Document Information

Date: 1961-02-04
By: E.A. Driedger
Citation: Letter from E.A. Driedger to Deputy Attorneys of all the Provinces (4 February 1961).
Other formats: Click here to view the original document (PDF).

Letter sent to Deputy Attorneys General

EAD/LM

Ottawa, February 4, 1961.

187574

Dear Mr.

With further reference to my letter of
January 20th, I have now been able to complete a
redraft of the Constitutional Amendment Act, two
copies of which are enclosed.

Subject to the coments below, in pre-
paring this draft I have tried to reflect as
accurately as I could the consensus of the
conference in so far as that was ascertainable
from available documents and records and my
recollection of the proceedings.

The Minister of Justice wishes it to be
understood that the enclosed document is a draft
only, and that it must be regarded as being subject
to correction or amendment, either as to substance
or form, in order to express, or express more
clearly, the understandings arrived at during the
discussions. The Minister also suggests that it
might be desirable ultimately to convene a meeting
of officials in order to discuss points of detail
with regard to the form or draftmanship of the
proposed statute.

You will observe that in the attached draft
I have provided that the provisions concerning
delegation will form part of the British North
America Act of 1867. This, you will recall, was
the suggestion made by Quebec. It was not too clear
to me whether the proposal was that the delegation
clause would replace the present section 94 or
should be an addition to it. On reflection, it
appeared to me to be more appropriate that the
delegation clause should be an additional provision
in the British North America Act; there being already
a section 94A it seemed to me that, technically,
the simplest way of inserting the delegation clause
would be to re-number the present section 94 as
number 93A and insert the delegation clause as
section 94.

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You will also recall that during the
conference the Chairman expressed a reservation
whether his colleagues would be willing to accept
the principle of delegation on the basis that
delegation could take place to or from single
provinces, and in the previous draft it had been
provided that a delegation to the Parliament of
Canada could take place only if a majority of the
provinces had consented. After discussion of this
provision with his colleagues it was still felt that
it would not be desirable to have a law made by
Parliament under the Constitution applicable only in
one province, but it was agreed that the consent of
a number of provinces less than a majoirty would
be acceptable. Four was the suggested figure.
Thus, some measures of applicability beyond one
province would be essential, but the requirement of
four is felt to be reasonable as permitting arrange-
ments, for instance, on a regional basis. It will
be remembered that Alberta, for instance, had
expressed serious apprehensions as to whether a law
enacted for one province might nevertheless have
unforeseen effect in another. The draft accordingly
provides for the consent of at least four provinces
to a delegation from the provinces to Parliament,
and also from Parliament to the provinces.

On the other hand, the Minister and his
colleagues were prepared to accept the objections
that had been voiced to the provision in the previous
draft that if a province withdrew its consent the
delegated law would cease to have effect if the
number of consenting provinces were thereby reduced
below the number required for the enactment of the
delegated law. You will note, therefore, that this
provision has been deleted in the enclosed draft.
This deletion, it is felt, should go far towards
meeting the desire of some of the provinces for
flexibility, in that no one province will be able,
by a unilateral withdrawal, to vitiate an arrangement
in other provinces.

In the previous draft, the entrenching
provision referred to “rights or privileges
granted or secured to the legislatures or the
governments of the provinces.” You will note that
I have altered this to “the assets or property of
the provinces”, which, in my own view at least,
expresses more clearly what is intended.

The arrangement arrived at at the conslusion
of the conference was, I believe, that the provinces
would endeavour to let the Chairman have their
comments on this draft within two weeks of its
receipt. It was also agreed that any province which
felt that, in addition to the consideration of the

3…

proposed amending formula, consideration should
be given to amending section 91(1) at this stage,
should have the opportunity to submit their
views accordingly.

I would therefore request that the views
of your province be forwarded in accordance with
the above understanding.

“Yours truly,

(E.A. Driedger)

Deputy Attorney General
of Canada.

January 30, 1961.

An Act to provide for the amendment
in Canada of the Constitution of Canada.

WHEREAS the Senate and House of Commons
of Canada in Parliament assembled have submitted
Addresses to Her Majesty praying that Her Majesty
may graciousl be pleased to cause a measure to be
laid before t e Parliament of the United Kingdom
for the enactment of the provisions hereinafter
set forth:

Be it therefore enacted by the Queen’s
most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and
by the authority of the same, as follows:

Part I

1. Subject to the provisions of this Part, the
Parliament of Canada may make laws repealing, amending
or re-enacting any of the provisions of the Constitu-
tion of Canada.

