Document Information

Date: 1980-06-16
By: Minister of Justice, Jean Chrétien, Government of Canada
Citation: Memorandum from Minister of Justice [Jean Chretien] to Cabinet, Towards a New Canadian Constitution: Federal Position on the Priority Items (16 June 1980).
Other formats: Click here to view the original document (PDF).
Note: This document is discussed in an article that has been recently submitted to a peer-review journal.

DRAFT

SECRET

MEMORANDUM TO CABINET

June 16, 1980

TOWARDS A NEW CANADIAN CONSTITUTION:

FEDERAL POSITION ON THE PRIORITY ITEMS

Sponsoring Minister:

The Minister of Justice

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TABLE OF CONTENTS

ITEM                                                                                                                                      PAGE

Purpose                                                                                                                                   5

General Background                                                                                                               5

General Questions                                                                                                                  7

Principles for a New Constitution                                                                                          9

Charter of Rights                                                                                                                    9

A dedication to Sharing and/or to Equalization: the reduction of regional disparities          23

Patriation of the Constitution, the Amending Formula and the

Delegation of Legislative Authority                                                                                       25

Resource Ownership and Interprovincial Trade                                                                     29

Offshore Resources                                                                                                                35

Fisheries                                                                                                                                  39

Powers Affecting the Economy                                                                                              41

Communications                                                                                                                     47

Family Law                                                                                                                             53

The Senate                                                                                                                              61

Supreme Court                                                                                                                        65

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TOWARDS A NEW CANADIAN CONSTITUION:

FEDERAL POSITION ON THE PRIORITY ITEMS

PURPOSE

The document poses many questions on the generality of constitutional renewal and on the specific priority items which are now on the CCMC agenda for study and agreement between now and September.

Some questions can likely be answered readily, without further study. Others raise issues that would seem to require extensive thought.

The document does not attempt to answer the questions.

Its purpose, rather, is to give Ministers a chance to think about the issues raised, and through their reactions, and decisions of Cabinet in this regard, to set parameters to the work which must now be undertaken – and completed by very early in July – to determine the initial positions the government will take in the CCMC on all the items.

In some cases, this may involve no more than reconfirming what is already “on the table” of constitutional negotiation. In others, however, new positions will no doubt be required.

GENERAL BACKGROUND

Two classes of questions appear in the pages that follow:

• “General questions”, which address the whole of the constitutional renewal exercise in the period up to and, in several cases, past the First Ministers Conference on the Constitution scheduled for September 8 to 12, 1980;
• Questions that are specific to each of the twelve priority items.

As regards the twelve priority items, it is worth recalling that:

(a) for the most part they were proposed by the federal government on June 9 (only Fisheries were added at the meeting itself),

(b) their inclusion on the list entails a commitment by all governments:

(i) to consider seriously the possibility of constitutional change on the areas concerned, and

(ii) that the matter will be dealt with substantively by the time the First Ministers Conference begins.

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GENERAL QUESTIONS

(1) In contemplating the possibility (perhaps even the probability) that agreement will not be reached in September, do Ministers agree that a demonstrably genuine effort, over the coming months, on the part of the federal government to reach agreement on all 12 items, is an absolute necessity if the government is to have maximum freedom after September, to choose its own course?

(2) Should the Government be prepared to move “unilaterally” in September on only the People’s Package, or on that Package and other items as well?

(3) In seeking agreement under each of the twelve items, should an extra effort be made to reach agreement with all provinces, or, in designing proposals, should agreement with, say, eight provinces be:

(a) regarded as a reasonable goal which would give evidence of a sufficiently earnest attempt; and

(b) considered as giving the Government of Canada a sufficient basis for possible action on that item, if need be, in a future joint address to Westminster?

(4) In seeking change, should the Government be working to maintain or even strengthen, in net terms, its economic powers, while being prepared to give up certain powers it now exercises in the cultural and social areas?

(5) Assuming the Government could obtain concessions under powers which would be roughly equal in value to concessions it makes under powers, would Ministers accept, in such an equilibrium, some added provincial influence in central institutions (e.g., in a reformed Senate)?

(6) In considering changes in central institutions, are Ministers prepared to consider changes which would recognize the “duality of Canada” (e.g., a dualist constitutional bench in the Supreme Court as Claude Ryan has suggested, a dualist section of a new Senate to deal with language/culture, perhaps as Bill C-60 suggested)?

(7) In considering changes in powers, are Ministers prepared to consider special arrangements for Quebec in some special circumstances (e.g., perhaps in immigration or in broadcasting) where the Government of Canada could thereby retain more power in the field in Canada as a whole?

(8) Should any role be foreseen for Parliament between now and September? Should further efforts be made now to enlist the support of Opposition leaders, or other members of Opposition parties, or should this be left until after the September Conference succeeds or fails?

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1. Principles for a New Constitution

Background

The draft Statement of Principles met with a mixed reception at the meeting of First Ministers on June 9^th. However, the item has been included at the top of the list of the Priority subjects to be addressed during the forthcoming round of CCMC meetings.

Some Premiers are of the view that they can improve the Statement. Mr. Levesque, for example, has stressed the importance of including some reference to self-determination for Quebec in the draft, as well as more precise references to dualism in Canadian society; Mr. Ryan has made the latter point as well. Other Premiers have not indicated publicly in what way they might want the draft changed.

Questions

(1) Should the federal government’s stance in the CCMC meetings continue to be that it will be happy to consider, with the Provinces, possible changes in the draft, or a new draft, which would be intended to make the final product more generally acceptable while preserving the essential character and thrust of the present draft?

(2) To this end, should the federal government propose at the outset of the round of CCMC be set up to work on the draft, the committee to be composted of all governments that are interested and to report to the CCMC in the final week of its deliberations in July?

2. Charter of Rights

Background and General Comments

The last published position of the precious Liberal government was summarized and included in Material released by the government after the First Ministers Conference in February, 1979. The proposals were based on Bill C-60, as modified through review and discussion up to that point, including some changes reflecting suggestions by the Joint Parliamentary Committee which reported in October 1978.

While in subsequent federal-provincial conferences, the Conservative government indicated some willingness to limit further the scope of the Charter, this did not appear to be leading to any consensus either.

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The February 1979 position was established or confirmed after the release in January, 1979, of the Pepin-Robarts Report. That Report generally supported the entrenchment of similar rights except language rights as they apply to the provinces (to be protected, instead, by provincial laws).

The “Beige Paper” of the Quebec Liberal Party, generally advocated the entrenchment of similar rights and went further in some respects in relation to language rights, including native languages.

As some time has elapsed, and national circumstances have changed, since February, 1979, it may not be useful to consider in detail the position taken by each province on the various aspects of the Charter at that time or in discussions later that year. Suffice it to say, in general, that apart from Manitoba (which opposed entrenchment of any rights), there was general support (including Quebec) for entrenchment of fundamental freedoms and democratic rights. About half the provinces supported in principle the entrenchment of some legal and language rights (including language of education). New Brunswick strongly advocated the entrenchment of all the above rights. Quebec rejected the entrenchment of language rights (including language of education).

(1) One general issue is that of “opting-in”. Bill C-60 had contemplated provinces being able to opt-in, as long as in doing so they accepted the whole Charter (and thereby become freed of the disallowance and reservation power). Later discussions considered, inconclusively. Various permutations involving opting-in by categories of rights. Question: Should any right of opting-in now be contemplated and, if so, in terms of the whole Charter or of particular segments (e.g. as permitted under the Victoria Charter with respect to the language of the statues, courts, or provincial services to the public)?

Another general issue is that of the “override clause”. This idea, originally raised by Premier Lougheed at the October, 1978, Conference, was to the effect that some or all provisions of the Charter might be more acceptable to the provinces if provincial legislatures would have the right to override such Charter requirements by ordinary legislation as long as they did so explicitly, i.e., “notwithstanding the provisions of the Charter…”. This idea has not attracted much support for the Charter from reluctant provinces, who see it as an escape mechanism which would be politically difficult to use. Certainly it commands no support from civil libertarians.

(2) Question: Should this concept be dropped in any revised proposal?

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(3) A further issue is that of linkage of the adoption of a Charter to the abolition of the reservation and disallowance powers. This linkage was clear in Bill C-60 and at least implicit in discussions up to February, 1979.

Question: Should the abolition of these powers be contemplated in any event? or should the question of linkage at least be left in abeyance?

FEBRUARY, 1979, FEDERAL PROPOSALS AS PUBLISHED

A. Fundamental Freedoms

1. Freedom of conscience and religion.

2. Freedom of thought, opinion and expression, including freedom of press and other media.

3. Freedom of peaceful assembly and of association.

Limitations Clauses

Those prescribed by law as are reasonably justifiable in a free and democratic society in the interests of

– national security
– public safety, order, health or morals
– any right and freedoms of others

Override Clause: None

Comments

“National security” – There remains some feeling that this expression has been discredited because it is used as a justification for “arbitrary” government action such as refusal to disclose information, illicit security and intelligence operations, etc. Some would prefer to see the term replaced by a better definition of the interest to be safeguarded. On the other hand, “national security” is a term used in international human rights instruments as a basis for limitation of certain rights.

(4) Question: What position should be adopted with regard to “national security”?

B. Democratic Rights

1. Consistent with principles of universal suffrage and free and democratic elections, rights of citizen to vote and qualify for election in House of Commons or legislature without unreasonable distinction or limitation.

2. Limit on maximum duration of House of Commons and legislatures except in case of national emergency.

3. Requirement for annual sittings of Parliament and Legislatures.

Limitation Clause: None, except as built into first two.

Override Clause: None

C. Legal Rights

Right to life, liberty and security of person and right not to be deprived thereof except by due process of law, including

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1. Right against unreasonable searches and seizures.

2. Right against unreasonable interference with privacy.

3. Right against detention or imprisonment except in accordance with prescribed laws and procedures.

4. Rights on arrest or detention to be told promptly of reasons therefor, to retain and consult counsel promptly and to remedy by habeas corpus.

