Document Information
Date: 1980-11-24
By: Department of Justice
Citation: Memorandum to Ministers re: Possible Amendments to Proposed Resolution on Constitution of Canada (24 November 1980).
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Note: This document is discussed in an article that has been recently submitted to a peer-review journal.
SECRET
November 24, 1980
MEMORANDUM TO MINISTERS
RE: POSSIBLE AMENDMENTS TO PROPOSED RESOLUTION ON CONSTITUTION OF CANADA
I PURPOSE
A number of possible amendments to the Proposed Resolution on the Constitution of Canada have been suggested, some by the Government itself, some by provincial governments, some by Members of the Special Joint Committee and some by witnesses who have or will appear before the Committee or make written submissions to it.
Some of the proposed changes are substantive in nature, others are technical in nature. Those of a substantive nature are set out in part II, while those of a technical nature are found in part III. The purpose of this memorandum is to outline the possible amendments and to obtain Ministers’ direction on which of the changes should be incorporated in the Resolution, whether moved by government members or other members of the Committee.
II SUBSTANTIVE AMENDMENTS
A. CHARTER OF RIGHTS AND FREEDOMS
1. Section 1 – Limits on Rights and Freedoms
The general limitation clause: “such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government” has been severely criticized as being too broad, enabling the courts to find any limit imposed on a right to be permissible if it is “generally accepted” (ie. if it is a limit enacted by several legislatures). It is also contended that limits should only be imposable in wartime (and even then not be applicable to non-discrimination and certain legal rights), that limits should be more specifically defined for each category of rights, or that there be no limitation clause included at all since the courts will themselves imply reasonable limits on the various rights recognizing that no right is absolute.
While the criticisms appear to overlook the fact that section 1 speaks of reasonable limits, there may be some merit in considering alternatives to the present provision of section 1 in order to defuse criticism of it.
Option 1: Drop the limitation provision entirely.
The U.S. Bill of Rights contains no general limitation clause and yet the courts in in that country have implied reasonable limits on the various rights in many cases. On the other hand, it would seem of some importance
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that the public and the courts be aware that no right is absolute in an organized society, and the provinces feel strongly that any Charter must reflect this principle. Including a general limitative rule would give greater certainty to the law a would guide the courts as to the standard to be applied in testing the validity of limitations on rights.
In addition, since the Charter as drafted makes reference to certain limits in specific clauses (eg. the right to vote, the extension of the life of Parliament and legislatures, mobility rights, minority language education rights), the omission of any reference to limits on other rights could imply that they were to be guaranteed without any limits. Thus, it could be necessary to insert specific limits in a number of other sections to avoid this possible result.
Option 2: Modify the language of the limitation clause.
This might be done in one of several ways. (1) Specify that the rights and freedoms are subject only to such limits established by law as are reasonably justifiable in a free and democratic society with a parliamentary system of government. (2) Specify that the rights and freedoms are subject only to such reasonable limits established by law as are demonstrably justifiable in a free and democratic society with a parliamentary system of government. (3) Specify that the rights and freedoms are subject only to such limits established by law as are reasonably justifiable (demonstrably justifiable) in a free and democratic society.
These alternatives would overcome the ambiguities caused by the words “generally accepted” and make it clear that any limits must be founded on a law, whether legislated or judge-made. The first alternative would place some onus on the government to show that a limit was justified in a particular case. The second alternative would create a heavier onus on the government to show the need for any limit. The third alternative would eliminate the concerns that “supremacy of parliament” would still govern in interpreting the Charter and remove doubts about the courts’ ability to consider human rights jurisprudence of the U.S. courts. At the same time, elimination of the phrase “parliamentary system of government” would engender further opposition from the provinces who all wanted this qualification included, and could create suspicions that the government was embarking on the road to republicanism. Government members of the Committee do not feel this latter point is one of any real concern, and witnesses before the Committee have urged its deletion.
Option 3: Provide specific limits for each category of rights.
This approach, spelling out grounds such as national security, public order, safety, health, morals, etc. for limiting the rights in each category of rights, was attempted in earlier drafts including the one published by the government during the July negotiations. This was severely criticized by the press
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and the provinces as negating the rights and drawing arbitrary distinctions among limits on different rights. It also creates an unwieldy document, difficult for laymen to understand and difficult to defend publicly.
Recommendation: That the government agree to propose an amendment to section 1 that makes the rights and freedoms subject only to such reasonable limits established by law as are demonstrably justifiable in a free and democratic society. (This would meet the concerns of Gordon Fairweather who has been the most credible witness before the Committee on this point.)
(See Annex 1 for draft amendment.)
2. Sections 8, 9 and 11(d) – Legal Rights
As drafted, these rights (protection against search or seizure, detention or imprisonment and denial of bail) are guaranteed on the basis of lawful grounds and procedures.
This wording has been criticized, particularly by the Canadian Civil Liberties Association and the Canadian Jewish Congress, as offering no real constitutional guarantee since it could be interpreted as permitting, for example, any search or seizure, no matter how unreasonable or arbitrary, as long as it as done according to what the law provided. While it can be argued that section 7, which requires that one cannot be deprived of liberty and security except n accordance with principles of fundamental justice, injects a requirement of elemental fairness into the laws relating to the other specified legal rights, it is not beyond doubt that the courts would follow this reasoning.
