Federal-Provincial Conference of First Ministers on the Constitution, Federal Draft Proposals Discussed by First Ministers (5-6 February 1979)


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Date: 1979-02-05
By: Secretariat of the Conference
Citation: Federal-Provincial Conference of First Ministers on the Constitution, Federal Draft Proposals Discussed by First Ministers, Doc 800-010/037 (Ottawa: 5-6 February 1979).
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DOCUMENT: 800-010/037

FEDERAL-PROVINCIAL CONFERENCE
OF FIRST MINISTERS ON THE CONSTITUTION

Federal Draft Proposals Discussed by First Ministers

1. Communications
2. Offshore Resources
3. Charter of Rights

Ottawa
February 5-6, 1979

COMMUNICATIONS

Federal Draft Proposal Discussed by First Ministers

Cable
Distribution

1. In each province the legislature may make
laws in relation to cable distribution within the
province, including the reception and redistribution
of broadcast signals; Parliament may also make laws
in relation thereto for each of the provinces.

Relationships
between laws
of the
provinces
and laws of
Parliament

2. Any law enacted by the legislature of a
province pursuant to section 1 shall prevail to the
extent of the inconsistency over any law of Parliament
enacted thereunder except in relation to Canadian
content, Canadian broadcast programs and services, and
technical standards, in which case any law of Parliament
shall prevail to the extent of the inconsistency.

Consulta-
tions

3. The Government of Canada shall consult the
government of the province concerned before Parliament
makes a law in relation to cable distribution within
that province pursuant to section 1.

Telecommuni-
cations
undertakings

4. Telecommunications undertakings coming under
the jurisdiction of Parliament as well as those coming
under the jurisdiction of the legislature of a province
and engaging in activities coming under section 1 other
than as carriers shall be subject, in so far as such
activities are concerned, to the laws enacted under
section 1.
Powers
continued
5. Except where otherwise expressly provided in
sections 1 to 4, nothing therein shall derogate from the
legislative powers that Parliament and the legislatures
of the provinces had immediately before the coming into
force of those sections.

OFFSHORE RESOURCES

Federal Draft Proposal Discussed by First Ministers

“On the question of Offshore Resources, the
revised Constitution should provide concurrent
legislative authority for Parliament and the
legislatures of coastal provinces concerning the
management of the offshore resources, lying adjacent
to those provinces, which are within national
jurisdiction, but which do not fall within the
Provinces or Territories of Canada. This provision
would be made without prejudice to the ownership
of the resources in question.

Federal powers concerning navigation,
international affairs, national defence and so on,
would continue to apply as appropriate to the
offshore areas. Provision would also be made,
however, for the application of various provin-
cial powers, for example, concerning labour rela-
tions, to the offshore areas.

In describing the concurrent powers,
provision should be made for federal paramountcy
concerning international trade, environmental
control, and other matters to be determined.
Provincial paramountcy should apply to various
aspects of associated onshore developments, and
to other matters to be determined.

On the important question of the rate of
exploration and of production, or more generally the
pace of development, there should be federal paramountcy.
However, in cases where the provincial government-affected
disagrees with federal proposals dealing with the rate
of production, on the basis of anticipated adverse socio-
economic effects, or adverse effects on the future avai1a—
bility of resources to meet the province’s needs, such
federal paramountcy would only be exercised in matters
of great concern to Canada.

As a necessary complement to such provi—
sions in a revised Constitution, suitable adminis-
trative arrangements should be worked out and
confirmed in due course by statute, to assure
continuing federal and provincial consultation
and co—operation in the management and development
of the offshore resources.”

Federal Draft Proposal Discussed by First Ministers
Comparative Summary of Bill C-60
Provisions and New Proposals

BILL C-60 PROVISIONS

A. Fundamental Freedoms

1. Freedom of thought, conscience
and religion.

2. Freedom of opinion and expression.

3. Freedom of peaceful assembly and
of association.

4. Freedom of press and other media.

Limitation Clause

Those reasonably justifiable in a
free and democratic society in
interests of

— public safety or health
— peace and security of public
— rights and freedoms of others.

Override Clause

None

B. Democratic Rights

1. Principles of universal suffrage
and free and democratic elections.
2. Right of citizen to vote and to
qualify for election in House of
Commons or legislature without
discrimination based on race,
national or ethnic origin, language,
color, religion or sex.
3. Limits on maximum duration of House
of Commons and legislatures-except
in case of national emergency.
Requirement for annual sessions of
Parliament and legislatures.