2. No law made under the authority of this Part
affecting any of the provisions of this Act or section
51A of the British North America Act, 1867, or
affecting any of the provisions of the Constitution
of Canada relating to

(a) the powers of the legislatures of the
provinces to make laws,

(b) the assets or property of the provinces,

(c) the use of the English or French language,
shall come into force unless it is concurred in by
the legislatures of all the provinces.

3. (1) No law made under the authority of this
Part affecting any of the provisions of the Constitu-
tion of Canada that refer to one or more, but not
all, of the provinces, shall come into force unless
it is concurred in by the legislature of every
province to which the provision refers.

(2) Section 2 of this Act does not extend to
any of the provisions of the Constitution of Canada
referred to in subsection (1) of this section.

4. (1) No law made under the authority of this
Act affecting any of the provisions of the Consti-
tution of Canada relating to education in any
province other than Newfoundland shall come into
force unless it is ratified by the legislatures
of all provinces other than Newfoundland.

-2-

(2) No law made under the authorit of this
Act affecting any of the provisions of the Consti-
tution of Canada relating to education in the
province of Newfoundland shall come into force
unless it is ratified by the legislature of the
province of Newfoundland.

(3) Sections 2 and 3 of this Act do not extend
to any of the grovisions of the Constitution of
Canada referre to in subsections 1 and (2) of
this section.

5. No law made under the authority of this Part
affecting any of the provisions of the Constitution
of Canada not coming within section 2, 3 or 4 of
this Act shall come into force unless it is concurred
in by the legislatures of two-thirds of the provinces
representing at least fifty per cent of the population
of Canada according to the most recent decennial
census.

6. Nothing in this Part shall be construed as
affecting any power of the Parliament of Canada or
of the legislatures of the provinces, existing
immediately before this Act came into force, to
make laws in relation to any matter.

7. No Act of the Parliament of the United Kingdom
passed after the coming into force of this Act shall
extend or be deemed to extend to Canada or to any
province or territory thereof.

8. In this Part, the expression “Constitution of
Canada” includes the following enactments and any
order rule or regulation thereunder, namely,

(a) the British North America Acts, 1867 to 1960;
(b) the Rupert’s Land Act, 1868;
(c) the Manitoba Act, 1870;
(d) the Parliament of Canada Act, 1875;
(e) the Canadian Speaker (Appointment of Deputy)
Act, 1895;
(f) the Alberta Act;
(g) the Saskatchewan Act;
(h) the Statute of Westminster, 1931, in so far
as it is part of the law of Canada; and
(i) this Act.

Part II

9. The British North America Act, 1867, is amended
by re-numbering section 94 thereof as section 93A,
and by adding thereto, immediately after the said
section 93A, the following section:

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“94A. (1) Notwithstanding anything in this
Act

(a) the Parliament of Canada may make
laws in relation to any matters coming
within the classes of subjects enumerated
in heads (6), (7), (10), (13) and (16)
of section 92 of this Act, but no statute
enacted under the authority of this para-
graph shall have effect in any province
unless the legislature of that province
has consented to the operation of that
statute in that province; and

(b) the legislature of a province may make
laws in the province in relation to any
matter that is otherwise within the
exclusive legislative jurisdiction of
Parliament, but no statute enacted under
the authority of this paragraph shall
have effect unless the Parliament of
Canada has consented to the enactment
thereof by the legislature of that
province.

(2) The Parliament of Canada shall not
have authority to enact a statute under para-
graph (a) of subsection (1) of this section
unless the legislatures of at least four of the
provinces have given consent thereto under that
paragraph; and a statute enacted by the legis-
lature of a province under paragraph (b) of
subsection (1) of this section shall not have
effect in that province unless it has been
enacted by the legislatures of at least four
provinces.

(3) The Parliament of Canada or the
legislature of a province may, at any time,
revoke any consent given by it under this
section, and

(a) if the Parliament of Canada revokes
any consent given by it under this
section, any laws made by the legis-
lature of a province to which the
consent relates shall thereupon cease
to have effect, and

(b) if the legislature of a province
revokes any consent given by it under
this section, any law made by the
Parliament of Canada to which such
consent relates shall thereupon cease
to have effect in that province.”

ONTARIO
THE ATTORNEY GENERAL

Toronto 2, Ontario,
February 15, 1961.

Dear Mr. Fulton:-

Re: Constitutional Conference
Your file 187574

I have received through Mr. Driedger a
redraft of the Constitutional Amendment Act
following the Conference on January 12th and 13th.

I hope to be in a position to let you
have my coments on this draft as a whole very
shortly.

