the
political rights to be recognized.

The charter shall 5 ecify the legal
rights to he recogn zed.

The charter shall specify the
egalitarian rights to be recognized.

The charter shall specify the
linguistic rights to be
recognized

Economic and eocial righte shall
be declared as objectives to be
realized. .

233_

U?/15

V Page .

47
as

“9

50

51

52

53

IV consmrrurxon or was CENTRAL GOVERNMENT
a) Head of State and Chief Executive

Reference to Records
of proceedings
OP/4/SR – Page 57

(parse. 75-77)

GP/4/SR – P 58
(para. 78) age

Basic Concepts

The Constitution should define
the title, manner of selection
and powers of the Chief Executive
and distinguish between his
duties as Head of State and as
Chief Executive.

The Queen is the seed of State.

The Governor General shall exercise
glltthe functions of the Head of
a e.

The Governor General shall be
appointed by the Head of State
on the recommendation or the
Prime Minister or Canada.

The Governor General shall be
empowered to appoint Deputies and
to exercise the powers he acquires
under statutes on the advice of
Council or a minister.

The Governor General shall~be
empowered to summon and dissolve
Parliament.

b) Executive of the Central Government

GP/4/SR — Page 38
(psrs- 79)

OP/¢/SR — Page 38
(para. 80)

CP/4/SR – Page 38
(para. 81)

CP/4/SR « P 39
(para. 62) age

CP/4/SR — Page 59
(para. 85)

The executive authority shall
reside in the Head of State.

The Constitution shall define the
position and responsibilities of

the different parts of the executive
of the central government.

There shall he a Privy Council
for Canada appointed by the
Governor General.

Only those Privy Councillors who
are ministers shall participate in
submitting advice or Council.

The Executive of the central
government shall derive its authcu
rity from the ability of the
government of the day to command
a majority of members in the

House or Commons.

cabinet shall consist of the Prime

.Ministsr and those ministers he

designates as members of the
Cabinet. ‘

Provision shall be made for the
appointment by the Governor General
of a member of the Privy Council
and the House of Commons who
commands the support of the House
of Commons as Prime Minister and
Head of Government and for the
conditions under which he shall!
hold office.

23%,

WP/15
Page

55

56

57

58

59

60

61

62

65

65

66

67

Reference to Records

or proceedings

GP/4/SR — Page 39
(para. 84)

c) Parliament
GP/4/BR – Page 40
(Fare. 85)

GP/4/SR — Page #0
(para. 86)

GP/4/SR – Page 40
(para. 87)

CP/4/SR – Page #0
(para. 88)

OP/4/SR — Page 40
(para. 89)

CP/4/SR – Page 41
(para. 9 )

d) House of Commons

GP/4/SR — Page 41
(Para. 91)

CF/4/SR — Page 41
(para. 92)

GP/4/SR ~ Page 41
(para. 95)

e) Sgnate

GP/5/SR ~ Page 21
(para. 26)

GP/5/SR – Page 21
(para. 26)

‘life of a Parliament and the

:13 5’.

Basic Concepts

Provision shall be made for the
selection and appointment of
ministers who shall be members of
the Privy Council and of the House
of Commons or Senate and for the
conditions under which they shall
hold office and exercise authority.

The Parliament of Canada shall
consist of the Heed of State
(Chief Executive) and two Houses.

The‘Constitution shall describe
the nature of the membership of
both Houses.

The Constitution shall include
provisions concerning the maximum

frequency of its sessions.

The Head of State shall signify
assent to bills passed by the
Houses of Parliament.

Parliament shall have the autho-
rity to amend its own Constitution,
subject to certain conditions.

The Senate and the House of Commons
may establish Joint or ad hoc
committees at their discretio .

The House of Commons shall be
elected by universal suffrage with
representation on the basis of
population, maintaining a propor~
tionate provincial distribution

of members.

The Constitution shall describe
some House procedures.

Honey bills shall originate in the
House of Commons.

Appropriation or public funds
shall only be approved on the
recommendation of the Governor
General.

The Senate shall continue to be a
second chamber through which all
legislation must be enacted.

The Constitution shall specify
certain powers of the Senate of
Canada.

The Senate shall be constituted so as
to reflect the opinions and interests
of both the central and provincial
governments.

