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Date: 1980-08-20
By: Unknown
Citation: Memorandum for the Prime Minister, Positions on the twelve Items for the CCMC and FMC (20 August 1980).
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CONFIDENTIAL

August 20, 1980

MEMORANDUM FOR THE PRIME MINISTER

Positions on the twelve Items for the CCMC and FMC

Attached are summaries of positions on each of the twelve negotiating items that we would recommend Mr. Chretien place on the table at the CCMC next week and of positions that would be reserved for use at your discretion at the FMC from September 8 to 12. In accordance with the strategy memoranda that you have considered, some negotiating room has been retained to provide you with flexibility in the final stages of the negotiating process.

The items are listed in the order that we have recommended for their consideration at the FMC so that, in reviewing the flexibility that is left for you, you can do so in the sequence in which opportunities for use of that flexibility will be presented to you in the course of the FMC.

This memorandum has been discussed with Mr. Chretien and he agrees with it. Also, in accordance with the decision of Cabinet, both the CCMC and FMC positions have been discussed with, and have the support of the appropriate line departments.

1. Charter of Rights

CCMC

Based on your reaction to Mr. Tasse’s memorandum of August 5 to you on this subject, at the CCMC, Mr. Chretien could table a revised draft charter that would reflect the following reactions to provincial concerns :

(a) Legal rights: elimination of provision of a fair hearing for determination of rights and obligations; tightening of remedy provisions to preclude courts from adopting American jurisprudence excluding illegally obtained evidence in all cases;

(b) Property rights: elimination of this category of rights;

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(c) Mobility rights: possible qualification of these rights to permit some limits to be placed on non-residents in the interest of ameliorating regional disparities (this will depend on developments respecting the “Economic Union” proposal);

(d) Provincial language rights: an offer to Ontario and Manitoba or a delay of up to five years to have their statutes in both languages and of up to ten years to allow for the use of both languages in the courts. In addition, the draft would drop the provision guaranteeing to witnesses in criminal and penal proceedings the right to give evidence in either language.

FMC

At the FMC, some of the following adjustments in the federal position might be contemplated:

(a) Limitation clauses: possible indication that consideration might be given to use of more specific limitation clauses for certain categories of rights, if provinces are strongly opposed to the federal proposal that will be made at CCMC to delete them (this would be contingent upon federal officials being able to draft suitable new limitation clauses);

(b) Legal rights: possible containment of all legal rights to the criminal and penal domains only (a reassessment of federal position on specific legal rights would be made after the CCMC);

(c) Non-discrimination rights: possible withdrawal of this category of rights in face of continued provincial opposition;

(d) Provincial language rights: possible further concessions to Ontario in implementation of language rights in courts, e.g., possible implementation on a regional basis where numbers warrant (this assumes Ontario will no accept the delay period offered at the CCMC);

(e) Minority language education rights: possible offer to Quebec of a delay period of up to ten years to give effect to minority language education rights (referred to in Mr. Tasse’s August 13 memorandum to you):

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(f) Override Clause in Charter: while discussion of including an override (notwithstanding clause, particularly, for legal rights, would take place during the CCMC meetings, any decision to accept the proposal would be deferred until the FMC. (Although we recommend that, as you indicated in your section to one earlier memorandum, the inclusion of an override clause should be resisted at the FMC.)

2. Equalization

CCMC and FMC

This item has not really progressed in the last three years, essentially because of B.C.’s stance. Mr. Chretien has demonstrated flexibility over the summer by accepting the changes to the February 1978 Best Efforts Draft put forward by Quebec. We would therefore recommend that at both the CCMC and the FMC a “listening stance” be adopted leaving it to B.C. to make a move.

3. Powers over the Economy

CCMC

At the CCMC, we would recommend that:

(a) Chretien should remain firmly committed to the principle of an enforceable provision on the economic union involving judicial review of a limited range of provincial derogations:

(b) to demonstrate flexibility, Mr. Chretien have available for tabling a new draft that would specifically recognize a pr0vince ‘s continuing authority to deal with intra-provincial regional disparities and that would also contain a provision, as currently proposed in the Charter, indicating that the revised section 121 confers no new legislative authority on Parliament or the legislatures;

(c) Chretien should remain committed to the principle of the section 91 amendments, (the trade and commerce power clarification and extension) but, again to demonstrate flexibility, revised drafts would be available for tabling.

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FMC

At the FMC, you could, if necessary, compromise in two areas:

(a) You could accept a political rather than a judicial mechanism for review of certain provincial and federal derogations from the principle of an economic union, a concession of significant importance to all provinces but mainly Saskatchewan (a possible way of doing th.is .is outlined below in the section on the Senate); and

(b) if necessary, you could agree to some modifications to the section 91 amendments or even to postpone consideration of some or all of them to a later round of negotiations.

