Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 28th Parl, 2nd Sess, No 1 (3 March 1970)


Document Information

Date: 1970-03-03, 1970-05-19, & 1970-05-28
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 28th Parl, 2nd Sess, No 1 (3 March 1970).
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Second Session

Twenty-eighth Parliament, 1969-70

—————

THE SPECIAL JOINT COMMITTEE

of

THE SENATE

and of

THE HOUSE OF COMMONS

on the

CONSTITUTION OF CANADA

Senator

MAURICE LAMONTAGNE

Joint Chairmen

MARK MacGUIGAN

M.P.

—————

MINUTES OF PROCEEDINGS

AND EVIDENCE

No. 1

—————

TUESDAY, MARCH 3, 1970

TUESDAY, MAY 19, 1970

THURSDAY, MAY 28, 1970

—————

Including

FIRST AND SECOND REPORTS TO BOTH HOUSES OF PARLIAMENT

—————

Appearing:

Minister of Justice and Attorney General of Canada. Hon. John N. Turner

—————

WITNESSES

(See Minutes of Proceedings)

[Page 2]

SPECIAL JOINT COMMITTEE ON THE CONSTITUTION OF CANADA

Senator

MAURICE LAMONTAGNE

Joint Chairmen

MARK MacGUIGAN

M.P.

Representing the Senate

Senators

Connolly (Ottawa West),

Cook,

Flynn,

Giguère

Grosart,

Lang,

Macdonald (Cape

Breton),

MacDonald,

Phillips (Rigaud)—10.

Representing the House of Commons

Messrs.

Alexander,

Allmand,

Asselin,

Baldwin,

Breau,

Brewin,

Dinsdale,

Fortin,

Gibson,

Hogarth,

Hopkins,

Lachance,

Lewis,

Marceau,

McQuaid,

Osler,

Ouellet,

Roberts,

Woolliams—20.

(Quorum—17)

Michael B. Kirby,

Patrick J. Savoie,

Joint Clerks of the Committee.

[Page 3]

ORDER OF REFERENCE OF THE SENATE

Extract from the Minutes of the Proceedings of the Senate

TUESDAY, February 17, 1970.

“Pursuant to the Order of the Day, the Senate resumed the debate on the motion of the Honourable Senator Martin, P.C., seconded by the Honourable Senator McDonald.

That the Senate do unite with the House of Commons in the appointment of a Special Joint Committee of both Houses to examine and report upon proposals, made public, or which are from time to time made public by the Government of Canada, on a number of subjects related to the Constitution of Canada during the course of the comprehensive review of the Constitution of Canada, which review was agreed upon at the Constitutional Conference of the Prime Minister of Canada and the Premiers and Prime Ministers of the Provinces in February, 1968, and alternative proposals on the same subjects;

That the following Senators be appointed to act on behalf of the Senate on the Special Joint Committee, namely, the Honourable Senators Connolly (Ottawa West), Cook, Flynn, Giguère, Grosart, Lamontagne, Lang, Macdonald (Cape Breton), McDonald and Phillips (Rigaud);

That the Committee have power to appoint, from its members, such subcommittees as it may deem advisable or necessary;

That the Committee have power to sit during sittings and adjournments of the Senate;

That the Committee have power to report from time to time, to send for persons, papers and records, and to print such papers and evidence from day to day as may be ordered by the Committee;

[Page 4]

That the Committee have power to adjourn from place to place within Canada; and

That a Message be sent to the House of Commons to inform that House accordingly.

After debate, and—

The question being put on the motion, it was—

Resolved in the affirmative, on division.”

ATTEST:

ROBERT FORTIER,

Clerk of the Senate.

[Page 5]

ORDERS OF REFERENCE OF THE HOUSE OF COMMONS

TUESDAY, January 27, 1970

Resolved,—That a Joint Committee of the Senate and the House of Commons be appointed to examine and report upon proposals, made public, or which are from time to time made public by the Government of Canada, on a number of subjects related to the Constitution of Canada during the course of the comprehensive review of the Constitution of Canada, which review was agreed upon at the Constitutional Conference of the Prime Minister of Canada and the Premiers and Prime Ministers of the Provinces in February, 1968, and alternative proposals on the same subjects;

That twenty members of the House of Commons, to be designated by the House at a later date, be members of the joint committee on the part of this House;

That the committee have power to appoint, from among its members, such subcommittees as it may deem advisable or necessary;

That the committee have power to sit during sittings and adjournments of the House;

That the committee have power to report from time to time, to send for persons, papers, and records, and to print such papers and evidence from day to day as may be ordered by the committee;

That the committee have power to adjourn from place to place within Canada.

THURSDAY, February 26, 1970

Ordered,—That the Members of the House of Commons on the Special Joint Parliamentary Committee on the Constitution of Canada be Messrs. Alexander, Allmand, Asselin, Baldwin, Breau, Brewin, Dinsdale, Fortin, Gibson, Hogarth, Hopkins, Lachance, Lewis, MacGuigan, Marceau, McQuaid, Osler, Ouellet, Roberts and Woolliams.

[Page 6]

MONDAY, March 9, 1970

Ordered,—That the quorum of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada be seventeen members so long as both Houses are represented, whenever a vote, resolution or other decision is taken, and that the Joint Chairmen be authorized to hold meetings to receive evidence and authorize the printing thereof when seven members are present so long as both Houses are represented.

ATTEST:

ALISTAIR FRASER,

The Clerk of the House of Commons.

[Page 7]

REPORTS TO THE SENATE

Extracts from the Minutes of Proceedings of the Senate

THURSDAY, March 5, 1970

“The Honourable Senator Giguère for the Honourable Senator Lamontagne, P.C., from the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, presented its first Report as follows:—

TUESDAY, March 3, 1970

The Special Joint Committee of the Senate and House of Commons on the Constitution of Canada makes its first report as follows:

Your Committee recommends that whenever a vote, resolution or other decision is taken, its quorum be set at seventeen members so long as both Houses are represented, and also recommends that the Joint Chairmen be authorized to hold meetings to receive evidence and authorize the printing thereof when seven members are present so long as both Houses are represented.

Respectfully submitted,

MAURICE LAMONTAGNE,

Joint Chairman.

The Honourable Senator Giguère for the Honourable Senator Lamontagne, P.C., moved, seconded by the Honourable Senator Argue, that the Report be taken into consideration at the next sitting of the Senate.

The question being put on the motion, it was—

Resolved in the affirmative.”

[Page 8]

TUESDAY, March 10, 1970

“Ordered, That the Order of the Day for the consideration of the first Report of the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, be brought forward.

Pursuant to the Order of the Day, the Senate proceeded to the consideration of the first Report of the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada.

The Honourable Senator Lamontagne, P.C., moved, seconded by the Honourable Senator Connolly, P.C., that the Report be adopted now.

The question being put on the motion, it was—

Resolved in the affirmative.”

THURSDAY, May 21, 1970

“The Honourable Senator Giguère for the Honourable Senator Lamontagne, P C., from the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, presented its second Report, as follows:—

TUESDAY, May 19, 1970

The Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada makes its second Report as follows:

Your Committee recommends that it be empowered to retain the services of three specialists to assist

(a) in organizing its work, including its meetings beyond the precincts of Parliament,

(b) in analyzing the material presented to it or already available, and

(c) in helping generally in the course of the Committee’s work.

Your Committee also recommends that it be empowered to retain such

[Page 9]

other expert staff as well as the necessary clerical and stenographic help deemed advisable.

On the assumption that your Committee will be reconstituted in the next and the next ensuing sessions, and in order to safeguard the continuity of the Committee’s work and research, it is further recommended that the Committee be empowered to retain the services of the above personnel until the Committee has concluded its work or until December 31, 1971, whichever is the earlier.

All which is respectfully submitted.

MAURICE LAMONTAGNE,

Joint Chairman.

The Honourable Senator Giguère for the Honourable Senator Lamontagne, P.C., moved, seconded by the Honourable Senator Duggan, that the Report be taken into consideration at the next sitting of the Senate.

The question being put on the motion, it was—

Resolved in the affirmative.”

TUESDAY, May 26, 1970.

“Pursuant to the Order of the Day, the Senate proceeded to the consideration of the Report of the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada.

The Honourable Senator Lamontagne, P.C., moved, seconded by the Honourable Senator Benidickson, P.C., that the Report be adopted now.

After debate, and—

The question being put on the motion, it was—

Resolved in the affirmative.”

[Page 10]

REPORTS TO THE HOUSE OF COMMONS

TUESDAY, March 5, 1970

The Special Joint Committee of the Senate and House of Commons on the Constitution of Canada has the honour to present its

FIRST REPORT

Your Committee recommends that whenever a vote, resolution or other decision is taken, its quorum be set at seventeen members so long as both Houses are represented, and also recommends that the Joint Chairmen be authorized to hold meetings to receive evidence and authorize the printing thereof when seven members are present so long as both Houses are represented.

Respectfully submitted,

MARK MacGUIGAN,

Joint Chairman.

(Concurred in on Monday, March 9, 1970)

WEDNESDAY, May 20, 1970

The Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada has the honour to present its

SECOND REPORT

The Special Joint Committee recommends that it be empowered to retain the services of three specialists to assist

(a) in organizing its work, including its meetings beyond the precincts of Parliament,

(b) in analysing the material presented to it or already available, and

(c) in helping generally in the course of the Committee’s work.

[Page 11]

Your Committee also recommends that it be empowered to retain such other expert staff as well as the necessary clerical and stenographic help deemed advisable.

On the assumption that the Special Joint Committee will be appointed in the next and the next ensuing sessions, and in order to safeguard the continuity of the Committee’s work and research, it is further recommended that the Committee be empowered to retain the services of the above personnel until the Committee has concluded its work or until December 31, 1971, whichever is sooner.

Respectfully submitted,

Mark MacGuigan,

Joint Chairman.

[Page 12]

[Page 13]

MINUTES OF PROCEEDINGS

TUESDAY, March 3, 1970

The Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada met this day at 8:05 p.m., for the purpose of organization.

Members present:

Representing the Senate: Senators Connolly (Ottawa West), Cook, Giguère, Grosart, Lamontagne, Lang, and Phillips (Rigaud).—(7).

Representing the House of Commons: Messrs. Alexander, Allmand, Asselin, Baldwin, Breau, Brewin, Gibson, Hogarth, Lachance, Lewis, MacGuigan, Marceau, Osler, Ouellet, Woolliams.—(15).

The Joint Clerk of the Committee attending and having called for motions to elect the Joint Chairmen from the Senate and from the House of Commons Sections of the Committee, the Honourable Senator Cook moved, seconded by the Honourable Senator Phillips (Rigaud), that the Honourable Senator Lamontagne be elected chairman from the Senate Section.

On motion of Mr. Woolliams, it was

Agreed,—That nominations for Chairman of the Senate Section be closed.

Thereupon, the Joint Clerk declared the Honourable Senator Lamontagne elected Chairman from the Senate Section.

Mr. Gibson moved, seconded by Mr. Marceau, that Mr. MacGuigan be elected Chairman from the House of Commons Section.

On motion of Mr. Lachance, it was

Agreed,—That nominations for Chairman of the House of Commons Section be closed.

Thereupon, the Joint Clerk declared Mr. MacGuigan elected Chairman from the House of Commons Section.

[Page 14]

The Joint Chairmen taking the Chair in turn thanked the members of the Committee for the honour bestowed on them.

On motion of Mr. Lewis, it was

Agreed,—That the Committee print 1,500 copies of its Bilingual Minutes of Proceedings and Evidence and, as a supplementary issue, an index prepared by the Library of Parliament.

Mr. Hogarth moved that the Joint Chairmen and five members of the Committee appointed by the Joint Chairmen do compose the Subcommittee on Agenda and Procedure.

After debate, the question being put on the said motion, it was resolved in the affirmative.

Mr. Hogarth moved that the Joint Chairmen report to their respective Houses and seek permission to have the quorum of the Committee set at 17, so long as both Houses be represented whenever a vote, resolution or other decision is taken and to have the Joint Chairmen authorized to hold meetings to receive and authorize the printing of evidence when seven members of the Committee are present so long as both Houses be represented.

After debate, the question being put on the said motion, it was resolved in the affirmative.

A general discussion followed about the future activities and work of the Committee during which the Joint Clerk was requested to read the Committee’s Order of Reference.

Later, at 9:30 p.m., on motion of Mr. Lewis, the Committee adjourned to the call of the Chair.

TUESDAY, May 19, 1970

(2)

The Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada met, in camera,

[Page 15]

this day at 7:30 p.m. The Joint Chairman Mr. MacGuigan, presided.

Members present:

Representing the Senate: Senators Cook, Giguère, Lamontagne, Macdonald (Cape Breton), Phillips (Rigaud).—(5).

Representing the House of Commons: Messrs. Alexander, Allmand, Asselin, Breau, Brewin, Dinsdale, Gibson, Hogarth, Lewis, MacGuigan, McQuaid, Osler, Ouellet.—(13).

The Joint Chairmen presented the First Report of the Subcommittee on Agenda and Procedure, which is as follows:

The Subcommittee on Agenda and Procedure has accepted the substance (though not necessarily the language) of the “Work Program” proposed by the Joint Chairmen, and has agreed to distribute it to members of the Committee.

In particular, the Subcommittee on Agenda and Procedure recommends the following:

  1. That the public hearings of the Committee begin about May 26th with the hearing of Government witnesses;
  2. That the purpose of calling Government witnesses be to hear explanation of the detail of the propositions in the Constitutional Papers presented by the Federal Government to the Federal-Provincial Conferences;
  3. That the Government therefore be requested to make available to the Committee as witnesses the internal experts who researched and drafted the documents;
  4. That, when the testimony of Government witnesses is completed, the Committee sit regularly in June to hear acknowledged scholars and experts on the Constitution;
  5. That the Committee not sit in the months of July and August;
  6. That the Committee begin its public hearings in Manitoba about September 9th, and spend the next week or ten

[Page 16]

days in Manitoba and in the North-west Territories, perhaps also visiting the Yukon on the same trip;

  1. That the Committee visit each of the four geographical regions of Canada twice before Christmas;
  2. That the Committee plan, if possible, on spending about one week every month in public hearings in various parts of Canada;
  3. That the Joint Chairmen be authorized to set the dates, places and itinerary for the Committee’s public hearings after the usual consultations;
  4. That the Committee engage the full-time services, for about 18 months, of a legal assistant, an economic assistant, an administrative assistant and such other expert, clerical and stenographic help as the Committee deems necessary.

Mr. Gibson moved that the First Report of the Subcommittee on Agenda and Procedure be adopted.

Debate arose and later, Mr. Alexander moved that paragraph seven (7) of the First Report be amended by deleting the last three words therein. After debate the question being put on the amendment it was adopted.

On motion of Mr. Lewis, it was

Agreed,—That paragraph eight (8) of the First Report be amended by inserting after the word “spending” the words “not more than”.

The question being put on the main motion the First Report of the Subcommittee on Agenda and Procedure was adopted as amended.

On motion of Mr. Lewis, it was

Agreed,—That the necessary support staff, as directed by either of the Joint Chairmen, be authorized to precede or accompany the Committee from place to place in Canada.

On motion of Mr. Hogarth, it was

Agreed,—That the Joint Clerks be authorized to publish notices in the leading

[Page 17]

and local newspapers in those places and localities where the Committee is planning to travel and hold public hearings.

The Joint Chairman, Mr. MacGuigan, read a draft report to the Senate and to the House of Commons seeking authority to hire staff.

On motion of Senator Phillips, it was

Agreed,—That the draft report to the Senate and to the House of Commons be adopted and the Joint Chairmen ordered to present it.

Ordered,—That the Joint Clerks be authorized to obtain such documents as the Joint Chairmen may direct from the Queen’s Printer.

At 8:05 p.m. the Committee adjourned to the call of the Chair.

THURSDAY, May 28, 1970

(3)

The Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada met this day at 11:10 a.m. The Joint Chairman, Mr. MacGuigan, presided.

Members present:

Representing the Senate: Senators Cook, Flynn, Giguère, Grosart, Lamontagne, Lang—(6).

Representing the House of Commons: Messrs. Alexander, Allmand, Baldwin, Breau, Brewin, Hogarth, Lewis, MacGuigan, McQuaid, Osler, Woolliams—(11).

Also present: From the Senate: Senator Yuzyk; From the House of Commons: Mr. Ritchie.

Appearing: The Honourable John Turner, Minister of Justice and Attorney General of Canada.

In attendance: Mr. R. B. Bryce, Economic Adviser to the Prime Minister on the Constitution. From the Department of Justice: Mr. D. S. Maxwell, Deputy Minister and Deputy Attorney General of

[Page 18]

Canada; Mr. T. B. Smith, Director of the Advisery and International Law Section. From the Privy Council Office, Constitutional Review Section: Messrs. B. L. Strayer, Director; Gordon Fraser, Assistant Director; and K. Lysyk, Adviser.

The Committee proceeded to the consideration of its Order of Reference.

