Document Information

Date: 1980-12-12
By: Minister of Justice, Department of Justice, Government of Canada
Citation: Minister of Justice, Memorandum to Ministers from Minister of Justice re: Possible Amendments to Proposed Resolution on Constitution of Canada (12 December 1980).
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Note: This document is discussed in an article that has been recently submitted to a peer-review journal.

SECRET

December 12, 1980

MEMORANDUM TO MINISTERS FROM MINISTER OF JUSTICE

RE:      POSSIBLE AMENDMENTS TO PROPOSED

            RESOLUTION ON CONSTITUTION OF CANADA

I           PURPOSE

This memorandum addresses a number of issues respecting possible amendments to the Proposed Resolution on the Constitution of Canada that were raised by Ministers at the Cabinet meeting of December 11, 1980 when the Memorandum to Ministers dated November 25, 1980 was considered.

It also raises several additional issues that have emerged during the Joint Committee hearings since November 25 on which the direction of Ministers is sought in order that other possible amendments to the Proposer! Resolution may be finalized.

II          ISSUES POR DETERMINATION

A.         CHARTER OF RIGHTS AND FREEDOMS

1. Section 1 – Limits on Rights and Freedoms

Two questions have been raised by Ministers. First, is it necessary to include a “limitation clause” in the Charter? Second, if it is, what should be the wording of such a clause?

(a)        Need for Limitation Clause

^{[Canadian Bar Association]}

Views before the Joint Committee on this issue have been very divided. Many have argued that no limitation clause is necessary, since the courts will (as they have in the United States) imply reasonable limits on rights even in the absence of an express clause. Others have contended that a limitation clause is desirable as a signal to the public, the courts and the legislators as to the general parameters within which rights may be exercised and limited. In this latter group have been persons such as Walter Tarnopolsky and Gordon Fairweather who, while opposing the cluse contained in the Resolution would support a limitation clause as formulated in the Memorandum to Ministers of November 25. ^[?]

Dropping the clause would no doubt 1cssen the debate about the meaning or whatever limitation wording is used, and would appease those who sec any explicit limit as an essential denial of the

[Page 2]

^{[Argument that certain rights can never be limited]}

guaranteed rights. Equally, it can be argued that, on the basis of past history, Canadian courts will be fully capable of construing the rights as subject to reasonable limits.

On the other hand, there are certain risks inherent in omitting reference to any general limitation clause. First, since certain of the rights contain built-in limits (eg. the right to vote, extension of parliamentary terms, mobility rights, minority language education rights) it is possible that the courts would view other rights as without limits. ^[?]

Second, certain brief s to the Joint Committee have argued for even more stringent limits as, for example, specifying that freedom of expression is subject to laws on hate propaganda or that freedom of religion does not undermine the right to have denominational schools.

In addition, it must be remembered that the provinces feel very strongly about inclusion of a limitation clause, and will be opposed even to the one that is now being considered since it docs not refer to limits generally accepted under a parliamentary system of government.

In sum, it is difficult to make a compel ling argument either for the retention or the deletion of a 1imitation clause. On balance, however, it is felt that a clause such as that now proposed would be a desirable guide to include in the Charter, and would satisfy most critics of the wording contained in the Proposed Resolution.

(b)        Wording of Limitation Clause

Ministers have raised several quest ions about the proposed new wording of the clause.

First, it has been suggested that the clause might better read: “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” rather than “subject only to such reasonable limits prescribed by law as are demonstrably justifiable in a free and democratic society”.

An analysis of this change indicates that it would not alter the substance of the test involved, namely that the limits imposed must be both reason­ able and demonstrated, by those asserting them, to be justified in the circumstances.

Second, it has been suggested that, drawing from the French text, the expression “manifestly justifiable” might be stronger than “demonstrably justifiable”. On consideration, it would appear that demonstrably is likely a stronger term since it implies the necessity of showing that the limit is justified whereas manifestly leaves the issue to judicial inference.