Limitation Clause

On first two only: same as under
fundamental freedoms.
Override Clause
None

C. Legal Rights

1. Right against unreasonable searches
and seizures.
2. Right against arbitrary detention,
imprisonment or exile.
3. Rights on arrest or detention to be
told promptly of reasons therefor,
retain and instruct counsel
omptly and to remedy by habeas
corpus.
4. Right not to testify in any
ceedings if denied counsel,
otection against self-
crimination or other constitu-
tional safeguards.
5. Right to assistance of inter-
preter in any proceedings.
6. Right to fair hearing when rights
of obligation being determined.
7. Right of accused to presumption
of innocence.
8. Right of accused to fair and
public hearing before impartial
tribunal.
9. Right of accused not to be
denied bail unfairly.
10. Protection against ex post
facto offences and punishment.
11. Protection against cruel and
unusual punishment or treatment.

Limitation Clause

Same as under fundamental
freedoms.

Override Clause

None

D. Non-Discrimination Rights

1. Right to equality before the law
and to equal protection of the
law.

2. Enjoyment of fundamental freedoms,
legal rights and mobility rights with-
out discrimination based on race,
tional or ethnic origin, language,
lor, religion, age or sex.

Limitation Clause

as under fundamental
freedoms.

Override Clause

None

E. Mobility Rights

1. Right of person not to be arbitrarily
exiled from Canada.

2. Right of citizens to take up
residence, acquire and hold property
and pursue a livelihood, subject to
laws of general application, but
without discrimination based on
province of residence or previous
idence.

Limitation Clause

Same as under fundamental freedoms.

Override Clause

None

F. Property Rights

1. Right to use and enjoyment of
property by individual, and right
not to be deprived thereof except
in accordance with law.

2. Right to acquire and hold property
without discrimination based upon
province of residnnce.

Limitation Clause

Same as under fundamental
freedoms.

Override Clause

None

G. Language Rights

Power of Parliament and legis-
tures to declare English and
French official languages of
Canada for all purposes declared.
Power of Parliament and legis-
latures to provide for more
extensive rights to use English
and French.

Right to use English or French
in all debates and other
proceedings of Parliament or any
legislature.

Statutes, records and journals of
Parliament and legislatures of
Ontario, Quebec and New Brunswick
to be printed and published in
English and French, both versions
equally authoritative. In other
provinces, obligation optional
with legislatures. In Ontario,
date for French publication to be
ed by legislature.

Right to use French or English
in all court proceedings at federal
level and in Ontario, Quebec and
New Brunswick.

Right of witness to be heard in
French or English (without
prejudice) in any court in Canada
in any criminal proceeding or in
any serious provincial penal
proceeding.

Right of a member of public to
communicate in English or French
with head or central office of any
federal government institution,
and with any principal offices
thereof in areas designated by
Parliament on basis of minority
language numbers.

Right of member of public to
communicate in English or French
with principal offices of any
provincial government institution
in areas designated by provincial
legislature on basis of minority
language numbers.

Preservation of legal or customary
rights or privileges re use of
languages other than English or
French.

Right of minority language
English or French) parents who
Canadian citizens to choose
minority language education for
their children in areas of province
where it is reasonably determined
by provincial legislature that
numbers of children in any area
warrant the provision of necessary
facilities out of public funds.

Preservation of rights in the future
of identifiable English or French
language communities to use of
French or English.

Preservation of existing consti-
tutional rights, privileges or
obligations respecting the
French and English languages.

Repeal of section 133 of BNA Act
and section 23 of Manitoba Act
upon entrenchment of Charter.

Limitation Clause

Same as under fundamental
freedoms.

Override Clause

None

H. Undeclared Rights

Protection of any undeclared
rights existing at time of
adoption of Charter, including
those of native peoples under
Royal Proclamation of 1763.

I. ENFORCEMENT PROVISIONS ENFORCETENT PROVISIONS

1. Charter provisions to render
inoperative any law which is in
conflict with its provisions.

2. Where no other remedy exists,
courts empowered to grant
declaratory, injunctive or
similar relief where anyone
seeks to have Charter rights
defined or enforced.

NEW DRAFT PROPOSALS

A. Fundamental Freedoms

1. Freedom of conscience and religion
2. Freedom of thought, opinion and
expression, including freedom
of press and other media
4. Freedom of peaceful assembly and
of association.

Limitation Clause

Those prescribed by law us are
reasonably justifiable in a free
and democratic society in the
interests of

– national security
– public safety, order, health
or morals
– any rights and freedoms of
others.

Override Clause
None

B. Democratic Rights

1. Consistent with principles of
universal suffrage and free and
democratic elections, right of
citizen to vote and qualify for
election in House of Commons or
legislature without unreasonable
distinction or limitation.
2. Limit on maximum duration of
House of Commons and legislatures
except in case of national
emergency.
3. Requirement for annual sittings
of Parliament and legislatures.

Limitation Clause
None, except as built into first
two.