5. Rights as a person charged with a criminal or penal offence

– to be informed of specific charge,
– to be tried in reasonable time,
– to presumption of innocence,
– to a fair and public hearing before impartial tribunal,
– not to be denied bail unfairly,
– to protection against ex post facto offences and punishment.

6. Protection against double jeopardy.

7. Benefit of a lesser penalty where law is changed.

8. Protection against cruel or inhuman treatment or punishment.

9. Right when compelled to give evidence to counsel, to protection against self-crimination and to other constitutional safeguards.

10. Right to assistance of interpreter in any proceedings.

11. Right to fair hearing when rights and obligations being determined.

Limitation Clause

Legal rights, except for right of life, right to counsel, protection against ex post facto laws, protection against self-crimination, protection against cruel or inhuman punishment or treatment and right to interpreter, may be overriden [sic] in time of serious public emergency. Limits on public proceedings may be placed in normal circumstances.

Override Clause: Provinces could opt in with general override power.

Comments

Subsequent to February, 1979, in discussions at the officials’ level, the argument was made strongly by some provinces that the above legal rights should only apply to criminal and other penal (including provincial penal) proceedings. By their terms, it is probably only items 9, 10, and 11 which apply to non-penal proceedings anyway. The argument is that non-penal proceedings cover a vast array of tribunals, agencies and officials, and that as constitutional guarantees these provisions might be quite inappropriate and overly rigid in some cases and would create the potential for a great deal of litigation.

(5) Question: Should consideration be given to limiting all the above legal rights to penal matters, leaving it to federal and provincial legislation such as the Canadian Bill of Rights (which does protect these rights in all proceedings) to cover the non-penal matters? Such a change may appeal illogical and attract criticism from civil libertarians, however.

Proposed Override Claude [sic] – See General Comments, supra.

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D. Non-Discrimination Rights

1. Right to equality before the law and to equal protection of the law without distinction or limitation other than one which is provided by law and fair and reasonable having regard to object of law

2. Exemption of laws which are in furtherance of affirmative action programs even though they may discriminate, as long as discrimination is justified.

Limitation Clause: None, except as built in to section.

Override Claude: Provinces could opt in with general override power.

Comments

Proposed Override Clause – see General Comments, supra.

E. Mobility Rights

1. Right of citizen to enter, remain in and leave Canada.

2. Right of citizen or “landed immigrant” to change province of residence or to pursue livelihood in another province, subject to laws of general application, but without discrimination based only on province of present or previous residence.

Limitation Clause

Those prescribed by law as are reasonable justifiable in a free and democratic society in the interests of

– national security
– public safety, order, health or morals
– overriding economic or social considerations

Override Clause: None

Comments

These proposed rights had been diluted somewhat by February, 1979, as compared to what was proposed in Bill C-60. There was some expectation that the federal government could pursue the free movement issue again in the context of discussions on economic powers.

Given developments since that time (e.g. Newfoundland and Nova Scotia legislation limiting the rights of out­of-province oil-rig workers) and given the uncertainties of future progress on economic powers, there could be good reason to revert to earlier positions in two respects:

(a) the right of citizens to acquire property in other provinces, as proposed in Bill C-60 should be restored; and

(b) the limitation clause allowing limitations based on “overriding economic or social considerations” should be modified or withdrawn: this would probably invalidate the Newfoundland and Nova Scotia restrictions, although it must be noted that it might also invalidate federal measures such as regulations favoring Yukon workers for the northern pipeline, or D.R.E.E. grants which will call for preference for employment of local labor .

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(6) Question: Should (a) or (b), or both be incorporated in a revised proposal?

F. Property Rights

1. Right to use and enjoyment of property by individuals or groups, and right not to be deprived thereof except in accordance with law that is fair and just.

Limitation Clause

1 Laws which control or restrict use of property in public interest or for collection of taxes and penalties.

2. Laws which are justifiable in a free and democratic society in the interests of

– national security
– public safety, order, health or morals.

Override Clause: None

G. Language Rights

1. English and French declared official languages of Canada with status and protection set forth in Charter.

2. Power in Parliament and legislature to extend the status, protection or use of English and French.

3. Right to use English or French in debates and other proceedings of Parliament; same right in debates of legislatures.

4. Statutes, records and journals of Parliament and legislatures of Ontario, Quebec and New Brunswick to be printed and published in English and French, both versions equally authoritative. In other provinces, obligation optional with legislatures with test of “to extent practicable.” In Ontario, date for French publication to be fixed by legislature.

5. Right to use French or English in all court proceedings at federal level and in Ontario, Quebec and New Brunswick. But with respect to three provinces, right to be provided as soon as practicable and in any event not tater than five years after adoption of Charter. For other provinces, a similar right to greatest extent possible as the legislatures may prescribe.

6. Right of witness to be heard in French or English, through an interpreter where necessary (without prejudice), in any court in Canada in a ease involving an offence under federal law or a serious offence under provincial penal law.

7. Right of a member of public to communicate in English or French with head or central office of any federal government institutions and with any principal offices thereof in areas designated by Parliament on basis of minority language numbers.

8. Right of member of public to communicate in English or French with the head, central or principal offices of any provincial government institution, to the extent and in the areas as defined by the provincial legislature on the basis of practicability and necessity for such services.

9. Preservation of legal or customary rights or privileges re use of languages other than English or French.

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10. Right of minority language (English or French) parents who are Canadian citizens to choose minority language education for their children in areas of province where it is reasonably determined by provincial legislature that numbers of children in any area warrant the provision of necessary facilities out of public finds.

11. Preservation of rights in the future of identifiable English or French language communities to use of French or English.

12. Preservation of existing constitutional rights, privileges or obligations respecting the French and English languages.

13. Repeal of section 133 of BNA Act and section 23 of Manitoba Act upon entrenchment of Charter.

Limitation Clause: None

Override Clause: None

Comments

(7) Question: With respect to items 4 and 5 should Manitoba be named as well, since the Forest decision in the Supreme Court has held that section 23 of the Manitoba Act imposes the same obligations concerning the language of statutes and the courts as does section 133 of the BNA Act concerning Quebec? (Otherwise, if item 13 (repeal of sections 133 and 23 upon entrenchment) remains, the constitutional obligations in Manitoba would be reduced just after the Supreme Court has confirmed them.)

(8) There may have to be further discussion of the nature of the obligations under items 4 and 5 since the Blaikie decision in the Supreme Court in December, 1979, has said that the similar obligations in section 133 extend to delegated legislation and tribunals other than ordinary courts. (The Supreme Court is going to hear reargument in the Blaikie case on the meaning of “delegated legislation”.)

(9) Question: Should item 10 be reconsidered as to whether its benefits should be extended to all residents of a province, whether citizens or not? (While the proposal was originally limited to citizens to meet Quebec’s concern about guiding immigrants into the francophone stream, the Beige Paper does not propose any such limitation. Its only test is mother-tongue of the parents, which would presumably still allow streaming into French language schools where the immigrant’s mother-tongue was neither French or English.)

(10) Ontario had certain concerns about the drafting of item 10, particularly the text of “reasonability” for provincial legislation.

Question: While some flexibility might be in order on wording, should we seek to preserve the principle of some judicial reviewability of provincial laws to avoid provinces making a mockery of the proclaimed right of minority language education?

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(11) Question: Should item 11 be deleted? Its possible meaning and application have been a source of confusion, particularly with respect to “identifiable linguistic communities”, and “adversely affect”. The need for it will be less if a number of more specific rights can be entrenched.

More generally, the Beige Paper, by advocating the entrenchment or native language rights in relation to federal government services, language of education, and criminal trials, raises a difficult issue that native groups may now press when this subject is again discussed in a federal-provincial forum.

H. Undeclared Rights

1. Protection of any undeclared rights existing at any time, including those that may pertain to native peoples.

I. Enforcement Provisions

1. Charter provisions to render inoperative any law or administrative act which is in conflict with its provisions.

2. Where no other effective recourse or remedy exists, courts empowered to grant such relief or remedy for a violation of Charter of rights as may be deemed inappropriate and just in the circumstances .

3. A dedication to Sharing and/or to Equalization: the reduction of regional disparities

Background

In preparation for the June 9 Meeting of First Ministers, the above title, less the words “and/or to Equalization” was given to the subject which has been known simply as “Equalization” on the constitutional review agenda since October 1978.  The words “and/or to Equalization” were added at the Meeting as a kind of clarification.

For the June 9 Meeting, this item was classed by the federal government as one of the four parts of the “Package for the People” on which the Premiers were alerted that federal unilateral action might be taken after September.

The “best efforts draft” of February 1979 had two main proposals. The first, on which all governments agree, is a commitment by all to promote equality of opportunity, to reduce economic disparities and to provide essential services of reasonable quality to all Canadians. The second is a commitment by the federal government to make equalization payments (or some equivalent) to provincial governments which are unable to provide reasonable services without imposing an undue burden of taxation.  All provinces except British Columbia support this commitment; B.C., which reserved its position in February, has opposed entrenching equalization payments as a means of attaining e goal, but may yet accept he latest version which now provides for alternatives.

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Questions

(1) Are Ministers agreed that this subject should remain, in concept, as part of the “Package for the People”?

(2) Is there agreement that there is no need to suggest changes in the “best efforts draft”?

(3) Given the potentially wider meaning of a Dedication to Sharing”, should the government, in pursuing agreement on the best efforts rat at or before the September Conference, indicate is desire to see other aspects of this question (e.g., some whole new equalization system for resource revenues) kept in mind as potential subjects for study as First Ministers proceed after September to the consideration of constitutional items beyond the 12 which are now set for priority negotiation and agreement?

4. Patriation of the Constitution, The Amending Formula and The Delegation of Legislative Authority

Background

The principal question requiring consideration and resolution by Cabinet is whether early action on patriation, with or without an amending  formula agreed upon by the provinces, should be contemplated and, if it is; whether such action should be accompanied by movement on other matters of constitutional change.