VP/15

3%’

Reference to Records

of proceedings

GP/5/SR—Page521—28
(paras. 27-59)

Basic Concepts

Provision shall be made for the
selection and appointment of
Senators and the conditions under
which they shall hold office and
exercise authority.

VP/15
Page

69
70

71

72

V CONSTITUTIONS OF PROVINCIAL GOVERNMENTS

Reference to Records
of proceedings

GP/5/SR — Page )2
(para. #7)

GP/5/SR – Pages52—33
para. 48)

Basic Concepts

Each province shall have an
internal Constitution.

The Constitutions of the province
shall not contain provisions which
are repugnant to provisions in

the Canadian Constitution.

Each province will decide on the
title, method of selection and
powers of its Chief Executive.

The executive authority of a
provincial government shall reside
in a Governor appointed in a
manner to be described in the
provincial Consticution.

Each province shall have the option
of instituting for itself either

a unicamaral or bicameral
legislature.

23’9.

VI THE CONSTITUTION OF THE JUDICIAL SYSTEM

UP/15 Reference to Records
Page of proceedings

73 GP/5/SR – Page 54

(para. 50)

7t

75

76

77

76

Basic Concepts

The Constitution shall establish
a general court of appeal for-
Canada to be known as the Supreme
Court of Canada.

The Jurisdiction or the Supreme
court shall be limited to questions
of law or mixed questions of law
and facts, to stated oases
forwarded by provincial courts or
appeal. to references from the
federal government, and to disputes
between the federal government and
any province or disputes between
provinces in which cases the Court
shall have original Jurisdiction.

The central la islaturs shall
establish a to oral court of appeal
with final Jurisdiction over the
interpretation of legislation under
federal authority.

The Supreme Court shall continue
to be bound by precident.

The Supreme Court shall be autho-
rized to depart from a previous
decision when it appears right to
do so.

The Constitution shall establish
a constitutional Court.

The Supreme Court of Canada shall
have three Chambers, namely a
constitutional Law Chamber, a
Common Law Chamber and a Civil Law
Chamber.

The Constitution shall prescribe
that the Supreme Court of Canada
enjoys final appellate Jurisdiction
in any proceeding where a consti-
tutional qusstion is an issue.

The Constitution shall describe the
nature of membership and procedure
for nominations of Judges of the
Supreme Court.

Provisions shall be made regarding
quorum and related procedures in
the Supreme Court.

Provinces shall establish courts
for the application of both
federal and provincial law, and
appoint the judges to these courts.

The central government shall have
the authority to establish courts
to administer its laws.

The Constitution shall guarantee the
independence of the judiciary.

The Constitution shall provide for the
appointment of judges to Superior,
District and County Courts.

23?.

Vll

DISTRIBUTION OF POWERS

WP/15 Reference to Records

Page

’79
BO
81

82
85

84

85

86

87

88

89

90

Proceedings

GP/5/SR — Page 10
(para. 9h)

GP/5/SR — Page 9
para. 90)

CP/5/SR ~ Fa es 9-JO
(paras. 9e—£

GP/5/SR — Page 9
(para. 9d)

CY/5/SR — Page 10
(para. 9h)

CP/5/SR – Page 10
(para. 91)

OP/5/SH ~ Page 8
(para. 9a)

A)

b)

c)

d)

e)

1‘)

Basis for distribution of gowers
Basic Concepts

A realistic distribution or powers for

the future should be based on:

1) an analysis of the existing distribu-
tion of powers as determined by the
B.N.A. Act and decisions of the
Courts;

2) an analysis of present and future
functions of government in Canada
and the level at which these might
best be performed.

The federal and provincial governments
must have sufficient sources of revenue
to discharge their constitutional
responsibilities.

The Constitution should provide for all
sources of revenue to be open to both
levels of government, except for customs
revenue (federal) and propert tax and
succession duties (provincialg.

Powers of central government

The Constitution shall assign certain
powers exclusively to the central
government.

Provincial Powers

The Constitution shall assign certain
powers exclusively to the central
government.

Shared powers

The Constitution shall assign certain
powers concurrently to both levels of
government.

Limits on powers of both levels of
government

The Constitution should provide that no
government is empowered to tax another
government or any of its agents, except
by mutual agreement.

The Constitution should restrict the
central government’s spending power to
matters under its jurisdiction, without
excluding unconditional grants and with
some flexibility to permit measures
designed to remove regional economic
disparities.