In the federal drafts of Charter rights that were tabled during the CCMC meetings last summer, more stringent language was used:
– protection against unreasonable search and seizure
– protection against arbitrary detention or imprisonment
– not to be denied reasonable bail without just cause.
These provisions were opposed by most of the provinces as being too stringent , and they insisted that the lesser test of “according to lawful grounds and procedures” be used. [In addition, when Ontario’s support for the Proposed Resolution was being sought in late September, use of this language was made a condition of its support.]
The present wording of these provisions will be difficult to defend before the Committee, both in. light of the briefs that have been presented and in light of the language of the Canadian Bill of Rights which is the same as that contained in the earlier federal drafts. In addition, it is likely that Premier Hatfield will be arguing that the original wording of these provisions be restored when he appears before the Committee this week.
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On the other hand, the continued support of Ontario for the Resolution must be weighed in deciding if these changes are to be made. It is understood that Ontario’s Deputy Attorney General will be seeking to appear before the Committee this week to argue in support of the present wording of these legal rights. In the event that he does not succeed in convincing Committee members of the validity of the present wording, strong pressure will continue to have the wording of the earlier federal drafts reinstated.
Recommendation: That the government agree to propose amendments to sections 8, 9 and 11(d) which would restore the language used in the earlier federal drafts, unless the Ontario Deputy Attorney General convinces the Committee that the present wording provides adequate protection for these legal rights.
3. Section 11 – Legal Rights
(1) Coverage of “War Crimes” in Sections 11(e) and (f)
The Canadian Jewish Congress, the North American Jewish Students Network and Mr. Crombie on the Committee have proposed amendments to sections 11(e) and (f) (dealing with protection against retroactive penal laws and double jeopardy for the same offence) to ensure that prosecution and punishment of Nazi war criminals in Canada is not precluded.
The concern with section 11(e) is that unless “offence” is changed to read “offence under domestic or international law”, the section could be construed as excluding “crimes against humanity” committed by Nazis during the Second World War.
The concern with section 11(f) is that unless it is amended, it could be construed to preclude the re-trial and punishment in Canada of war criminals who were tried and convicted in absentia in European countries but never punished.
Both of these concerns are somewhat misguided as they relate to Nazi “war criminals” who may not reside in Canada. There is considerable doubt in the international legal community that the “crimes against humanity” were, at the time of their commission, recognized offences under international law. Thus, adding “offence under domestic or international law” would provide no assurance that these crimes could now be made punishable.
Equally, under our Criminal Code, punishment for “common law” offences is forbidden; only statutorily defined offences may be prosecuted. Consequently, adding “offence under domestic or international law” would not assist in achieving the goal sought unless such offences were incorporated in our statute law, and this cannot be done retroactively.
Further, providing for re-trial and punishment of persons who have been tried in another country in absentia and convicted but not punished would not solve the problem of Nazi “war criminals”, since again Canada cannot prescribe such proceedings for retroactive offences.
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On the other hand, the International Covenant on Civil and Political Rights does recognize the right of a country to try and punish a person for an offence that was, as the time of its commission, recognized as such under international law. Equally the Covenant permits the trial and punishment of a person for an offence of which he has not been tried and punished in another country.
Consequently, as long as it is made clear to the interest groups concerned that any amendments made to sections 11(e) and (f) would not change the situation with respect to Canada’s inability to prosecute Nazi war criminals” in this country, appropriate amendments could be made to these sections to ensure that Canada was able to enact laws concerning future war crimes.
This would take the form of amendments along the following lines:
“11. Anyone charged with an offence has the right
(e) not to be found guilty on account of any act or omission that at the time of the act or omission did not constitute an offence under domestic or international law;
(f) not to be tried or punished more than once for an offence of which the person has, in Canada, been finally convicted or acquitted.”
Recommendation: That the government agree to propose the foregoing amendments to sections 11(e) and (f) on the clear understanding that it does not change the position respecting the inability of the government to prosecute or punish Nazi “war criminals” who may now be in Canada.
(See Annex 4 for draft amendments.)
(2) Addition of Right to Trial by Jury
The NDP members of the Committee have proposed that the right to a trial by jury be included in the legal rights of a person charged with an offence. This proposition stems for [from] the inclusion of such a right in the U.S. Constitution and the fact that Magna Carta provides that no man shall be imprisoned “except by lawful judgment of his equals”.
The provision in the U .S. Rill of Rights granting a jury trial in “all criminal prosecutions” has caused many problems in the United States. The courts have interpreted this to mean a right to a jury trial only in “serious” cases, and this has generally meant cases where the penalty is imprisonment for six months or more. However, the courts continue to interpret what is a “serious” offence regardless of the penalty provided, thus leaving much uncertainty in particular cases as to whether a jury trial is required. This uncertainty plus the low threshold for “serious offence” have led to many delays in court proceedings in the United States.
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In Canada, there is no express constitutional guarantee to trial by jury, although one might be implied by application of the Magna Carta provision. Nevertheless, trial by jury is firmly embedded in our criminal law. The Criminal Code now provides a right to a jury trial for most indictable offences where the penalty exceeds five years imprisonment (there are some exceptions) and, indeed, makes a jury trial mandatory in certain cases (such as murder and treason). [At the same time, there is no requirement for a jury trial in prosecutions under the Code of Military Discipline, where serious offences are heard before a panel of military officers. This has been a long-standing practice which would be difficult to change.