[Page 3]

Finally, it has been suggested that the clause might refer to “a pluralistic free and democratic society”, thus recognizing that Canadian society is a mosaic of many cultures and values.

While this is no doubt a correct perception of our society, injection of the concept of “p1uralism” into the key interpretive provision of the Charter might tend to limit rather than broaden the scope of certain rights, such as freedom of speech and minority language rights. Equally, it could raise questions as to whether limits on rights in a free and democratic society are different from those in one which is also “pluralistic”.

This having been said, if the addition of “pluralistic” were to be viewed as assuring cultural minorities that the Charter docs not ignore them, it could probably be included without doing serious harm to the section, but the addition is not recommended.

Recommendation: That a limitation clause be retained in section 1 of the Charter with the working as proposed in the November 25 Memorandum to Ministers.

2. Section 2 – Freedom of Peaceful Assembly and of Association

The Canadian Bar Association submission argues that in not separating peaceful assembly and association as two distinct freedoms, they could be interpreted as being freedoms to he enjoyed only in combination.

This is rather speculative since the pre sent wording makes it quite clear that they arc not conjunctive rights although they may occur in certain cases in conjunction.

However, if there is any real doubt, the two could be separated to read “(c) freedom of peaceful assembly; and (d) freedom of association”.

Recommendation: That the government not propose any amendment, but be prepared to accept it if such a proposal is moved in Committee.

3. Section 10 – Right to Retain and Instruct Counsel

The Canadian Bar Association and some other witnesses have urged that the right of an arrested or detained person to retain and instruct counsel without delay be amended to include a right to be informed of this right.

It is considered unnecessary to get into this sort of detail in the Charter. However, if pressed it is an amendment which probably should be accepted.

Recommendation: That the government not propose any amendment, but be prepared to accept it if such a proposal is moved in Committee.

[Page 4]

4. Section 11 – Right of Accused Not to Testify

The Canadian Bar Association and some other witnesses have submitted that the right of an accused at t? e compelled to testify against himself in criminal proceedings should be included in the Charter.

^[✓] This is along recognized right against self- crimination which should be made explicit in the Charter.

Recommendation: That section 11 be amended to include the right not to be compelled to testify against oneself.

(See Annex for proposed amendment.)

5. Section 13 – Protection Against Self -Crimination

As presently drafted, section l offers protection against self-crimination only to witnesses who are compelled to testify; it does not extend such protection to an accused or other witness who testifies voluntarily. ^[✓]

Thus, section 13 should he amended to bring it in line with the rules of evidence which protect any witness giving evidence on his own behalf from having incriminating evidence so given used against him in subsequent proceedings.

Recommendation: That section 11 be amended to extend the protection against self-crimination to any witness testifying.

(See Annex 2 for proposed amendment. )

6. Section 15 – Non- Discrimination Rights (Equality Rights)

Cabinet has agreed that certain changes, proposed in the Memorandum to Ministers, be made in the wording of the “equality rights” provisions, although it has decided that “age” should not be dropped as a prohibited ground of non-discrimination, and questions the desirability of referring to grounds with respect to “affirmative action” programs.

Since the Memorandum to Ministers was prepared on November 25, the Joint Committee has received numerous briefs and heard a number of additional witnesses on the non-discrimination rights. An analysis of these submissions suggests that further consideration should he given to an appropriate wording for section 15.

Basically, three major criticisms have been directed at the present wording, and these are not fully met by the proposed revised wording.

First, it is argued that the “closed category” of non-discrimination grounds does not allow for evolution over time in an area where attitudes and values are gradually changing (eg. “handicap” may not be an accepted ground of non-discrimination. In all respects today, but it is increasingly gaining acceptance.)

[Page 5]

Second, it is remarked that as drafted, the first clause does not allow for ore stringent tsts.t? be applied by the courts in cases where discrimination is now virtually never acceptable (eg. race, colour, religion, national or ethnic origin and sex), and cases where there remain legitimate grounds for reasonable distinctions to be drawn (eg. age, marital status, handicap, political belief, etc.).