In February, 1979, Ontario and New Brunswick called for early action on patriation, with or without a formal amending formula.  Nova Scotia supported this position, with the “status quo” as the amending procedure. British Columbia accepted early action on patriation if accompanied by an expressed safeguard to provide that any amendments affecting provincial rights would require unanimous approval. Alberta also supported early action if accompanied by “adequate safeguards and assurances” respecting the existing rights of provinces. Manitoba preferred not to proceed until agreement had been secured on an amending formula. Québec did not participate in discussion of patriation and an amending formula “avant d’avoir pu obtenir une réponse satisfaisante sur l’ensemble des demandes traditionnelles du Québec”. Saskatchewan tied the matter to a bargaining process and opposed action on patriation without action on a “package” of agreed matters, including powers items.

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There was a general agreement in the CCMC in January, 1979, on provisions respecting the delegation of legislative authority along the lines proposed in the Fulton-Favreau formula, but made even more flexible: there would be no restriction on the areas of legislative authority that could be delegated and delegation could occur on a one-to-one basis from Ottawa to a province or from a province to Ottawa. Delegation provisions could prove useful in the event of a “rigid” amending formula, and could be used in seeing a solution to some “powers” items, such as family law and fisheries. However, since no agreement was reached on an amending formula in February, 1979, First Ministers did not examine the draft text on delegation prepared by the CCMC.

Questions

(1) Do Ministers agree that early action on patriation should occur, with or without unanimous provincial support and with or without an amending procedure agreed upon by all provinces (the final decision on timing to be taken after the September Conference)?

(2) In the event of action without an agreed amending formula, should such action provide:

(a) that the formula would be the existing practice, with the courts determining what that is in cases of doubt? or

(b) that matters be organized so that the formula considered by the federal government to be the best would become operative, at once, or, say, two years after patriation if no other formula had been agreed to in the meantime?

(3) Among the options for a new amending formula, do Ministers have strong preferences among these options (which are the principal ones under discussion these past many years):

(a) The Fulton-Favreau formula, which would have required unanimous consent for the amendment of certain  entrenched matters (e.g. the distribution of powers)?

(b) The Victoria Charter amending formula, which would have provided for regional consent for the amendment of entrenched matters (two Atlantic provinces, Quebec, Ontario and two Western provinces representing 50% of the population of that region)?

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(c) The Victoria Charter formula, supplemented by referenda as an “appeal procedure” (i.e., if the four regions were of one mind and Parliament took the opposite view, or if three regions and Parliament were of one mind and one region took the opposite view)?

(d) The “Toronto consensus” formula, which would have provided for unanimity for changes in the formula and in provisions which affect provincial ownership of and jurisdiction over natural resources; and which would have required the consent of at least seven provincial legislatures representing at least 85 per cent of Canada’s population for all other entrenched matters?

(e) The exclusive use of referenda?

(4) Do Minister agree that action on patriation should be accompanied by the entrenchment of provisions respecting he delegation of legislative authority along the lines generally accepted by the CCMC in January, 1979?

5. Resource Ownership and Interprovincial Trade

Background

When preparations were being made for the Constitutional Conference of October 1978, it was recognized that the resource question was the item of highest priority to a number of provinces, and particularly to the West.  The Government of Canada knew that the item would have to be on the agenda if the whole process of constitutional review was to go forward and therefore, itself, took the initiative in suggesting it as an item for negotiation.

The federal intent was to work out a constitutional arrangement for resources which would more clearly recognize provincial control but retain for the Government of Canada, at the same time, the capacity to control prices, allocation, quantities, etc., on interprovincial movements of resources, in circumstances of compelling national interest, and the same capacity, in all circumstances, on international movements. It was recognized that this capacity to control price was essential if the country was to avoid giving any producing province the ability to dictate to the rest of Canada (both in terms of price to be paid by consumers and in terms of the federal capacity to obtain a reason­ able share of the benefits. Without control over price, the Government of Canada could be faced with prices set so high by a producing province that there would be no “space” for the imposition of federal taxes.)

It was with these considerations in mind that the “best efforts draft” of February 1979 was worked out with the provinces. The essence of the draft is this:

(a) Provinces would be given for the first time concurrent jurisdiction over interprovincial and international trade and commerce in their mineral and forestry resources, and electrical energy;

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(b) This would be subject to full federal paramountcy over international trade, and to a federal paramountcy over interprovincial trade which could be used only in circumstances of “compelling national interest”;

(c) A province would be able to apply indirect taxes to these resources even though the principal burden of the taxes fell outside the province

(d) The federal declaratory power would not apply to works involving the production of resources. (The Prime Minister, in a speech to the Petroleum Club in Calgary in April 1979, signalled a limitation: resources would not be exempt from the declaratory power, but the-power could only be used in circumstances of compelling national interest.);

(e) There would be constitutional limitations on a producing province’s capacity to discriminate against the rest of Canada in exercising its new trade and taxation powers.

As it stood in February 1979, the federal proposal is probably acceptable to Saskatchewan and most other provinces. Ontario feels it goes too far, but would accept it. British Columbia and Quebec want all resources included (ln practice, this mean adding “water” to the list of resources covered); Alberta and Quebec would substitute the much more limited term “emergencies” for circumstances of “compelling national interest”.  Within the federal government, the proposal remains controversial, and there is a strong feeling that the government would in future have a good deal more difficulty in imposing its will on the provinces, even in circumstances of “compelling national interest”   than is now the case. There is also the view that the federal government should be free to impose prices, or whatever, in all circumstances, and not just in situations of compelling national interest.

On the other hand, given the need to retain in federal hands unlimited constitutional access to revenues and ultimate control over pricing on interprovincial and international movements of resources, and given the federal desire to see much stronger anti-discrimination clauses in a new Constitution than now exist, it seems clear that some meaningful concessions will have to be made by the federal side, if not along the lines of the “best efforts draft”, then along some new lines yet to be thought of.  The situation is, of course, made more difficult by the fact that a new “deal” on oil and gas price s remains to be worked out, and the producing provinces are acutely aware of the federal capacity under the present Constitution to determine what share of the benefits they are to receive from the development of their resources.

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Questions

(1) Do Ministers agree that the Government of Canada must retain a capacity to set prices etc. on international and interprovincial movements of resources, at least in circumstances where compelling national reasons justify such action?

(2) Do Minister agree that, while producing provinces should receive a reasonable share of the benefits from their resources, the rest of the country should also be able to benefit? In this regard, should the Government of Canada remain free to tax resources as it sees fit?

(3) Do Ministers agree, nevertheless, in the circumstances of Canada today and in the light of feelings in the West, that means must be found to give provinces some increase in control over their own resources?

(4) Is it reasonable for a producing province (the government or the residents) to receive a greater benefit from the development of its resources than is received by a non-producing province from that same resource? (Alberta believes, for example, that the lower-than-world price which residents of other provinces pay for Alberta oil is a “benefit” to them.) Is it reasonable for the producing province to receive a benefit equal to that received by the whole country?  Greater than the whole country?

(5) Is it reasonable for a producing province to set aside sufficient resources to meet the needs of its current population and industry for a period of, say, thirty years, perhaps adjusted annually for growth, provided that doing so does not mean breaking contracts or delivery arrangements already made with others outside the province?

(6) Is it reasonable for a producing province, on finding that it has a resource surplus to its foreseen needs, to offer it first to those who would come to that province to use it? Should that province subsequently be able to “sit on” that resource because, after a reasonable search, no one is ready to use it within the province, but others are ready to use it elsewhere in Canada?

(7) Is it reasonable for a producing province, through tax rebates or whatever means it considers desirable, to arrange matters so that its residents can enjoy the resource at a lower price than prevails outside the province? Should there be limitations on the differential? What about industries?

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(8) Should a producing province be prevented from with-holding sales outside the province on any grounds except conservation to meet its own needs? (prevented, for example, from refusing to supply available resources to an industrial competitor)

(9) Given Ministers’ tentative responses to the above questions, should the government begin work at once to refine its position on the “best efforts draft” of February 1979, or should some new proposal be devised immediately? If a new proposal is to be presented, what should be its principal features?

(10) If the “best efforts draft” is to remain as the basic proposal, would Ministers agree that:

(a) the declaratory power aspect be modified as the Prime Minister proposed in April 1979; or perhaps provision made that it could be used with the support of six provinces.

(b) a definition of “compelling national interest” be worked out, giving considerably more latitude for federal action than just in emergencies;

(c) new proposals be made under the anti­ discrimination provisions, regarding what is reasonable for a producing province to do, and what would be unreasonable .

6. Offshore Resources

Background

This item was added at provincial insistence to the list of subjects for constitutional discussion in October 1978. No “best efforts draft” was produced as discussions did not reach that point. At the February 1979 conference, however, the federal government tabled a “proposal” under which it accepted the principle of concurrent jurisdiction, with the federal jurisdiction to be paramount on some aspects (e.g., the pace of development, navigation, defence, international affairs, environmental control), and the provincial jurisdiction to be paramount on others (e.g., labour relations in the offshore, various onshore aspects of development etc.). The question of ownership of the offshore mineral resources was set completely to one side. It was recognized that the Government of Canada should not take decisions on the rate of development which ran counter to a province’s wishes arising from socio­economic concerns, except “in matters of great concern to Canada”.

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The government of Mr. Clark offered the provinces owner-ship and control of development of the mineral resources offshore, out to the continental margin, to the extent that this could be achieved under international law. The intent was stated as trying to have the same jurisdictional regimes offshore as exist onshore. It was recognized, however, that the interleaving of federal and provincial powers over resources, difficult enough onshore, was even more complicated offshore and provinces were warned of this. In practice, there was no time to work out any specific proposals.

[The federal government had, it might be noted, tried to work out over many years arrangements for joint administration of the offshore with the five eastern provinces, Quebec and Newfoundland dropped out of those discussions, wanting more provincial control than the Government of Canada was ready to give.    A tentative agreement was reached with the Maritime Provinces, but never finalized. It has since been rejected by the present government of Nova Scotia and seems unacceptable now to P.E.I. as well.]