Consequently, while a provision for the right to a Jury trial could be incorporated in section 11 of the Charter, it would have to be limited very clearly, eg. to offences where the penalty provided for imprisonment in excess of ten years or a more severe penalty, [and there would likely have to be an exemption for court-martial proceedings.]
Recommendation: That no recommendation be made for inclusion of a right to trial by jury, but if such an amendment is proposed by the Opposition it not be opposed by the government provided it meets the limits indicated above.
(See Annex 5 for draft amendment.)
Section 15 – Non-Discrimination Rights
A number of strong representations are being made in Committee for changes to clarify and extend the provisions on non-discrimination rights. The Advisory Council on the Status of Women urges that the clauses be modified in a manner that will clearly ensure equal rights in law and equal protection and benefit o the law, and direct the courts to a “strict scrutiny” test for any distinction in law based on sex, race, colour, national or ethnic origin or religion (ie. these grounds could virtually never be a valid basis for distinction). In addition, the Council would spell out the specific grounds for affirmative action programs, and limit such programs to those authorized by a law.
The Canadian Human Rights Commission contends that there should be no specific enumeration of non-discrimination grounds, and has the support of the Canadian Civil Liberties A sociation and the Canadian Jewish Congress on this point. In the alternative, the Commission contends that the grounds should be expanded to include marital status, physical or mental handicap, political belief and sexual orientation. The Commission would permit distinctions to be made in laws only where “justifiably necessary for reasons of compelling state interest.”
The Canadian Association for the Disabled is pressing for inclusion of “disability” (presumably broader than physical and mental handicap) as a ground of non-discrimination.
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Finally, there is concern within the federal government and among the provincial governments about the financial and other implications of including “age” in the non-discrimination grounds. The Advisory Council on the Status of Women also urge deletion of “age”, fearing that its inclusion might weaken the strictness of the test that the courts would apply when judging discrimination on other grounds.
It may be possible to meet some of the foregoing concerns, but responding to all of them would be very difficult.
With respect to the proposals of the Advisory Council, some of these could be accommodated in part by rewording section 15. First, section 15(1) could e modified to state clearly that everyone is equal under law, followed by the right to the equal protection and equal benefit of the law. This would demonstrate that there is a positive principle of equality in the general sense, and in addition, a right to laws which assure equal protection and benefits without discrimination on specified grounds. Second, section 15(2) could be modified to indicate that affirmative action programs are specifically related to the grounds of non-discrimination.
These modifications would not, however, meet the Council’s argument for a specific direction to the courts that any distinction based on the specified grounds is never to be considered reasonable. This, of course, would be too rigid a test in any case, but it may be necessary to consider adding a clause (even with a modified limitation provision in section 1) which would state that any distinction in law based on a prohibited ground of discrimination was to be presumed unjustifiable unless the contrary was demonstrated. Thus, if a law distinguished between men and women (eg. the law permitting only women to deduct child care benefits from income or the law denying Indian status to women who marry non-Indians) it would be presumed by the courts to be prohibited discrimination unless the government could demonstrate that it was a distinction drawn for justifiable state interest.
As for the Human Rights Commission’s argument that there be either no specified grounds of nondiscrimination or an expansion of the listed grounds, the following factors militate against these approaches. If no grounds are listed, then it is left entirely to the courts to decide what they are to be. In an area which involves a gradual evolution of social and economic values, it would not be appropriate to leave such major decisions to the courts. As for expanding the specific grounds, consideration has to be given to how best different claims to protection against discrimination can be effected. Certain grounds have long been recognized as prohibited (race, national or ethnic origin, colour, religion and sex are all found in the Canadian Bill of Rights). They are “core” grounds which are capable of ready definition, do not require many, if any, qualifications on their protection and do not entail financial burdens to ensure their effectiveness.
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Other grounds do not readily meet all of these conditions. Handicap (or disability) encompasses many things and thus requires a definition of some detail. It also requires certain qualifications, such as meeting bona fide requirements for employment. Equally guaranteeing equality for handicapped persons often entails expenditure of money to provide such persons with equal access to services and accommodation. Marital status requires definition (does it include common law relationships, homosexual relationships, etc?) and carries financial implications under tax of pension laws. Sexual orientation may be capable of ready definition but it is a controversial ground of non-discrimination which has not yet gained significant public acceptance. Political belief, is also Very difficult to define. Many views can be characterized as a political belief as, for example, the “white supremacist” position of the Ku Klux Klan. Equally, it can be argued that political belief can be a legitimate basis for refusing a person employment in sensitive government jobs.
Consequently, it can be argued that all of these grounds are much better left, at the present time, to be protected by ordinary human rights legislation where they can be defined, the qualifications se led out and the measures for protective action specified, where necessary , in a manner that does not impose undue financial burden on those providing services and accommodation.
Turning to the question of age, this grounds was included in the Charter in the belief that it was sufficiently clear that the courts would view most distinctions based on age as reasonable limits generally accepted. However, on further reflection, it would appear that this ground could cause serious problems of interpretation, particularly if the limitation clause is to be restricted as proposed and any presumption of discrimination is introduced in section 15.