The Joint Chairman, Mr. MacGuigan, introduced the Minister of Justice and officials. The Minister proceeded to make a statement, during which it was

Agreed,—That the Conclusions of the Meetings, and of the First Working Session, of the Constitutional Conference be printed as an appendix to this day’s Minutes of Proceedings and Evidence. (See Appendix “A”)

The Minister completed his statement.

By unanimous consent, it was

Agreed,—That the first round of questions be limited to 10 minutes for each member.

The Minister was questioned.

Later, the Joint Chairman Mr. MacGuigan, thanked the Minister.

At 1:02 p.m. the Committee adjourned to 3:30 p.m. this day.

AFTERNOON MEETING

(4)

The Committee resumed at 3:41 p.m. The Joint Chairman, Mr. MacGuigan, presided.

Members present:

Representing the Senate: Senators Cook, Grosart, Lamontagne—(3).

Representing the House of Commons: Messrs. Alexander, Allmand, Hogarth, Lewis, MacGuigan, McQuaid, Osler, Woolliams—(8).

Also present: From the Senate: Senator Yuzyk; From the House of Commons: Mr. Ritchie.

Witness: From the Secretariat of the Constitutional Conference: Mr. H. F. Davis, Secretary.

[Page 19]

The Joint Chairman introduced the witness. Mr. Davis made a statement on the mechanisms and procedures of the Constitutional review. Later, he was questioned.

During questioning, it was

Agreed,—That the Subcommittee on Agenda and Procedure consider which documents and matters the Committee might seek to have declassified through the Secretariat of the Constitutional Conference.

Later, the questioning of the witness being completed, the Joint Chairmen thanked the witness.

At 5:15 p.m. on motion of Mr. Lewis, the Committee adjourned to the call of the Chair.

Michael B. Kirby,

Joint Clerk of the Committee.

[Page 20]

[Page 21]

EVIDENCE

(Recorded by Electronic Apparatus)

Thursday, May 28, 1970.

  • 1108

The Joint Chairman (Mr. MacGuigan): The meeting will come to order. This is the first public meeting of the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada; the first meeting, in effect, to consider the Order of Reference. The subject for this meeting is the background of the constitutional review and in a moment I will introduce the witnesses that we have before us this morning.

Whether or not this is one of the most important parliamentary committees I guess we will have to allow others to say, but certainly this is a committee which has as a subject matter probably the most important study ever been undertaken by a committee of this House.

Mr. Lewis: These Houses.

The Joint Chairman (Mr. MacGuigan): These Houses; you are right.

Mr. Lewis: This Parliament.

The Joint Chairman (Mr. McGuigan): I am sure all of us are here with the intentions of subordinating any political considerations that we may have—and which I am sure will remain present—to the overriding good of the country and especially the future course of our constitutional way. I think it would be appropriate at this time, since this is the first public meeting, if I were to invite the Joint Chairman, Senator Maurice Lamontagne, to say a few words as well by way of greeting. Senator Lamontagne.

[Interpretation]

The Joint Chairman (The Honourable Senator Maurice Lamontagne): Mr. Chairman, I am very happy to speak this morning on behalf of the Upper Chamber and to say how pleased I am to be associated with this exercise which, I hope, will be truly objective and collective.

I think that at the very outset of our work we should take an attitude of great humility and recognize right off that we will not settle all the problems for all times. It has been said many times that federalism must, in certain respects, always be made over again so that it may always be adapted to the task and role it

[Page 22]

is called upon to fulfill. So, even if we succeed in remaking it, this will always be a temporary review. However, I hope we will succeed in improving what already exists or what has been done in the past. Thank you.

The Joint Chairman (Mr. MacGuigan): Thank you very much.

[Text]

It is now my pleasure to introduce the witnesses before us this morning. The principal witness is the Honourable John Turner, the Minister of Justice and Attorney General for Canada. He is accompanied by Mr. D. S. Macwell, Deputy Minister of Justice and Deputy Attorney General of Canada; Mr. T. B. Smith, Director of Advisory and International Law Section, Department of Justice; Mr. R. B. Bryce, Economic Adviser to the Prime Minister on the Constitution; Mr. B. L. Strayer, Director, Constitutional Review Section, Privy Council Office; Mr. Gordon Frazer, Assistant Director, Constitutional Review Section, Privy Council Office; and Mr. Ken Lysyk, Adviser, Constitutional Review Section, Privy Council Office. It is a special pleasure, gentlemen, for us to have as our first witness this morning the Minister of Justice. He needs no introduction. I will call on him immediately to give us his prepared statement which will then be followed by a questioning period. The Minister of Justice.

Hon. John N. Turner (Ottawa-Carleton), (Minister of Justice and Attorney General): Mr. Chairman, colleagues from the House of Commons and lion, senators, I am very pleased indeed to have the opportunity to appear as your first witness today before this Special Joint Committee. I appear in response to your request and I will tell you as best I can what we have been doing in our review of the Constitution.

I think as Senator Lamontagne has already said, a constitution is the basic legal framework of a state. It must lay down the fundamental rules for the structure and operation of any country. More than that, I think we would agree that a good constitution should have something to say to us. It should be a reminder of our common values and aspirations, an indicator of our common hopes. It should somehow represent the articulated values of nationhood.

It is with these basic objectives in mind that the Government of Canada undertook to bring about a total review of our Constitution. From the beginning, the government has seen the total review as a long, difficult job. We felt and we still feel that it will demand the time and the best efforts of those who are

[Page 23]

involved in it—those of us who are politicians—and I use that as a term of art and not as a term of abuse—those of us who are responsible to the people of this country, civil servants, experts, whoever they may be and wherever they may be found and particularly the people of Canada. We felt that this review would present opportunities and obligations for public participation and place responsibilities on Parliament and on the legislatures and on the communication media to involve the Canadian people in this pursuit. I feel it will require a major commitment by all concerned.

What are the motive factors behind this constitutional review? To what policy end has the effort been directed? In short, what triggered off constitutional review? Gentlemen, there are a number of goals to be achieved. In my view, the most fundamental is obviously the goal of national unity.

[Interpretation]

Needless to say that the situation in Quebec is a very important consideration for the government. It has concerned the former government which set up the procedure for constitutional review. The deep unrest felt throughout all levels of the Quebec population is concretely demonstrated, for instance, through challenging of the present Constitution or at least of certain of its provisions.

It is also certain that from time to time other provinces and other parts of the country have expressed doubts about certain provisions of the basic legal structure of our Confederation. But having said this, it is no less true that in order to face up a very serious lack of confidence, it became absolutely necessary to start discussions at the constitutional level where these questions and especially those raised by Quebec can be examined very closely.

It is obvious that since its constitution, the present government is considering parallel solutions. We have considered very carefully the data concerning linguistic and cultural problems. For instance we have made use of a breakthrough which consists in the open minded attitude of the youth of Canada, especially the English-speaking youth, with regard to bilingualism. I believe that this youth has accepted the policy that guides us with regard to the Public Service, that is to reflect our cultural duality, and within the framework of the Official Language Act. We hope through such measures not only appease concern about the fate of the French language in a

[Page 24]

largely English-speaking North America, but also and particularly to contribute to its flourishing.

We do not think this is the complete answer to the problem, but we are going to pursue other avenues among which the most fruitful will perhaps be the constitutional avenue.

The recent elections in Quebec have not solved the problem completely. On the contrary, this election has brought to light the various elements of that problem. That is why we are happy that this joint Committee has the opportunity to study the terms of our policy which is the starting point which will allow us to start a concrete dialogue with the provinces.

[Text]

I think we are all very conscious, gentlemen, of the coming to power in Quebec of a new majority government. We are also conscious of the strong showing of the Parti Québécois. What do these events mean for the future of Quebec? What do they mean for the future of Canada? To what extent do they bring into question the traditional consensus of the Canadian people that whatever our differences we can live together better than we can apart? How do those recent events affect our policies and our timetable? I think it is too soon for me to attempt to answer those questions.

Obviously I believe the government must re-examine its position in the light of these events. Indeed, I think we must re-examine the whole process of constitutional review to ensure that it is responding to the real needs of our time. However, I am not here, Messrs. Chairmen, at your invitation to canvass that broad question. Your Committee may in due course wish to make its own assessment of that situation and in the meantime you will no doubt want to be informed with respect to what has gone before and what has led up to today. I suppose my primary purpose here is to give you an historical review of the constitutional process.

Before embarking on an account of what has transpired to date, the proposals that the federal government has advanced and the priorities as we have seen them, I want to make one thing clear at the outset. That is, that the Government of Canada has been and remains flexible in its approach to a constitutional review. The constitutional papers that were published—and of which I hope your Committee has possession—by the federal government, as we have frequently reiterated, are tentative proposals. They set out tentative

[Page 25]

proposals, they do not represent fixed or final positions.

The same applies to our suggestions with respect to the order of priority in which these proposals should be dealt. The Government of Canada is prepared to give sympathetic consideration to other views of what our priorities in a constitutional review should be. We must always keep in mind what the requirements of the moment may be. I believe we must be ready to alter our course if our present course does not respond to those requirements.

The comprehensive review of the Constitution undertaken by the federal and provincial governments has been proceeding for about two years. Governments have already had an opportunity to assess the issues and to begin to develop their positions, but governmental involvement is not enough. The time has come when it is not only desirable but essential that there be wider participation in the review process. For its part the Government of Canada has developed a number of important proposals and now welcomes the opportunity to place them before Parliament through this Committee and thereby through Parliament to the public for closer scrutiny. To be sure, I think the public has already been a party to the constitutional discussions; a party in a way that has been without precedent in major federal-provincial meetings. Three out of four sessions of the Constitutional Conference have been held in public and, indeed, in front of the television cameras. I think the political figures involved have had a tremendous opportunity to bring the constitutional debate to Canadians in their own homes. The public has had an opportunity to watch the issues emerge, to assess their importance and to observe the way in which their elected leaders deal with the issued and deal with one another, but discussion in your Committee…

Mr. Lewis: That was the entertaining part of it.

Mr. Turner (Ottawa-Carleton): I have never thought that the political process should be dry and not subject to a little relief every once in a while, Mr. Lewis. The personalities involved are sometimes as determinate as the principles in question. Discussion in this Committee, however, should make public discussion more topical and more meaningful—even more entertaining. The television set is a varvellous [sic] aid in increasing the citizens’ awareness of the issues but the time has come when more is demanded and more Canadians must have an opportunity to participate in the discussion about new constitutional arrange-

[Page 26]

ments. I think providing this opportunity for participation will be one of this Committee’s most important contributions.

In response to your specific request I would now like to give a brief account of the initiation of the constitutional review process, of the machinery that has been established to carry out the work and of the progress that has been achieved.

At a meeting with the provincial premiers in July of 1967 Prime Minister Pearson announced the government’s intention of holding a federal-provincial Constitutional Conference early the following year, in 1968. A few weeks later my predecessor as Minister of Justice, the present Prime Minister, spoke to the annual meeting of the Canadian Bar Association in Quebec City on the matter of constitutional revision. This is what he said:

The time is ripe. The federal government declares itself ready to discuss any constitutional changes that are proposed—But we do desire that any changes shall take place in an orderly way and under the guidance of governments responsible to the people.

That is the end of the quote from that speech. Subsequently in November an interprovincial conference—the Confederation for Tomorrow Conference—was held on the initiative of Prime Minister Robarts of Ontario. On that occasion the provincial first ministers came out in support of the view that the time had come for a re-examination of our basic constitutional arrangements.

The first meeting of the Federal-provincial Constitutional Conference took place in February of 1968. The Conference had before it a statement of policy by the Government of Canada entitled “Federalism for the Future”, and in it the Government of Canada outlined its overall approach and laid down the principles and objectives by which it proposed to be guided in the constitutional review. At this initial meeting the Conference agreed to examine questions relating to official languages, fundamental rights, distribution of powers, the reform of institutions linked with federalism, including the Senate and the Supreme Court of Canada, regional disparities, the amending procedure, provisional arrangements and, finally, the mechanisms of federal-provincial relations. The future work program had been established and the review was under way.

A second meeting of the Conference took place in February of 1969. Like the one in

[Page 27]

1968, this was a public session. On the agenda were official languages, fundamental rights, regional disparities, reform of institutions linked with federalism and the distribution of powers. At this meeting the scope of the constitutional review process was further defined and the Conference agreed that there should be a comprehensive review of the Constitution, not merely a piecemeal revision. The possibility of an entirely new constitution was not to be ruled out.

In June of 1969 an in camera working session of the Conference was held. The first ministers turned their attention to the distribution of powers, and in particular to the taxing and the spending powers.

The latest session of the Constitutional Conference was held last December. It was a regular session, the third meeting in public of the series. The distribution of powers was again considered, with special reference to income security and social services.

I understand the Committee has been supplied with copies of the conclusions that were reached at the three regular meetings and the one working session of the Conference. I will be making reference, Messrs. Chairmen, to these conclusions and the Committee might find it convenient to print them with today’s proceedings for ease of reference.

The Joint Chairman (Mr. MacGuigan): Is this agreed?

Some hon. Members: Agreed.

Mr. Turner (Ottawa-Carleton): There have been four committees of ministers set up to consider special questions: committees on official languages, the judiciary, fundamental rights and the Senate. These were established at the second meeting of the Constitutional Conference in February of 1969. These committees have met several times since. I happen to be Chairman of two of these committees: the Committee on the Judiciary and the Committee on Fundamental Rights. There is also a Continuing Committee of Officials which was set up by the Conference.

Mr. Lewis: Who is the chairman of the Committee that deals with the Senate?

Mr. Turner (Ottawa-Carleton): There are joint chairmen; Mr. Otto Lang and one of your colleagues, Mr. Paul Martin.

Mr. Baldwin: That comes under fundamental rights!

Mr. Turner (Ottawa-Carleton): I am glad to say that I do not have any direct knowledge of what has been happening in that particular committee.

[Page 28]

A Continuing Committee of Officials was set up by the Conference in 1968 to assist the Conference in its task.

This Committee is made up of senior federal and provincial officials and advisers. It meets between sessions of the Conference to discuss matters referred to it by the Conference and other questions relating to the constitutional review which arise from time to time. It reports to the Conference on matters referred to it and its members report to their own first ministers. In this way, officials assist their governments in preparing for ministerial discussions and decisions.

If I may, I would like to mention the Secretariat which is an intergovernmental staff established by the Conference to serve the Conference and its various committees and subcommittees.

I now propose to return to Federalism for the Future which, you will recall, was presented to the initial meeting of the Constitutional Conference in early 1968. Since then many of the principles expounded in the paper have been translated into concrete proposals, such as that relating to the two official languages, namely—and I use the words of the paper:

… the people of French language and culture…

must

have the same opportunities as do those of the English language to live their lives, to raise their children…

and

to realize their own potential and that of their offspring, in their own language in all parts of Canada.

A second principle found in that initial paper is that the process of the constitutional review must be both broad and deep. This is a task of tremendous importance and complexity. May I quote once more from Federalism for the Future:

… the fundamental law is indeed fundamental, and its examination and review must be so treated.

There are certain basic points of reference which must be recognized in our quest for a new or revised constitution and the federal government has reiterated on a number of occasions its view that Canada can achieve its goals only under a federal system.

[Page 29]

A third principle affirmed in Federalism for the Future is that there must be no delay in any necessary government program because of the constitutional review. The federal government and all governments must discharge their responsibilities under the present constitution and they must continue to do so until that constitution is charged. The present constitution is still the fundamental law and we must operate within that framework until we have a new one. The Prime Minister, in his opening remarks in the debate in the House of Commons which set up our half of this joint committee, made a particular point of that.

A fourth principle is the recognition of the existence of a Canadian community and a Canadian personality, manifested in our diverse cultural heritages, in our common institutions and in our feeling and concern for the well being of other Canadians. The Canadian community must flourish economically, socially and culturally.

A fifth principle flows from this—that the Canadian comunity [sic] must not only achieve its goals under a federal system but the system must be such as to provide a balance between the two extremes of centralization on the one hand and fragmentation on the other, and this balance must be expressed in our constitutional arrangements.

A sixth principle has regard to the priorities to be followed in carying [sic] forth this constitutional review. The federal government has expressed the opinion that the constitutional debate should commence with a review of the rights of individuals and that this should take precedence over the rights of governments. As the Prime Minister put it, we wanted to start with things upon which we could agree and move later into those things upon which there might be less agreement. We therefore gave first priority to the question of a constitutional charter of human rights which would be binding on Parliament and binding on the legislatures and, along with Federalism for the Future, we published the paper entitled A Canadian Charter of Human Rights, setting out some proposals on this subject.

A second order of priority, we thought, should be given to consideration of the nature and role of our central institutions of government to ensure that they can make their most effective contribution towards the Canadian federation. These institutions are the Parlia-

[Page 30]

ment of Canada, the Supreme Court of Canada, and the Public Service of Canada.