Questions

(1) Are Ministers in agreement that an approach basically along the lines of the February 1979 proposal should now be developed further, or is there some quite different approach which should be contemplated?

(2) On the question of those revenues which normally accrue to the owner of a resource, the federal government offered several years ago to share those revenues with the coastal provinces, 75% to them, 25% to Canada (from which administration costs would be paid). Should this offer be renewed to each coastal province respecting “its” offshore? Or, would Ministers be prepared to offer 100% (less administration costs) in the interest of an agreement?

(3) Do Ministers agree that Canada should retain ownership of the offshore resources, at least beyond the 12-mile limit, and be prepared to take references on this to the Supreme Court if needed to settle the issue?

(4) Would Ministers be prepared to see ownership transferred to the provinces, in the interest of an agreement, of the offshore mineral resources lying inside the Canadian international boundary, wherever that has been defined, and within an “administration” line where the boundary has not yet been settled internationally?

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7. Fisheries

Background

This item was added at provincial insistence to the list of subjects for constitutional discussion in October 1978. It was not included in the proposed ls placed before the June 9 Meeting of First Ministers by the Prime Minister. It was, however, added once again to the “agreed list” on provincial insistence. Newfoundland is the prime source of pressure, but Nova Scotia and Quebec have an interest as well.

Under Section 91(12) of the B.N.A. Act, Parliament has exclusive legislative authority over “Seacoast and inland Fisheries”; provincial legislatures also have certain jurisdiction over the fisheries, notably for processing and marketing, by virtue of Section 92(13), “Property and Civil Rights”.

The coastal provinces all want to share in the decision-making authority for seacoast fisheries which now resides with the federal government; Newfoundland, supported by others, seeks both constitutional and administrative changes. It seems clear that certain provinces have not been diverted from their aim by the establishment of the Council of Atlantic Fisheries Ministers and the recent improvements in arrangements for consultation and administration.

The federal government contended in the discussions with the provinces from October 1978 to February 1979 that shared responsibility (which goes beyond consultation) would be unworkable, especially from the standpoint of ensuring the biological viability of the resource itself and the economic health of the fishing industry.  However, at the First Ministers conference in February 1979, the federal government promised closer “study” of concurrent jurisdiction (with no promise of action). Nothing further has been done in this regard, the hope being that the problem would solve itself through the new Ministerial Council, etc.

Questions

(1) Do Ministers wish to transfer jurisdiction over inland fisheries to the provinces?

(2) If so, should there be special provisions to maintain federal power over (a) water pollution and (b) salmon?

(3) Are Ministers willing to consider a constitutional role for the provinces in the marine fisheries?

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(4) If so, what type of role? Examples:

(a) a constitutionally formalized consultative role? (Note: this was considered by the federal side in 1979, but not tabled.);

(b) concurrent jurisdiction?;

(c) some kind of a joint management approach, using federal-provincial agencies? (Note: in 1979, this is what Nova Scotia originally proposed.)

(5) If consultation is the preferred option, should a similar right be given to the federal government with respect to fish plant regulation, where the provinces have primary jurisdiction?

(6) If concurrent jurisdiction is accepted, should this be:

(a) with specified areas of federal or provincial paramountcy (as per Newfoundland’s 1979 proposal); or

(b) general, but with federal paramountcy in the event of repugnancy, like the existing agriculture power?

(7) Are there further practical improvements which could or should be offered in the arrangements for consultation on administration and policy?

8. Powers affecting the Economy

Background

In the period from October 1978 to February 1979 the federal government sought agreement from the provinces on a “first list” of some 14 items, including rights, patriation, resources, etc. “Powers affecting the Economy” was not on the list. At the February 1979 Conference, however, the government tabled, for future constitutional discussion, its proposals for a “second list” of 11 items among which were 8 that could be classified under the heading “Powers affecting the Economy”.  At the October 1979 meeting of the CCMC, the Clark government asked that “Powers affecting the Economy” be placed on the future agenda. This was tentatively agreed to, but the item was not included in the priority list for early study.

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In the light of all this, the acceptance of this item at the Jue 9 Meeting of First Ministers, as one of the 12 items for priority study from now until the September Conference, is a breakthrough. Moreover, it has now been made clear to the provinces that the federal government will not bargain the “People’s Package” against powers. Provinces can expect, therefore, to have to “give something” under this item if they hope to “get something” under, say, resources or communications.

Given the complexity of the subject, the impossibility of preparing federal positions on all aspects of it in the time available, and the limited time for negotiations before agreements are to be reached at the September Conference, it is clear that the item will have to be dealt with in two parts. One of these would be handled between now and September, and the other during the negotiations which are foreseen as carrying on in the months after the September Conference and devoted generally to other constitutional items beyond the 12 on the June 9 list. “Powers affecting the Economy” could in that way serve as a brake on provincial demands not only from now until September, but in the continuing work thereafter.

The eight items proposed in February 1979 (as components of what is now called “Powers affecting the Economy”) were:

1. Powers in the economic field to fight inflation, unemployment and regional disparities, and to protect the dollar.

2. The question of non-tariff barriers to interprovincial and international trade and investment.

3. The question of interprovincial and inter­ national movement of goods and services including the right of passage of electricity and oil, gas and other minerals.

4. The question of barriers to the movement of persons for employment.

5. The regulation of competition.

6. Regulation of the Canadian securities market.

7. The question of marketing boards.

8. The problem of jurisdiction over minimum wages.

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It would seem impossible to deal with all these questions by September. Two or three major aspects could, however, be put forward with reasonable chance of being seriously debated and dealt with in the time available. Perhaps the most urgent aspect of all is the question of anti-discrimination clauses in a new Constitution to replace the current S. 121 with something a good deal more adequate. An item characterized as:

“Freedom of Movement of Goods, Services, Capital and Persons“

would, in effect, embrace most of 2, 3 and 4 from the “second list” cited above.

A second item of considerable urgency is:

“Clarification of the Federal Powers to Act in Economic Emergencies“

Unexpected limitations on the federal power to act in such cases became clear at the time of the Anti­ Inflation legislation.  Clarification (and enhancement) of the power could also help to make sure that concessions made under the Resources item do not inhibit federal action to prevent emergencies arising in that sector – even those not expected to happen for some years ahead.

Without appearing to introduce a whole new aspect, this item could be enlarged considerably by changing it to read like this:

“Federal powers to act in Economic Emergencies and to deal with important National Economic Problems which are beyond the capacity of an individual province to solve or which have a major impact on more than one province.“

A third, and definitely urgent item in the light of recent court cases would be:

“Federal Powers to set Product Standards” (e.g., for food and manufactured goods).

Questions

(1) Do Ministers agree that the Government should actively seek greater powers under the item “Powers affecting the Economy”, if for no other reason than to provide an offset for concessions the provinces are seeking under other items?

(2) Do Ministers agree with a two-phase approach to “Powers affecting the Economy”?

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(3) Do Ministers agree that the Government should make a strong pitch for stronger anti-crimination clauses in a new Constitution an that this should be a priority matter fa agreement in September?

(4) Do Ministers agree that a second question for priority treatment is the matter of Federal Power in Economic Emergencies? Should the question be expanded to embrace federal claims to new powers to deal with important National Economic Problems where, for example, the scale of a development was beyond provincial capacity, where locational decisions had to be made in he national interest, or where a development involved several provinces?

(5) Would Ministers accept the question of Product Standards as a third priority item?

(6) Are Ministers agreed that departments concerned be asked at once to help prepare position papers on these questions, so that the federal government will be prepared to state its case when the item “Powers affecting the Economy” comes up for negotiation, likely in early July?

(7) Are there other aspect of Powers affecting the Economy which Ministers feel are of as great or greater urgency than the three mentioned above?

9. Communications

Background

Many attempts, of an administrative kind, have been made to accommodate legitimate provincial interests in this field.  It was listed in the “provincial consensus” of October 1976 as an area for constitutional change and this was reaffirmed at the 1978 Premiers’ Conference in Regina. The federal government indicated in October 1978 that the broad field is one in which “both orders of government have reasonable and legitimate interests”, and called for a “more varied approach” than the existing regime which is under almost exclusive federal jurisdiction. It stipulated that a new Constitution should reflect the fact that many aspects of the field are of national significance and that others are more of a local nature. Attempts should, it said, be made to work out new constitutional arrangements, satisfactory to both orders of government.

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Between October 1978 and February 1979, the federal government advanced various possibilities for constitutional change with regard to 1) cable distribution and 2) telecommunications carriers, and raised the possibility of administrative changes with regard to 3) broadcasting and 4) radio spectrum management. Several provinces also made significant proposals. A federal draft proposal on cable distribution was put forward which was virtually agreed at the February 1979 meeting of First Ministers. No province disagreed with it; Quebec and Alberta reserved their positions even though basically satisfied with the draft. (Most provinces made it clear during discussions that they regarded the other three aspects to be equally important and did not want change to be limited to cable.)

The federal proposal on cable distribution involves the following:

– It transfers some jurisdiction over cable (now exclusively federal according to at least two Supreme Court decisions) to the provinces.

– The federal government would however retain primary jurisdiction over cable in three important aspects: “Canadian content”; “Canadian broadcast programming and services”, and, “technical standards”, and “acquire” jurisdiction over closed-circuit services to the same extent that it would control any cable services.

All licencing, rate setting, Pay-TV on cable (including entry into service, fees, licences, etc.) of cable distribution would become the responsibility of any province that chose to exercise jurisdiction.  In other provinces, the federal government would have sole responsibility. The federal government would be able to issue regulations of general application with respect to:

a) technical standards for equipment, etc. to allow the federal government to encourage use of Canadian equipment and to maintain control over “interfaces” between new technologies. (One, no doubt unintended, effect of the federal draft was to raise the possibility that federal standards could be applied to the equipment of a provincially­regulated telephone company whose facilities were leased by a cable distributor.)

b) Canadian content, to ensure that a certain level of Canadian programming will be carried on cable whether in the form of television programming, Pay-TV programming or other service where content rules would be relevant.

c) Canadian broadcast programs and services, to enable the federal government to order cale distributors to carry such programs and services and, possibly, to obtain funds to assist in financing program production.