Age is, of course, a common ground of distinction in much legislation, both federal and provincial. Provisions relating to age range from age of criminal responsibility to age of majority and to the age of retirement. They are found in laws relating to such diverse matters as juvenile delinquency and eligibility for social welfare, pension benefits, tax credits, etc. In many instances the courts would likely find that such distinctions are valid, but there are certain important areas where this is not so clear. Recent cases under provincial human rights laws have held a mandatory retirement age to be discriminatory. If this were to be the conclusion under the Charter (and it is not an untenable view), it could cause serious problems for employers and employees alike in relation to pension contributions and retirement benefits. If a mandatory retirement age is to be abolished, it would be much better done under a legislative scheme which prov des for an orderly transition period than by an instant court-ordered fiat. Similarly, it is possible that the courts might hold that differential pension and insurance premiums based on age are discriminatory.
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Premier Blakeney, through his officials, has indicated that he is very concerned about the inclusion of age in the non-discrimination rights. He feels that it could have serious negative implications for many provincial age-based laws.
Given the foregoing concerns, it would seem prudent to withdraw “age” from the grounds of non-discrimination, leaving it to be dealt with in a more predictable manner by human rights laws. Anticipating objections to withdrawal of this ground by the elderly, it could be pointed out that some of the social benefits which they enjoy by virtue of age could be brought into question by including age as a ground of non-discrimination.
Recommendation:. That certain amendments be made to e non- discrimination rights to meet some of the concerns raised by the Advisory Council on the Status of Women and that “age” be withdrawn as a ground of non-discrimination.
(See Annex 6 for draft amendments.)
5. Section 20 – Language of Service to the Public
The latter part of section 20 (dealing with the right to receive services in English or French from federal offices other than head or central offices) has been criticized by the Commissioner for Official Languages on two grounds. First, as worded, the section would not require a regional office to provide services in both languages to persons living outside the area defined as “bilingual”. Second, the section reintroduces the concept of “bilingual districts” which has never been implemented under the Official Languages Act.
These are legitimate concerns, and it would be desirable to amend the latter part of the section so that the right to communicate with and receive services from any other federal office in either official language would be based, not on the number of persons in an area using the languages, but on their being a significant demand for communications with and services from any office in both official languages. This would be a much more useful test than one based simply on the number of residents in an area who speak the minority language.
Recommendation: That section 20 be amended in accordance with the principle suggested above.
(See Annex 7 for draft amendment.)
6. Section 24 – Undeclared Rights and Freedoms
Two matters arise for consideration in relation to this provision as it relates to native peoples. (1) The native peoples groups are pressing for expansion of section 24 so that it would become a guarantee of specific native rights such as aboriginal rights, treaty rights and control by native people over their cultural, economic and educational interests.
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Such modification would convert section 24 from a “non-prejudice” clause (ie. one which simply states that the rights enumerated in the Charter are not to be interested as depriving the native peoples of any particular rights they have) into a constitutional confirmation of certain native rights. This, as the government has indicated to the native peoples leaders recently, would be premature since discussions are now proceeding with a view to determining what native rights should be constitutionally guaranteed. There has been no agreement on these rights yet (even among the native groups themselves), and consequently it would be inappropriate and dangerous to attempt to specify them in the constitution now.
If section 24 were to make any reference to specific native rights, such as aboriginal rights or treaty rights, this would have the effect of entrenching them without knowing the import of what was being entrenched. It would thus be left to the courts to decide what aboriginal rights means — does it mean, as some native groups contend, a right to self-government, to separate nations, to control over education? Equally, if reference to treaty rights were included, this would make them unalterable by Parliament in the future. In addition, mention of treaty rights would meet none of the concerns of those native people not covered by treaties.
In conclusion, any attempt to be specific with respect to native rights in the Charter would seriously prejudice the future ability of the federal government to negotiate with the native peoples the rights which might legitimately be placed in the constitution.
(2) Questions have been raised as to whether the wording of section 24 would mean that native peoples right under the Indian Act would be continued or be found to be in conflict with non-discrimination rights un er the Charter. In particular, would section 24 mean that section 12(1)(b) of the Indian Act, which drives an Indian woman who marries a non-Indian of er Indian status, would continue to apply despite t e prohibition of discrimination on the basis of sex.
The answer to is in general terms is that Parliament retains explicit power under section 91(24) of the BNA Act to make laws for Indians and lands reserved for Indians. It is thus evident that laws may be made which distinguish between Indians and non-Indians in the int rest of benefiting Indians. Consequently, Parliament may continue to make laws for native peoples and the Indian Act will continue to apply.
However, it does not mean that laws which make a distinction among Indians themselves in a discriminatory manner will continue to be valid. Thus, the provision of the Indian Act which deprives an Indian woman of her status on the basis f sex will 1ikely be found to be invalid by reason of the non-discrimination rights.
Recommendation: That no alterations be made to section 24 of the Charter.
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7. Primacy of Charter
(1) Relationship of Charter rights to other Provisions of Constitution
A question has been raised as to whether the wording of section 25, making any law that is inconsistent with the Charter inoperative, might be construed so as to render inoperative a provision of the Constitution itself. For example, would the provisions respecting succession to the Throne (giving precedence to males and requiring the Monarch to be of the Protestant faith) be found to be in conflict with the non-discrimination rights.
It would seem evident that the Charter, as a part of the Constitution, would not operate to invalidate other provisions of the Constitution. The intended purpose of section 25 is to invalidate laws made pursuant to the Constitution, whether by legislation or common law, and this is likely the meaning that would be given to the section.
However, to remove any doubt on this matter, it would be desirable to reword section 25 to read: “The Constitution of Canada is the supreme law, and any that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect.”