Next in order of priority was the study of the distribution of powers. Our objective here would be to provide a balanced division of the power to govern as between the federal and provincial governments, and to achieve this balance, we suggested recognition be given to certain guiding principles.

We noted, first, the requirement for both a strong federal government and strong provincial governments. Second, we indicated certain areas of federal responsibility—in economic policy, the equalization of opportunity, international affairs, technological and cultural development—while acknowledging that included in these were areas of responsibility shared with the provinces. Third, we recognized that most services involving the most immediate contact between a citizen and his government, and those which contribute most directly to the traditions and heritages which are uniquely provincial, should generally be provided by the provincial governments.

It must be acknowledged, finally, that, in our study of the division of legislative authority, we cannot expect to achieve a neat compartmentalization of mutually exclusive powers that will enable either federal or provincial governments to act without having an effect on the activities of the other. Our society is too complex and our governments are too interwoven in their activities to permit that to be done, and to an even greater extent, intergovernmental consultation and understanding will be essential.

That concludes my review of Federalism for the Future. I want to refer briefly to the other constitutional papers which have since been published by the federal government. They deal with matters much too important and complex to permit me adequately to deal with them now but you will be hearing other witnesses, I understand, on these matters and I do not propose today to go beyond a few brief comments to give you some idea of the nature of the federal proposals, and the point to which we have progressed in these areas.

In the document entitled The Constitution and the People of Canada, we submitted proposals concerning a preamble for the Constitution, setting out the objectives of Confederation; the constitution of the Government and Parliament of Canada; the constitution of

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the provinces; fundamental rights; the judiciary with particular reference to the Supreme Court.

In this paper we proposed that one of the objectives of Confederation to be clearly stated in the Constitution should be the promotion of equality of opportunity for all Canadians in whatever region they may live. The Government of Canada has a very important role to play in taking steps to minimize the effects of regional disparities of individual citizens. In our later papers on the spending and taxing powers, we recognize the importance of equalization of provincial public services, or provincial revenues, and we took the position that the Government of Canada must have the power to augment the revenues of the low income provinces.

In another paper, entitled Federal-Provincial Grants and the Spending Power of Parliament, we advanced certain proposals respecting the federal spending power, that is to say, the power to make payments to people or to institutions or to governments for purposes on which Parliament does not necessarily have the power to legislate.

With respect to payments to persons and institutions, we expressed the view that discussion ought to be deferred until all propositions concerning the distribution of powers have been received, and governments had had an opportunity to evaluate their effect.

As to payments to provincial governments, we suggested that the constitutional power of the Parliament of Canada to contribute toward the public services and programs of provincial governments should be explicitly provided for in the Constitution, and that the power to make unconditional grants for such purposes would be unrestricted.

In the case of conditional grants for general federal-provincial programs which are acknowledged to be within exclusive provincial jurisdiction, we suggested two requirements: first, a broad national consensus in favour of the program should be demonstrated to exist; and second, where a provincial legislature chooses not to participate in the program, even given a national consensus, no fiscal penalty should be imposed upon the people of any nonparticipating province. The Constitutional Conference has given some consideration to the question of a suitable formula for determining national consensus, and to an appropriate method for compensating residents in any nonparticipating province. Rather than go into the details, I shall

[Page 32]

simply refer you to the conclusions of the last two sessions of the Conferences in June and December of 1969.

I should add that the principles I have just outlined with respect to conditional grants for general federal-provincial programs would not apply to regional programs, that is to say shared-cost programs which were designed to meet particular problems in particular provinces or regions and were not intended for action by all the provinces.

In The Taxing Powers and the Constitution of Canada, which is another paper, we put forward certain proposals based on the principle of access to revenue sources. Virtually unlimited powers of taxation would be granted to the provincial legislatures as well as to the federal Parliament.

There would, however, be a qualification in that provincial taxing powers should be confined, as they are under the present Constitution, to taxation within the province. The taxpayer should be protected against the taxation of his income, property and purchases by a province other than his own.

The Joint Chairman (Senator Lamontagne): Would they be limited also to provincial purposes?

[Interpretation]

Mr. Turner (Ottawa-Carleton): Not necessarily.

[Text]

We also took the position that no government should have the power to erect, through its tax system, barriers to interprovincial trade, and that only Parliament should have the power to impose customs duties.

In the Constitutional Conference, a measure of agreement has been reached on taxing powers, and I would refer you in particular to the conclusions of the working session last June. Work has been going forward on this subject in the Continuing Committee of Officials and in two subcommittees it established to examine sales taxes and death duties.

I mentioned earlier, gentlemen, the importance we place on the need to equalize provincial revenues required to support public services and our views on how the Constitution might take account of this need were outlined at pages 54 to 57 of the paper on taxing powers.

In another paper, Income Security and Social Services, we proposed that the provin-

[Page 33]

cial legislatures ought to have explicit and exclusive jurisdiction over social services, and that Parliament and provincial legislatures ought both to have powers to make general income support payments to persons. With respect to public income insurance measures, we proposed concurrent legislative powers with the exceptions of unemployment insurance, which would continue to be an exclusively federal matter, and workmen’s compensation, which would continue to fall within the exclusive jursdiction [sic] of the provincial legislatures. In the case of retirement insurance, such as the Canada Pension Plan, we suggested that Parliament’s power ought to be paramount, primarily for the purpose of ensuring that mobility of persons throughout Canada would not be impeded by lack of portability in benefits.

The Constitutional Conference considered this paper at its last meeting in December, 1969, and the conclusions of the meeting summarize the views expressed at that time. The Conference has directed the Continuing Committee of Officials to undertake a detailed examination of the application of the concept of paramountcy, federal and provincial, in the field of public retirement insurance.

[Interpretation]

In these three major papers, then, we have made very significant proposals in the fiscal and social areas of the Constitution. They are significant because they seek a new balance which better recognizes the distinctive role of the provinces. This may be seen in our proposals for a new limitation on the exercise of the federal spending power, for access of provinces to all fields of taxation within the province, and for the clear recognition of exclusive provincial legislative power in the social services field. I am not suggesting that these proposals are perfect, nor that they are final. But they do show that we have tackled some of the most pressing questions, and are prepared to discuss certain matters dealing with important federal and provincial powers. We have already discussed these proposals with the provinces at some length and we remain prepared to discuss them further when the provincial governments desire to do so.

Next, I would like to refer to Federalism and International Relations and Federalism and International Conferences on Education, two papers which the federal government will present. In these papers we have defined our

[Page 34]

position on these subjects with respect to constitutional powers and suitable working arrangements.

These papers have not yet been considered by the Constitutional Conferences or by committees reporting to the Conference. Meanwhile, however, we have seen practical arrangements worked out at the present conference at Niamey which are consistent with the position we have taken.

In closing, I would like to refer to a number of important points of federal policy upon which substantial agreement has been reached with the provinces. The particulars may be found in the conclusions of the various conferences earlier placed before this Committee.

[Text]

In closing, Mr. Chairman, I would like to refer to a number of important points of federal policy upon which substantial agreement has been reached with the provinces.

First, the agreement that French-speaking Canadians outside Quebec should receive treatment similar to that given English-speaking Canadians in the Province of Quebec with respect to the use of their language.

A second agreement is that, in the national capital, the two official languages and cultural values common to all Canadians should be fully recognized.

Third, agreement that the promotion of the full development of all parts of Canada, that is, the reduction of regional disparities, is an essential objective of Confederation, which should be written into the preamble of the constitution; and agreement by most governments that the Constitution should ensure the federal government adequate power to alleviate regional disparities.

Fourth, we have achieved agreement in principle, with reservations by two provinces, on the limitation of Parliament’s spending power in shared-cost programs in fields within exclusive provincial jurisdiction so that, one, before such programs are launched there must be a consensus among a substantial number of provinces, and two, in those provinces which elect not to participate, compensation should be paid to avoid a fiscal penalty on their people.

The fifth major item of agreement is an agreement by all governments but one that Parliament and the provincial legislature should have equal access to all tax fields, subject to certain agreed exceptions and conditions.

[Page 35]

Sixth, we achieved agreement that there should be recognized by all governments the fact that medical and welfare services should be generally within the exclusive jurisdiction of the provinces, subject to the spending power of Parliament to support the provision of such services.

I believe that these points of agreement are significant, that they cover some of the most contentious issues in our constitutional experience and they augur well for the future of the constitutional review.

Gentlemen, that is where we are at the moment, and I am at the disposition of your Committee.

The Joint Chairman (Mr. MacGuigan): Thank you very much, Mr. Minister. Would it be agreed to limit the first round of questions to 10 minutes per questioner? Agreed.

Mr. Lewis: Mr. Chairman, on a point of order, and not to start a long discussion. Has the suggestion I made the other night been considered?

The Joint Chairman (Mr. MacGuigan): Yes, the suggestion was that the parties should designate, at each meeting, those who will ask the initial questions for their sides. It has not been considered that there is, as yet, any formal agreement but I think that most parties here would be disposed to follow it. I will proceed on that basis, in the absence of any disagreement on that.

Mr. McQuaid?

Mr. McQuaid: Thank you, Mr. Chairman, and my thanks also to you, Mr. Minister, for your very comprehensive and enlightening review of what has taken place up to the present time.

Actually, I have not too many questions at the moment. I noticed that you did suggest that the provinces and the federal government had been studying this problem of constitutional review for some time, and that they have reached a certain consensus on a good many points.

I would point out that you did say, when you spoke in the House on this matter, that wile the federal government had made its decision clear on many of the constitutional issues, the provincial governments in many cases had not clarified their positions. In other words, there has not been any—as you said yourself, I believe—joinder of issues.

I wonder if you would clarify for us the points on which there has not been any substantial position taken by the provinces,

[Page 36]

where there has not been any statement of joinder of issues.

Mr. Turner (Ottawa-Carleton): Through you, Mr. Chairman, to Mr. McQuaid, I really cannot give you an outline of which issues have been joined and which issues have not been joined. What I meant was that, aside from the Province of Quebec, the Province of New Brunswick in certain respects, and in other respects the Province of Manitoba, the provinces have not really presented us with a full response to our proposals or counterproposals in the areas in which we have advanced our proposals.

In other words, we have not been able to guage [sic] provincial reaction, except verbally around the conference table, to our proposals, because, except for Quebec, New Brunswick and Manitoba, in some respects, written proposals have not been advances by provinces.

Mr. McQuaid: Mr. Chairman, this is, I think, one of the essential reasons why we probably should, as we intend to do, visit the provinces.

You also suggested that there has been several changes made in the constitution with the consent of the provinces themselves but with that, Mr. Chairman, I am afraid I cannot agree, because the record does show that several changes have been made in the constitution by the federal government without consultation with the provinces.

For example, going back to 1959, there was a change made in the constitution which redefined the senatorial divisions of Canada. This was made without the consent of the provinces.

Again, in 1943, there was a change made which postponed the redistribution of seats in the House of Commons. Again, in 1946, there was a change made which readjusted representation in the House of Commons, and again, in 1949, there was a change made to Section 91.

These changes were all made without consultation with the provinces; and I would like to know from the Minister, Mr. Chairman, whether or not he considers that these things are in order.

Mr. Turner (Ottawa-Carleton): Well, the amendment of course in 1949 to the constitution, gives the federal government specific power to make amendments within the terms of that article. So, constitutionally there is scope, within the meaning of that

[Page 37]

amendment, for the federal government to move alone. That is the constitutional part.

If you want my political views, I would think, within the present context of continuing discussions, that that might be difficult.

Mr. McQuaid: I wonder too, Mr. Chairman, if the Minister has any real suggestions to make with respect to amending the constitution. It has been suggested that—and I would like to ask his opinion on this particular point—a referendum might be made to the people of Canada with respect to amendments to the constitution. Some of the premiers of Canada have placed this amending business on a very low priority. One of the premiers I think said that it would come about 101st on his list of priorities.

It is obvious that there may be some disagreement among the provinces as to how important this matter of constitutional amendment is. I was wondering if the witness would have any opinion as to whether or not this whole matter could be beneficially submitted to the people by way of referendum?

Mr. Turner (Ottawa-Carleton): Do you want me to deal with the amending process first?

Mr. McQuaid: Yes.

Mr. Turner (Ottawa-Carleton): Mr. Chairman, it is true that certain of the provinces in the course of our discussion have suggested occasionally that we should agree on the amendment formula before considering substantive changes to the constitution.

We are in a bit of a conundrum here. Some provinces that wanted an amendment formula before considering the substance run counter to other provinces that want the substance determined before they consider what type of amendment formula ought to apply to it. In other words, there are two views. First, you should not know the means for amending a constitution until you know what is in it. The second view, you should not put anything in it, until you know how it is going to be amended. We have not been able to reconcile those two views as advanced by the provinces.

The February 1969 Conference meeting stated that the Conference recognizes as a matter of priority the study of the distribution of powers. This was at the request of certain provinces and not the federal government. The history of attempts to get an amendment formula adopted goes back to

[Page 38]

1927 and does not suggest that progress would be possible in that area prior to some consensus on the general content of the constitution.

The federal position with respect to a referendum to the people of Canada is that we prefer to operate through the elected representatives of the people at the federal level and at the provincial level. Those governments from time to time enjoy a mandate from the people in right of the provinces and the people in right of Canada. We do not contemplate a referendum on a national scale.

Mr. McQuaid: The witness also mentioned, Mr. Chairman, certain conclusions which had been reached between the provinces and the federal government. I may have missed it but I did not catch that he mentioned the matter of regional economic disparity. It has been suggested that regional economic disparity should be part of the preamble to the constitution.

Mr. Turner (Ottawa-Carleton): I think I mentioned it. As a matter of fact, through you Mr. Chairman, Mr. McQuaid, there was some discussion at one of the conferences between Premier Smith, the Prime Minister and me as to whether the duty of the federal government or the duty of the country to equalize opportunity, thereby cure regional economic disparity, should be recognized in the preamble of the constitution or whether it should be in the body of the constitution. The federal government has taken the position that we are willing and think indeed it should be in the preamble of the constitution as a guideline for all governments. The question that we are still discussing is whether it can be put into the constitution itself without involvming [sic] legal obligations that may be difficult to fulfil because the constitution establishes legal and contractual obligations. Premier Smith suggested that we might look at the precedent of the constitution of India where such a principle is adopted but is meant not to have binding effect. This is a new concept that we are still exploring. It might not quite apply to the Canadian experience but in any event we are committed at least to putting recognition of regional economic disparity and its cure in the preamble of the constitution.

Mr. McQuaid: I just have one more questcon [sic], Mr. Chairman, if I may. With respect to the matter of redistribution of powers, would the witness care to elaborate for the benefit of the Committee on just what he has in mind sofar [sic] as the redistribution of powers is concerned?

[Page 39]

The Joint Chairman (Senator Lamontagne): Always in the light of what has been discussed with the provinces.

Mr. Turner (Ottawa-Carleton): I think Messrs. Chairmen, that some of the papers you have before you deal already with the distribution of powers as between Section 91 and 92 of the British North America Act. We have not completed proposals dealing with all items. We intend, of course, to continue to advance proposals. I cannot give you an overall blueprint. On the taxing and spending power, on income support, on social security, and on some of the other matters dealt with in the papers I have mentioned, those are matters, of course, involved in the distribution of power. We had not completed the list at all yet.

The Joint Chairman (Mr. MacGuigan): Mr. Allmand.

Mr. Allmand: Thank you, Mr. Chairman. Mr. Minister, has the government ever stated what they would consider to be the amending formula now existing that would permit them to go forward with some of the proposals? In other words, how long would you go on discussing with the provinces before you felt you had consensus or agreement according to your assessment of an amending formula to approach Westminster for amendment? Have you ever made a statement as to what you think it is now?

Mr. Turner (Ottawa-Carleton): As to what the amending process is now?

Mr. Allmand: Yes.

Mr. Turner (Ottawa-Carleton): No, I have not made that statement. If you are addressing yourself particularly to a time limit on this constitutional process, that is a little difficult to place too. If one is to accept the proposition that a constitution must represent a general consensus of the people of Canada because it is the fundamental document under which we are going to operate and live, then, we can only go as fast as the consensus is reached and as that consensus appears through the representatives of the federal government and the provincial governments concerned and the public. We are trying to achieve the widest possible measure of consensus. That is going to take some time. We have agreed that the review has to be thorough and not short term or piecemeal. There have been several statements by Premier Roberts and Premier Bertrand to the same effect. A consensus has to be reached before any move to change the constitution is made.

[Page 40]

Mr. Allmand: Has anybody ever attempted to put this general concept of consensus in a formula?

Mr. Turner (Ottawa-Carleton): The formula for consensus would be the constitution.

Mr. Allmand: I do not know if it yet can be considered a constitutional convention but we must have unanimous agreement of the federal government and the 10 provinces. Has there ever been any statement made on whether you would feel that this is necessary before going forward?

Mr. Turner (Ottawa-Carleton): We probably cannot expect unanimity but we will try for it as best we can.

The Joint Chairman (Senator Lamontagne): This was part of the Fulton-Favreau formula.