Third, it is contended that the “affirmative action” exception is unduly vague in using the term “disadvantaged” (does it mean disadvantaged socially, economically, ” physically, mentally, etc?), and provides for no standard by which to measure what is acceptable “reverse discrimination”.

Each of these is a legitimate criticism, an they warrant further consideration in an effort to find a wording to meet the concerns. Doing so would, in one respect, give the courts a broader scope for “judicial activism” in developing “new” grounds of non-discrimination over time. In another respect, greater guidance would be given to the courts in determining the test to be applied in evaluating an alleged discriminatory law and in assessing the bona fide of an affirmative action program.

There arc basically two alternatives which Ministers might consider in this regard.

The first would be a simple statement that every individual is equal before and under the law, and has the right to the equal protection (and benefit) of the law without (unreasonable) discrimination. There would be no grounds specified, leaving it to the courts (as in the United States) to determine them. The affirmative action clause would then permit bona fide distinctions to be made for the amelioration of conditions of classes of individuals who are unequal because of past discrimination.

This approach would go some way to meet the expressed concerns, but avoiding any mention of grounds would no doubt cause great opposition from groups who have had grounds specified since 1960 in the Canadian ill [sic] of Rights. ^[?] In addition, it would not provide for a defined test of “strict scrutiny” for those non-discrimination grounds where distinctions are virtually never acceptable.

The second approach would expand upon the first by having a non-exhaustive listing of grounds confined to the “core” group (race, colour, religion, national or ethnic origin and sex). For these a  test of “compelling sate interest” ^[?] would be specified, and unless a distinction could be justified on that basis it would be unreasonable discrimination. For the non-specified grounds which the courts would articulate, the test would be one of reasonableness.

[Page 6]

This approach would appear to meet most of the concerns identified earlier and should he a work­ able formula. Its main weakness is that it will generate further dispute over what are “core” grounds, and will draw some criticism for dropping age. However, on this latter point there is considerable danger in including “age” since it is the basis of distinctions in so many laws. It becomes even more risky to include it if the “strict scrutiny” test is adopted or, indeed, if the stricter limitation clause in section 1 is adopted.

While there is no fully satisfactory method of dealing with non-discrimination rights in the Charter, it is felt that the second approach outlined above is the one to be preferred.

Recommendation: That consideration be given to adopting a non-discrimination clause along the lines outlined in the second approach above.

(See Annex 3 for proposed amendment.)

7. Sections 16 – 20 – Provincial Institutional Language Rights

Cabinet has agreed to include in these sections institutional language rights (official languages, languages in the legislature, statutes and courts and in services to the public) for New Brunswick largely paralleling those at the federal level. This was made subject to Premier Hatfield being agreeable to obtaining a resolution of his legislature making a formal request for including the rights. Premier Hatfield has now been consulted and his reaction is

Including language rights for New Brunswick has intensified the already strong pressures, both within and outside the Joint Committee, for including institutional language rights for Ontario as well.

These pressures and logic itself would suggest that Ontario should he included (with a time delay for implementing language rights in the statutes and courts). In addition, bringing Ontario in would make it somewhat easier to sell the entrenchment of minority language education rights in Quebec.

On the other hand, Premier Davis remains adamant in his opposition to entrenched institutional language rights for Ontario, and would no doubt withdraw his present support for the Resolution if such rights were imposed. At the same time, the federal government’s position to date has been that, apart from minority language education rights where the provincial Premiers unanimously endorsed the principle in 1978, it will not impose institutional language rights o the provinces. It is simply maintaining the constitutional status quo with respect to Quebec and Manitoba, and adding rights for New Brunswick at that province’s express request.

[Page 7]

In light of these circumstances, it would appear unwise for he federal government to support any move in the Joint Committee to impose institutional language rights on Ontario.