This section, which would become section 52, would thus give primacy to all provisions of the Constitution including those in the Charter, while at the same time removing any question as to conflict between Charter rights and other provisions of the Constitution.
Recommendation: That the government propose the amendment indicated above.
(See Annex 8 for draft amendment.)
(2) Remedies for Breach of Charter Rights
Doubts have been raised in Committee by the Canadian Jewish Congress that, in the absence of an express provision, the courts would not be able to order any specific remedies for a breach of Charter rights. This is particularly relevant where the breach in question is not that occasioned by a conflicting law, but rather by the action of an official where such action is not pursuant to any law as, for example, a police officer who denies a detained suspect the right to obtain counsel.
While it is arguable that the courts would, in such instances, create the necessary remedy, this is not entirely certain. Therefore, it would likely be prudent to include in the Charter an express provision enabling the courts to grant an appropriate remedy in cases where no other legal recourse is available.
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Such a provision was contained in the federal drafts of the Charter tabled during the course of the summer, but were deleted after arguments by the provinces that such a provision was unnecessary and might give the courts the power to invent new remedies. However, it is felt that ensuring effectiveness of the Charter rights is sufficient justification for including a “remedies” section.
Recommendation: That the government propose an amendment that would add a “remedies” section to the Charter, empowering the courts to grant certain remedies for breach of Charter rights where no other would legal recourse is available. The new provision would be inserted as section 25.
(See Annex 9 for draft amendment.)
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B. EQUALIZATION AND REGIONAL DISPARITIES
8. Section 31 – Equalization and Regional Disparities
A number of representations have been made respecting section 31, particularly by Saskatchewan and New Brunswick, Premier Hatfield plans to appear before the Committee to propose inter alia an amendment to this section.
Several alternatives for an equalization and regional disparities provision were considered at the various meetings of the continuing committee of Ministers on the Constitution (C. C. M. C.). Each alternative draft contained the provision set out in the Resolution as subsection 31(1). Subsection 31(2) differed in the various drafts as follows.
(a) February 1979 Best Efforts Draft:
“(2) Parliament and the government of Canada are further committed to the principle of making equalization payments to provinces that are unable to provide essential public services of reasonable quality without imposing an undue burden of taxation, or to the principle of making arrangements equivalent to equalization payments to meet the commitment specified in section 96 (1) (c).” (i.e. 31 (1) (c))
(b) Government of Quebec Proposal:
“(2) Parliament and the government of Canada are further committed to the principle of making equalization payments to provincial governments that are unable to provide essential public services of reasonable quality without imposing an undue burden of taxation.”
(c) Governments of Manitoba and Saskatchewan Proposal (including Quebec’s Proposal):
“(2) Parliament and the government of Canada are further committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.”
[Subsection 31(2) of the Resolution is a combination of the Quebec proposal and the Manitoba and Saskatchewan proposal.] Premier Hatfield plans to put forward the Quebec proposal to the Committee when he appears before it. It has been indicated to New Brunswick that the federal government would have no difficulty with a proposal to change the formula set out in subsection 31(2) so as to adopt the Quebec proposal.
Recommendation: That an amendment to subsection 31(2) along the lines of the Quebec proposal be approved for submission to the Committee if it appears that Premier Hatfield or others wish to press for such an amendment.
(See Annex 10 for draft amendment.)
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C. INTERIM AMENDING PROCEDURE AND RULES FOR ITS REPLACEMENT
9. Section 38 – Provincial Alternative Proposal for Amending Procedure
(1) Subsection 38(1): Suggestions have been made that a provincial proposal for the amending procedure should be submitted to the people by the referendum procedure if seven provinces having eighty per cent of the population approve the procedure. The draft resolution requires approval by eight provinces having eighty per cent of the population, which would make it mire difficult for the provinces to acquire the support necessary to trigger the referendum requirement.
Recommendation: That no amendment be submitted to the Committee as a change approved by the government, but that approval of an amendment be given to the effect that, if a member of the Committee moves an amendment along the lines indicated above, the government would not oppose the amendment.
(2) Subsection 38(3): Subsection 38(3) has been criticized for two reasons:
(a) It is seen as being anomalous that, after Parliament has approved one amending procedure in the Resolution, the government could put forward a different amending procedure for approval in the amending procedure referendum without reference to Parliament; and
(b) It is considered to be unfair that the government should be able to put forward changes at the last minute after the provinces have made their proposal.
These concerns appear to be legitimate ones. Under paragraph 38(3) (a), the federal government could, without recourse to Parliament, put forward an unbalanced amending procedure or one that would, for example, remove the veto of Quebec. Further, the power to put forward a different amending procedure gives the appearance of an intended lack of good faith on the part of the federal government.
The options for consideration are:
(a) to leave paragraph 38(3) (a) unchanged;
(b) to amend paragraph 38(3) (a) to substitute for the words “proposed by the government of Canada by depositing a copy thereof with” the words “proposed by resolution of the Senate and House of Commons and filed with”; or
(c) to amend paragraph 38(3) (a) to delete all references to an alternative amendment to be proposed by the government or Parliament of Canada.
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Recommendation: That an amendment be put forward to the Committee to amend paragraph 38(3)(a) to delete all references to an alternative amendment to be proposed by the government or Parliament of Canada.
(See Annex 11 for draft amendment.)