Mr. Turner (Ottawa-Carleton): And we nearly had it.

The Joint Chairman (Senator Lamontagne): Yes.

Mr. Turner (Ottawa-Carleton): We had it for a short period of time.

Mr. Brewin: I hope, Mr. Chairman, I may intervene and say that I trust that the government will not commit itself to any such inflexible formula because if it does, it may render all our efforts to constitutional change futile.

Mr. Turner (Ottawa-Carleton): I have noted that observation, Mr. Chairman.

Mr. Allmand: I was not suggesting that we should Mr. Chairman. I was merely trying to find out whether the government has ever made any decision on this.

Mr. Turner (Ottawa-Carleton): No.

Mr. Allmand: With respect to the areas of agreement that you referred to, Mr. Minister, you said that with respect to the limitation of the federal spending power that there was general agreement with two reservations. I cannot quite recall now which two provinces had the reservations on that.

Mr. Turner (Ottawa-Carleton): Mr. Chairman, one of the ground rules we operated under was that aside from the public papers and conclusions that were published, we would not reveal the position of the provinces or of the federal government for that matter that may have taken a dissenting view unless those governments themselves published it. Now I do not know whether in that particular

[Page 41]

area, the views of dissenting provinces were published. If they are, I will let you know as soon as somebody finds it.

Mr. Allmand: I will go on to one other point. To clarify the last area of agreement, you said with respect to medical and welfare programs that it was agreed that these should belong to the provinces with the exception of the federal spending power. I was trying to write down briefly what you said. Could you expand on that a bit? I have read your policy paper Income Security and Social Services. Was this the consensus resulting from the meeting on that paper?

Mr. Turner (Ottawa-Carleton): Yes. What it means basically is that the administration of social services would be provincial, but in order to equalize those services, the federal government would continue to use its spending power.

Mr. Allmand: I see.

The Joint Chairman (Senator Lamontagne): With the limitations that you have mentioned.

Mr. Turner (Ottawa-Carleton): With the limitations I have mentioned.

Mr. Allmand: My final question is merely a technical one, and if the Chairman feels that this should remain for this afternoon, I will accept that. I was merely trying to find out about the Secretariat, the working Secretariat. What is the size of the Secretariat and how many officials are there from the provincial government and how many from the federal?

The Joint Chairman (Mr. MacGuigan): I think, Mr. Allmand that is the kind of question we ought to leave until this afternoon, although perhaps you might inquire now as to the relationship from the federal viewpoint of the Secretariat to the federal government?

Mr. Allmand: Yes, I wanted to know that, too.

Mr. Turner (Ottawa-Carleton): Just to interject and put on the record, the two provinces that did not agree with the propositions about federal spending power were Manitoba and New Brunswick, and this is public. The Governments of Manitoba and New Brunswick were of the view that no formal requirement should exist as too many provinces must agree before Parliament could undertake a new general shared-cost program; rather, the Constitution should impose an obligation upon the federal government to

[Page 42]

consult all provinces before initiating such programs.

The Joint Chairman (Mr. MacGuigan): Is that the new Manitoba government, or the old Manitoba government?

Mr. Turner (Ottawa-Carleton): That was the new Manitoba government.

Now dealing with the relationship between the federal government and the Secretariat, the Secretariat is a neutral body enjoying the confidence of all 11 governments involved in the Constitutional exercise. So we have the same arm’s-length relationship with that Secretariat as the provinces do.

Mr. Baldwin: Paid by whom?

Mr. Turner (Ottawa-Carleton): Yes, we pick up the tab.

Mr. Allmand: The federal government pays for the entire expense of the Secretariat?

Mr. Turner (Ottawa-Carleton): Yes, we do.

Mr. Allmand: That is all for the moment, Mr. Chairman.

Mr. Woolliams: Might I just ask a supplementary question?

The Joint Chairman (Mr. MacGuigan): Let me just check the time, Mr. Woolliams. I guess we are still on Mr. Allmand’s time so if he is willing to allow you to ask a question, I think we could approve of it.

Mr. Turner (Ottawa-Carleton): I am advised by this wealth of talent I have behind me, Mr. Chairman, that Ontario threw in $40,000 to the Secretariat.

The Joint Chairman (Mr. MacGuigan): In general, gentlemen, I do not think we will have time for a supplementary question unless with the consent of the person who is asking them. However, as there is a minute left on Mr. Allmand’s time, I think we could let Mr. Woolliams ask a supplementary question.

  • 1205

Mr. Woolliams: Mine is a very brief question, Mr. Chairman. I was wondering whether through you, Mr. Chairman, or maybe the Minister of Justice, any invitation was actually extended to the provinces to participate in the functioning and decision-making as far as the recommendations that go from this Committee are concerned? Were they invited to hold even watching briefs. Especially what I am driving at is if we are to make recommendations as to the division of powers, and we

[Page 43]

are a Committee here and we are made up of the federal Parliament and the provinces are not here,—I am thinking about the decision-making even as to recommendations where they are absent,—whether we can really make effective recommendations when we come to that part of the amendment or suggestions on the Constitution.

Mr. Turner (Ottawa-Carleton): Mr. Chairman, the Prime Minister stated in his speech to the House, proposing the establishment of this Committee, that he hoped the provinces in turn would set up their own legislative committees dealing with the subject as the Province of Quebec already has, and Ontario as well. As to the power of this Committee to receive provincial testimony, the Honourable member knows me well enough to know that as a member of the Executive, I would never transpose, nor would the government upon the prerogatives of a parliamentary committee and it would be up to the Committee to determine whom they wanted to hear. I see no reason why we, if requested by this Committee, should not do everything we can to ensure provincial co-operation.

The Joint Chairman (Mr. MacGuigan): I am going to call on Mr. Lewis next.

Mr. Lewis: Mr. Turner, what I was a little concerned about all through this review and your remarks this morning, is the following. It is not a matter of disagreement, it is a matter of concern to say that this review of the constitution has resulted from certain discussion between governments and certain problems in Quebec. Does that justify the entire exercise? Ought we not to hear from you, or from someone representing the government, whether a minister or civil servant, it does not matter, some analysis of the social and economic development in Canada which has made the present constitution set up inadequate, if it is inadequate, so people of Canada can see this exercise of Constitutional review not as an exercise between governments vying for power, an argument between governments as to who will have the power to do things, but rather as a review deriving from fundamental needs of the Canadian people?

In other words, what I am asking you is to say something to show me and the people of Canada that the federal government and its advisers have thought of this constitutional review in terms of social and economic development and in terms of social and economic objectives, rather than in terms of people in power wanting to have more power, which is the way it now sounds. I think this is a very fundamental thing that has worried me all

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the time since this exercise began, and as I have watched, as an observer, the conferences to which observers were admitted.

If you cannot, I would not at all blame you, because it is not a subject one can speak authoritatively about from the top of one’s head, although I imagine you have given it a lot of thought. I would like to hear you or the Prime Minister, or someone representing the government in the capacity of an official tell this Committee, and through this Committee, the people of Canada what are the fundamental needs. In what way have the powers of the provincial governments and their financial resources become inadequate of present needs? In what respect have the powers of the federal government and its financial resources become inadequate to present needs? What are the social goals which we seek to achieve through the revision of the Constitution? It seems to me, unless we can answer those questions, unless we can frame the constitutional review in that kind of framework, the exercise is not terribly exciting nor indeed relevant to the life of the people of Canada as distinct from the politicians [sic] arguing among themselves.

Mr. Turner (Ottawa-Carleton): Messrs. Chairmen, in answer to Mr. Lewis, he made the same point, of course, in the debate before the House of Commons and the Prime Minister addressed himself to it and so did I when I was able to close the debate. There are two aspects to the constitutional review; one is to ensure that whatever document we are living under, called a Constitution reflects a general consensus of the people of Canada. We are concerned that from some quarters consensus may not be achievable [sic] under the present document. That is one concern and I spoke about it this morning.

The other concern… and it is important from the point of view of how our Constitution works in an everyday way with respect to social and economic goals…is this. Does the Constitution of Canada reflect the economic and social realities of the day? Well, it seems quite obvious that certain of the powers given to the federal Parliament under Section 91, 1867, might better be administered under Section 92 by the provinces, and vice versa.

Mr. Lewis: What are those powers?

Mr. Turner (Ottawa-Carleton): I think that we will have witnesses here in a technical way to explore what we have already explored. We have gone through and are continuing to go through each clement of the economic and social program and goal in

Canada to analyse from a point of view of function, efficiency, fiscal resource, applicability, and contact with people, how these areas ought best to be administered.

We have done a good deal about that. I want to say that I could not accept for a moment that this constitutional exercise…there was a suggestion that this constitutional exercise is merely what Mr. Lewis called an auctioneering process between politicians in power. There is bound to be bargaining, because the politicians at the federal level and the politicians at the provincial level reflect the interest, first, of the people as a whole from our point of view, and secondly, the people in their provincial aspects, from the province’s point of view, and there is bound to be bargaining. Sections 91 and 92 of the British North America Act are a result of bargaining.

Now, call it an auction. I prefer to call it necessary negotiations to achieve that consensus. This exercise is fundamental. It does go to the gut issues of Canada, because we are trying to solve problems of resource policies, pollution, economics the tax role, and fiscal resources to support education and medicare and hospitalization. These gut issues will not necessarily be solved satisfactorily unless the underlying document called a Constitution is modernized. So the first concern is that fundamental concern which is called “national unity.” The second concern is that we have a document that reflects social and economic realities. They are both important.

I think that these factors are reflected in the text of the working papers that you have before you about income support, social security, and the federal taxing power, the federal spending power, the provincial taxing power. We have both concepts in mind.

Mr. Lewis: I had thought about that. Let me put it to you slightly differently, in a search for a way to understand this review better. Unless I have misread the federal documents…I have read them all; not yesterday, however, but over the last few years, so I may not Remember them…there were only three areas. I may be wrong, and I am deliberately stating what I do have in mind, so you correct me if I am wrong, because I think it is important to have it on the record. There are only three areas in which the federal government has made proposals which are, as it were, new to the present division of powers, that is, language rights…part of the really two areas, but language rights…the fundamental rights and with respect to the exclusive jurisdiction in the federal government in

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one of the points in the income assurance paper.

As I recall it, those are the only three areas in which there have been suggestions from the federal end for changes in the Constitution, in addition, of course, to the preamble which would recognize regional disparities and certain general objectives. Am I right about that? And if that is so, is that the area of real difficulty?

Mr. Turner (Ottawa-Carleton): Well, I think the first part of the answer I would like to make is this. We started with individual rights and moved into division of power. We started, as the Prime Minister said, hopefully with those areas of concern in Canada which would find agreement, and moved into those areas in which there was likely to be less agreement. So we started first with fundamental rights. Mind you, we have not moved as quickly as I would have liked on fundamental rights. We moved secondly into those institutions of the federal government to try to see how they could better reflect federally, the Parliament of Canada, the Supreme Court, and the Senate. It was only in the last…

The Joint Chairman (Senator Lamontagne): We are still included in the Parliament of Canada.

Mr. Turner (Ottawa-Carleton): Well, I think the Senator is aware, the Chairman is aware, of his constitutional power. It was only in the last two sessions that we got into the division of powers which you might consider to be the nitty gritty of the operation. But the priorities were deliberately chosen.

Now, I think it is fair to say that future attention is going to rivet on that division of power. I do not think it is fair to say that we have only introduced new concepts in language rights and the ones that Mr. Lewis mentioned. I think the concepts of the federal taxing and federal spending power, the universality of access principle to provinces for taxing purposes, the concurrence in terms of certain shared-cost programs, the recognition that social security was perhaps now an exclusively provincial matter, the income insurance support—there are a good many original proposals in the division of powers area. But we just started that area, and we started it later than the others for the priority reasons I gave you.

Mr. Lewis: Because you hoped that the individual rights thing would be immediately agreed upon.

Mr. Turner (Ottawa-Carleton): Because, as the Prime Minister has said, we hoped for

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easier agreement on those subjects, and we wanted to protect the rights of people against government, all governments, federal and provincial, before dealing with the rights of government against government, or people in their provincial aspect as against people in the federal aspect.

The Joint Chairman (Mr. MacGuigan): I regret that is all of your time, Mr. Lewis. Perhaps you can come back later. Senator Grosart.

Senator Grosart: Thank you, Mr. Chairman. I will address my first question to Mr. Turner. Can this Committee take it that the documents, which I will describe as the black and white covered booklet, represent the proposals of the federal government now? Has there been any change or any modification in the proposals as put forward?

Mr. Turner (Ottawa-Carleton): Those are the proposals in force now. They are not final proposals. As I said, they are tentative proposals. The government is flexible on the proposals. But they, in terms of being proposals, are still the proposals.

Senator Grosart: They are final proposals as of now. Is that not right?

Mr. Turner (Ottawa-Carleton): They are current proposals.

Senator Grosart: My second question refers to the amending procedure. You have said that at one time we had agreement, the federal government and the 10 provinces, for a short time. One province opted out of the agreement. Has the federal government approached the other nine provinces recently to find out if they are still in agreement with the Fulton-Favreau Formula?

Mr. Turner (Ottawa-Carleton): No, sir.

Senator Grosart: Has the federal government approached the province that opted out?

Mr. Turner (Ottawa-Carleton): No, sir.

Senator Grosart: Why?

Mr. Turner (Ottawa-Carleton): Well, because, as I suggested earlier, there is no consensus among the provinces at the moment as to whether amendments should come before substance or substance should come before amendments, and that is a fundamental dispute that would have to be ironed out before we could reach the beginnings of trying to devise an amending process.

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Senator Grosart: Is that really the situation?

Mr. Turner (Ottawa-Carleton): Yes, sir.

Senator Grosart: I wish you would explain that. It seems to me unrealistic. If we had an agreement of all 10 provinces, we may still have the agreement of nine. We may still have agreement of the 10, so why do you say there is still a dispute on this?

Mr. Turner (Ottawa-Carleton): Well, there are two ways of looking at the process of amendment. One is to say, let us not talk about how we are going to amend this Constitution until we know what is in the Constitution and what we are going to be amending. In other words, we do not know yet how flexible or inflexible an amending process should be until we know the substance of the Constitution, and what is going to be provincial and what is going to be federal and how inflexible interchanges are going to be between Sections 91 and 92. The interchanges are built into the Constitution itself.

The other view is to say, we cannot determine what is going to be in Sections 91 and 92, and how inflexible those categories ought to be, until we know the nature of the amending process. Both are intellectually legitimate points of view. An amending process that is suitable for the present Constitution may not be suitable to a Constitution of the future. An amending process depends very much on the substance of the Constitution. Until we get some reconciliation of the those [sic] two points of view, it will be very difficult to proceed to devise an amending formula.

Senator Grosart: May I ask, Mr. Chairman, where can we find the evidence that there are two such views? In other words, where is the evidence that there has been a change on the part of the nine provinces and may not be a change on the part of the tenth?

Mr. Turner (Ottawa-Carleton): I have just consulted the Deputy Minister to see whether these positions have been rendered public. The Quebec position is quite clear. They do not want to talk about an amending formula until the…

The Joint Chairman (Senator Lamontagne): Until recently.

Mr. Turner (Ottawa-Carleton): Yes, we do not know what the position is at the moment because we do not know whether Quebec will stand by the documents already submitted to the Constitutional Conference. The new government has not taken a position on this.

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However, the Quebec view has been, as recognized in the documents and by public pronouncements of earlier governments from Quebec, do not talk about the amending formula until you show us what is going to be in that Constitution.

Some of the other provinces—I do not know whether they have suggested this publicly or not—incline to the opposite view. I do not want to breech any confidences and mention them by name, so I think I had better leave it at that.

Senator Grosart: I will accept that, sir.

Mr. Turner (Ottawa-Carleton): Yes, but it is open to this Committee to see whether they can get some clarification on the provinces.

Senator Grosart: I will accept your words, sir, as a current answer.

Mr. Turner (Ottawa-Carleton): Yes, sir.

Senator Grosart: The third refers to the sixth item the Minister mentioned as an area of agreement, that medical and welfare services would be regarded as a special area, perhaps an exclusive area, of provincial jurisdiction. The Minister used the words that social security will be an exclusive provincial matter. Does this mean the federal government will in future take no initiative in social assistance?

Mr. Turner (Ottawa-Carleton): No, sir, it does not. I said the federal spending power would be used to equalize those services.

Senator Grosart: Has the federal government abandoned the use of the spending power for constitutional purposes?

Mr. Turner (Ottawa-Carleton): Only the unrestricted use of the spending power. That is to say, within our propositions. The propositions contemplate an abandonment of the unrestricted use of the spending power.

Senator Grosart: What would be the restricted use?

Mr. Turner (Ottawa-Carleton): In those areas of provincial jurisdiction where a consensus had not been reached nationally the federal government would agree not to use the spending power.

Senator Grosart: Will the federal government continue to initiate programs of social assistance?