Recommendation: That the government agree not to support imposition of institutional language rights on Ontario.

8. Section 20 – Language of Services to Public

Cabinet agreed to the modifications proposed for section 20 including deletion or the provision whereby Parliament would determine where services would be provided in both languages from offices that are not head or central. However, it was also decided that the constitutional test for determining when such services should be available should be based not on “significant demand ” but rather on where there 1vas a “reasonable requirement” for such services.

The reason for this modification is to ensure that bilingual services are available not only where there are significant concentrations of minority language populations but also where the office or facility is of a type that will be frequented by minority language persons on a fairly regular basis even though the demand could not be characterized as significant, eg. a customs office or an airport.

Given this situation, the best approach might he to adopt that established by the Official Languages Act which makes specific provision for bilingual services to members of the travelling public. Thus the latter part of section 20 would provide for two situations:

• services and communications in both languages from any other office where there is a significant demand, and
• services and communications in both languages from any office or facility that serves members of the travelling public.

Recommendation: That sect ion 20 be amended to incorporate the principles set out in (a) and (b) above.

(See Annex 4 for proposed amendment.)

9. Section 23 – Minority Language Education Rights

Cabinet agreed that certain changes, proposed in the Memorandum to Ministers, he made in this section respecting the qualifications for entitlement to minority language education, hut that the requirement of “where numbers warrant” should he retained to maintain consistency with the 1978 Montreal Agreement of Provincial Premiers.

[Page 8]

It is suggested that, to maintain further con 1stency with the Premiers’ agreement, the revised clause not make reference to provision of “educational facilities”, but only to “the provision out of public funds of minority language instruction”. Such wording will also have the additional benefit of not implying that the obligation is limited to physical facilities, but extends more generally to whatever educational services arc appropriate, including the possibility of minority language school boards.

Recommendation: That section 20 he further amended as indicated above.

(See Annex 5 for proposed amendment.)

10. Section 26 – Admissibility of Evidence

This section provides that Charter rights, other than protection against self-crimination, do not affect laws relating to admissibility of evidence or legislative power to make such laws.

Its purpose is to prevent Canadian courts from following the American approach where evidence, obtained in violation of the constitutional right against unreasonable search and seizure or the right to counsel, is ruled inadmissible as the only effective remedy against such police activities.

In Canada, evidence obtained in such circumstances is normally admissible if it is relevant.

It was felt that neither of these extreme positions should be entrenched in the Charter, but there is no agreement on what a middle ground should be. Consequently, section 26 was adopted ns a means of leaving open to Parliament and the legislatures the ability to legislate a better balanced rule on admissibility of evidence once the Task Force on the Evidence Code has completed its work.

This provision has come under considerable criticism from many witnesses before the Joint Committee, some arguing that the U.S. exclusionary rule should be incorporated into the Charter, some contending that the provision should be dropped, leaving it to the courts to develop appropriate rules, and others arguing that a rule should be specified allowing courts to exclude improperly obtained evidence where to admit it would bring the administration of justice into disrepute.

To make any significant alteration in this provision would generate considerable opposition from the provinces who feel very strong! hat the present rule in Canada should not be modified. Consequently, any change will have to be weighed against this consideration, particularly in respect to Ontario.

On the other hand, the provision is difficult to defend, particularly since, as the Canadian Bar pointed out, it could enable Parliament to impair legal rights under the Charter by, for example, enacting a law permitting evidence to be adduced at a trial in the absence of the accused. Thus, as a minimum it will have to be amended to prevent infringement of other legal rights.

[Page 9]

Of the alternatives discussed above, the preferred approach would be to drop the provision. Given the position of the Supreme Court to date under the Canadian Bill of Rights, it is not highly likely that it will rush to follow the American approach. On the other hand, it would remain open to the courts (or Parliament) to adopt a middle ground of excluding evidence obtained in violation of Charter rights in appropriate cases.

It is therefore proposed that consideration be given to the deletion of this provision, subject to an assessment of the likely Ontario reaction.