4. Resource Ownership and Interprovincial Trade

CCMC

For the CCMC, we would recommend that:

(a) in addition to accepting a provincial power to levy indirect taxes on resources (which was confirmed by Mr. Chretien in July), Mr. Chretien could agree to accept provincial concurrency in interprovincial trade with unrestricted federal paramountcy;

(b) on provincial concurrency in international trade, Mr. Chretien could confirm privately to Saskatchewan the government’s later intention to accept this, but for the meeting as a whole, we should carry on a full exploration of the issue . An indication could, however, be given towards the end of the meeting, if reasonable progress had been made on “Powers over the Economy” of a willingness to “recommend that the Prime Minister accept some adjustment on this at the First Ministers Conference”.

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FMC

For the FMC, in addition to a provincial power to levy indirect taxes on resources and provincial concurrency in interprovincial trade with federal paramountcy, we would recommend that:

(a) you might agree to accept provincial concurrency in international trade with unlimited federal paramountcy;

(b) on a limitation of federal use of the declaratory power, you should not agree to eliminate its use against resources, but you might agree to consider some limitations involving possibly a time limit on declarations (say, a declaration would apply for only five years) and a specification of purposes for which a declaration is to be used. At present a declaration applies to all aspects of a work or undertaking. You could consider limiting a declaration to, say, production while leaving other aspects, like minimum wage, workmen’s compensation, to the province. On the general use of declaratory power, you could reiterate that you are prepared to see its use ratified by a reformed second chamber.

5. The Senate

The following proposals are consistent with recommendations contained in a separate paper entitled: “Federal Position on Second Chamber Revision” which is being delivered to you with this memorandum.

CCMC

At the CCMC meeting, we would recommend that Mr. Chretien should state that, because there is insufficient time to work out all the details of a revised second chamber in time for the FMC, but in order to encourage resolution of other issues to be included in the initial package of constitutional revision to

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be approved at the September FMC the federal government would support a “partial solution” of the second chamber issue. Of the two major alternatives already identified by the CCMC, the federal government would support the alternative involving two distinct institutions rather than a single hybrid second chamber, and would offer to proceed immediately with the inclusion in the initial constitutional revision this autumn of a constitutional provision establishing an intergovernmental council (not a part of Parliament) whose function would be to ratify federal actions in a specified list of matters affecting provincial jurisdiction. At the same time, a commitment could be given to proceed with implementation of the second institution, the renewed federal second legislative chamber, during the second phase of constitutional negotiations.

Mr. Chretien should make clear at the CCMC August meeting, that the implementation of the “partial solution” would be conditional on a satisfactory resolution of the “economic issues” at the same time and a resolution of the federal actions which the intergovernmental council would have the jurisdiction to ratify.

Mr. Chretien might suggest tat the CCMC August meeting give attention to arriving at a precise agreement on the powers, composition and procedures of an intergovernmental council with a view to arriving at a best efforts draft. In the resulting discussions the federal government should insist upon a more precise definition of each of the matters suggested at the CCMC July meetings for ratification by the proposed council, especially in relation to the federal spending power in areas of provincial jurisdiction. On composition, equal representation for each province might be advocated because of the intergovernmental character of the body. A voting pattern which enables the federal government plus three of the provinces to carry a vote (c.f. Australian Loan Council vote proportions) might be advocated as an initial federal position.

FMC

At the FMC, you might wish to suggest that the “partial solution” described above be developed further to provide the political mechanism to approve both federal and provincial derogations from the proposed s.121.          If you were to do so, you could further suggest tat the intergovernmental council be composed of the First Ministers (or their delegates) with the Prime Minister

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(or his delegate) as Chairman accompanied by one minister. For approving such derogations the provincial delegations would each have one vote and the federal government four votes plus a casting vote (i.e., the federal government plus three provinces would carry the vote). This could subsequently be reduced to two votes plus a casting vote (i.e. , the federal government plus four provinces would carry the vote) . In the cases of ratification of federal action in areas of provincial jurisdiction approval by a majority of the provinces representing a majority of the population of Canada could be considered.

If agreement on a “partial solution” cannot be reached at the FMC meetings, a further fall-back position for you, if necessary, would be to offer an “interim solution” to last for a period of five years during which it would be hoped that proposals for a renewed second chamber would be worked out. Under the “interim solution”, the initial constitutional text would stipulate that federal actions in a specified list of matters affecting provincial jurisdiction would have to be approved in the FMC by a majority of the Premiers representing a majority of the population of Canada and that derogations from the common market provisions (s.121) would require a majority vote in the FMC in which each province would have one vote and the federal government two votes plus a casting vote (i.e., the federal government plus four provinces would carry the vote).