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Mr. Turner (Ottawa-Carleton): I would imagine the federal spending power is still available for that, but if the constitutional propositions of the federal government were accepted then a national consensus would have to be reached on the part of a certain proportion of the provinces or a certain pro- portion of the provinces representing a certain proportion of the population.

The Joint Chairman (Senator Lamontagne): Does this mean a majority of the provinces representing a majority of the population?

Mr. Turner (Ottawa-Carleton): We are still arguing that out. That is a game for officials, at the moment.

Senator Grosart: Can the Committee take it, then, Mr. Chairman, that the federal government is proposing to abandon its right of initiative in the social assistance area unless there is consensus agreement amongst some provinces?

Mr. Turner (Ottawa-Carleton): Within areas of provincial jurisdiction, that might be a fair statement.

Senator Grosart: And the area of provincial jurisdiction, do I take it, is the whole social security field, as I understood you to say?

Mr. Turner (Ottawa-Carleton): Within the terms of those propositions, yes. Within the terms of the propositions as I described them to you.

The Joint Chairman (Senator Lamontagne): I wonder if this is really new. It seems to me the most recent measures since 1956 have always rested on that kind of consensus.

Mr. Turner (Ottawa-Carleton): I agree. Senator Grosart: Ideally, I do not know whether I am in order to reply, but I would say from my observation of the facts, it is quite the opposite. Our medicare is an obvious example.

Mr. Turner (Ottawa-Carleton): I take it the Senator is not asking me to comment on that particular subject.

The Joint Chairman (Senator Lamontagne): I am prepared to argue that, but I will not.

Senator Grosart: I was subject to the Chairman’s ruling as to whether I was entitled to answer the Joint-Chairman. Mr. Chairman, on the fourth area of agreement mentioned by the Minister, regional disparities, he surprised me by saying that the federal govern-

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ment might wish to make a general statement, a sentimental statement, on the matter of regional disparities, in the preamble, but not in the body of the Constitution so that it would not, I think I am using his words, be legally binding. What is the sense of putting anything in the Constitution that would not be legally binding?

Mr. Turner (Ottawa-Carleton): Mr. Chairman, let me deal with the tail end of Senator Grosart’s earlier question because he put it in those abstract general terms that may be used in the other place, but we try to be precise in the House of Commons. I want him to know that the federal government within these proposals we put forward would still feel free to initiate social security measures, but to implement any such measures we would need to achieve a consensus within the terms of those proposals. I think that is what it says in the document.

With respect to Senator Grosart’s indication that we are treating regional economic disparities as only a motherhood issue, I disagree with that fundamentally. We are putting it in…

Senator Grosart: I did not say that.

Mr. Turner (Ottawa-Carleton): …at the specific initiation of the sovereign Province of Nova Scotia, supported by the other Atlantic Provinces, which wanted to see some constitutional commitment by the people of Canada that equality of opportunity was a subject worth the attention of the people in the most fundamental document we would have, namely our Constitution.

Senator Grosart: Why do we want to put it…

Mr. Turner (Ottawa-Carleton): Why do we put it in the preamble instead of the Constitution at the moment? Because it is very difficult to envisage—it may not be impossible—but it is very difficult to envisage a constitutional undertaking in the body of a constitution which could be legally enforcible [sic] at the insistence of a province to achieve region- al economic equality. What does that mean? Does it mean that a province would be able to block any particular federal program if it did not meet what might be called regional economic equality or the goal of regional economic equality? Would it be able to take an action against the federal government or against other provinces to ensure that regional economic equality in any particular program was met? In other words, it might, if it were legally enforceable, incorporate rigidity into the Constitution.

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Everything in the constitution involves constitutional and legal consequences. A concept of economic equality is a difficult one to convert into a constitutional and legally enforceable proposition. That is why the federal government to date has taken the position that the preamble might be the most effective way of recognizing it. We have not closed our minds to the possibility of accepting Premier Smith’s compromise suggested in the Constitution of India. There may be parts of a constitution found in the body of the constitution yet not legally enforceable. We have not closed our minds to that and the officials are looking into it.

Senator Grosart: Mr. Chairman, would the Minister not agree that the purpose of including regional disparity among the major headings that we are looking for in the Constitution is, to use his phrase, the legal consequences. What else are we looking for?

Mr. Turner (Ottawa-Carleton): Every article in the constitution binds a government federal or provincial, under obligations which can be enforced.

Senator Grosart: Do we not want binding legal consequences in all these major headings in the constitution?

Mr. Turner (Ottawa-Carleton): Yes, but as I said earlier, Mr. Chairman, a constitution is also a set of articulated values by which a people live. There are such things as moral commitments in the constitution. This would represent a moral commitment by the people of Canada. That is a pretty strong commitment.

The Joint Chairman (Mr. MacGuigan): I regret that is all the time we have for this particular exchange. Mr. Breau.

Mr. Breau: Thank you Mr. Chairman.

[Interpretation]

The discretion of this question has been started by the member of Parliament, Mr. Lewis, and by Senator Grosart. With respect to the participation of the federal government to social assistance programs, which I prefer to call social welfare programs, because in this way there is better reflected, we were talking 100 years ago or maybe 10 years ago rather about financial assistance to old age, to handicaps, to invalids, but today the meaning of the word poverty has changed a great deal together with the way that these envisaged their problems and the way that governments and other intermediate or private organizations are trying to settle it.

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Mr. Minister, although it is true that this question at no. 8, I believe, I would like to know if as MP of the federal government, you think that poverty in the modern sense that we attached to this word still remains a constitutional question? When we refer to regional disparity, are we not in fact trying to level the status of people from the eastern part of Canada with that of those of western Canada. In trying to better the situation of the poor of Toronto or Montreal, or again the poor fishermen of Newfoundland or New Brunswick who earn about $1,500 per year, by means of a federal provincial agreement or by means of a direct subsidy, do you still think that the problem of poverty and the way we envisaged it remains a constitutional problem?

Mr. Turner (Ottawa-Carleton): If Canadians would feel it their duty to offer to all the same chances with respect to education or employment, wherever in the country they live, there is no question that this constitutes a constitutional obligation for the country.

The proposition that the federal government has put forward imply no restriction with respect to the obligation of the latter to continue to offer the same chance to all and to remedy to regional disparity.

Mr. Breau: In other words, as a temporary or permanent measure towards solutioning this problem which is maybe of a temporary nature, it would be possible for the federal government without necessary preliminary consultation with a province, to directly help a group of person or persons…

Mr. Turner (Ottawa-Carleton): Under the present constitution, yes. After consultation with technologist. I feel that the power of spending of the federal government is not limited to persons nor to the institutions. These restrictions apply mostly to provincial governments. We must also have a national consensus when these questions fall under the provincial jurisdiction.

Mr. Breau: Thank you.

Senator Lamontagne: May I put a question on this subject?

The Joint Chairman (Mr. MacGuigan): Yes, but be brief, please.

Senator Lamontagne: This proposition which particularly relates to the limitation of the spending power to the obligation of the federal government to give a compensation in money to the province which will refuse this

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province, does it not imply the concept of a particular status?

Mr. Turner (Ottawa-Carleton): This is all a matter of definition, Mr. Senator, but it is the particular status which may apply to any province.

The Joint Chairman (Mr. MacGuigan): Thank you.

[Text]

Mr. Baldwin: Is there time enough to ask a supplementary on that?

The Joint Chairman (Mr. MacGuigan): I would rather you would wait, Mr. Baldwin. You are coming up before too long.

Mr. Baldwin: Fine.

The Joint Chairman (Mr. MacGuigan): I presume we want to try to finish by about one o’clock. I now have Messrs. Brewin, Hogarth, Mr. Baldwin, and Mr. Osler. Mr. Woolliams, you wanted to come back, did you not?

Mr. Woolliams: Well, I may not. With all that talent ahead of me, I suppose I should not have asked.

The Joint Chairman (Mr. MacGuigan): I would ask all of you to make your questions as much to the point as possible. Mr. Brewin.

Mr. Brewin: Mr. Chairman, there is just one thing I want to have clear in my mind. Do I understand that there has been a general agreement, not a formal one, between the federal government and eight of the provincial governments that the spending power of the federal government should be subject to some form of consensus but that the exact formula of consensus is still under discussion?

Mr. Turner (Ottawa-Carleton): That is so, Mr. Brewin.

Mr. Brewin: Is it true that the provinces of Manitoba and New Brunswick have expressed a disagreement with that? The reason, as I understand it, that they have expressed disagreement is that they think that if you limit the initiative of the federal government in that way, you may not get such joint-shared programs as the hospitalization plan which originally was by statute subject to some sort of consensus before it came into operation. Then that was removed and the process of acceptance seemed to have been accelerated. Have I rightly understood that?

Mr. Turner (Ottawa-Carleton): I cannot read their minds.

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Mr. Brewin: I thought they expressed that.

Mr. Turner (Ottawa-Carleton): That would be a fair summary of their argument. The hon. member probably has closer contacts than I have with some of the new governments of this country. I think he has summarized their argument.

The Joint Chairman (Mr. MacGuigan): Mr. Hogarth.

Mr. Hogarth: Mr. Turner, at the risk of being a radical, there were a couple of political statements made that struck terror into my heart. One of them was that the federal government has decided that it shall have unlimited taxing powers in its field. The other was that the provincial governments have agreed that they shall have unlimited taxing powers in their field. Then when the hon. senator asked you if the federal government was necessarily confined to its field, I think you said “not necessarily”.

An hon. Member: It sounds like Mackenzie King.

Mr. Hogarth: Whether or not they should or should not have unlimited taxing powers is a good question. That takes me up to something Mr. Lewis suggested. I do not want to reflect for one moment in derogation on the tremendous work that has been done by all political representatives at these conferences but I am concerned with one or two aspects of it. First of all, there does not seem to be even any agreement to agree on amendment procedures. When do you expect that the conferences might end in the light of the fact that it is very difficult to get an agreement to agree? How long are they going to go on?

Mr. Turner (Ottawa-Carleton): I think I did my best to answer that question when Mr. Allmand put it to me. There is no time limit. If a constitution must reflect a consensus, then the consensus has to be achieved before a new constitution can be written and proclaimed.

I said in the House of Commons that previous to this exercise currently being conducted in Canada there had never, to my knowledge, been an effort by democratic people to revise a constitution short of periods of extreme urgency. Constitutions have come as a result of independence or revolution, or other extralegal acts. Now the purpose of this exercise is to achieve in a democratic way a moderniza-

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tion of the document under which we live. There is obviously in some quarters of the country not the same sense of urgency as in others. We will if we are successful in either writing a new constitution or in amending parts of the present Constitution because other alternatives are open to achieve a new consensus. I cannot put a time limit on it.

Mr. Hogarth: Then there is no anticipated target date in the mind of the federal government or, to your knowledge, in the minds of the provincial governments collectively with respect to when we might expect a finalization of the new constitution?

Mr. Turner (Ottawa-Carleton): Not that I know of, sir, no.

Mr. Hogarth: It seems to me that a constitution might be said to not be the best when it is formulated by the very governments that it is going to control. The concept of Mr. Lewis that you have political figures bargaining over power to my mind has always had a certain amount of validity. In addition to that, we have the problem of changing governments. Two governments have changed; the Manitoba government and the Quebec government. To my mind this brings about a concept of a whole new ball game so far as those provinces are concerned. In addition to that, of necessity you start out with the fixed premise that there must be a certain number of provinces. Because you invite, for instance, one province, you start out with the fixed premise that in the interests of confederation it is best that that province continue and not be joined with the others. On that basis, at this conference you will have one province that has very few people having equal representation with other provinces that have great numbers of people, and the prejudices that influence the conference are brought forward in equal form. In addition to that, you have the prejudices that are brought forward by the existing political parties of the day in the provinces as well as in the federal government. I know that this is inherent in the conference method of determining a new constitution but I wonder if the federal government has ever given any thought to proposing to the provinces—it is true there are certain limitations involved—that rather than trying to negotiate a constitution between the governments that are going to be governed by it, with all the inherent lack of majority representation that that involves, why do the provinces and the federal government not get together and say, “Let us conceive a constitutional Parliament and let us elect representa-

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tives across the land to meet and formulate a new constitution”. Those of us who are involved get the idea that we are the only people who know anything about politics and about government, but there are an awful lot of other people that could possibly serve in a capacity of that nature. I wonder if you would comment on that. I admit that this method also has defects.

Mr. Turner (Ottawa-Carleton): Let me put it this way; you cannot have 21,700,000 people sit around a table and negotiate a constitution, so somebody has to do it. The people who primarily have a mandate to do anything are people like you and I, Mr. Hogarth, who are currently enjoying the custody given to us by the Canadian people in Parliament and our counterparts in the provincial legislatures. The Government of Canada currently has a mandate from Parliament, and through Parliament from the people, to govern the country, and the same applies to the provincial governments. This is not a contest between so-called power-hungry politicians or what Mr. Lewis referred to as “an auctioneering gathering”. These people are elected by other people and they are trying to work out a consensus on their behalf. Obviously there have to be some mechanics for their being approved. There is approval by Parliament and approval by the legislatures and eventually there is approval, not necessarily by a referendum or by a plebiscite, because it is a very complicated process to put a document in front of people and say. “Do you agree with it or not?”, and you have to go on the basis of confidence that an executive will be responsible to a legislature and the legislature will be responsible to the people, and perhaps the federal government will have to go to the people on the final document and perhaps the provinces will have to do likewise. I do not know. However, at the moment we are the only people who have any mandate at all to work this problem out. You have an opportunity through your Committee of putting as many people in Canada in touch with this problem as you can.

Mr. Hogarth: This is our intention, Mr. Minister.

Mr. Turner (Ottawa-Carleton): Yes. Not only the experts, but the people. The second matter is that we have changing governments. That is so, but at the moment we are defining what the issues are in a new constitution, and many of these issues will not be affected by party politics or regional disparities. Any gov-

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ernment in Nova Scotia is going to believe in curing regional disparities because it is fundamental to the people of Nova Scotia, as it is fundamental to the people of New Brunswick and the other Atlantic Provinces. Governments are not necessarily going to change their attitude on official languages from their previous one. There may be a slight softening of attitude. I suppose there was a slight softening of attitude on the part of the Province of Manitoba after the election there, but on the general mechanism of federal-provincial relations you will not find that many changes from government to government. Admittedly this is one of the difficulties. These changes are going to cause problems when we get down to settling the specifics of a new constitution and after all the proposals are out on the table and all the counterproposals are in and your parliamentary comments are available, but it is too early yet to say by what mechanism and with whose consent a new or revised constitution is going to be adopted.

A third point was why do we assume the existing political structure; why are we dealing with 10 provinces? Those are the entities, those are the institutions we have to deal with. It is not up to the federal government to suggest the amalgamation of some of those institutions into wider groupings. We look upon this with very great interest. Some discussions are taking place in the Prairie Provinces and in the Atlantic Provinces, but that is a matter for those provinces to decide upon. We deal with the existing institutional structures.

Mr. Hogarth: I was only suggesting that in a sense, if I may—and perhaps I am being the devil’s advocate—I do not think that we should deal with institutions. I think we should deal on the basis that we are dealing with the people of Canada and if the nation decides this in a democratic way and in a Parliament that is expressly designed to con- sider the problems they might come up with very different recommendations than a federal-provincial conference between “institutions” would come up with.

The Chairman: I think, Mr. Hogarth, I will have to cut you off at this point. I believe the Minister has already commented on that

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matter. I would now like to move on to Mr. Baldwin and then finally to Mr. Osler.

Mr. Hogarth: That is fine.

Mr. Baldwin: Mr. Chairman, I would first like to commend the Minister on his suggestion that we try to approach this matter in a spirt of noncontroversy and nonpartisanship, and I think the government has already shown an indication of that because they have accepted the principle of parliamentary committee which the opposition parties have been advocating for some time, and I am very pleased to report this. It is the highest commendation when one political party accepts the recommendations of another political party, and I say this in the full spirit of generosity.

Mr. Chairman, I will start where Mr. Lewis left off on a point that I want to make, although he has already dealt with it, to some extent. I think the Minister said quite properly that there is a question of priorities and the government’s position on national unity was a number one priority, and this is true. However, keeping in mind what Mr. Lewis said, and I also had this in mind, that in the terms used by the Minister national unity seemed to suggest the question of Quebec and languages and problems of this kind. I think the word “constitution” frightens a lot of people. It is simply the rules under which people in a given geographical area with differing ethnic, linguistic or economic problems agree to live together.

Does the Minister not think that you must in addition to this aspect of national unity give equal priority to the question of so organizing your part, as well as the national identity, that it will be organized and equipped to deal with the modern problems of today?

Mr. Turner (Ottawa-Carleton): First of all, Mr. Chairman, Mr. Baldwin is correct in suggesting they are both high priority matters. Whether we want to put national unity above economic reality in devising a new Constitution, perhaps, is a matter of semantics.

We could start from the proposition that the whole exercise is irrelevant unless we have a country and have national unity.