Recommendation: ^[[]That section 26 be considered for deletion, subject to an assessment of Ontario’s reaction. ^[]]

11. Other Charter Matters

A number of other issues have been raised in relation to the Charter, and they are outlined below.

(a)        Recognition of Multiculturalism

Cabinet has indicated that a provision should be included in the Charter reflecting the multicultural nature of Canada, but without giving rise to any enforceable rights.

Given the structure of the Charter it is very difficult to find an appropriate location for any separate provision that could speak of the multi­cultural heritage of Canada without giving it the characterization of an enforceable right.

One possibility might be to place it in the “general” provisions at the end of the Charter in the following terms:

^{[#14 + 15]}

“The provisions of this Charter shall be interpreted in a manner consistent with the objective of promoting the preservation and enhancement of the diverse ^{[bilingual multi-]} cultural heritages ^[nature] of Canada.”

However, such a provision could be construed as being in conflict with the preferential treatment accorded to the English and French languages (an hence cultures) by sections 16 to 20 and 23.

Another approach might be to amend section 22 along the following lines:

“To ensure the continued preservation and enhancement of the diverse cultural heritages of Canada, nothing in sections 16 to 20 shall be construed to abrogate or derogate from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language.”

[Page 10]

This may go some distance to meet the concerns expressed, although it does not encompass the minority language education rights provision. By including the English and French languages, it may in fact give some recognition to non -constitutional rights to the use of the French language as, for example, in the Ontario legislature. On the other hand, it could be viewed by Quebec as an attempt to restore some English language rights that were removed b Bill 101. As a “non-prejudice” provision, however, it of course cannot have any such effect.

Recommendation: That consideration be given to including a provision a long the lines suggested as an amendment to section 22.

(See Annex 6 for proposed amendment.)

(b)        Language of Criminal Trials

Representations have been made to the Joint Committee by the Canadian Bar and several language groups that provision be made in the Charter guaranteeing a person charged with a criminal offence the right to be tried in his official language, be it English or French.

Adopting this proposal would be to transpose from the Criminal Code to the Charter those provisions which provide for this right, but on a negotiated, phased-in basis. The pol icy, when the Code provisions were adopted in 1978, was to enable the Minister or Justice to negotiate with his provincial counterparts agreed dates upon which the provisions would come into force in each province.

To date, the provisions are in force only in New Brunswick, Ontario and the Territories. To place this right in the Charter would be to create unfulfilled expectations in most other provinces since they do not yet have the lawyers, judges or other court personnel to conduct a trial in French.

In addition, such a provision would be viewed by the provinces as bringing in one aspect of institutional language rights via the back door.

It is considered preferable, since Parliament has jurisdiction in this matter in any case, to leave it to be dealt with under the Criminal Code.

Recommendation: That no amendment respecting language of criminal trials be proposed.

(c)        Property Rights

A number of submissions to the Joint Committee (and members of the Committee as well) have criticized the absence of any right to the enjoyment of property and the right not to be deprived thereof except by due process of law (as provided in the Canadian Bill of Rights).

[Page 11]

While the federal government has never been opposed to protection of property rights in the Charter, the provinces were strenuously opposed to any such provision.

Their concern was quite legitimate and focused on situations involving what might be called “indirect expropriation”. There are many provincial laws that zone property, authorize highway systems freeze sale of agricultural lands, condemn dangerous buildings, etc. where the consequence is to lower the value of property or to prevent persons from making a more economic use of it.

These kinds of laws would be challengeable in the courts as a deprivation of the enjoyment of property, and would probably be invalid if adequate compensation was not afforded.

It is difficult to contest the provinces ‘ point of view, since the issues involved are ones of great social and economic importance.

On the other hand, there may be considerable pressure to include some provision for property rights, and the provinces might be able to live with a wording such as “a right to enjoyment of property and not to be deprived thereof except in accordance with law”. Consideration might he given to such wording if the Committee is insistent on including the right.