10. Section 40 – Rules for Holding Referendum on Amending Procedure
There has been some criticism by Saskatchewan and members of the opposition that rules respecting a referendum are to be made by Parliament. The suggestion has been made that the rules should be approved by an independent committee with both federal and provincial representation. The suggested change relates both to the possible referendum respecting the and ting procedure that may be held under section 38 and to referenda to amend the Constitution that may be under section 42.
It is recommended that the criticisms be met by amending sections 40 and 46. The proposed amendment to section 40 would create a commission to approve rules for the referendum respecting the amending procedure. The proposed amendment to section 46 would provide for the creation of a continuing commission that would approve continuing rules applicable to referenda respecting amendments to the Constitution. It is recommended that the bodies be called “commissions” rather than committees because commissions are more formal bodies than committees and are usually regulatory in nature, which is the intended function of these committees. Further, the issuance of commissions establishing the bodies would provide evidence, in court proceedings to challenge the rules, that the prerequisites to the making of the rules had been met.
The amendment to section 40 would create an independent rules commission consisting of the Chief Electoral Officer of Canada as Chairman and a federal and provincial representative. If a majority of provinces do not agree on a representative, a person would be chosen by the Chief Justice of Canada from among the persons recommended by provincial governments. If no names are put forward by the provincial governments, the Chief Justice would choose a nominee from among such persons as he considers fit.
The commission would recommend rules to the Governor General and the rules would be made by proclamation issued by the Governor General. The rules would have the force of law and would have primacy over other laws.
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Recommendation: That an amendment to section 50 be approved along the lines outlined above.
(See Annex 12 for draft amendment .)
D. PROCEDURE FOR AMENDING CONSTITUTION OF CANADA
11. Section 41 – Provinces Sufficient to Approve Amendments to Constitution
Subparagraph 41(1)(b)(ii) relates to the number of Atlantic provinces sufficient to approve an amendment to the Constitution. There has been very confused criticism of this subparagraph from opposition members centering around the fact that Prince Edward Island could never join with one other province to approve a constitutional amendment. This is because Prince Edward Island cannot, together with any other Atlantic province make up the fifty per cent of the population necessary to approve an amendment. The opposition notes that the Victoria Formula did not have such a population requirement for the Atlantic provinces and requests that the population requirement be dropped from subparagraph 41 (1)(b)(ii).
A similar population requirement is contained in subparagraph 41(1) (b) (iii) in respect of the Western provinces. However, this requirement was contained in the .Victoria Charter and represents a British Columbia desire for a stronger influence in the western vote. To keep the population requirement gives a stronger veto power whereas to drop the population requirement makes it easier to secure amendments. The suggestion that the population requirement be dropped in respect of the Atlantic provinces has been paralleled by suggestions from Committee members (some western) that the population requirement be dropped in respect of the Western provinces because Manitoba and Saskatchewan lack the population to together approve an amendment on behalf of the Western provinces. There is no indication, at the time of the writing of this memorandum, as to the position of the Western provinces in respect of this proposal.
Recommendation: That
(a) The Victoria Charter be strictly adhered to and an amendment to subparagraph 41(1)(b) (ii) be introduced to delete the population requirement for the Atlantic provinces; and
(b) No amendment to subparagraph 41(1) (b)(iii) to delete the population requirement in respect of the Western provinces be put forward, but that approval of an amendment be given to the effect that, if such an amendment is made in committee, the government would not oppose it.
(See Annex 13 for draft amendment to subparagraph 41(1)(b)(ii).)
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12. Section 42 – Authorization of Referendum to Amend the Constitution
There has been considerable criticism, particularly Saskatchewan and Newfoundland, of subsection 42. Section 42 is seen as an alternative to section 41 and there is fear that a referendum to approve an amendment to the Constitution might be authorized by the Senate and House of Commons without prior recourse to seek the views of provincial legislative assemblies. The argument is that section 42 should only be used as a deadlock-breaking mechanism and should not be called into play unless the provinces have failed to approve an amendment. Ontario suggested a twelve month waiting period after the Senate and House of Commons have approved an amendment before the deadlock-breaking mechanism could be utilized. Saskatchewan supports the twelve month waiting period and would also like it to be possible for the provinces, as well as the federal government, to be able to trigger the referendum mechanism. This lack of reciprocity in the triggering of a referendum has also been strongly attacked both within and outside Parliament. It is not clear that Saskatchewan will accept a deadlock-breaking mechanism alone, without some element of reciprocity.
Recommendation: That subsection 42(2) be amended to make the referendum a deadlock-breaking mechanism that could be triggered at the federal level any time between twelve months after approval of the amendment by the Senate and House of Commons and three years after that approval.
(See Annex 14 for draft amendment.)
13. Section 44 – Amendments without Senate Approval
Concern has been expressed by some Senators that, under the amending procedure, the Senate could easily be abolished by the House of Commons using the amending procedure. If the House of Commons and provinces reach agreement on a new Upper House, the Senate could be abolished using the procedure now set out in sections 41 and 44. Also the Senators object to any procedure whereby they can be by-passed. It is thought that these objections might be overcome if amendments relating to the Senate (or possibly only amendments relating to the bicameral structure of Parliament) are subjected to the further test of a referendum to seek the views of the people. It would be difficult to argue that provincial interests are being by-passed if an amendment relating to the Senate must be approved not only by the House of commons but also by the provincial legislative assemblies and by the people through a referendum .