The Constitution shall provide that the
provinces own the public domain including
the continental shelf.

The Constitution shell limit property
ownership by the central government to
that needed for federal use.

Residual Qowers

The Constitution should assign to the
provinces all powers not expressly
granted to the central novnvnmvnt.

139

W?/15 Reference to Records
Page Proceedings

90

91 09/5/53 — page 9
para. 9b

92 ’ OP/5/an – Page 9
(para. 9b

93

5)

n)

1)

Basic Concegts

The Congtitution should assign to the
central government all powers not
expressly granted to the provinces.

Interpretation and administration
of _owere

There should be some flexibility
within the Constitution to permit
adjustments to diverse situations and
a variety of relationships between
governments. V

Delegation of powers

The Constitution should provide for
delegation of powers from one level
or governmenp to another.

Deolaratogz gowers

A federal system may require special
powers in the central government to

declare certain works to be for the

general advantage of Canada.

VIII INTERGOVERNMENTAL RELATIONS

WP/15 Reference to Records
Page of prooeedinra Basic Concepts

94 The Constitution should provide the
basis for institutions to promote
conaultation and cooperation
between governments.

95 The Constitution should provide for:

– an annual conference or heads of
government

~ a permanent intergovernmental
secretariat

– a standing intergovernmental
commission on taxation.

96 Intergovernmental machinery should
be provided to coordinate the develop-
ment and execution of programs aimed
at reducing regional disparities.

97 with due regard to the diviein
or powers, general economic policies
should be developed through
systematic consultation between
governments.

98 The Constitution should provide for
the making of formal binding agree-
ments between governments.

99 Any dispute between the federal
government and one or more provinces,
or between provinces. may be
referred to a Court.

£14 I,

IX EXTERNAL RELATIONS

u?/15 ‘ Reference to Reccrda
Page of groceedinga

100

101

102

105
104

Basic Concepts

The Constitution shall recognize
the primacy of the central govern-
ment for the direction and conduct
of the external relations or
Canada.

In the conduct of external relations
the central government must pro-
perly reflect the bilingual
character of Canada.

In the conduct of external relations
the central government must pay

due regard to the general and
specific interests of the provinces,
consulting them prior to ratifi-
cation of any international
agreements on eubjecte within their

/legislative jurisdiction.

The central government shall have

the exclusive authority to:

~ enter into binding legal obli-
gations with other foreign states
or international persons,

— exchange diplomatic and consular
representatives with foreign
governments, V

— send delegations to intergovern»
mental conference,

~ accredit representatives to
international organizations,

within the framework of Canadian

foreign policy, the provincial

governments may

— with the cooperation of the central
government, negotiate with
foreign governments on matters
within their legislative juris~
diction,

— negotiate and sign their own
agreements with foreign govern-
ments on matters within their
legislative jurisdiction,

— with the agreement of the central
government establish contacts
and liaison with foreign govern-
ments on matters of provincial
interest, including the establish-
ment of offices abroad,

— enter into understandings. infor~
mnl administrative arrangements
and other similar commitments
with foreign Jurisdictions,

— enter into private contracts with
such jurisdictions,

— and, with the express authority
of the central government, other
binding commitments

— attend international coxwerences
in which Canada is not a partim
cipant,

~ assume a more substantial role in
external aid.

42H? .

X AYDENDMENT PROCEDURE

up/15 Reference to Records

Page Proceedings Basic Concepts

105 The Constitution ahall provide for
the means for its amendment within
Canada.

106 Any revision of the existing

Constitution shall provide for the
removal of obsolete provisions.

XI GENERAL PROVISIONS

NP/15 Reference to Records
Page of Pgoggedinge

107

108

109

Basic Concegte

The Constitution shall define

the boundaries or Canada, its
provinces and territories and the
procedures for altering such
boundaries.

The Constitution shall provide for
a general census every 10 years.

The Constitution shall provide for
the declaration of the cities of
Bull and Ottawa as the seat or the
central government.

HP/15
Page

110

XII TRANSITIONAL PROVISIONS

Reference to Records

of Proceedings

Basic Concepts

During the period of constitutional
review eome transitional S
constitutional provisions may be
required.

‘VP/15
Page

111

XIII ADOPTION OF THE CONSTITUTION

Reference to Records

of Proceedings Basic Congegts

A method for the adoption of the
new Constitution will have ‘to be
developed.

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