On the other hand, I agree and our propositions reflect it. The Prime Minister’s opening speech in the House of Commons and mine, I hope, reflected it. It is essential that this Constitution reflect economic realities and I think

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it is essential for Canadians in order for us to solve some of the so-called gut issues, our economic, resource or fiscal gut issues, that this document that we are now reviewing put us in a better position as a federal government and put the provinces in a better position to deal with their responsibilities. So I agree quite readily that economics is a priority that must remain uppermost in the minds of anybody dealing with an amended Constitution.

Mr. Baldwin: I cap it then by pointing out and agreeing with the Minister that not only, of course, economic, it is social and even scientific, and I am sure the Co-Chairmen will agree with me on that. However, we ask questions in the House, we raise questions in meetings dealing with such matters as pollution which in certain aspects surely lends itself only to solution on a national basis. Certain aspects of pollution can only be dealt with on a national basis. The question of inflation, the question of consumer protection, regional disparities, certain urban problems—I am not suggesting that…

Mr. Turner (Ottawa-Carleton): Sir, you are stating the current priorities of the government. Mr. Baldwin, we agree with that totally, and our legislation is reflecting that.

Mr. Baldwin: I am glad to see there is another way you are agreeing with the Opposition, and I am not suggesting we discuss now or even later how we write these specific things into a Constitution, but when you get such things as pollution, inflation and consumer protection which, for example, at the moment can probably only be dealt with by what I would call an abuse of the criminal law, these are the sanctions which we have to rely upon at the present time and really if they are going to be dealt with adequately, the people of this country have to be of equal priority. I mean, the growing tree philosophy enunciated by, I think, Viscount Simon who did certain things for some of our problems. Aeronautics and radio were dealt with because fortuitously those people who passed the Constitution originally had so laid it out. I will not ask a question, this will just be a comment. I agree with the Minister that the aspects of social and economic matters must have equal priority.

The Minister talked about the preamble and I say parenthetically that I hope if a new

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preamble is written, it will be written by people with literary and historic backgrounds, people who have capacities in that line and not just by lawyers alone.

Mr. Turner (Ottawa-Carleton): We would welcome your help, Mr. Baldwin.

Mr. Baldwin: I see. Will the preamble be so drafted that it will be essential for a court dealing with the question of interpretation to take this into account?

Mr. Woolliams: Well, they have in the Alberta case. The Supreme Court re press censure interpreted the preamble.

Mr. Turner (Ottawa-Carleton): I think current judicial practice is to take preambles into consideration in any event, so the preamble would be a relevant part of the document, but not as enforceable as some of the other parts of the document.

Senator Grosart: With or without legal conscience.

Mr. Baldwin: This is the last question, because time is going. There have been some very, very interesting suggestions enunciated by one of your colleagues from Western Canada, the Minister of Supply and Services, that there might be such a thing as a regional approach. As I read one of the speeches of Mr. Richardson, he pointed out that the problems of Western Canada are based to some extent on their complaints which they have about the tariff, the horizontal freight rate increases, the Wheat Board and so on. As I understand him—I am trying to read these speeches as well as I can—-he seems to suggest there may be some way by which some regional system of veto or some particular powers could be given to various regions to deal with problems which most accutely [sic] affect them. Has that matter come before the Cabinet or has the government given any thought to proceeding along those lines?

Mr. Turner (Ottawa-Carleton): I want to say that those are…

Mr. Baldwin: I am not disagreeing. He may have something in there that has merit.

Mr. Turner (Ottawa-Carleton): No, no, sir. Those are good speeches, they are worth con- sideration and Mr. Richardson is a very forceful spokesman for Western Canada.

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Mr. Baldwin: You limit your reply to that statement, do you?

Mr. Turner (Ottawa-Carleton): That is all you invited.

Mr. Baldwin: You are quite free to go further. You can have the rest of my time to further express on it. That is all, Mr. Chairman.

The Joint Chairman (Mr. MacGuigan): Mr. Osler.

Mr. Osler: That was a very nice set up, Mr. Baldwin. Thank you.

Mr. Chairman, through you I would like to ask the Minister if we could pursue this a little further. I am frankly perplexed here. Two of the priorities of the federal government, as stated by you this morning, are the rights of individuals take precedence over the rights of governments and regional disparity of individual people is a federal concern. Getting then to this business of regional veto power and whether or not there should be readjustments of regional powers by amalgamation of provinces or any other damn way you like, it seems to be those sort of things are futile exercises that get nowhere near the stated and very logical aims of the federal government because by the nature of things, if you build up the ante in Western Canada you build up the ante in Quebec, in New Brunswick or somewhere else because it is a power game. Therefore, it is inevitable, to get back to what Mr. Lewis calls, “the power game between the power brokers”.

Mr. Turner (Ottawa-Carleton): The brokers are representing principles, but not the people.

Mr. Osler: But what I am perplexed about is how much…

The Joint Chairman (Senator Lamontagne): At least this is the assumption.

Mr. Osler: Yes, how valid is this assumption?

Mr. Turner (Ottawa-Carleton): It is always valid until the next election, Mr. Osler.

Mr. Olser: No, no, I do not mean in that sense, but in a very real historical, cultural and every other sense. Ontario, Quebec and the Maritimes, although the Maritimes may be split up, are groups of people who are holding this together, but there are other

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regions in the country where boundaries have been set up that are essentially phoney. They may have local uses for local provincial governments, but at this conference in Lethbridge, for instance, it was felt that a great deal could be done by the co-operation of Prairie Provinces and the idea of an amalgamation of Prairie Provinces should be looked at, perhaps, more deeply and more seriously. When you got right down to it the fundamental problems were really problems, in relation to the federal government, of individual people.

In my part of the world, it seems to me, we have to get away from the semiartifical power brokers who have been set up by an accident of history and listen to the people who say, “We are great federalists, but we are not making any impression”. If this is a universal beef then this is an area where—I am trying to say the same thing as Mr. Hogarth—deep constitutional reform may be required on, not necessarily a federal-provincial basis, but on a federal-regional basis. Where do we get our mandate to undertake or consider that kind of reform?

Mr. Turner (Ottawa-Carleton): I cannot make any comment really, Mr. Chairman, except to say that Mr. Osler is obviously a very authentic spokesman for western Canada. I do not know how those units can be changed for the purpose of federal-provincial constitutional negotiation unless the people in those provinces, through governments, recommend some change in the unit structure. It is certainly not a matter on the table for a federal-provincial conference.

The Joint Chairman (Senator Lamontagne): Do you not think though that if this is a universal beef, as you say, and you might be very right, it is up to us as a Committee to find this out?

Mr. Osler: Yes. I do not want to start a fight among ourselves, this Committee and any particular province, but when you have a provincial premier who publicly says, we have had no voice in Ottawa since 1940 something because we have never elected a member to the House of Commons, that genuinely expresses the feeling of Alberta, because he does not have any Social Credit members, do you see? That is an opinion that he is entitled to, but then he takes the next step and says, “Therefore we must represent the people of Alberta in all federal negotia-

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tions, in all federal matters”, I would not buy that for 30 seconds because he does not have a mandate to have anything to do with the people of Alberta on federal matters. If you run head-on on that one, what mandate have we got to pull through?

Mr. Turner (Ottawa-Carleton): Well, one government in Alberta represents the people of Alberta in its provincial aspects and the federal members of Parliament from Alberta represent the people of Alberta in their federal aspects. They have a clear mandate to do so. You know, if these boundaries are phony, then the basic unity of the people of western Canada is simply reflected in their political representations.

Mr. Osler: I might say that too often this has happened and they have been out of step with the rest of Canada. Therefore, they have been on the minority side.

The Joint Chairman (Mr. MacGuigan): Gentlemen, this is perhaps a suitable controversial note on which to end this meeting of amity. You have before you the agenda which the Steering Committee has drawn up for the remainder of the meetings. We will be meeting again at 3.30 this afternoon in this room.

An hon. Member: Will the Minister be here?

The Joint Chairman (Mr. MacGuigan): I do not believe the Minister will be back, but we can always call the Minister again if we have to.

Mr. Turner (Ottawa-Carleton): I am at the disposal of the Committee at any time.

The Joint Chairman (Mr. MacGuigan): Before we adjourn I would like to extend on behalf of the Committee our thanks to the Minister of Justice for his frank presentation this morning.

AFTERNOON SITTING

The Joint Chairman (Mr. MacGuigan): The meeting will come to order.

Mr. Hogarth: Mr. Chairman, may I speak briefly on a matter?

The Joint Chairman (Mr. MacGuigan): Certainly, Mr. Hogarth.

Mr. Hogarth: I was going to suggest that the steering committee—and I am not putting this

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forward as a formal resolution to the Committee—give consideration to inviting as observers to this Committee perhaps five members from each provincial legislature on those occasion when we sit in any particular province. I think it would be of great value to have members of the legislatures of the various provinces sitting with us and hearing the evidence that we hear in an observatory capacity so that they could watch the nature of the proceedings and also hear the evidence that is presented to us in their respective provinces. I just put this suggestion forward for consideration by the steering committee because there might be many things to consider other than what superficially appears on the surface.

The Joint Chairman (Mr. MacGuigan): Do you wish to make any comment on that?

The Joint Chairman (Senator Lamontagne): As far as I am concerned I certainly have no objection, except that I do not see why we should limit it to five members.

Mr. Hogarth: I just used the figure five for reasons of accommodation. If we were to invite the whole legislature we would have a pretty heavy group in the room.

The Joint Chairman (Senator Lamontagne): That depends. Not in P.E.I.

An hon. Member: If they came you could not exclude them anyway.

The Joint Chairman (Mr. MacGuigan): Mr. Hogarth, your suggestion will certainly be noted by the steering committee and will be discussed as soon as feasible. I certainly think it is an idea worth thinking about.

Mr. Lewis: So long as you do not have any downage.

The Joint Chairman (Mr. MacGuigan): Any what?

Mr. Lewis: Downage. It is a new word that was used in the House of Commons this afternoon.

The Joint Chairman (Mr. MacGuigan): I must have missed that. What does it mean?

Mr. Lewis: You must remember Bob Andras mentioning downage.

An hon. Member: Geese and ganders.

The Joint Chairman (Mr. MacGuigan): Gentlemen, after this morning’s meeting, at which we got a picture of what the federal position has been and continues to be in the

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continuing constitutional discussions, we thought it would be very helpful to us if we had a presentation concerning that rather mysterious body, the continuing Constitutional Conference which has been set up under combined federal and provincial auspices. With that in mind we have invited Mr. Henry F. Davis, the Secretary of the Constitutional Conference, to appear before us and explain the nature of the Conference, the various kinds of documents and kinds of meetings which this body has been carrying out and, after making his formal presentation, to make himself available for questioning. It is a pleasure for us to have Mr. Davis appear as the second witness before this Committee following the Minister of Justice, and without any further introduction…

Mr. Lewis: Could we have some information on Mr. Davis’ background?

The Joint Chairman (Mr. MacGuigan): I have misplaced the sheet.

Mr. Lewis: I imagine he will give it to us anyway.

The Joint Chairman (Mr. MacGuigan): But perhaps Mr. Davis in his remarks, if it is not unfair to ask him to blow his own horn, can tell us a bit of his background.

The Joint Chairman (Senator Lamontagne): I know very well that he came from External Affairs to federal affairs.

The Joint Chairman (Mr. MacGuigan): Mr. Davis.

Mr. H. F. Davis (Secretary of the Constitutional Conference): Thank you very much, Mr. Chairman. I am pleased to appear before the Parliamentary Committee to talk about the process of constitutional review which has been taking place under the direction of the Constitutional Conference. I serve as Secretary to that Conference, and my Secretariat is an intergovernmental body responsible to the 11 participating governments. I will go into more detail concerning our functions a little later, but let me express the hope now that, working as I do for 11 governments, I may be able in my remarks to reflect something of the broader perspective which this situation should give me.

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[Interpretation]

But first, I must say that although the I secretariat is under the Constitutional Conference, we aim to further as much as we can the study of the great constitutional problems in which other bodies are al-

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ready engaged. The Secretariat has volunteered its help to the co-chairman and the personnel of your Committee with respect to the documentation and all general information of course we also have placed ourselves at the disposition of the Provincial Legislative Committees that may seek our cooperation.

[Text]

I now propose to attempt to describe the constitutional review machinery and procedures, after which I would be pleased to reply, as best I can, to questions in that area, which members of the Committee might wish to ask me. I believe that Mr. Turner has already mentioned the basic structure of the constitutional review, but I would hope to go into the process in more detail. I should perhaps point out that I shall not be dealing with the positions which governments have adopted on questions of substance. That is something which should be left to other spokesmen since, as I am sure you understand, it would be inappropriate for me, as the servant of all the governments participating in the constitutional review, to express views in that area.

It might be useful first of all to recall briefly for the Committee some of the antecedents of the constitutional review. I believe there were a number of factors which led many people in various quarters, including the federal and provincial governments, to the conclusion by 1967 that a comprehensive review of the fundamental structures of the nation, and in particular its constitution, was desirable. This was not to say that all, or even any, had reached firm conclusions on the changes which should be made, but there was a general feeling that a complete study was necessary.

Certain basic inadequacies in the existing written constitution were generally recognized. The most obvious deficiency is the fact that we are still not able in this country to amend our own constitution, at least in so far as the most significant articles are concerned. We have a lpng history of attempts to formu- late an acceptable amending formula, which culminated in the development of the Fulton-Favreau formula. This formula was, indeed, accepted by all participants at a federal-provincial conference, but it did not get implemented due to difficulties with the concept which developed in the Province of Quebec.

There are other aspects of the constitution which are widely regarded as being deficient. The distribution of powers as set forth in

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Sections 91 to 94 of the British North America Act is considered to be significantly out of date; for one thing, governments are now involved in many fields of activity which were not even envisaged when the BNA Act was written. Other deficiencies, at least in the eyes of many, are the lack of mention in the written constitution of certain basic institutions of federalism and responsible government, or of basic human rights.

There was by 1967, therefore, quite a wide-spread belief that the time had come to engage in a substantial constitutional revision to bring the constitution up to date and to make it more suited to modern Canadian requirements. As well as the political pressures in certain quarters of which everyone is aware, there was, at that time, a considerable feeling that it was symbolically significant to embark on such a fundamental exercise as Canada completed its first 100 years as a country.

In addition to the criticisms of the existing written constitution already mentioned, there were certain other basic problems and dissatisfactions which had been evolving within Canada in the years preceding 1967. Notable among these was, first of all, the dissatisfaction with the role of the French language in Canada, a major factor lying behind the call for constitutional reform from the Province of Quebec. Another factor was the existence of regional disparities, a persisting concern in the Atlantic Provinces. Still another basic dissatisfaction had to do with the development of financial strains within provincial governments. A strong belief had developed in the provinces that the financial resources available to provincial governments were no longer in balance with the expenditure responsibilities they had to face. Also, the use of cost-shared programs over the years had reached the point where some provincial governments, at least felt that the federal government through the exercise of its spending power, was having an undue influence on the actions of provincial governments within their jurisdiction.

The existence of such problems, I believe, led many to conclude that a fundamental re-evaluation of the basic structures of Canadian federalism were called for. The evolution of this belief led to an event which I think was an important antecedent to the constitutional review. This was the convening of the Confederation of Tomorrow Conference by the Prime Minister of Ontario in November 1967. This was an interprovincial conference which brought the ten Premiers together to discuss questions of fundamental importance

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to Canada. It was noteworthy, also, in that it was the first time a fully public, televised conference had been held, where the people of Canada could observe an intergovernmental conference in process.

An important characteristic of the proceedings was the clear indication of the readiness of provincial governments to engage in a fundamental examination of the country and its constitution. I think it justifiable to speculate that another important consequence of this meeting was that the operating responsibility for the review itself was from the outset located within governments, with the implications this would have, and which are persistently evident, in terms of the impact of political considerations on the process of the review.

Because the various factors I have mentioned posed the problems as a confrontation between the federal and provincial governments, it was no doubt to be expected that the constitutional examination would begin with the discussions between the federal and provincial heads of government, but to my knowledge there was never any expressed assumption that this would be the only forum for constitutional review. Indeed, I feel confident that everyone concerned with the subject will welcome the formation of this Parliamentary Committee, as well as any legislative committees which may be concerned with the subject in the provinces. With reference to the latter, incidentally, there is such a committee which has been meeting from time to time in the Province of Quebec, and I understand it is the intention to establish a legislative committee also in Ontario.

In describing the machinery for the constitutional review…

The Chairman: But that has not been established.

Mr. Davis: In describing the machinery of the constitutional review, one would naturally start with the constitutional conference itself. The term constitutional conference, as I am sure you appreciate, refers to the aggregation of the Prime Minister of Canada and the ten provincial heads of government meeting together to consider constitutional questions. This title has been adopted to distinguish the meetings which deal with constitutional issues from the traditional federal-provincial conferences of first ministers which are held from time to time to deal with current issues.