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The basis for a possible consensus might involve (i) constitutional change in cable distribution systems generally along the lines that were already virtually agreed in February 1979, but modified to remove unintended additions to federal jurisdiction; (ii) the possibility of constitutional change to take account of provincial (local) concerns regarding radio and/or television broadcasting; (iii) willingness to discuss (in a future round of constitutional talks) change in responsibility for the intraprovincial aspects of major telecommunications carriers in Quebec, Ontario, B.C. and Newfoundland, with the inter-provincial and inter­ national aspects of all carriers (including those companies not now federally-regulated) to come under federal authority; and (iv) affirmation in the Constitution of exclusive federal jurisdiction over the radio frequency spectrum.

The federal side would not necessarily have to make a proposal in regard to broadcasting. It might be enough for it to say that it would enter the discussions with an open mind and would seek an arrangement that would best serve the interests of Canadians across the country and within their provinces.

Questions

on Scope:

(1) What aspects of communications should be included in the summer discussions? Are cable distribution and broadcasting enough?

(2) Would it be worthwhile proposing a constitutional requirement that provinces have an input on appointments to the CRTC (among, perhaps, other federal agencies in other fields)?

on Cable Distribution:

(3) Should there be insistence on a degree of federal control over closed-circuit systems?

(4) Is the wording of the current version of Article 2, on areas of federal paramountcy, broadly acceptable? What modifications are needed which would be acceptable to both the federal government and the provinces?

(5) Should the application of paramountcy on technical standards be more narrowly drafted so as to confine application to cable distribution?

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on Broadcasting:

(6) (a) Should the federal government take the initiative and advance a proposal on constitutional change in regard to broadcasting; or

(b) should it wait for proposals from the provinces?

(7) If the former ((a) above),should it be suggested, for example, that the CBC/Radio Canada remain under exclusive federal control, and that the rest of the field be under concurrent jurisdiction with federal paramountcy over interprovincial networks, and technical standards, and provincial paramountcy over individual stations and intraprovincial networks?

(8) Should federal jurisdiction over “content” be exclusive and be confined to “Canadian content” quotas and to national origin of programs?

(9) If such a suggestion (2 and 3) were advanced by the federal government, should it apply to television or radio or both?

(10) If some suggestion along the foregoing lines were made, what qualifications would have to be included? g. no interference with the formation of interprovincial networks or the acquisition of an independent station by such a network.

(11) Should the provinces be offered exclusive jurisdiction over program content in provincially-owned broadcasting services?

on Telecommunications Carriers:

(12) Should it be proposed that officials begin to study the technical and financial considerations of provincial jurisdiction over intraprovincial aspects of telecommunications carriers?

10. Family Law

Background

The family law proposals agreed to at the February 1979 conference were as follows:

(i) legislative jurisdiction over marriage should be transferred to the provinces;

(ii) legislative jurisdiction over divorce grounds should be concurrent with provincial paramountcy, but the provinces would have exclusive jurisdiction in relation to alimony, maintenance, custody and other relief corollary to divorce;

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(iii) Parliament should have exclusive legislative jurisdiction over recognition of divorce decrees and the jurisdictional basis upon Which the courts grant decrees;

(iv) provinces should be given power to confer upon provincially-appointed judges jurisdiction in all family law matters.

Ontario and Quebec have been particularly interested in obtaining total jurisdiction over the family law area in order to be able to deal in a cohesive, complete and orderly way with the legal problems of the family. To a large extent the provinces have already occupied the field of family law.  Provincial legislation covers a wide range of matters including adoption, legitimacy, division of property, and the whole area of relief, i.e. custody, access, maintenance, etc. where the parties are separated but not divorce.

The federal power over divorce – finally exercised in 1968 with the Divorce Act, has, in the view of many, had a fragmenting effect on family law – setting up different rules and different courts to administer the law simply on the basis that the parties have applied for or have gotten a divorce. The disruptive effect is felt most keenly with respect to orders ancillary to divorce, e.g. maintenance and custody.

Every major report on the Constitution in recent years that has examined the question of family law has recommended that legislative power over marriage and divorce be transferred to the provinces. This includes the 1972 Joint Parliamentary Report on the Constitution, the Canadian Bar Association’s Report “Towards a New Canada”, 1978, the 1979  Pepin-Robarts Report, and most recently, the Quebec Liberal Party’s Beige Paper “A New Canadian Federation”, January 1980.

Opposition to the Proposals

At the February 1979 conference, Manitoba and Newfoundland expressed disapproval of the family law proposal although they agreed to it in order that there might be a consensus. Their objections were based on the conviction that the rules for divorce should be uniform across the country and also that they were reluctant to take the political responsibility for legislating in such a controversial area of social policy. Since February 1979, Manitoba has said that it did not agree to the proposals at the February 1979 Conference.  At subsequent federal­ provincial constitutional meetings in the fall of 1979, Prince Edward Island and Alberta began to express reservations with the proposal.

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Since February 1979, a number of women’s groups have opposed the family law proposals. In general, (with the notable exception of La Fédération des femmes du Québec), they have been of the view that divorce grounds and the enforcement of orders ancillary to divorce decrees should remain federal. Many of these groups advocate in addition greater federal jurisdiction over the enforcement of maintenance and custody orders and over matrimonial property in general. A consultation meeting with representatives of concerned women’s groups was held with federal officials in February 1980.

Divorce

Because certain provinces were anxious to have such jurisdiction, while others preferred not to have it, it was not appropriate to provide for exclusive provincial jurisdiction.  The proposals therefore give the provinces concurrent jurisdiction over divorce with provincial paramountcy. The effect is that if a province chooses to enact laws governing divorce, those laws would apply in the enacting province. In those provinces that choose not to do so, the federal Divorce Act would continue to apply.

Critics have called this a backward step because it would allow differing laws on divorce grounds to come into effect.  Clearly, it is tidy and convenient to have a single divorce law that applies uniformly across the country.  However, in the broader context of constitutional reform, uniformity of legislation in a private law field is not necessarily in itself sufficient reason for giving exclusive power to Parliament.  Other factors have to be taken into account such as the view that it is preferable to allow for a unified approach at the provincial level in a field that is essentially local and private in nature.  In this regard, it is clear that in 1867, but for the strong concern at the time to protect religious minorities, marriage and divorce would have been given to the provinces.

It is also argued in this context that mobility of population is such that there should be the same divorce law applicable across the country. While the argument has some initial attractiveness, it could be applied to justify federal legislative authority over virtually everything that is now considered provincial, for example, education, contracts and indeed, private law in general. It is an argument of convenience that can be raised to justify a unitary state. In a federation, however, values such as diversity should receive greater emphasis in the constitutional framework.

Enforcement of Ancillary Orders

The proposals would give exclusive jurisdiction to province s over alimony, maintenance, custody and other relief in family law, including relief ancillary to

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divorce, which now comes under the legislative power of Parliament.

At the present time, by virtue of s. 14 of the fthederal Divorce Act, ancillary orders are enforceable roughout Canada. The proposal to give this power to the provinces has been strongly criticized as potentially weakening the system of enforcement of maintenance and custody orders, which has worked better under the Divorce Act than under the system of reciprocal enforcement under provincial legislation in non-divorce situations.

That criticism has merit and probably an attempt should be made with the provinces as to whether a more satisfactory solution can be found. During the 1978-79 constitutional discussions, federal officials proposed that responsibility for ancillary orders should be left with Parliament in order to facilitate enforcement. This was strenuously objected to by Ontario and Quebec and was eventually dropped from the proposal. It seems unlikely that these provinces will change their position on this point.

Another option would be to design a constitutional provision requiring the enforcement of family law relief orders across the country. It might be necessary to lay down certain basic criteria of connection between the parties and the province where the original order was made in order to give substance to such a provision. One of the difficulties with such an approach is that it might (1) make the Constitution more detailed than would be appropriate and (2) too rigid in a field that has been developing relatively rapidly over the past few decades. Concerns expressed over the present proposal would suggest, however, that this alternative should be explored again.

Questions

(1) Do Ministers agree that the federal government should indicate its continued support in general to the family law proposals agreed to at the February 1979 constitutional conference?

(2) Do Ministers agree that the federal government should explore with the provinces a qualification with respect to the enforcement of orders ancillary to divorce decrees (i.e. maintenance and custody orders}? (Legislative jurisdiction over such orders is at present exclusively federal, but the proposal would make it exclusively provincial. The main options in this regard are 1) that the power over enforcement could remain federal or 2) that the problem be dealt with through a new constitutional revision requiring enforcement of such orders made by the courts of sister provinces.)

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11. The Senate

Background

In Bill C-60, the federal government proposed the creation of a House of the Federation to replace the current Senate.  Half of the members would have been indirectly elected by provincial legislatures on the basis of the proportion of votes cast for each party in the legislature at the last general election, and the other half would have been elected by the House of Commons on the same basis. It was intended that this new House would act as a politically effective regional forum at the centre of the federation and, in so doing, that it might lessen regional alienation and reduce the pressures for the decentralization of federal authority.

The House of the Federation would have provided for equality of representation for Ontario and Quebec (24 each) and overcompensation for Atlantic Canada (32) and the West (36). There would also have been one member for each of the Territories.  The new House would only have had a suspensive veto and the supremacy of the Commons would have been provided for. Measures of special linguistic significance would have required a double majority of anglophone and francophone members of the new House. Supreme Court appointments and appointments to certain federal crown corporations and regulatory agencies would have required approval by the new House.

The response of many Senators, of the federal opposition parties and of the provinces, was generally negative.

Only one province, British Columbia, has actively espoused a proposal for Senate reform. The B.C. proposal would seek to institutionalize provincial or regional participation in the national law-making process.  It would also seek to achieve recognition of B.C. as a fifth region on an equal footing with Ontario and Quebec.  There would be equality of representation for five regions (Atlantic, Quebec, Ontario, Prairie and Pacific). Senators would be appointed and removed by provincial governments. Each provincial contingent would be led by a provincial Cabinet Minister, who would cast a block note on Category A matters (use of the declaratory and spending powers, ratification of certain federal appointments, constitutional amendments, and federal laws to be administered by the provinces). There would be a suspensive veto on other matters, and no block voting.