On the other hand, to add a provision subjecting amendments relating to the Senate to a more stringent amendment procedure than other kinds of amendments, will be seen as placing the Senate in a preferred and protected position. Provinces, like Newfoundland, will demand that matters of great sensitivity to them, such as the religious schools of Newfoundland, the border between Labrador and Quebec and the power to amend section 43 and the B.N.A. Act, 1871, be subjected
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to an equally stringent amending procedure. Also other interest groups may make similar demands in respect of the Charter.
Recommendation: That, if it is considered essential in order to meet the concerns of Senators, to amend the proposed Resolution in respect of the power to by-pass the Senate the matter be handled as follows:
(a) in the case of amendments to the Constitution, other than amendments relating to matters referred to in the paragraphs of section 50 which relate to the Senate, the Resolution continue to provide that the amendments may be made without reference to the Senate where they are approved by the provinces and approved twice by the House of Commons; and
(b) in the case of amendments relating to matters referred to in the paragraphs of section 50 relating to the Senate the Resolution be amended to provide that the Senate can be by passed if the Resolution is approved by the House of Commons and the provinces, the House of Commons approves the amendment a second time by directing that a referendum be held to seek approval of the amendment, and the amendment is approved at the referendum.
(See Annex 15 for draft amendment.)
14. Section 46 – Rules for Holding Referendum on Amendments to the Constitution
See the comments on section 40. The Referendum Rules Commission contemplated by the amendment to section 46 would differ from the Commission proposed by the amendment to section 40 in that it is proposed that it be a continuing commission. It would be established to recommend, from time to time, rules for any referendum that might in future be held. The members would be appointed for terms and could be reappointed. A term of office not exceeding three years is suggested but a longer term could be an option for consideration.
Recommendation: That an amendment to authorize the establishment of a continuing rules commission to recommend to the Governor General rules for referenda to amend the Constitution, as outlined above, be approved.
(See Annex 16 for draft amendment.)
15. Section 47 – Limitation on Use of General Amending Procedure
Premier Peckford of Newfoundland has alleged that sections 41 and 42 could be used to make amendments contemplated in section 43 (i.e. amendments to provisions
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of the Constitution that apply to one or more, but not all, provinces) without the consent of the provinces to which the amendment applies. On tis hypothesis, he argues that the Newfoundland religious school system and the boundaries between Labrador and Quebec could be changed without the consent of Newfoundland. He has made a similar criticism in respect of the interim amending procedure. So far as the interim amending procedure is concerned, his alleged eventuality is impossible as the general amending procedure requires unanimous consent. So far as the relationship between sections 41 and 43 is concerned, under the rules of statutory interpretation, it is highly unlikely that a court would find that an amendment relating to one or more but not all provinces could be made under section 41 or 42 without the consent of the provinces concerned. However, the matter can be put beyond doubt by a technical amendment to section 47 that sets out the limitations on the use of the general amending procedure.
Premier Peckford also thinks there should be a provision in the Constitution making it impossible to amend, without unanimous consent, the provisions of the Constitution (i.e. section 43 and the B.N.A. Act, 1871) that require the approval of a province to.an amendment that applies particularly to that province. As stated above in respect of the Senate, to agree to a more stringent amending procedure relating to matters of sensitivity to one province or interest group will only lead to demands from others for more stringent amending procedures for matters of interest to them. Further, an amendment to the Constitution to remove the requirement that a province agree to an amendment that applies particularly to it, could only be made under the general amending procedure and it is inconceivable that it would be approved by a sufficient number of provinces to enable the amendment to be made.
Recommendation: That approval be given to a technical amendment to section 47 to put it beyond doubt that the procedures prescribed in section 41 or 42 do not apply in respect of an amendment referred to in section 43.
(See Annex 17 for draft amendment.)
16. Section 50 – Amendments subject to the General Amending Procedure – Amendments relating to the Senate
The Senate Reference to the Supreme Court indicated that certain amendments relating to the Senate would not come within the legislative authority of the Canadian Parliament but could only be made by the United Kingdom Parliament. This would include amendments relating to the method of choosing Senators and the bicameral structure of Parliament. Under the Resolution,
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the method of choosing Senators would come within the powers of Parliament. The bicameral structure of Parliament would probably relate to the powers of the Senate and would therefore probably be a matter subject to the general amending procedure set out in section 41. Some of the concerns of the Senators referred to in connection with the proposed amendment to section 44 might be overcome if the method of choosing Senators is made subject to the general amending procedure or to the special amending procedure discussed in connection with section 44 and if it is put beyond doubt that the bicameral structure of Parliament is a matter that can only be changed pursuant to the general (or special) amending procedure.
Recommendation: That amendments to section 50 in respect of matters .relating to the Senate along the lines indicated above be approved.
(See Annex 18 for draft amendment.)
E . GENERAL
17. Sections 52 and 53 – Non-Renewable Natural Resources, Forestry Resources and Electrical Energy
The support of the government of Saskatchewan and that of the N.D.P. is conditional upon the inclusion in the Resolution of an amendment relating to natural resources. An amendment has been worked out with the N.D.P. based, in part, on the “best efforts draft” considered at the First Ministers’ Conference in February 1979. The amendment would be inserted as an amendment (section 92A and the Sixth Schedule) to the Constitution Act, 1867 (the B.N.A. Act, 1867) .