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At a meeting of the constitutional conference of course, there are present, in addition to the eleven principals, a number of other ministers, officials and advisers in the various delegations the attendance at a typical conference is well over one hundred. There are two types of meetings of the constitutional conference. The first type is the full, open session which is televised and to which a certain number of observers, including no doubt some members of this committee, are invited. Conferences of this nature are considered to be appropriate because of the need to involve the Canadian people in the fundamental discussions affecting their future.

In addition, however, it was found desirable to have some meetings in which the members of the conference can have private and less formal discussions, and these have been called “working sessions” of the conference. To date there have been three public open conferences and one closed working session. The next meeting is also expected to be closed.

[Interpretation]

The revue of the Constitution began with the first meeting of the Constitutional Conference called in February 1968 by honourable Lester B. Pearson, then Prime Minister. The country object of this conference was to evolve a national agreement on the linguist rights. This conference has acknowledged a French Canadian from outside Quebec must in all justice enjoy the same rights as English speaking do in Quebec, and that governments must make all possible efforts in view of reaching this objective as soon as possible. Here, it must be said that this particular question does not as a whole come under the constitutional review; it is rather a distinct problem that sort of grafted itself on the purely constitutional agenda.

[Text]

The second major outcome of the first meeting of the constitutional conference was the conclusion that a constitutional review should in fact be carried out, and that the first ministers should establish themselves as a continuing constitutional conference for this purpose. In addition, it was concluded that a continuing committee of officials and a secretariat should be established to assist the constitutional conference in this task. These two elements of continuing machinery were created in order to maintain a certain rhythm of activity in the review, and thus to offset the tendency for urgent current issues to distract attention from the longer term constitutional issue.

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The conference agreed that the following questions should be examined as a part of the constitutional review: (a) official languages, (b) fundamental rights, (c) distribution of powers, (d) reform of institutions linked with federalism including the Senate and the Supreme Court of Canada, (e) regional dis- parities, (f) amending procedure and provisional arrangements, (g) and mechanisms of federal-provincial relations.

The second meeting of the conference took place a year later in February 1969, after considerable preliminary work had been carried out by officials in the continuing committee which had met several times. At this meeting the Conference confirmed its conclusion of the previous years, and it might be worthwhile to quote the relevant paragraph from its statement of conclusions:

The Constitutional Conference reaffirms its intent to complete a comprehensive review of the Constitution of Canada, to assess its adequacy for present and future requirements, and to determine the extent to which constitutional change is desirable either through amendment of the existing constitution or through promulgation of an entirely new constitution.

It is significant to note, I think, the range of possibilities which the Premiers and Prime Ministers held open, the end product might consist either of some amendments to the existing Constitution or possibly of an entirely new written constitution.

At this meeting, the conference also came to certain conclusions concerning the procedure for the constitutional review, including the intention to have both public and closed working sessions in future, and the establishment of ministerial committees and of subcommittees of officials as might be required. The conference also discussed several of the specific subject areas which had been designated for examination a year previously. Certain of these had reached the stage of examination by officials in this continuing committee where it was thought that further progress would be facilitated if the consultative process was carried out at the ministerial  level. Four committees of ministers were thus established to proceed further in four areas: official languages, fundamental rights, the judiciary and the senate. I will deal with these more specifically a little later.

The conference also asked the continuing committee of officials to give priority atten-

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tion to the distribution of powers, in particular the taxing and spending powers and to the constitutional aspects of regional disparities. At the same time the conference concluded that there should be priority attention given by ministers to questions of immediate concern, not as part of the constitutional review, in the areas of fiscal relations, regional disparities and to studies related to the Canadian capital.

Since the February 1969 conference, there have been two additional meetings of first ministers. The first of these was a closed working session in June of last year, at which the major items of discussion were the taxing power and the spending power. In December of 1969 there was a third public session, and the conference again concerned itself mainly with aspects of the distribution of powers. The major new item which came forward for discussion at this meeting was the subject of income security and social services.

I should mention, with reference to all four of these meetings of the constitutional conference, that official statements of conclusions were released from each of the meetings and these have, I understand, been placed in your hands as have the published verbatim proceedings for the three public conferences. There are also a number of other working papers and statements which were tabled by various governments at these conferences and which are also available to this Committee.

I have already mentioned that the Constitutional Conference of February 1969 decided that a number of committees of ministers should be established to examine particular subject areas under the constitutional review. This course was decided upon when it appeared from the report of the continuing committee that examination of certain subject areas has reached a stage where it could not be advanced by further discussion at the official level. It was recognized that because of the significant political factors related to the various constitutional questions discussions could be more effectively pursued by the ministers concerned.

Of course, the committees of ministers are not regarded as decision-making bodies. Their task is to thoroughly examine their subject area so that the various implications and points of view can be fully identified and comprehended and reported back to the constitutional conference of Prime Ministers.

In saying this, I would not want to be understood as suggesting that the Constitutional Conference is a decision-making body in the complete sense of the term. There has been no conclusion yet as to the means by

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which the constitution should be amended or by which a new constitution should be promulgated. Presumably, however, the Constitutional Conference is the forum in which the definitive positions of the participating governments will be expressed.

I should now say something about the responsibilities given to each of the ministerial committees.

[Interpretation]

First, the ministerial committee of official languages. The Prime Ministers have decided that: “The recommendations of the Royal commission on bilinguism [sic] and biculturalism, together with the works of the continuing committee officers and the subcommittee on official languages on questions of linguistic will be subject to referral to committee of ministers. This committee will be charged to study the constitutional aspect of linguistic questions as well as the implementation of linguistic policy including the nature of any federal help that may be available to this end.

“Reports of the Royal Commission and other aspects of the question of official languages will be the study subject of the permanent committee of officers and the subcommittee on official languages as the case may be in view of helping the committee of ministers in its task.”

Work has been oriented in this particular direction during the three meetings of the committee of ministers, the last of which was Monday of this week. An agreement on principle has been reached respecting the objectives of a linguistic policy and respecting a federal financial formula making the implementation of such easier. This formula will be the object of an intergovernmental agreement after which it will be submitted to the next meeting of the Conference.

But the issue of “constitutional aspects of linguistic questions” and of the recommendations in volumes III and IV of the Gagnon-Dunton commission, have not yet been scrutinized by the committee.

[Text]

The Ministerial Committee on Fundamental Rights was instituted on the following basis. The Constitutional Conference noting the various views and the general interest that have been expressed with regard to guarantees of human rights, including those views brought before the Continuing Committee of Officials, agree that a Committee of Ministers should be established to study all matters relating to fundamental rights, including the question of entrenchment of such rights in a constitutional charter.

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It has held, two meetings and has reported to the First Ministers on the progress in identifying views in the area of its responsibility. It has also established a subcommittee which has been giving detailed study to political rights, legal rights and due process. That sub- committee will be meeting again next Monday and Tuesday to approve a report to Ministers on a portion of its task.

The Ministerial Committee on the Judiciary was established to consider provisions concerning the Supreme Court and the Judiciary, taking into account the views and proposals of various governments. This Committee has likewise held two meetings and reported its progress to the Conference.

The fourth Ministerial Committee was directed in some detail to study possible constitutional provisions relating to the reform of the Senate. These are, like the other terms of reference, set out in the conclusions of the second meeting of the Conference held in February, 1969. That Committee has met once.

I shall not go into detail on the Committees on Regional Desparities and the National Capital which although given instructions by the Conference are strictly not part of the constitutional review machinery.

To turn now to the Continuing Committee of Officials. As I mentioned previously, the Constitutional Conference decided in February, 1968 that a committee of officials should be formed to assist it in its task. Following the February Conference, the various governments appointed their delegations and the Continuing Committee had its first meeting in May, 1968.

The Committee is composed of senior officials representing the federal government and the ten provincial governments. In addition, a number of advisers, specialists from academic and other fields, who are attached to certain delegations, have participated in the work of the Committee.

The purpose of the Committee is primarily to carry out a preliminary examination of the various constitutional issues in order to facilitate as much as possible this discussion at the political level. There are two main channels for communicating the results of the Committee’s work. Reports concerning the Committee’s work are submitted formally to the Constitutional Conference; these reports take the form both of a progress report from the Committee itself, and of briefing papers on the Committee’s discussions prepared by the Secretariat.

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The second and perhaps most important channel of communication depends upon the contact between the individual delegations and their own governments. The various members of the Continuing Committee therefore have a two-way responsibility. They put forward the views of their government and explain them to the representatives of other governments. They are also the channel by which the views of other governments are conveyed back to the government they represent.

As I have mentioned, this Committee held several meetings in the first year of the constitutional review, between the first and second meeting of the Constitutional Conference. In this time, the Committee attempted to define the scope of the review and identify the many subject areas and specific issues which would have to be dealt with during the course of a comprehensive examination.

It became apparent early in the exercise that this would prove to be a very complex task. In searching for an appropriate way to begin the work, the Continuing Committee concluded that it would be useful if the participating governments were to submit propositions setting forth preliminary views on what would be required in a contemporary constitution. These propositions were not meant to be at this stage firm statements of government positions; rather, they were to be statements of the general concepts or principles by which governments should be guided in determining the content of a constitution or which should underlie the revision of the constitution.

A large number of propositions were then submitted by the various delegations covering a whole range of questions and issues. I might observe that the contributions varied greatly. Not all governments put forward a completely comprehensive set of propositions, although the combination of all the submissions resulted in the development of a very extensive framework for discussion. These propositions are all available for your perusal.

I might just observe that the most comprehensive set of propositions, and the only submission which contained detailed proposals concerning the distribution of powers, came from the Quebec delegation. As the whole Quebec submission was based on a conceptual framework, and attempted to define the kind of constitution which might meet Quebec’s needs, this document is perhaps of some particular significance.

This submission came to some prominence in the fall of 1968 when it fell into the hands of the press and was widely publicized. As a

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result the propositions of other governments have also been made public. Those of the federal government were published as part of the document The Constitution and the People of Canada.

The Continuing Committee’s discussions based on these propositions were quite wide ranging, covering not only the specific subjects set down by the Constitutional Conference in February, 1968, but also some basic questions as the objectives of Confederation and the general principles of the constitution. There are two documents which report on the first year of the Committee’s work and which were tabled at the meeting of the Constitutional Conference in February, 1969: the Report of the Continuing Committee of Officials, and the Secretariat’s briefing paper on Discussions within the Committee. Both documents have been made available to the parliamentary Committee.

Since the second meeting of the Constitutional Conference, the work of the Continuing Committee has reached another stage. The Committee has concentrated on a thorough preliminary examination of specific subject areas to come before the Conference. Thus the submissions to the Continuing Committee of Officials have recently taken the form of background papers related to specific subjects rather than government-approved positions.

Also the Conference has referred specific questions to the Committee for particular attention. For example, the First Ministers, at their working session in June, 1969, referred to the Continuing Committee specific questions relating to the taxing power, the spending power and regional disparities. A briefing paper from the Secretariat concerning the Committee’s work on these questions was tabled at the meeting in December, 1969. At that Conference, also, additional matters were referred to the Continuing Committee for study, including the question of paramountcy in relation to public retirement insurance, and a request to study the possibility of a nonenforceable constitutional obligation for a reduction of regional disparities.

There is another point of importance to mention in considering the work of officials, and that is the use of specialized subcommittees formed to work on specific areas. The Continuing Committee has been authorized to establish such subcommittees or working parties as it might find desirable to assist it in carrying out its task, and this device has been

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used to some extent. The first such group to be formed was the Subcommittee on Official Languages. This was established during the first year to carry out work arising out of the Consensus on Official Languages of February, 1968.

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The Continuing Committee has also established two technical and specialized subcommittees to study alternative methods for handling sales taxes and death duties in the constitution. More recently, a new subcommittee has been formed to study particular questions in the field of fundamental rights.

I might mention that in the constitutional review structure, all subcommittees of officials are regarded as being subcommittees of the Continuing Committee. However, in those areas where there is also a committee of ministers in operation—that is, Official Languages and Fundamental Rights—the subcommittees do have a relationship also with the Ministerial Committees and receive direction from them.

It might be reasonable to suggest that the nature of the work of the subcommittees is somewhat different from that performed at other levels of the constitutional review. While the senior committees are concerned basically with what might be termed a political exchange, defining and explaining the points of view of the various governments, the subcommittees are concerned with ensuring that the necessary technical knowledge on specific questions is brought forward. In recognition of this distinction all governments do not find it necessary to participate in all subcommittees and in one instance three governments share a single representative.

I assume that I should also say something about my part in the constitutional review structure; that is, the Secretariat of the Constitutional Conference.

It was recognized at the constitutional conference in February 1968 that, as one of the elements for carrying out a constitutional review, it would be important to have a secretariat of a continuing and intergovernmental nature. A continuing full-time secretariat was called for in view of the extensive task which was envisaged, so that constant attention to the details of the review could be assured. It was considered significant, also, that the secretariat should take on an intergovernmental aspect, since the review would be concerned with defining the jurisdiction and relationships of the several com-

[Page 78]

ponents of the federation, and it should therefore not be identified with any one particular government.

The secretariat is therefore considered to be responsible functionally to all eleven governments. There is evidence that the provinces regard this to be of some significance.

Administrative responsibility for the secretariat has been assumed by the federal government, but I can attest that this has not been used to exert any political influence on the secretariat. This situation is generally acknowledged by the provinces but their interest in an “independent” secretariat is such that the question of joint financing has been raised. The issue has never been fully determined, nevertheless Ontario has made two cash contributions to secretariat costs.

The secretariat is relatively small. I have working with me as full-time employees about seven officers and a dozen support staff. The staff has been augmented from time to time during busy periods through the part-time secondment of officers from the participating governments. The occasional secondment of provincial officers has been important to us both in helping to meet peak loads and in giving us a practical intergovernmental character.

The secretariat is responsible for serving the constitutional conference, itself, and its various committees and sub-committees. I might just briefly describe the kind of work which is involved. Our most obvious responsibility is for the administrative arrangements for meetings at all levels. With the proliferation of committees this is considerable.

We are also responsible for advising the chairmen on such matters as the program of work, scheduling and co-ordination of meeting times, and ensuring that the appropriate action is taken to follow up on the decisions of meetings. We also prepare the records of proceedings for all meetings.

A major part of our task, and one where our acknowledged intergovernmental character is of particular significance, is in carrying out the instructions of committees in the preparation of reports.

Another function of great, and we hope, increasing importance, is to serve as a continuing link between delegates, and between the various committees, in periods between meetings. It is, of course, necessary for all involved with the constitutional review to be kept up to date as much as possible concerning latest developments, the progress of on-going work within each of the governments, and the

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views of others concerning such questions as appropriate adjustments in work schedules, priorities for forthcoming agendas, and so on. We, therefore, try to keep in close touch with members of delegations in all capitals, so that our relationship and responsibility to each of the participating governments is a real one.

An increasingly important function of the secretariat is to serve as a source of information concerning all aspects of the constitutional review, both to participants in the constitutional review process, and to parties outside of the constitutional review structure, including academics, the various interest groups, and the public in general. We have of course, as a regular procedure, classified and indexed information as it is produced during the review, and I might mention, in this connection, what we have provided lists of documents which are available to your staff. We have established a system to permit us to retrieve information quickly, on request. However, now that the accumulation of information is becoming sizable, to say the least, and having in mind our direct responsibility to all eleven governments, we are seriously looking into the possibility of employing a computerized system for information retrieval.

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It is, of course, in the area of documentation and information that the secretariat hopes to be able to provide useful service to this parliamentary committee and, as I have mentioned, we have already taken a number of steps to assist in this way.

We are very conscious of the quantity and complexity of the documentation that has already accrued and we are most anxious to co-operate in devising an effective method of presenting it to members of the Joint Committee, so it will be of maximum usefulness to you in your deliberations.

The secretariat is able to sort and collate all the relevant information on specific subject areas, given adequate time and guidance as to the purpose for which such information is to be used.

I should mention also one important task which the secretariat does not perform, since this is frequently not understood by those who are not too familiar [sic] with our operation. We do not attempt, nor do we have any mandate to do so, to carry out fundamental research related to possible amendment of the constitution. We are not, in other words, a

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royal commission type of institution. The rationale of this, I believe, is that the constitutional review is basically a political process. The process being followed in the review suggests that governments consider that the needs for constitutional change cannot be assessed primarily through abstract or theoretical analyses; instead, these needs have to be understood in terms of the political realities that exist in the country and these can best be assessed by those directly involved in the business of government. This being the case, it has been assumed that most basic research should be carried out within governments, as a part of the process of developing the points of view and positions of governments, which in turn should of course, reflect the interest of the citizens. This is not to suggest, of course, that there is no role for the academic community in this process. Indeed, I hope that our university specialists would give increasing attention to the examination of these issues.

Against this background you will understand that the secretariat has not become engaged in basic research. At the most, we endeavour to provide summaries of back- ground information or analytical summaries of basic materials submitted by the various governments.