The B.C. proposal has not been generally supported by the provinces. Alberta is particularly concerned lest a reformed Senate compete with provincial governments in expressing provincial new points and that it might undermine the role of the First Ministers Conference. Saskatchewan also leans to this view. New Brunswick is not eager to see the current Senate altered. Quebec has not been active in discussions, maintaining that work on the distribution of powers is more important. only Ontario and Manitoba have leant support to the B.C. approach.

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It should be noted that B.C. has repeatedly made known at it .would be unwilling to participate in meaningful discussions on other constitutional subjects unless at the same time, serious consideration were given to Senate reform.

QUESTIONS

(1) On the assumption that a significant transformation of the Senate (into a body that would be perceived to be a legitimate forum for provincial/ regional participation in the federal legislative process and perhaps in certain executive matters) would reduce the pressures aimed at decentralizing federal authority, do Ministers consider that Senate reform should be given high priority in discussions with the provinces?

(2) With respect to the distribution of seats, which of the following options do Ministers consider be the best:

(a) equal representation for four (five) regions?

(b) equal representation for four regions with B.C. as a fifth “half-region”?

(c) equal representation for provinces?

(d) wide differences in the representation of individual provinces?

(e) small variations in the representation of individual provinces (or of regions)?

(f) rough equality of representation for regions combined with a degree of over-representation for less populous provinces and for provinces that are geographically distant from Ottawa?

(g) an arrangement which gives Quebec special attention?

(3) With respect to method of selection of members which of the following options do Ministers consider to be the best:

(a) appointment of a proportion of members for fixed terms by the federal government and of a proportion by provincial governments?

(b) appointment of all Senators by provincial governments?

(c) direct election of members by popular vote?

(d) indirect election of members by the federal or provincial legislatures or by both? (Bill C-60 contained a version of this)

(e) a hybrid method (such as the direct or -indirect election of all members, save one per province who would be appointed by the provincial government) ?

(4) Do Ministers consider that the functions of the Upper House should be:

(a) purely legislative?

(b) legislative, coupled with certain special constitutional functions (such as the ratification of appointments to the Supreme Court)?

(c) non-legislative (such as the ratification and advice functions of Mr. Ryan’s Federal Council)?

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(5) Do Ministers consider that the powers of the Upper House should include:

(a) an absolute veto on all matters?

(b) a suspensive veto on all matters?

(c) a short suspensive veto on some matters and a prolonged suspensive veto on others of special provincial/regional pertinence?

(d) a suspensive veto on some matters and an absolute veto on others of special provincial/ regional pertinence?

(6) Should matters of special provincial/regional pertinence subject to a prolonged suspensive veto or an absolute veto or ratification include none, some or all of the following:

(a) appointments to the Supreme Court?

(b) appointments to certain federal Crown corporations and regulatory agencies?

9c) constitutional amendment of specially entrenched matters?

(d) the use of the declaratory power?

(e) the use of the spending power?

(f) federal laws to be administered by the provinces?

(g) the use of the emergency power?

(h) the delegation of legislative authority?

(i)treaties concluded in fields of provincial jurisdiction?

(7) Should approval of matters in (6) require a simple majority, a two-thirds majority or a majority of members from each region represented in the Upper House?

(8) Should the Upper House provide a special procedure for measures of particular cultural and linguistic significance and, if so,

(a) should such measures require a double majority of anglophone and francophone members for adoption (as in C-60)?

(b) should such measures require adoption by a special panel or committee composed of an equal number of anglophone and francophone members?

(c) should such measures require adoption by a majority of members, including a majority of members  from Quebec?

(d)should such measure s require adoption by a majority of three-quarters of the Upper House?

12. Supreme Court

Background

The federal government proposed the entrenchment of a modified Supreme Court in the Constitution in Bill c-60, and discussion s on the future form of the Court were pursued with the provinces during the intensive constitutional negotiations from October 1978 to February 1979. As a result, a “best efforts draft”

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was presented to the February 1979 Conference which proposed:

– a nine-member Court;

– a requirement that the Minister of Justice consult with the Attorney General of the appropriate  province when making an appointment to the Court. (Traditionally, “appropriate province” means three Judges are appointed from Quebec, three from Ontario (although the last “Ontario” vacancy was filled by an appointment from British Columbia), one from the Maritimes, and two from the West);

– a requirement that three members of the Court be appointed from the Quebec bench or bar (as now required by section 6 of the Supreme Court Act);

– a requirement that cases concerning the civil law of Quebec be heard by a special panel of the Court composed of a majority of Quebec judges;

– a provision which would allow county, superior and district court judges to be “borrowed” by a province from another in order to facilitate the holding of court cases in either official language (the N.A. Act now prevents such “borrowing”).

In the discussion on this proposal it was clear that while most provinces agreed with the draft, Quebec was strongly opposed; its preference has always been for a specialized constitutional court (on the European model), with either some or all of the judges being appointed by the various provincial governments. British Columbia did not accept the draft because it wished to see approval of judges by a reformed Senate. Alberta also preferred some kind of Constitutional Court.

Questions

(1) In the light of the strong views of Quebec (echoed by the “Livre Beige” of Claude Ryan), would Ministers consider putting forward some kind of a proposal for a Constitutional Court? (Initially, at least, there is little reason to expect that this would receive any support from most of the provinces. However, it would constitute the exploration of a new-avenue in order to try to reach agreement.)

(2) If such court was composed of an equal number of French and English-speaking members, or of Quebec and non-Quebec members (Ryan’s proposal), it could be a vehicle for building some dualism into the constitution. Would Ministers consider the creation of such a dualistic bench?

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(3) In any proposal for a Constitutional Court, one of the most important issues would be how the judges should be appointed. Would Ministers have preferences among these principal options?:

– provincial appointment, of all or one-half of the judges (if one-half, federal appointment of the other half);

– federal appointment ratified by a reformed Upper House;

– appointment by an independent judicial committee;

– some mechanism of joint federal-provincial appointment (e.g., the Victoria Charter mechanism)?

(4) A related issue which is certain to be raised by provincial governments (whether or not a proposal for a Constitutional Court is put forward) is the federal appointment of superior, district and county court judges. The previous federal offer was to provide for the same mechanism of consultation as would be applicable under the “best efforts draft” to the appointment of Supreme Court judges. Are Ministers prepared to go further and turn over the appointment of superior, district and county court judges to the provinces?

The Honourable Jean Chretien
Minister of Justice

S E C R E T

ANNEX 2

Towards a New Canadian Constitution: Federal Position on the Priority Items

Possible Answers to Questions in Cabinet Memorandum

Introduction

The possible answers that follow are set out in exactly the same order as the questions in the draft Memorandum to Cabinet; the same numbering is used. The page references accompanying the tentative answers and comments are to the pages in the Cabinet Memorandum.

TABLE OF CONTENTS

Item                                                                                                     Page

General Questions                                                                                          l

1. Statement of Principles for a New Constitution 1
2. Charter of Rights                                                                                     3
3. A Dedication to Sharing and/or to Equalization:

the Reduction of Regional Disparities                                                           4

4. Patriation of the Constitution, the Amending Formula and the

Delegation of Legislative Authority                                                               5

5. Resource ownership and Interprovincial Trade             6
6. Offshore Resources                                                                                     8
7. Fisheries                                                                                                 9
8. Powers affecting the Economy                                                             10
9. Communications                                                                                     12
10. Family Law                                                                                                 13
11. The Senate                                                                                                 14
12. Supreme Court                                                                                     16

ANNEX 2

POSSIBLE ANSWERS

GENERAL QUESTIONS

(see p. 7 of draft Memorandum to Cabinet (MC))

Tentative answers and comments

(1) We feel very strongly that the answer should be “yes”. It would be enormously difficult to avoid charges of bad faith from the provinces and to avoid extremely unpleasant scenes in Parliament, if the Government tried to move ahead unilaterally on its own priority items without an obviously serious effort having been made to reach agreement on the rest.

(2) It is perhaps premature to ask this question, but we think it raises a potential “scenario” that you should have very much in mind. In a situation of no overall agreement in September, we think there is likely to be much less bad feeling in the country as a whole, and in Parliament, if in going forward unilaterally with the “People’s package” you are also able to go forward at the same time with a goodly number of the other items, moving ahead whenever there has been developed a “best efforts draft” that is supported by all or even by 8 or 9 of the provinces.

We believe that such a course could also be used to demonstrate to Quebecers that on the “powers” in which they have shown so much interest (and to a degree an interest in institutions), some real progress can be made – even though it may not match the impossible demands of Mr. Levesque. To keep this scenario as a viable possibility for the moment when you make the crucial decision after the September Conference, a genuine attempt has to be made over the summer to reach the maximum agreement attainable on the 12 items.to be negotiated.

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(3) We think unanimous agreement is what the government should try for. Support from 9 or 8 provinces at the end.is a result which may have to be lived with (and which may well provide a sufficient base of agreement on which to go to Westminster). However, to try for 8 or 9 from the outset, is to end up with 6 or 7 or less at the end.

(4) We think the answer should be “yes”. We have used the expression “in net terms” on the economic front, bearing in mind that while gains should be achieved on “Powers affecting the economy”, concessions may be needed on “Resources”.

(5) We would hope the answer would be “yes”.

(6) We would like to see this looked at carefully.

(7) It is perhaps inappropriate for us to comment. However, we have thought a great deal about it and would hope that specific possibilities could be studied as negotiations go forward so that they could be rejected (or accepted) on their particular merits, rather than rejected en masse in advance. We think the B.N.A. Act practice of having ‘curious anomalies’ may not necessarily be a bad precedent for a future Constitution.