However, in the meantime, I desire to
put forward my views at this time on the desirability
of amending Section 91 (l) of the B.N.A. Act.

In my opinion, Section 91 (1) is itself
an amending formula and therefore it is quite proper
that it should be considered along with the provisions
of the redraft of the Constitutional Amendment Act.

This Section gives to the Parliament
of Canada power to amend the Constitution of Canada,
notwithstanding anything in the B.N.A. Act, in
relation to everything except the five items
expressly excluded, namely –

(a) matters exclusively assigned to the
provincial Legislatures, or

(b) rights or privileges granted or secured
to the Legislature or Government of a
province, or

(c) to any class of persons with respect
to schools, or

(d) as regards the use of the English or
French language, or

(e) as regards the requirement that there
shall be a Session of Parliament at
least once a year and that no House of
Commons shall continue for more than
five years; with a proviso for continuing
the House of Commons in the event of war,
etc.

2…

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This 1949 amendment (which is now Section
91 (1) was passed by the former Government without
consulting the provinces and over the vigorous protest
of a number of them.

In the 1950 Conference it was described
by the Right Honourable Mr. St. Laurent as authorizing
the Federal Parliament to amend the Constitution only
in matters of purely Federal concern. It is quite
apparent that it goes far beyond this.

The powers under Section 91 (1) cannot
be compared with the power of the provincial Legislatures
to amend the Constitution of the province under Section
92 (1): See Part V of the B.N.A. Act headed “Provincial
Constitutions”.

There is no objection to preserving the
powers of Parliament as they existed immediately before
the 1949 amendment. Nor is there any objection to
Parliament having power to amend the Constitution in
matters of purely Federal concern.

It is submitted that a section along the
lines of that submitted in my letter to you dated
November 21st, 1960, would do that and would preserve
the rights of the province under the original Act for
representation in the Senate and House of Commons.

For convenience I repeat it:

“The Parliament of Canada may from time to
time amend, alter or repeal any of the provisions
of the Constitution of Canada in relation to the
Executive Government of Canada and the procedure,
constitution and privileges of the House of Commons
and the Senate except with respect to the represent-
ation of the Provinces in the House of Commons and
the Senate and the requirements that there shall be
a Session of the Parliament of Canada at least once
each yearand that no House of Commons shall continue
for’more than five years from the day of the return
of the Writs for choosing the House; provided,
however, that a House of Commons may in time of
real or apprehended war, invasion or insurrection
be continued by the Parliament of Canada if such
continuation is not opposed by the votes of more
than one-third of the Members of such House.”

3…

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It would be helpful in our consideration
of the redraft of the Constitutional Amendment Act if
we had some indication of the attitude of the Federal
Government in relation to amending Section 91 (1).

Yours very sincerely,

“A.K. Roberts”

The Honourable,
E. Davie Fulton, Q.C.,
Minister of Justice,
OTTAWA, Ontario.

cc-C.R. Magone, Esq., Q.C.

OTTAWA 4, February 21, 1961.

The Honourable A. Kelso Roberts, Q.C.,
Attorney General of Ontario,
Department of the Attorney General,
TORONTO 2, Ontario.

Dear Mr. Roberts:

Thank you very much for your letter of
February 15th wherein you set forth your views on
the desirability of amending Head (1) of section 91
of the British North America Act.

Yours is the first letter that I have
received on this subject, and I am sure you will not
mind if I delay comenting on your views until I have
heard from the other provinces that indicated they
would also express views and I have had an opportunity
of discussing these suggestions with my colleagues.

Yours sincerely,

“E.D. FULTON”

DEPUTY ATTORNEY GENERAL
ALBERTA

EDMONTON, Alberta,
HJW/HS February 17th, 1961.

Dear Mr. Driedger:

Re – Constitutional Amendments
Your File 187574

I am in receipt of your letter of ,
February 4th enclosing a redraft of the Constitutional
Amendment Act.

We have considered the redraft of
the delegation clause and while we are disappointed
that the redraft provides that the consent of only
four provinces will be necessary to enact a delegation
from a province or provinces to Parliament and also
from Parliament to a province or provinces, in view
of the fact that we were the only province proposing
this provision, we will somewhat reluctantly concur
with the amendment recommended by the Minister of
Justice.

You will recall that the Alberta
delegation expressed the view at the last conference that
the machinery for amending section 91 of the British
North America Act should be made abundantly clear in
the amending Act. We still feel that there may be
some doubt on that point under the Act as presently
drafted.

I think it will be agreed that any
amendment to section 91 of the British North America
Act would necessarily affect the provisions of section
92 of the Act and therefore it might be said to come
under section 2 of the draft Act and require the
concurrence of all the provinces and if section 2
stood alone that might be so but what is the effect
of section 6 of the Amending Act?