Recommendation: That the government not propose any amendment respecting property rights, but consider its willingness to accept an amendment if one is pressed in Committee.

(d)        Right to Privacy and Access to Government Information

The Canadian Bar and some other submissions have been pressing for inclusion of these rights.

Both rights (even as the Canadian Bar admits) are evolving areas of the law where the parameters are ill-defined. To place them in the Charter without some specific definitions of what was intended would be to invite the courts to engage in law-making out of whole cloth.

Recommendation: That the government resist any efforts to have these rights included.

(e)        Legal Aid in Criminal Cases

The Canadian Bar and some civil liberties groups have been pressing for inclusion of a right to legal aid in criminal cases where a defendant cannot afford a lawyer.

While all provinces now have legal aid plans, the determination of who qualified is.made.by. provincial agencies, each with differing f1nanc1a eligibility tests. To make legal aid a Charter right would leave to the courts the final determ1nat1on of when an accused did not have sufficient means to afford a lawyer. This could result in substantial additional financial burdens he1ng imposed on the provinces.

[Page 12]

Recommendation: That the government oppose efforts to have a right to legal aid included.

1. EQUALIZATION AND REGIONAL DISPARITIES
2. Section 31 – Equalization and Regional Disparities

Cabinet has decided to retain the present wording of section.31( )(the B.C. proposal) rather than replacing it with the wording of the Quebec proposal as suggested by Premier Hatfield in his appearance before the Committee.

Contact has now been made with Premier Hatfield to assess his reaction to retention of the original wording in the Resolution.

1. INTERIM AMENDING PROCEDURE
2. Section 38 – Alternative Federal Amending Formula

Cabinet has decided that, with respect to the right of the federal government to put forward an alternative amending formula under section 38(3)(a) to any formula that might be proposed by the provisions under section 38(1), it is prepared to initiate such an alternative on the same basis as the provinces.

In other words, if the Committee decides that it should be the legislatures of the provinces rather than the governments that advance an alternative amending formula, then the same rule will apply at the federal level, and the federal alternative will be proposed by Parliament. However, if it is decided that provincial governments may initiate the alternative formula, then the federal alternative will originate with the federal government.

^[✓]

These two alternatives will be placed before the Committee to make a choice.

(See Annex 7 for alternate proposed amendments. )

14. Sections 40/46 – Referenda Rules Commissions

Cabinet agreed that provision should be made, where referenda are to be held either on a permanent amending formula under section 38 or on a proposed constitutional amendment under section 42, for a joint federal-provincial rules commission to be established to recommend, for enactment by Parliament, rules governing such referenda.

[Page 13]

This may work satisfactorily for the one-time referendum under section 38, but it could cause problems under section 42 where there may be a series of referenda over the years.

Since the Act adopted by Parliament for a first referendum under section 42 may, in light of experience, require changes for a subsequent referendum, it is necessary to consider whether there should be an on-going rules commission under section 46 or an ad hoc body to be convened prior to each referendum.

The ad hoc body is no doubt preferable (to minimize the impression that referenda are to be the normal amending route), and a technique might be adopted whereby Parliament would be obliged not to make any changes in the referendum law without resort first being had to the advice of the joint commission.

It would also be necessary to impose a very short deadline on the period for establishing a commission and on the period in which it must make its recommendations in order to avoid delay in holding the referendum. (Perhaps a 60 day period for its establishment and a 60 day period in which it must report its recommendations.)

^{[(60+60+60)/[Illegible]]}

^{[Too long]}

Recommendation: That the foregoing proposals be approved as the basis for amendments to sections 40 and 46.

(See Annexes 8 and 9 for proposed amendments.)

1. PROCEDURE FOR AMENDING CONSTITUTION
2. Section 41 – General Amending Procedure

The Canadian Bar has noted a latent ambiguity in 41(1)(b)(ii) and (iii) in describing the Atlantic and Western provinces that must consent to an amendment. It could be argued that where three Atlantic or Western provinces consent, it would not be sufficient unless two of these three comprise 50% of the population.