(8) We would think any major work in Parliament over the summer (e.g., a Parliamentary Committee) unless working on a very narrow mandate, would make Mr. Chretien’s life impossible. Apart from that, we believe Parliament will somehow have to be brought along so that the Members will be mentally prepared to bite the major bullets you may well be serving them after the September Conference. We believe you and the Ministers will need no suggestions from us in how best to prepare them. One possibility, of course, would be to organize periodic briefing sessions for the caucuses.

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1. STATEMENT OF PRINCIPLES FOR A NEW CONSTITUTION

(see p. 9 in draft MC)

Tentative Answers and Comments

We would suggest the following answers to the two questions listed under Principles:

(1) Yes. (There would, of course, be no reference to self-determination of a province or particular group. )

(2) Yes. What is envisaged is a ministerial sub-committee, not an officials group. This would allow work to continue without causing the CCMC as a whole to become bogged down in an extended drafting session.

2. CHARTER OF RIGHTS

(see pp. 9 to 23 in draft MC)

Tentative Answers and Comments

(1) (p. 11 of MC) Yes. It should be contemplated, but not offered until much later in the negotiations and then rather grudgingly. Could probably be held back until the First Ministers Conference.

It should only be contemplated for linguistic rights. Even then it should not be a blanket opting-in but would be applied separately to each of the types of language rights (courts, government services, legislatures, statutes, and education).

(2) (p. 11 of MC) Yes.

(3) (p. 13 of MC) No, to the first part of the question. Yes, the question of linkage should be left in abeyance for now.

(4) (p. 13 of MC) We would suggest that “national security• be used for the time being and that we try to develop a more narrowly defined alternative for use later in the process. This is not a federal-provincial issue.

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(5) (p. 15 of MC) No. But the answer is based on the premise that the government attaches higher priority to entrenching a Charter of Rights that is one of the most comprehensive possible than to reaching agreement with the provinces more readily.

(6) (p.19 of MC) Both (a) and (b) should be incorporated in a revised proposal, but it might well be worth thinking about devising some form of words which would allow “qualified” “Newfoundlanders”, say, first crack at jobs.

(7) (p. 21 of MC) Yes, Manitoba should be named.

(8) (p. 21 of MC) Yes, there should be further discussion of items 4  and 5.

(9) (p. 21 of MC) Yes, item 10 should be reconsidered.

(10) (p. 21 of MC) Yes, the principle of judicial reviewability should be perceived.

(11) (p. 23 of MC) Yes, item 11 should be deleted.

3. A DEDICATION TO SHARING AND/OR TO EQUALIZATION: THE REDUCTION OF REGIONAL DISPARITIES

(see pp. 23 to 25 in draft MC)

Tentative Answers and Comments

(1) The answer must surely be “yes”. (p. 25 of MC)

(2) Our answer is “yes”. (p. 25 of MC)

(3) We would like a “yes” answer on this. It will be useful to have a few items on which the federal government can continue to express its own interest in the work “beyond the September Conference” (even as you yourself referred publicly to such an important matter as “social policy” that will await attention after the first priority items are dealt with.) “Powers affecting the Economy” is another case in point, where only part of the task can be done by September. (p. 25 of MC)

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4. PATRIATION OF THE CONSTITUTION, THE AMENDING FORMULA AND THE DELEGATION OF LEGISLATIVE AUTHORITY

(see pp. 25 to 29 in draft MC)

Tentative Answers and Comments

(1) You might wish to indicate your preference for early action after the September Conference. The public expectation for significant change will be high and momentum should not be lost. Patriation would complete the process of accession to independence begun in 1926 and would provide Canadians with the means of working out further constitutional changes in Canada without reference to a foreign Parliament. (p. 27 of MC)

(2) You might wish to indicate that the first option could not be attacked by the provinces as altering their current rights, but it would lack clarity. The second option contains two possibilities: (p. 27  of MC)

– the first (entrenching at once the best formula in the eyes of the federal government) could be attacked by the provinces as altering their existing rights; this approach could be characterized as “biting the bullet”;

– the second would not alter the existing rights of the provinces initially, but it would oblige them to come to early agreement if they did not like the formula put forward by the federal government.

(3) You might wish to indicate that the federal government has had a long-standing preference for the Victoria Charter formula, which combines elements of flexibility and protection on a regional basis. There was movement away from the Victoria formula because Alberta objected to some, but not all, provinces having a veto and British Columbia wished to be recognized as a fifth region, although eight provinces had found it generally acceptable at the outset. The “Toronto consensus” formula was devised principally as a response to Alberta ‘s position but, in the last analysis, it gained even less support than the Victoria formula had had earlier. (p. 27 of MC)

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(4) You might wish to indicate a preference for including provision respecting the delegation of legislative authority which would add further flexibility to the Constitution and might prove useful in handling some powers items subsequently (e.g. fisheries and family law).

5. RESOURCE OWNERSHIP AND INTERPROVINCIAL TRADE

(see pp. 29  to 35 in draft MC)

Tentative Answers and Comments

(1) We believe the answer should be “yes”. (p. 33 of MC)

(2) Generally, the answer should be “yes”. However, that begs another question which we have not asked as Finance and EMR officials reacted negatively in the past when we posed it to them. You may, nevertheless, want to think about it. The question is this: (p. 33 of MC)

“Given that perpetual wrangling over oil and gas prices are very bad for relations between the federal government and western Canada and given that such wrangling may well continue for several decades unless something is done, and given Alberta’s profound distrust in the face of Canada’s constitutional capacity to force any pricing or taxing (and hence sharing) arrangement it wishes, should not both sides try to write some fundamental sharing concept (or even proportions to be shared) into the Constitution itself?”

(3) While we do not like the answer, we think it has to be “yes”. (p. 33 of MC)

(4) We think the producing province should receive special benefit; otherwise ownership is meaningless. For it to receive more than all the country put together would seem ridiculous. “Reasonable” would seem to lie between these extremes. (p. 33 of MC)

(5) The answer to this is controversial even among us here in the FPRO. It seems repugnant that a province should “look after its own first” (p. 33 of MC)

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(presumably short of emergencies in the rest of Canda). Yet, if it cannot do so, is it not losing the right to exercise the most basic concept of ownership? In short, it’s a tough question, and the answer will have considerable bearing on any “anti-discrimination” clauses we try to frame. (p. 33 of MC)

(6) To the first part of this question, we say “yes” and to the second, “no”. (p. 33 of MC)

(7) The right of ownership implies the right to give as well as the right to receive. With reluctance, and partly because any rules could be evaded in any event, we would be inclined to answer “yes” for both residents and industry. We would think a differential is worth examining. (p. 33 of MC)

(8) The answer is clearly “yes”. (p. 35 of MC)

(9) If some new solution can be produced in the next few days, that would meet federal needs better than what could be achieved by further work on the “best efforts draft”, and if that solution also met the criterion of giving some recognition to the strong feelings of western Canada on the subject (which is why it came on the agenda in the first place), then we see no reason not to move to such a solution. However, we doubt that such a solution is likely to be available. (p. 35 of MC)

Any move to withdraw from the “best efforts draft” and to substitute a solution which did not meet the criterion mentioned, would make the government’s battle with the producing provinces over oil and gas pricing even more bitter. This may not matter with Alberta where bitterness is at 100% in any event, but it could matter a good deal with Saskatchewan and B.C.

(10) (a) we prefer your April 1979 solution. Persuading six provinces to join Ottawa in forcing the hand of another province would be messy. In the context of the energy debate, it would also be seen as an attack on western Canada. (p. 35 of MC)

(b) we think this work is essential if we are to know what we are putting into the Constitution.

(c) This work is also essential.

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6. OFFSHORE RESOURCES

(see pp. 35 to 37 in draft MC)

(1) We have no reason to suggest – nor are we aware of – any quite different approach. We think, however, that more will be needed if an agreement is to be reached – probably on the percentage of revenue to be shared and perhaps on ownership within the 12-mile limit. (p. 37 of MC)

(2) Giving a greater share to coastal provinces weakens potential federal capacity to serve the country. However, because the best resources seem to lie off the coasts of poorer provinces in eastern Canada, giving more to them helps to right their perpetual situation as the economic underdogs. Furthermore, 100% sounds far more generous than 75%, while the difference between 25% and the cost of administration (which is all we would retain under the existing 75-25 offer) may not be all that much in any event. (p. 37 of MC)

(3) Our answer would be “yes”. (p. 37 of MC)

(4) It is hard to see that Canada would lose anything of any great importance under such an arrangement. Used with discretion (to avoid major international unpleasantness), it might be used as a means of solidifying Canada’s claims in some areas where the international boundary is uncertain. It would, of course, give B.C. the ownership of the resources underlying the Strait of Georgia for which B.C. might be prepared to support the federal position on other things. (p. 37 of MC)

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7. FISHERIES

(see pp. 39 to 41 in draft MC)

Tentative answers and comments

(1) A fairly strong case can be made for a transfer. Moreover, in the provinces west of the Maritimes there are delegation arrangements so that the provinces set and enforce the fishing regulations. (p. 39 in MC)

(Such a transfer would do little to satisfy Newfoundland and Nova Scotia.)

(2) On 2(a), the answer is “yes”, perhaps through a special provision dealing with interprovincial and international waters. (p. 39 in MC)

On 2(b), the answer is also “yes”, at least to cover the fresh water phase of the salmon’s life cycle.

(3) It would be preferable to retain maximum federal jurisdiction. We also believe that the federal side should make no proposals on its own, but respond to proposals from the provinces. We believe it might be possible, in such a response, to make some minor concessions of little harm to federal control. (p. 39 in MC)

(4) (a) We believe it would be worth considering. It would mean retaining exclusive federal power, but granting the provinces a constitutionally-entrenched right to be consulted, with perhaps an obligation on them to consult the federal government with respect to regulations on fish plants; (p. 41 in MC)

(b) we should consider this only as a last resort and under an arrangement comparable to s. 95 on agriculture, with federal paramountcy:

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(c) The Department of Fisheries would certainly argue that there is no need for such an arrangement.       It should perhaps be looked at again, however, as a possible adjunct to (a) above, if this would provide a means of avoiding jurisdictional concessions while still reaching agreement with all or most provinces.