You will recall that at the 1950
conference most of the Provincial Premiers took
exception to the 1949 amendment of the British North
America Act on the ground that section 1 as amended
gave the Federal Parliament power to make amendments
to section 91 without reference to the provinces.
The l9h9 amendment was objected to by Mr. Manning,
Premier of Alberta (see pages 42 and 43 of the
Proceedings, 1950). Mr. St. Laurent, then Prime

2…

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Minister, though not admitting that the amendment of
1949 No. 2, went as far as being an encroachment of
provincial rights, nevertheless was prepared to
consider an amendmnnt or even a repeal of those
provisions if the object could be accomplished in
som other way (see pages 68 and 69 of the Proceedings,
1950).

If section 91 does give to the
Federal Parliament the powers suggested by the
provinces in 1950, then does not section 6 of the
redraft preserve those powers when it says:

“6. Nothing in this Part shall be construed as
affecting any power of the Parliament of
Canada or of the legislatures of the provinces,
existing immediately before this Act came into
force, to make laws in relation to any matter.”.

In any event we suggest that it should
be established beyond any doubt that no amendment to
section 91 could be effected without the concurrence
of all of the provinces. Perhaps this could be
accomplished by adding the words “including section
91 thereof” after the words “any of the provisions of
the Constitution of Canada” where they occur in lines
4 and 5 of section 2. No doubt as a draftsman you
might accomplish this object in a more artistic manner.
We would ask that you give more consideration to this
point which we consider to be necessary for the purposes
of clarification and certainty.

We have no objection to the other
provisions of the redraft.

I may say that the Attorney General
concurs in the views expressed in this letter.

Yours truly,

“H.J. Wilson”
Deputy Attorney General

E.A. Driedger, Esq., Q.C.,
Deputy Attorney General of Canada,
Department of Justice,
OTTAWA, Canada.

Ottawa, February 22, 1961.

187574

Re: Constitutional Amendments

Dear Mr. Wilson:

Thank you for your letter of February
17th commenting on the revised Constitutional
Amendment Act. I have noted the views you have
expressed and these will be considered along with
the comments that may be received from the other
provinces.

Yours truly,

“E.A. Driedger”

Deputy Attorney General.

H.J. Wilson, Esq., Q.C.,
Deputy Attorney General of Alberta,
Parliament Buildings,
Edmonton, Alberta.

OFFICE OF ATTORNEY GENERAL

REGINA, February 22, 1961.

The Honourable E.D. Fulton,
Q.C., P.C., M.P.,
Minister of Justice,
Department of Justice,
Ottawa, Ontario.

Dear Sir:

Re: Constitutional Conference.

We have been studying the draft Constitutional
Amendment Act which was enclosed with Mr. Driedger’s
letter of February 4.

I am not in a position to advise you at this
time as to Saskatchewan’s position with respect to the
said draft as this whole subject is coming before the
Legislature at the end of this week.

When the legislative debate on this matter
has been concluded, I will advise you as to our views
on the draft Act and with respect to section 91,
headed.

Yours truly,

“R.A. Walker”
Attorney General.

PROVINCE OF MANITOBA

LEGISLATIVE COUNSEL
237 Legislative Building
Winnipeg

23rd February, 1961.

E.A. Driedger, Esq., Q.C.,
Deputy Minister of Justice,
Ottawa, Ontario.

re: Constitutional Conference
Your File 187574

Dear Mr. Driedger:

I have your letter of February 4th, with
enclosures. I have spoken to the Attorney-General
about this and he has been anxious to discuss the
matter and reply to your letter. However, due to
the fact the Legislative Session has begun, it has
been quite impossible to find time to deal with the
matter at present. I fear, therefore, that, much as
we regret it, it will not be possible to reply to
your letter for a few weeks.- The Attorney-General
asked me to write you and advise you as to this.

I can assure you that the matter will be
dealt with at the earliest possible moment.

Yours faithfully,

“G.S. Rutherford”

Legislative Counsel.

T E L E G R A M

VICTORIA BC 27 ll20A

E A DRIEDGER
DEPUTY MINISTER OF JUSTICE DEPT OF JUSTICE OTTAWA
PRESENT STAGE OF LEGISLATIVE SITTINGS PREVENTS
DETAILED EXAMINATION OF PROPOSALS RE BNA ACT STOP
EXPECT TO FORWARD REPLY BY END OF NEXT MONTH

GILBERT D KENNEDY DEPUTY ATTORNEY GENERAL