Recommendation: That this possible ambiguity be rectified.

(See Annex 10 for proposed amendment. )

16. Sections 41/42 – Amendments by Referendum

Cabinet has agreed to amend section 1 to drop the population requirement for the Atlantic provinces (thus returning to the Victoria formula), and to introduce a “deadlock breaking element into section 42, permitting the provinces one year in which to act on an amendment under section 41 before a referendum could be called. In addition, a referendum would have to be held within three years of adoption of the initial resolution by Parliament.

[Page 14]

However, there are several further issues requiring consideration.

First, there is the question of the intended parallelism between sections 41 and 42. While an amendment under section 41 would require the consent of any two Atlantic provincial legislatures, a referendum under section 42 could carry in the Atlantic region by a bare majority vote in the two smallest provinces (PEI and New Brunswick) with the other two provinces voting overwhelmingly against it. The question is whether this is a desirable result. Can one realistically equate votes by provincial legislatures with votes by provincial populations? Presumably size is conceptually the same whether it be measured by a vote of the legislature or a vote of the people, but a result such as suggested in a referendum may appear somewhat anomalous [sic].

Second, there is the problem that section 42 is basically premised on the Victoria formula being the final amending formula. This could be radically changed by the adoption of a new formula under section 38 as, for example, the “Toronto consensus” of seven provinces with 85% of the population, or the “Vancouver consensus” with provincial opting out.

In such circumstances, it is by no means evident that section 42 is necessarily a suitable referendum formula for all occasions. Yet, there is no clear authority to modify it under section 39 in the event that a formula other than Victoria is finally adopted.

In these circumstances there would appear to be three possible alternatives for consideration.

• Leave the formula in section 42 as it is.
• Amend section 42 to provide that for a referendum to succeed there must be a national majority plus a majority in each of the four regions including majorities from at least two of the Atlantic provinces and at least two of the Western provinces representing over 50% of the population.
• Amend section 42 to provide simply that a referendum to succeed must have a national majority plus a majority in each of the four regions without regard to individual provincial majorities in the Atlantic and Western regions.

In the case of options (1) and (2), the (b) part of section 42(1)would have to be modified to accord with whatever formula might be adopted to replace Victoria. This would not be necessary under option (3).

While option (3) has the virtue of simplicity, it would be very difficult to sell t the Committee or to the provinces. ^{[especially the smaller provinces.]}

Recommendation: That Ministers give consideration to which of these three alternatives appears to be the most viable.

^[#2]

[Page 15]

Other issues requiring further consideration in relation to section 42 concern the “deadlock breaking” mechanism. Two suggestions have been raised for discussion.

First, it has been suggested that an element of reciprocity might be introduced by allowing a national referendum to be required by the decision of, say, a majority of the provinces (representing 70% of the population).

While the principle of reciprocity looks attractive at first glance, it could lend to delay and political in-fighting amongst the provinces that would be very de^[i]visive. It would also be a bad precedent to recognize that a group of provinces could generate a national referendum. That should be the prerogative of the national government.

Second, it has been suggested that, in order to clearly demonstrate that a deadlock has occurred under section 41, a First Ministers Conference would be called after the one year delay period, where agreement would be sought on the proposed amendment. If this failed, this would then be ample evidence of a deadlock.

Such a procedure should not be necessary under section 42. If the provinces are given 12 months in which to take action on the proposed amendment and the requisite number fail to do so, this is ample evidence of a deadlock. Further, such a procedure would only serve to institutionalize executive federalism. If there is to be First Ministers consultation on proposed amendments, this should take place prior to the implementation of resolutions in the legislatures or Parliament, not after the failure has occurred.

Finally, given the frequent inconclusiveness of First Ministers meetings, it may be difficult to prove there was deadlock — or who was causing it — afterward.