These requirements (i.e., the provincial ratification procedures and the possibility of dero­gations from s.121) would lapse after five years in order to put pressure on governments to reach agreement on a more permanent arrangement.

Officials very much prefer the “interim solution” to the “partial solution” and negotiations at the CCMC will be handled so as to give you a natural opening to introduce this option at the FMC if you so desire.

6. Fisheries

CCMC

For the CCMC, we would recommend that:

(a) for the marine fisheries, Mr. Chretien should introduce the specific proposal now being completed by the Ministry of Fisheries and Oceans to cover a constitutional provision for mandatory consultation and their accompanying proposal for an administrative arrangement;

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(b) Chretien could agree to transfer to the provinces jurisdiction over inland fisheries, subject to protection of the rights of the native peoples and of the federal capacity to act against pollution in interprovincial and international waters;

(c) Chretien could agree to transfer to the provinces of jurisdiction over “fish farming” (aquaculture) and over immobile coastal species such as oysters;

(d) Chretien should reject the idea of shared jurisdiction over the marine fisheries or over “diadromous” species such as salmon.

The CCMC discussions may point the way towards further administrative or even jurisdictional concessions which might be considered by First Ministers.

FMC

For the FMC, and the matter of marine fisheries, while there has been no suitable opportunity to discuss the possibility with the Ministry, a federal proposal for joint boards using federal regulations but operating in a “neutral” manner might be of interest, if those boards were given the task of issuing fishing licences and perhaps allocating federally-determined provincial quotas to provincial fleets. Beyond that, it is possible to contemplate, if you so desired, a narrowly defined provincial concurrent jurisdiction, with major aspects of the field remaining under exclusive federal jurisdiction. Officials expect, however, that it will not be necessary (and perhaps not even desirable) to make further concessions in this area because the coastal provinces themselves are not in agreement on a common position.

7. Offshore Resources

CCMC

At the CCMC, Mr. Chretien could take the following position:

(a) on revenue sharing,

– the provinces would receive 100% of the normal provincial resource revenues until they become “have” provinces;

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– beyond that point, their share would be reduced progressively, perhaps 75-25, 50-50, 25-75;

– governments would adopt a principle according to which the level of offshore taxation would be comparable to the level of onshore resource taxation;

(b) day-to-day administration would become a provincial

(c) on pace of development, the provinces would control the pace of development until the point where the national interest is affected (on the basis of a yet-to-be-defined procedure);

(d) bilateral joint bodies would be responsible for the over-all management of the offshore and would be composed of three provincial and three federal representatives, and a neutral chairman;

(e) on legislation,

– “normal” federal and provincial legislation would be administered by the joint bodies;

– federal legislation implementing the national energy policy would apply;

(f) on constitutional confirmation, in one way or another, the offshore resource arrangement would be mentioned in the amended Constitution.

FMC

For the FMC, you might wish to undertake that, except when the national interest is at stake, deadlocks in the joint bodies would be broken by the relevant provincial minister, rather than by the neutral chairman, and that the joint bodies could be given what would normally be federal responsibilities.

You could also undertake that provincial offshore resource legislation could be implemented by the joint bodies, subject again to a “national interest” test.

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8. Communications

Since the CCMC meetings in Vancouver, we have bee 7ngaged in an extensive round of meetings with officials of the Department of Communications in an effort to develop a negotiating position that would protect legitimate federal interest areas, recognize the interrelationship of the four elements under negotiation in the communications area, namely, spectrum management, telecommunications carriers, cable and broadcasting, and at the same time demonstrate some flexibility and movement toward a position that would be credible with the provinces. To date we have been unsuccessful . A meeting is scheduled for today, in the Laurentians with the Minister of Communications and his Deputy, but we are not optimistic that this meeting will result in position acceptable to them that, in our view, will meet the test of being credible with the -provinces.

In the light of the foregoing, we may have to recommend a meeting with you and with Mr. Chretien and Mr. Fox on this subject.            Short of such a meeting, we may not be able to develop a position for either the CCMC or the FMC that will demonstrate significant progress over the position taken by Mr. Chretien in Montreal in July. You will recall from earlier reports on this subject that the Montreal position was unanimously rejected by the provinces.

9. Family Law

CCMC

A substantial majority of provinces have agreed to the two federal initiatives to change the February, 1979 proposal:

(a) a constitutional provision requiring the enforcement of maintenance and custody orders across Canada; and

(b) retaining federal jurisdiction over the recognition of nullity orders and the Jurisdictional basis on which they are granted.

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Both these changes represent limitations on the powers that otherwise would have been given to the provinces under the February 1979 proposal. One of them would also take away existing provincial authority over orders in non-divorce situations. Because of this consensus and because the proposed enforcement provision should go a long way to improve the existing enforcement situation in Canada, it is recommended that further changes be resisted at the CCMC.