The amendment would
(a) give the provinces express and exclusive authority tc make laws relating to various aspects of non-renewable natural resources, forestry resources and electrical energy; i.e. the exploration for, and the development, conservation and management, as applicable, of those resources;
(b) give the provinces a concurrent power to make laws respecting the export of the primacy production from such resources from the province to another part of Canada, subject to a prohibition against discrimination in respect of prices for or supplies of production exported to other provinces;
(c) retain for Parliament unqualified paramount legislative authority in respect of inter provincial (and international) trade in those resources; and
(d) permit provincial direct or indirect taxation of those resources, subject to a requirement that no differentiation in taxes be made between production retained in the province and production exported to other provinces.
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The resources provision also defines “primary production” in a Schedule and preserves pre-existing provincial powers.
This provision would transfer less power to the provinces than the February, 1979 draft which was supported by most provinces. It would hence be less satisfactory to most provinces, particularly Alberta. However, it has been agreed to by the N.D.P.
Recommendation: That approval be given to the amendment described above.
(See Annex 19 for draft amendment.)
III TECHNICAL AMENDMENTS
A. CANADA ACT
1. Section 2 – Non Application of United Kingdom Laws to Canada
In the French version of this section,reference is made to “droit positif du Canada”, whereas the English version simply refers to “law” of Canada.
Recommendation: That the French version should have the word “positif” dropped in the event that this section is opened for amendment in Committee.
B. CONSTITUTION ACT, 1980
1. Section 3 – Democratic Rights
The French version, in using the singular “ce droit ne peut”, leaves the implication that only one right is involved rather than two: the right to vote and the right to be a candidate for elective office.
Recommendation: That an amendment be made to change “ce droit ne peut” to read “ces droits ne peuvent”.
(See Annex 20 for draft amendment.)
2. Section 4 – Democratic Rights
The French version of subsection 4.(1) speaks only of the “date of report of the writs” while the English version speaks of the “date fixed for the return of the writs”. This is an important difference since under the French version there is no fixed date and in practice the writs are returned on dates different to the fixed date.
Recommendation: That the French version of subsection 4(1) be amended to refer to “la date fixee pour le retour des brefs”.
(See Annex 21 for draft amendment.)
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3. Section 8 – Legal Rights
In error the French text relating to searches and seizures included the term “abusives” which was dropped from the English text when the wording of the section was modified.
Recommendation: That the term “abusives” be dropped from the French text unless a substantive amendment, as discussed above, is made to section 8.
(See Annex 22 for draft amendment.)
4. Section 11 – Proceedings in Criminal and Penal Matters
The use of “he or she” in paragraphs 11(f) and (g) (protection against double jeopardy and benefit of lesser penalty), while grammatically proper, would exclude corporate entities from the benefit of these rights. Since this is not the intention, the “he or she” should be replaced by the expression “that person” which includes a corporation.
Recommendation: That an amendment be put forward to replace “he or she” with “that person” in paragraphs 11(f) and (g).
(See Annex 23 for draft amendments.)
5. Section 12 – Cruel and Unusual Punishment
The French text of the marginal note to this section now reads “punition”. A more accurate description of what the section contains is “cruaute”.
Recommendation: That the marginal note in French be changed to read “cruaute”.
6. Section 13 – Protection Against Self-Crimination
This section as drafted is open to being interpreted as limiting the protection against the subsequent use of incriminating evidence against a person to criminal proceedings only. It should thus be amended to make it clear that the protection extends to subsequent criminal and civil proceedings.
Recommendation: That section 13 be amended to clarify the scope of the protection against self-crimination.
(See Annex 24 for draft amendment.)
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7. Section 41 – General Procedure for Amending Constitution
(1) It is suggested that the words “a la fois” be added in the opening words of subsection 41(1) of the French version after the word “autorisee”. This amendment is not necessary but has been suggested to put it beyond doubt that the requirements of both paragraphs 41(1)(a) and (b) must be met before an amendment to the Constitution may be made.
(2) It has been suggested that in the opening words of paragraph 41(1)(b) of the French version, the words “cette majorite doit comprendre” be changed to the more usual structure “cette majorite comprend”.
Recommendation: That no amendment be drafted but that these changes be incorporated if an amendment is put forward for any other reason.
8. Section 50 – Office of the Queen, etc.
In the French version of paragraph 50(a), the expression “fonctions” is used as the equivalent of the English word “office”. It is not a satisfactory equ1valent and it is suggested that the word “charge” would express the idea more accurately.
Recommendation: That a technical amendment to paragraph 50(a) to correct the French version as indicated above be approved.
(See Annex 25 for draft amendment.)
9. Section 59 – Short Title
In the French version, the word “abrege” was inadvertently omitted after the word “titre”.
Recommendation: That a technical amendment be made to modify the word “titre” in French by the word “abrege” and to add the expression “short title” in the English marginal note.
(See Annex 26 for draft amendment.)
10. Schedule I to Constitutional Amendment Act, 1980
In the Schedule to the Act, the titles of a number of Acts are modernized as in the changes from British North America Acts to Constitutional Amendment Acts. In item 9 of the French version of the Schedule, the name of the Canada (Ontario Boundary) Act. 1889 is changed from Acte du Canada (limites d’Ontario) 1889 to Loi de 1889 sur le Canada (frontieres de l’Ontario). The word “frontieres” is not appropriate for interprovincial boundaries.
Recommendation: That the word “limites” be substituted for the word “frontieres” in the French version of Item 9 of Schedule I.
(See Annex 27 for draft amendment. )