17. Section 47 – Amendments Affecting One or More but not All Provinces

Cabinet agreed that an amendment would be made to section 47 to ensure that amendments to the constitution affecting one or more but not all provinces may be made only under the procedure in section 43 requiring the consent of any affected province.

At the same time, it was agreed that section 47 should not be amended to require unanimous consent of the provinces for a change in any amending procedure relating to a provision of the constitution applying to one or more but not all provinces.

(See Annex 11 for revised draft amendment.)

[Page 16]

1. NATURAL RESOURCES JURISDICTION
2. Section 52 – Provincial Jurisdiction over Resources

Three questions have been raised with respect to the NDP draft proposal relating to provincial jurisdiction over certain natural resources.

(1)        Provincial Indirect Taxation Power

Section 92A(4) empowers a province to levy indirect taxes (including export taxes) on the specified resources whether or not the production is exported from the Province in whole or in part, but prohibits the levying of such taxes in a discriminatory manner as between production sold in the province and that sold in other parts of Canada.

In other words, Quebec would be empowered to impose indirect taxes on asbestos production whether sold in Quebec, Ontario or United States. However, while it could levy a higher (or lower) tax on production sold to the U.S., it could not impose a different rate on production sold in Quebec and Ontario.

The whole purpose of this provision is to grant provinces access to indirect taxation on resources (a power they now do not have), but to preclude them from applying such taxes in a discriminatory manner within Canada.

The proposal to change the wording to preclude differential taxation on “production exported from the province and production not exported from the province” would have the result of denying them the ability to levy higher or lower taxes on production exported out of Canada.

(2)        Provincial Jurisdiction over “Rate of Primary Production”

Section 92A(1)(b) would give the provinces exclusive legislative jurisdiction over “development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom.

The question has been raised whether provincial jurisdiction over rate of primary production might have the effect of enabling a province to effectively regulate the export of resources from the province, thus impinging on existing federal jurisdiction under the “Trade and Commerce” power to regulate the marketing of resources in interprovincial trade.

This matter has been examined both within the Department of Justice and by outside counsel. Outside counsel has expressed some concern that granting the provinces express power over rate of production could be interpreted in a manner that

[Page 17]

would make it more difficult to attack such provincial laws as a colourable device designed to regulate interprovincial or international trade. At the same time, this opinion acknowledged that the provinces already have the jurisdiction over rate of production respecting resources, as long as such jurisdiction is not employed indirectly to regulate extra-provincial trade.

While it is, of course, impossible to say with absolute certainty how the courts may construe this provision, it is the view of the Department of Justice that confirmation of the provincial jurisdiction will not impair the scope of the federal power over Trade and Commerce. The provinces will, as now, have the power to regulate rate of production, but where the purpose of a law is not to serve a valid provincial objective (eg. development, management and conservation) but rather a colourable attempt to regulate extra­ provincial trade in the resource, the courts will still, as they have in the past, conclude that the provincial law is not one primarily directed to matters within provincial jurisdiction.

Such an interpretation would be bolstered by the fact that section 92A(2) would grant to the provinces concurrent jurisdiction over export of resources from the provinces. In light of this, it would be difficult to contend that the exclusive jurisdiction over rate of production could properly be construed to include the regulation of export of resources from the provinces. Otherwise, the concurrent jurisdiction under 92A(2) would not have meaning.

Thus, while including “rate of primary production” as an exclusive provincial power may provide some scope for argument that it gives the provinces a lever over extra-provincial marketing of resources, the better view is that such an argument would not succeed before the courts.

(3)        Federal Jurisdiction over Forestry Management

The question has been raised whether the confirmation of provincial jurisdiction over the development, conservation and management of forestry resources would in any way impinge on existing federal powers respecting research and development of forest resources.

Since federal jurisdiction in this area derives exclusively from the “spending power” (except on federal lands), the proposed provisions would have no impact on existing federal jurisdiction.

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Minister of Justice