Document Information

Date: 1971-06-14
By: Secretariat of the Conference
Citation: Constitutional Conference, Process of Constitutional Review (Victoria: 14-16 June 1971).
Other formats: Click here to view the original document (PDF).

June 1971

CONSTITUTIONAL CONFERENCE

PROCESS OF

CONSTITUTIONAL REVIEW

Constitutional Review

This document has been prepared by the Secretar
of the Constitutional Conference, to provide an outline of
the process of constitutional review from February 1968 to
June 1971.

First Meeting of the Constitutional Conference

On the 5th of February 1968 the Prime Minister of
Canada and provincial First Ministers met in Ottawa and
announced their intention of undertaking a review of the
Constitution.

In order to carry out this task they agreed that

– a continuing Constitutional Conference be set up
composed of the Prime Ministers and Premiers or
their delegates to supervise the process of
constitutional review

– a Continuing Committee of Officials be set up to
assist the Constitutional Conference to carry out
its task

– a Secretariat responsible to all eleven governments
be formed to serve both the Constitutional Conference
and the Continuing Committee of Officials

– the Continuing Committee of Officials be allowed to
set up sub-committees on specific questions with the
approbation of the Prime Ministers.

The First Ministers also decided that the following
seven questions be examined: official languages, fundamental
rights, distribution of powers, reform of the institutions
linked with federalism including the Senate and the Supreme
Court of Canada, regional disparities, amending procedure and
provisional arrangements, and finally the mechanisms of federal-
provincial relations.

At the same meeting, a consensus was reached on the
subject of language rights. Recognizing the proposal made by
the Royal Commission on Bilingualism and Biculturalism that as
a matter of equity French-speaking Canadians outside of Quebec
should have the same rights as English-speaking Canadians in
Quebec, the First Ministers agreed on the desirability of pro-
ceeding by governmental action as speedily as possible to
achieve this objective. The Conference also agreed that a
special committee should be established to examine the Report
of the Royal Commission, the views expressed by the Conference
on the Report and other matters relating to language rights
and their effective provision in practice. In addition, the
Committee was directed to consult on methods of implementation
including the nature of possible federal assistance and on the
form and method of constitutional amendment.

The year following the first meeting of the Constitu-
tional Conference was devoted to organization activities and a
preliminary study of the several subjects involved in a compre-
hensive review of the Constitution. In addition, the
Committee was directed to consult on methods of implementation
including the nature of possible federal assistance and on the
form and method of constitutional amendment.

The year following the first meeting of the Constitu-
tional Conference was devoted to organization activities and a
preliminary study of the several subjects involved in a compre-
hensive review of the Constitution. In addition, the
Continuing Committee decided to try an approach which would
facilitate a systematic examination of all aspects of the
Constitution. The federal and provincial delegations sub-
mitted “propositions” which were not to be taken as firm or
final positions of the governments concerned, byt were intended
to give an indication of the thinking within the several govern-
ments concerning the views, needs, and aspirations, of Canadians
across the country which should be taken into account during
the review. Thrhough the examination of these submissions, the
Committee was able to delineate the scope of the exercise in
detail, and identigy many of the issues which would have to be
resolved. The results of this work were submitted to the First
Ministers in preparation for the second meeting of the
Constitutional Conference which was held in February 1969.

Second Meeting of the Constitutional Conference – February 1969

In the light of the first year’s exploratory work,
the Constitutional Conference, at its second meeting,
reaffirmed its intent to complete a comprehensive review of
the Constitution of Canada, to assess its adequacy for present
and future requirements, and to determine the extent to which
constitutional change was desirable either through amendment
of the existing Constitution or through promulgation of an
entirely new Constitution. The Conference then proceeded to
establish a set of priorities for the next stage of work and
to decide upon certain organizational steps. It established
four ministerial committees charged respectively with the
study of official languages, fundamental rights, the judiciary
and the Senate. In addition, the Continuing Committee of
Officials was directed to give immediate attention to an
examination of the distribution of powers, in particular the
taxing and spending powers and the constitutional aspects
of regional disparities.

First Working Session – June 1969

Following four months of work on the priority
subjects which have been designated, the First Ministers met
again, in private, at a working session on June 11th and
12th, 1969. They discussed the subjects of the taxing
powers, the spending power, and regional disparities.

The First Ministers also received reports on the
progress made by the committee of Ministers and directed that
their work be continued. The Continuing Committee was asked
to examine particular aspects of the subjects of the taxing
powers, the spending power, and regional disparities. This
work proceeded between June and December of 1969.

Third Meeting of the Constitutional Conference – December 1969

At a public session in December, 1969, the First
Ministers considered the distribution of powers in relation
to the fields of income security and social services to try
to determine what would be most appropriate to meet the needs
of Canadians in the future.