FMC

Manitoba, supported by Prince Edward Island, continues to oppose the proposed transfer of divorce jurisdiction to the provinces, and calls for greater federal powers over enforcement. If Manitoba is reluctant to accept the constitutional enforcement provision, you might wish to give some indication that the federal government would be willing to explore with the provinces the concept of a joint federal-provincial agency to facilitate enforcement.

10. Supreme Court

CCMC

The federal position adopted on July 7 was to support the best efforts draft of February, 1979 – but to agree to consider any reasonable alternatives which gained substantial support.

An alternative which has gained substantial support is:

(a) the entrenchment in the Constitution of an eleven-member Court;

(b) five of the judges being trained in civil law

(c) a requirement that the Chief Justice be appointed alternately from among the civil law judges (i.e., Quebec-trained) and the other judges;

(d) a requirement that the federal Minister of Justice consult with the Attorneys General of all provinces before making an appointment

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and that he obtain the consent of the Attorney General of the province from which the appointee comes as to the person to be appointed;

(e) a requirement that if the Minister of Justice and the provincial Attorney Genera1 cannot agree the Chief Justice would join with them to break the deadlock;

(f) a provision that provincial governments as well as the federal government have the right to make references directly to the Supreme Courts

(g) a requirement that the Minister of Justice consult with the provincial Attorneys General before Parliament enacts any law to change the operation or appeal jurisdiction of the Supreme Court; and

(h) a provision that would enable Parliament to set the allowances, salaries and pensions of judges by means other than through an Act of Parliament, for example by order in council.

The federal position has been to support this emerging consensus position.

It has been the federal position to resist any transfer to the provinces of the federal appointment power of section 96 judges (i.e., the judges of the superior, district and county courts of the provinces), and to resist any limitation on Parliament’s power, pursuant to section 101 of the B.N.A. Act, to create courts for the administration of federal laws. It has also been the federal position that the Constitution should enable the superior, district or county court judges of one province to be appointed on an ad hoc basis in another province to facilitate the hearing of trials in either official language. This last concept is generally supported by the provinces.

We are not recommending any variation at the CCMC from the federal positions described above.

FMC

We recommend that you continue to support the emerging consensus on the Supreme Court of Canada. Discussions on sections 96 and 101 of the B.N.A. Act are at a preliminary stage and considerably more work would have to be done before agreement could be reached. It could be proposed as a subject for future constitutional discussions.

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11. Patriation and Amending Formula

CCMC

Depending on instructions received from you in response to Mr. Tasse’s memorandum to you of August l on this subject, Mr. Chretien could express a preference for a particular formula and attempt to get general support for it.

There would be no indication that:

(a) the federal government is considering the possibility of an interim amending formula (for one year) to allow a final chance at agreement on the permanent formula;

(b) the federal government might make a proposal to require a constitutional conference at the request of at least four provinces;

(c) there might be further flexibility in regard to legislative delegation, e.g., making a delegation available to all provinces and keeping the offer open for, say, six months.

All these elements of flexibility would be retained for the FMC.

FMC

If necessary, you could indicate as gestures of flexibility that:

(a) you are prepared to have a measure introduced in Parliament which would provide for an interim formula for a period of one year to allow a final chance at agreement, failing which a permanent formula (to be chosen by the federal government) would become effective. (It might, of course, be preferable not to indicate at the FMC that there could be this measure of flexibility and to reserve that for the measure being introduced in Parliament later in the month.)

(b) I consideration would be given to requiring that a constitutional conference be held if at least four provinces requested one and

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(c) any offer of legislative delegation made by the federal government to a single province or group of provinces would be held open for any other province to take advantage of for six month after which time the offer would no longer be available.

12. Principles

CCMC

A Preamble for a (new) Constitution has been drafted but we would recommend that it not be presented to the Provinces at the CCMC. Rather, we would recommend that they be told what the federal government believes should appear in a Preamble and list of Fundamental Aims of the Constitution. This information, which would be as specific as possible, would probably be provided in writing, as a narrative in point form. We would recommend that it be discussed with provincial officials initially and then considered by Ministers. Mr. Chretien could indicate at the end of the CCMC that he would take provincial comments and remarks into account; he might go on to say that we would prepare a draft preamble for consideration at the FMC.

FMC

Assuming that the Principles/Preamble item is considered on September 11 (as now envisaged) the Provinces might be provided with a copy of the draft Preamble on September 9 or 10 so that they could think about it before the Preamble was formally presented at the conference by you on September 11. (Alternatively, no draft preamble would be distributed at the FMC by you and you could reserve your final position, saying that provincial views would be carefully considered.)

Michael Kirby