(5) The answer is “yes”. (p. 41 in MC)

(6) We think (b) is preferable to (a), but would rather avoid any such change of jurisdiction. (p. 41 in MC)

(7) We do not know but there almost certainly are improvements which could be offered at the appropriate moment. (p. 41 in MC)

8. POWERS AFFECTING THE ECONOMY

(see pp. 41 to 47 in draft MC)

Tentative answers and comments

(1) We believe the answer should be “yes”, not only for the sake of “offsets”, but also because added federal power does seem genuinely required in some areas. There has to be, of course, some discretion in what is demanded; otherwise the federal government could be accused of using this item as a means of making agreement impossible on the 12 items now before governments. (p. 45 of MC)

(2) The answer should be “yes”. There is simply no time between now and the July negotiations to develop federal positions on all aspects. Moreover, given the complexity of the field, there would not be enough time to negotiate all such positions before the September Conference. Also, if demands were made on all aspects at once, they would likely appear out of all proportion in provincial eyes to the concessions the government is likely to be willing to make on other items of the 12. We believe it better to ask for some of what the government wants now, and the rest after the September Conference. (p. 45 of MC)

(3) The answer should be “yes”. This also ties in nicely with an important aspect of the Resources item. (p. 47 of MC)

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(4) On “powers in economic emergencies”, we believe the question is of high priority and the answer should be “yes”. This also ties in nicely with an important aspect of the Resources item (the comparison of any new definition of economic emergencies with any definition of “compelling national interest”). (p. 47 of MC)

On the expansion of the question to cover more general federal economic powers re “National Economic Problems”, this is a new concept which has barely been touched upon in past studies. Justice has suggested, and we agree, that it is worth a special effort over the next couple of weeks to see whether a defensible proposal can be developed for presentation to the provinces.

(5) The answer should be “yes”. Recent court decisions have apparently reduced the power we thought we had. Provinces generally are unlikely to oppose a reasonable federal request in this area. (p. 47 of MC)

(6) The answer should be “yes”. (p. 47 of MC)

(7) We had to ask the question, but rather hope the answer will be “no”. We think the three areas we have suggested (Anti-discrimination, Emergency Economic Powers and Product Standards) coupled with the expansion of the second of these into what is really a whole new area (National Economic Problems) are about all the system can handle between now and September. (p. 47 of MC)

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9. COMMUNICATIONS

(see pp. 47 to 53 in draft MC)

Tentative Answers and Comments

on Scope:

(1) (p. 51 of MC) Clearing up the remaining concerns with respect to the federal draft on cable distribution and trying to reach agreement on division of responsibility for radio and/or TV broadcasting should be ample for the summer discussions. The federal government should probably support any proposal that involves delaying consideration of other aspects until a future round of talks.

(2) (p. 51 of MC) This proposal is one worth considering but is dependent upon whether the federal government is prepared to allow provincial participation in appointments to other federal boards or agencies. It would not need to be decided yet.

on Cable Distribution:

(3) (p. 51 of MC) Yes. Many of the federal concerns demonstrated by its draft on cable distribution apply also to closed-circuit, i.e. use of Canadian equipment, Canadian content levels, possible use of funds in assisting the financing of program production.

(4) (p. 51 of MC) The federal government should show openness to other modifications to Article 2 which would make it more acceptable to the provinces and yet still meet the concerns of the federal government.

(5) (p. 51 of MC)      We should consider a more carefully drafted wording of Article 2   to confine the application of federal paramountcy over technical standards to cable distribution. on Broadcasting:

on Broadcasting:

(6) (p. 53 of MC) a) We would suggest that no proposal be made until the provinces put forward theirs.

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b) It would be enough for it to enter the discussions with an open mind and seek an arrangement that would best serve the interests of Canadians across the country and within their provinces.

The federal agencies concerned should, nevertheless, get to work at once to prepare a proposal which could be put on the CCMC table.

(7) (p. 53 of MC) We would suggest that the federal agencies develop a proposal along these lines.

(8) (p. 53 of MC) Yes. These would be consistent with the proposal in the Beige Paper.

(9) (p. 53 of MC) This matter would have to be dealt with in designing the proposal envisaged in 2 and 3.

(10) (p. 53 of MC) Obviously certain qualifications would have to be included in the above proposal, including the examples mentioned. This, too, would need to be looked at in designing a federal proposal.

(11) (p. 53 of MC) Yes. In effect they have this juris­ diction already.

on Telecommunication Carriers:

(12) (p. 53 of MC) Yes, if the question of telecommunication carriers is raised.

10 FAMILY LAW

(see pp. 53 to 59 in draft MC

Tentative Answers and Comments

(1) (p. 59 of MC) Yes, subject to the qualification of the enforcement of ancillary orders (see  (2)).

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(2) (p. 59 of MC) Yes, a qualification with respect to anc7llary orders should be raised with the provinces. I is a significant potential problem and those province that have pushed ahead for legislative jurisdiction in this area should be made aware of the considerable opposition that the federal government has faced with respect to the proposals. It is probable that the provinces most concerned would be more amenable to a constitutional provision requiring reciprocal enforcement than simply leaving the matter within federal jurisdiction.

11. THE SENATE

(see pp. 61 to 65 in draft MC)

Comments

This will be a difficult item to handle in the CCMC. To gain time, we will try to have it come up toward the latter part of the July negotiating sessions, but this may not be easy. British Columbia has repeatedly stated its unwillingness to discuss other subjects unless parallel and serious consideration is given to its principal preoccupation.

While it will not be necessary to expose the final federal position until the September Conference, it would be most helpful in the meantime to have a clearer idea of what it will be. This is not only so that discussions in the CCMC can be influenced in the right direction in preparation for September, but also because the ultimate disposition of the Senate is important to the entire balance between institutions and powers. Finally, it would be most useful to have a few “crumbs” to place on the table (e.g., advocate extra Senate seats for B.C.) for use in the CCMC and to stave off criticisms of no movement at all.

It is in the light of these observations and needs that you may wish to lead Ministers through a consideration of the “questions” we posed in the document. You might suggest that they concentrate initially on the purpose of Senate reform. (see page 63 in draft MC, Question l)

In the CCMC, little progress has been made to date because governments have not resolved (or worked hard at resolving) the basic question of purpose. Discussion of matters such as the distribution of seats, method of selection and powers has lacked direction, with some governments indicating several preferences on each item, depending upon the purpose the new Senate would be designed to serve.

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There appear to be two basic thrusts on the table at present:

– to provide a politically-effective regional or provincial forum at the centre; or

– to provide provincial government participation in the federal legislative process and in certain executive matters.

The first thrust does not exclude the possibility of some form of provincial government participation (e.g., the House of the Federation), but it would not place the Senate principally or solely in the hands of provincial governments. The second thrust would tend to place the Senate in provincial government hands and to make some federal legislation and/or executive actions subject to the will of provincial governments.

A decision on the thrust or purpose of Senate reform is a matter for political judgment.     We would argue, however, that the reform of institutions is an integral part of the renewal of federalism, as Bill C-60 made clear. The various proposals emanating from task forces, commissions and private foundations have attached great importance to Senate reform and the public would now ·appear ready for movement on this matter. The government of Quebec has not, in the CCMC, attached much importance to this question, but an indication that some governments were now leaning towards the spirit, if not the letter, of Mr. Ryan’s proposal for a Federal Council might oblige the government of Quebec to address the matter more seriously.

Once Ministers have resolved the question of the purpose of Senate reform, you might wish to seek preliminary views on their preferences on the first seven questions. (pp. 63 and 65 of draft MC)

The eighth question (p. 65 of MC) is one on which you might wish a firmer expression of views. An affirmative answer to the main question, without speaking of two founding peoples, would address directly the duality of Canadian society. Furthermore, it would provide for a special consideration of Quebec since the majority of francophone members of a new Upper House would be Quebecers.

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12. SUPREME COURT

(see pp. 65 to 69 in draft MC)

Tentative answers and comments

(1) On the substance of the question, many federations have Constitutional Courts. Probably the federal government could easily endorse a Constitutional Cur in the sense of one of specialized jurisdiction over constitutional and other related matters such as fundamental rights, provided that constitutional issues were separated out only at the Supreme Court level. It would be much more difficult, however, to meet Quebec’s likely desire to have some judges appointed by the provinces and a balance between French/English or Quebec and non-Quebec judges. (p. 67 of MC)

On the question of tactics, it would seem best not to put forward a proposal at the start, but to await Quebec’s comments on the Best Efforts Draft which most provinces favour. At that time, it would seem appropriate to see whether some compromise acceptable to all parties could be worked out. Some “sounding out” of other provinces could be done in the meanwhile.

(2) The least attractive structure is a Court composed of Quebec and non-Quebec judges. However, a Court composed of an equal number of French and English-speaking judges is not as objectionable. If it is desirable to build into the Constitution some aspect of dualism, this is one of the few places where it might be possible to do so. It would be difficult, nevertheless, to obtain general agreement. Increasing the number of judges might be a way to achieve something acceptable. (p. 67 of MC)

(3) Provincial appointment of half the judges would force those who now can take a neutral stance to “represent” their own constituency. Provincial appointment of all judges would be less objectionable from a legal point of view, but would seem

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unacceptable for other reasons. Appointment by ratification of the Upper House depends on what kind of Upper House is agreed upon. Of the options listed, the most attractive would seem to be some kind of joint federal-provincial appointment, hopefully less complicated than the Victoria proposal. (p. 69 of MC)

(4) This is basically a political decision. Some argue that federal appointment of Section 96 Judges is an anomaly in a federal system, but there are no strong legal grounds for one method of appointment rather than the other. Courts in our federation interpret and apply to both federal and provincial laws.    If the government does not wish to give up this appointing power to the provinces, the most appropriate solution would seem to be a mechanism for joint appointments similar to whatever is chosen for the Supreme Court. (p. 69 of MC)