The Conference also had a further discussion of the
spending power, in which two aspects of the subject were
examined: the question of how best to determine when there
was a sufficient consensus favouring the introduction of new
shared-cost programmes in fields of exclusive provincial
jurisdiction, and the method which might be adopted for
avoiding a fiscal penalty on the people of the provinces
which decided not to participate in the programmes. On the
subject of regional disparities, the Conference agreed that
the Continuing Committee of Officials should give further
study to the implications of placing specific clauses in the
Constitution.

Between December 1969 and September 1970, the date
of the second working session of the Constitutional Conference,
there was, amongst other developments, significant pratical
progress in the area of official languages. The Committee of
Ministers reached agreement on a federal-provincial programme
of cooperation with respect to bilingualism in the field of
education. This included a formula for federal financial
assistance which could encourage progress in this field
without infringing upon provincial jurisdiction in matters
of education. With this agreement, it was considered that
substantial progress has been made toward the realization of
the objectives pronounced by the First Ministers in the
“Consensus on Language Rights” at the first meeting of the
Constitutional Conference in February 1968.

During this period the Continuing Committee of
Officials, with the assistance of technical sub-committees,
completed examination of the questions of sales taxes and
death duties. It also arrived at the conclusion of its
study of regional disparities.

Second Working Session – September 1970

At its second private working session, the Conference
first examined the constitutional review process in the light
of the experience and progress over the first two and one-half
years. The First Ministers concluded that the task undertaken
in 1968 should proceed in accordance with the process which
had been established but with certain new priorities for
examination. In particular, they agreed to give priority to
the study of amending procedures and the mechanisms for inter-
governmental relations.

The Conference then began its examination of two
new subjects under the distribution of powers: environmental
management and the capital market and financial institutions.

The Conference also completed the main phase of its
examination of the constitutional aspects of one of its major
subject areas – regional disparities. This subject was one
of the seven original areas of enquiry designated by the First
Ministers at the founding meeting of the Constitutional
Conference in February 1968. Finally the First Ministers
agreed that they would meet in a working session in February
and would plan to meet again in June 1971 at which time they
would accept the invitation of the Prime Minister of British
Columbia to meet in Victoria, in recognition of the Centennial
of the province’s entry into Confederation.

In the period between September 1970 and February
1971, the Continuing Committee proceeded with its examination
of aspects of the distribution of powers and also began the
study of the new priority subjects – the amending formula and
mechanisms for federal-provincial relations. At the same
time, there was a series of bilateral meetings between the
federal government and individual provinces to prepare for
the next meeting of the Conference in February.

Third Working Session – February 1971

At its working session in February 1971, the
Conference agreed that the Government of Canada and the
provinces should proceed as quickly as possible to patriate
the Constitution, with an appropriate amending formula
applicable entirely within Canada, and with such other changes
as could be agreed upon quickly. It was felt that this
approach would permit a substantial degree of progress to be
made quickly, while work on other aspects of the constitutional
revision would continue. The First Ministers also came to a
preliminary agreement on the elements which might be incor-
porated into the Constitution at the time of an early patriation,
including the amending formula, certain basic political rights
and language rights, and provisions concerning the Supreme
Court, regional disparities and mechanisms of federal-provincial
relations. This preliminary agreement was subject to further
analysis by the governments of juridical and other implications.

It was recognized that the next steps would involve
further bilateral discussions on how to implement the preliminary
agreement, and that the matter would then come back to the
First Ministers at their next meeting in June.

The Conference also had an initial examination on
the subject of social policy, and it was agreed that federal-
provincial discussions on this subject should proceed, and
that a report on this item should be submitted to the
Conference in June. There were also discussions on the
subjects of environmental management-pollution, Canadian
interprovincial marketing, and unemployment.

The work of the governments in the intervening
period between February and June 1971 has focussed on the
preparation of draft constitutional texts for the implementa-
tion of the preliminary agreement, and on the subject of
social policy. In this context a special meeting of
Ministers was held in Ottawa on May 31st and June 1st.

Other Related Constitutional Review Activities

The above outline has been related to the several
meetings of the Constitutional Conference itself. In order
to have a complete picture of the constitutional review
process, it is important to recognize that, in addition to
the work of the First Ministers, there has been a substantial
amount of supporting activity. There have been (to June 1971)
9 meetings of Ministerial Committees, 14 meetings of the
Continuing Committee, and 15 meetings of Sub-Committees of
Officials. A chart is attached showing the various meetings
of the Constitutional Conference and its committees and the
subjects with which they were concerned.

Of course, in addition to the formal committee
meetings, there have been many bilateral consultations and
informal discussions, as well as the preparatory work within
governments and in the Secretariat, all of which are a part
of the constitutional review.

CONSTITUTIONAL REVIEW CHART OF MEETINGS
AND SUBJECTS DISCUSSED

*See PDF for table