Override Clause
None

C. Legal Rights

Right to life, liberty and security
of person and right not to be
deprived thereof except by due
process of law, including

1. Right against unreasonable searches
and seizures.
2. Right against unreasonable inter-
ference with privacy.
3. Right against detention or imprison-
ment except in accordance with
prescribed laws and procedures.
4. Rights on arrest or detention to
be told promptly of reasons
therefor, to retain and consult
counsel promptly and to remedy
by habeas corpus.
5. Rights as a person charged with
a criminal or penal offence
-to be informed of specific
charge,
-to be tried in reasonable time,
-tp presumption of innocence,
-to a fair and public hearing
before impartial tribunal,
-not to be denied bail unfairly,
-to protection against ex post
facto offences and punishment.
6. Protection against double jeopardy.
7. Benefit of a lesser penalty where
law is changed.
8. Protection against cruel or
inhuman treatment or punishment.
9. Right when compelled to give
evidence to counsel, to protection
against self-crimination and to
other constitutional safeguards.
10. Right to assistance of interpreter
in any proceedings.
11. Right to fair hearing when rights
and obligations being determined.

Limitation Clause

Legal rights, except for right to
life, right to counsel, protection
against ex post facto laws,
protection against self-crimination
protection against cruel or
inhuman punishment or treatment
and right to interpreter, may be
overriden in times of serious
public emergency. Limits on public
proceedings may be placed in normal
circumstances.

Override Clause

Provinces could opt in with
general override power.

D. Non-Discrimination Rights

1. Right to equality before the law
and to equal protection of the
law without distinction or
limitations other than one which
is provided by law and fair and
reasonable having regard to object
of law.

2. Exemption of laws which are in
furtherance of affirmative action
programs even though they may
discriminate, as long as discrimi-
nation is justifiable.

Limitation Clause

None, except as built in to
section.

Override Clause

Provinces could opt in with
general override power.

E. Mobility Rights

1. Right of citizen to enter,
remain in and leave Canada.

2. Right of citizen or “landed
immigrant” to change province of
residence or to pursue livelihood
in another province, subject to
laws of general application, but
without discrimination based
only on province of present
previous residence.

Limitation Clause

Those prescribed by law as are
reasonably justifiable in a free
and democratic society in the
interests of

– national security

— public safety, order, health
or morals

– overriding economic cr social
considerations.

Override Clause

None

F. Property Rights

1. Right to use and enjoyment of
property by individuals or groups
and right not to be deprived
thereof except in accordance with
law that is fair and just.

Limitation Clause

1. Laws which control or restrict
use of property in public interest
or for collection of taxes and
penalties.

2. Laws which are justifiable in a
free and democratic society in th
interests of

– national security
– public safety, order, health or
morals.
Override Clause

None

G. Language Rights

1. English and French declared
official languages of Canada with
status and protection set forth
in Charter.

2. Power of Parliament and legislaturcg
to extend the status, protection
or use of English and French,

3.Right to use English or French
in debates and other proceedings
of Parliament; same right in
debates of legislatures.

4. Statutes, records and journals of
Parliament and legislatures of
Ontario, Quebec and New Brunswick
to be printed and published in
English and French, both versions
equally authoritative. In other
provinces, obligation optional
with legislatures with test of
“to extent practicable.” In
Ontario, date for French publication
to be fixed by legislature.

5. Right to use French or English in
all court proceedings at federal
level and in Ontario, Quebec and
New Brunswick. But with respect
to three provinces, right to be
provided as soon as practicable
and in any event not later than
five years after adoption of
Charter. For other provinces, a
similar right to greatest extent
possible as the legislatures may
prescribe.

6. Right of witness to be heard in
French or English, through an
interpreter where necessary
(without prejudice), in any court
in Canada in a case involving an
offence under federal law or a
serious offence under provincial
penal law.

7. Right of a member of public to
communicate in English or French
with head or central office of any
federal government institution,
and with any principal offices
thereof in areas designated by
Parliament on basis of minority
language numbers.

8. Right of member of public to com-
municate in English or French with
the head, central or principal
offices of any provincial government
institution, to the extent and in
the areas as defined by the
provincial legislature on the basis
of practicability and necessity
for such services.

9. Preservation of legal or customary
rights or privileges re use of
languages other than English or
French.

10.Right of minority language
(English or French) parents who
are Canadian citizens to choose
minority language education for
their children in areas of provjngc
where it is reasonably determined
by provincial legislature that
numbers of children in any area
warrant the provision of necessary
facilities out of public funds

11.Preservation of rights in the future
of identifiable English or French
language communities to use of
French or English.

12.Preservation of existing consti-
tutional rights, privileges or
obligations respecting the
French and English languages.

13.Repeal of section 133 of BNA Act
and section 23 of Manitoba Act
upon entrenchment of Charter.

Limitation Clause

None

Override Clause

None

H. Undeclared Rights

1. Protection of any undeclared right
existing at any time, including
those that may pertain to native
peoples.

I. ENFORCEMENT PROVISIONS

1. Charter provisions to render
inoperative any law or adminis-
trative act which is in conflict
with its provisions.

2. Where no other effective recourse
or remedy exists, courts empoweru
to grant such relief or remedy
for a violation of Charter rights
as may be deemed appropriate and
just in the circumstances.

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