I have been describing so far the joint federal-provincial machinery and procedures which have been developed for the purpose of advancing the constitutional review. To complete the picture, I should just make the point that an important part of the process is the work which is carried out within the governments themselves. Some governments have made special arrangements for the purpose of carrying out work related to the constitutional review. The federal government, and the larger provinces, have specialist advisers, and some staff who concentrate largely on the review. Some also have cabinet committees and interdepartmental committees concerned with this subject.

It must be acknowledged that all governments do not have the same resources to contribute to the constitutional review nor the same view of the priority to be given to the review in the allocation of their resources. Hence the contributions in time, ideas and skill are varied and this is reflected in the rhythm of the review.

If I might mention just one last aspect of the constitutional review process, I believe it is generally recognized that it is very important to get the general public as closely involved as possible in this fundamental study of the basic structure of the country. This has

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been achieved to some extent through the device of public conferences, and through the published papers which have been released by governments, and the general constitutional review documents which are distributed by the secretariat. At the same time, I am aware that there has been criticism in some quarters that the public has not been sufficiently involved as yet. The work of this parliamentary committee may well be able to overcome this lack.

That is the outline of the constitutional review machinery and process, and of how it has functioned to date.

It is not for me to presume to assess either its effectiveness or its achievements, but I should like to suggest that in reaching your own judgements you give due weight to the fact that the constitutional review has been accepted by all governments in Canada as a requirement, an opinion which has survived changes, both in government leaders, and in governments themselves. The process of review has moreover provided all governments with a greater insight into each others views and has contributed thereby to a broader national understanding of the main issues of concern to governments. Finally the process of intergovernmental consultation has come to be accepted as a more regular part of our political process which can only be helpful in meeting our problems.

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To all of this a new element has now been added. This joint parliamentary committee has been instituted and the constitutional review process has thus been rounded out by providing for the formal involvement of Parliament.

Thank you.

The Joint Chairman (Mr. MacGuigan): Thank you very much, Mr. Davis. I must say that quite apart from his presentation today, Mr. Davis has been very helpful to us. He had a preliminary meeting with your joint chairmen and he has also been most generous in providing us with the documentation. As he suggested, the only problem has been with the quantity and complexity of that documentation.

Mr. Allmand would you like to begin the questioning this afternoon?

Mr. Allmand: I still have a few technical questions. Mr. Davis, you said you had a staff of seven officers and 12 supporting staff. I wanted to ask you whether these officers and

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staff had come from the federal government service as you have. Or are they taken from provincial government services or from the private sector?

Mr. Davis: Almost exclusively from the federal government, although we have one or two from the private sector. We have from time to time had people seconded to us from provincial governments for a period bearing from a few weeks to a few months.

The Joint Chairman (Mr. MacGuigan): Perhaps, Mr. Davis, since you have seven full-time staff…

Mr. Davis: Yes.

The Joint Chairman (Mr. MacGuigan): …you could generally describe the background of each of these people if that is not too tall an order.

Mr. Allmand: And also probably their function, their role in the Secretariat.

Mr. Davis: Yes. Briefly, there is myself who am the Secretary. We have, I should say at the outset, a two-tier Secretariat. My background is federal. As one of your co-chairmen has said, I was in the Department of External Affairs for some 20 years, then I did a special job in the Privy Council office and then I was transferred to this work.

Under me, on the functional side, there are positions for four program officers; three of them have been filled. Of these program officers, two have been from the federal service and one was brought from outside. The fourth program position is the one that is being filled from time to time by secondment from the provinces. We then have a senior administrative officer who is responsible for the usual administrative arrangements. He also comes from the federal service. We have our information retrieval officer who also comes from the federal service; another administrative officer likewise from the federal service. Below that is the supporting staff.

Mr. Allmand: Fine. The next question I want to ask is one that was originally raised by Mr. McQuaid. I am wondering if you have in preparation a list of the federal government proposals to the Conference with the area of agreement and disagreement with the provinces on each one.

[Page 83]

In other words, this morning Mr. Turner gave us six areas where there was general agreement. I am wondering if you have in preparation or whether it is contemplated, a document which would have all the proposals, let us say alphabetically if possible or catalogued in some way or other, showing the agreement and disagreement of all the governments on those particular proposals.

Mr. Davis: It is a little difficult to really do it in quite that way. There is in existence a document which catalogues and lists all the propositions which were put in originally. I think this is probably what one thinks of when one uses the term proposals. It is possible to identify the reactions to these.

But since none of these proposals were put forward as firm suggestions, and since none of the meetings have attempted to reach conclusions, we do not on any single issue have a distribution of view either for or against or neutral. But the most you can have is a record of views which were expressed in relation to any, which in itself would necessarily be incomplete.

Mr. Allmand: Do we have that particular document among those that were given to us?

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Mr. Davis: Yes, I believe you do. I am reminded that in addition to this, which is the kind of catalogue which I think you had in mind or the nearest approach to this, there is also a series of briefing papers which the Secretariat has produced which sets out the range of discussion and reaction in the committees to the discussion of any particular idea. As I say, the problem is a little difficult because it is not as though someone had put forward a firm suggestion and people were being counted as either being for or against or neutral on it. It is simply a concept which is being put forward and the participating governments have reacted or not as they felt disposed to do.

The Joint Chairman (Mr. MacGuigan): Perhaps we might just pause here a moment for internal purposes. The Clerk advises me that this document that you have been referring to has not been distributed. This list has been distributed, has it not—the list of the available documents, the declassified documents which are available, but not all of these have yet been made available to the Committee. Any member who wants them can certainly obtain them, but we had hoped to get them

[Page 84]

put into a little bit more order before we sent them around to the members.

Mr. Allmand: Fine.

Mr. Davis: Mr. Chairman, if I might just add another idea, in view of the enormous volume of material in our opinion that has been expressed, the Committee might perhaps find it more useful to deal with the subject separately. We could certainly provide you in any subject area with a quite manageable document which would set out the propositions that had been put forward in that area and give you a summary of the reactions of governments to those. This I think you might find easier to handle in relation to any subject rather than covering the entire wealth of material.

Mr. Lewis: Do you have such a summary now or would you have to prepare it?

Mr. Davis: We just have to extract it from our general record. The material is all there, but in any one meeting there will be a series of subjects discussed and the meeting then has been reported as a single meeting. If you were interested in one particular subject, we would extract from the reports of the various meetings the references, the reports and the comments that were made in relation to the subject of particular interest. We could bring those all together for you.

Mr. Lewis: Including the contradictions.

Mr. Allmand: This leads me to another point on the same subject. You said that the Quebec proposals, which were very comprehensive, had become public through some mistake or because the press got hold of them—I do not remember. Are these declassified?

Mr. Davis: Oh, yes. As a result of those all the others have been declassified as well.

Mr. Allmand: I have read press reports on the Quebec proposals but I have never seen them as they were formulated in their full…

Mr. Davis: Copies certainly have been provided to the Clerk of this Committee.

Mr. Allmand: Very good. As a Secretariat, are there ministers or ministries in each provincial government or with each provincial government with whom you have contact? For example, in Quebec we have a Minister of Intergovernmental Affairs; in Ottawa, we have the Minister of Justice. Is there a minis-

[Page 85]

ter designated by each of the provincial governments who has direct contact with this matter?

Mr. Davis: No. It is rather curious that there is not a minister who has. At the ministerial level it is essentially the premier in the provinces. But there is a senior official, the representative of that government on the continuing committee, who is our normal contact at the official level. Then our contacts with ministers other than the first minister relates to the work of the ministerial committee.

Mr. Allmand: I see.

Mr. Davis: Thus in Quebec we would have, as we did last week, relations with Dr. Cloutier, who represents the Quebec government on the Committee of Official Languages, and presumably with the Minister of Justice of the Province of Quebec in relation to the fundamental rights and the judiciary.

The Joint Chairman (Senator Lamontagne): You have had no communication with them yet about the Senate?

Mr. Davis: No, we have not yet.

Mr. Allmand: They have all abolished the Senate. That is all for the moment, Mr. Chairman.

The Joint Chairman (Mr. MacGuigan): I believe Mr. Woolliams was next but in his temporary absence perhaps Senator Grosart would like to go ahead.

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Senator Grosart: Thank you, Mr. Chairman. Mr. Davis, the provincial proposals or propositions have provided a very extensive framework for discussion, which would seem to me to raise the question of our terms of reference. If we are going to collect papers and lay out a schedule, we will have to be very careful that we stay within our terms of reference, which I regard as very limited. Anybody reading them will find that the first limitation is that we can only discuss proposals made public by the Government of Canada. That is the first limitation.

The second is if they are on subjects that were dealt with during the comprehensive review in 1968, strangely enough with no reference to the equally comprehensive review or more comprehensive review in 1969, and the third limitation which may appear at first to be an extension is alternative proposals thereon. So, we seem to be circumscribed here and if we are going to remain that way,

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I think this is a job for the Chairman or the Executive Committee to come up with a very careful list of the things we are entitled to discuss here or conversely go back to the two Houses of Parliament and ask for less restrictive terms of reference.

The Joint Chairman (Senator Lamontagne): Do you not think with these last words the door is almost completely opened? Alternative proposals…

Senator Grosart: The wording is “alternative proposals thereon” which means only proposals of the federal government which were included in the 1968 review because that is what “thereon” refers to.

Mr. Lewis: Surely not, surely not. “1968” refers to the conference which initiated the review. It is not limited to the subject dealt with in 1968.

Senator Grosart: With due respect, Mr. Lewis, you are a good lawyer and if you will read it you will see that “review” is purely descriptive of the word “review” in the same line, “A comprehensive review of the Constitution of Canada” and it is now described as that which too place in 1968. This is a limitation, not an extension.

Mr. Lewis: Not of that which took place. That review was agreed upon, surely.

The Joint Chairman (Mr. MacGuigan): My interpretation, I think, would be the same as Mr. Lewis’s. It was the conference that began in 1968, but we are not limited to proposals made at that time. However, perhaps this is not a proper matter to submit to Mr. Davis for comment. I think it is something the Committee and the steering committee can consider over the course of these meetings. Was there something on which you felt limited now in your questions to Mr. Davis, Senator Grosart?

Senator Grosart: I would be limited on my questions to anybody even in the interpretation that you and Mr. Lewis have taken.

The Joint Chairman (Mr. MacGuigan): But perhaps not so limited. I am quite prepared, at least, to consider any question which you may wish to put to Mr. Davis, so I will leave it on that basis.

The Joint Chairman (Senator Lamontagne): You are like me, you are not a lawyer, and you have had the opinions of two prominent members of the legal profession.

[Page 87]

Senator Grosart: Yes, I have had opinions from lawyers before that I found were wrong, to my sorrow and financial embarrassment.

Mr. Davis, I do not believe you referred to the Tax Structure Committee Paper. What is its relationship to our terms of reference?

Mr. Davis: The Tax Structure Committee Paper really has no direct relationship to the constitutional review. It has not been brought into the ambit of the constitution…

Senator Grosart: Was it not prepared in response to instructions from the Conference? I ask the question because it has some very very pertinent information in which I know Mr. Lewis would be interested.

Mr. Davis: This is quite true. In 1969 the first ministers at their meeting did ask for the Committee to be reactivated, but just as they made one or two other suggestions which were really outside the constitutional review. Even though this took place at a constitutional meeting the activities did not come within the ambit of the review. I mentioned the request that ministers should study the question of regional disparity. This also arose at that time, but this was not in a constitutional context. There was also the question of some decisions taken with regard to a committee on the Canadian capital, but neither of these questions were in terms of constitutional amendment or constitutional review, although they did quite properly, as you say, Senator, arise from a meeting of first ministers at the Constitutional Conference.

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Senator Grosart: And were prepared on the instruction of a minister…

Mr. Davis: As a result of the…

Senator Grosart: …for the purpose of constitutional review?

Mr. Davis: The record does not show it was for the purpose of constitutional review and it has never come back into the constitutional review.

Senator Grosart: Does that mean this very important information we have in that Tax Structure Committee Paper is not a document that is properly before this Committee? I ask that because and, as I said, Mr. Lewis would be very interested in one of the conclusions there, that 50 per cent of all government

[Page 88]

expenditures in Canada today are expended on health, welfare and education. Fifty per cent of the total which is 35 per cent of the total of the GNP. I am not objecting to that, I am very much in favour of it.

Mr. Davis: Senator, perhaps the most per- suasive fact I can give you to decide where this fits is that the report back from the Tax Structure Committee, the report on the action they took as a result of the instruction to which you have referred, was given to first ministers this February at a meeting which they held on current questions which was not a constitutional meeting and their report was dealt with, therefore, by first ministers at a meeting outside the ambit of the constitutional review.

Senator Grosart: I will not press the matter, but obviously the figures there will be essential to our discussions here, particularly, taxation and the use of the federal spending power. Another good question, as the Minister this morning, as well as you, Mr. Chairman—I will ask the question through the Chairman—and Mr. Davis stressed, is the fact that these meetings have not been means which have reached conclusions and yet we have continual reference to agreements between the federal government and the provinces. The Minister this morning described six. What is the status of agreements in this sense? If they are not conclusions, how are they agreements?

The Joint Chairman (Mr. MacGuigan): Perhaps we should point out for Mr. Davis’s assistance that on several of the points on which the Minister described agreement this morning, he specifically stated there were provincial holdouts. On one, there were two provinces which did not agree and in another case there was one, but I think the question remains…

Senator Grosart: This just makes the question even more relative because the very fact that he exclude two as being total agreements, and only two of the six, I ask again what is the status of those agreements? What are they?

Mr. Davis: As I see it, sir, the constitutional review up to this point has been attempting through the various committees to identify areas where there is a consensus and by building up on these perhaps to approach closer to the point where decisions would be taken on whether there should be constitutional change. I would expect that what Mr. Turner was referring to were areas of agree-

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ment which had been reached in examining the underlying questions, but there had not at this stage been any specific proposals. This is why I distinguish between propositions and proposals. There had not been any specific proposals for constitutional change and, therefore, there has not been any specific agreement on constitutional change, but there certainly has been agreement on certain areas which should be examined and agreement on certain concepts which should be recognized. These, I expect, although I did not have the benefit of hearing Mr. Turner, were what he was referring to when he spoke of agreements.

Senator Grosart: Finally, I would hope the difference between propositions and proposals in less wide in this field than it is in the normal relations of young men and women.

An hon. Member: Are you speaking from memory, sir.

Mr. Hogarth: Yes, he has a very good memory.

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Mr. Lewis: May I answer the Senator’s last question. I am sure they are just as wide as propositions and proposals or in whatever order they come in normal life. I understood you to say, Mr. Davis, because I think this should be cleared up I—will put it in my way as I have watched these conferences, the three that were published, and I have read some of the papers—what the governments are at the moment indulging in are general discussions of the various aspects of the Constitution arriving to date in some cases universal and in some cases limited agreement about the sort of framework of each of the aspects, but at no point, I gather, not even in the privacy of the Continuing Committee has there been from any government a specific proposal of either specific subject matter or specific wording that would go into a Constitution.

Mr. Davis: That is correct. That is what has happened to date.

Mr. Lewis: Tell us something about the Continuing Committee. Does that consist of 11 members, one from each government?

Mr. Davis: No, it is not quite as formally constituted as that, Mr. Lewis. All 11 governments are represented and there is in the case of each government one individual who is recognized as, shall we say, the representative

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of the government on the Continuing Committee but they are accompanied by one or more experts or advisers or others, depending on the subject matter and the committee proceedings are very informal; in keeping with the concept that none of these are decision-making bodies there is therefore never any vote or need to limit anyone in their participation. It is an exchange of views and areas of agreement or disagreement emerge and appear and are recorded.

Mr. Lewis: I would like to understand that a little more because in my experience the civil service of any government had a great deal of influence on the final result and the civil service of this Constitutional Conference…

The Joint Chairman (Senator Lamontagne): It is a bias that you have cultivated because you have never been in office.

Mr. Lewis: It is a bias that you could attest to because you have been, if you were frank about it, which may be more than I can expect, I do not know. It is a fact of life and this Continuing Committee is bound to have a great deal of influence, as it should. I am not saying that it would be pernicious influence but a great deal of influence on the end result. Are there 11 men or women who are, as it were, permanent members of the Continuing Committee whether they can all attend every meeting, whether they are there alone or accompanied by experts? Are there 11 people designated to be members of the Continuing Committee?

Mr. Davis: There are certainly 11 people who have been designated as the senior representatives of their respective governments on the Continuing Committee and there are probably about 16 or 17 who regularly attend the Continuing Committee; this number may be augmented or may not.

Perhaps, Mr. Lewis, I might recall a point I tried to make about the distinction between the Continuing Committee and the subcommittees and this may help to clarify this. In the Continuing Committee, officials who represent their governments are regarded for most discussions as acting on instructions from their governments; therefore one assumes that the views they express bear some degree of judgment of the governments they represent. I distinguish this from the subcommittees where the people are selected because of their particular sphere of familiarity and they do not present their views as views of the governments that have selected them to be there.

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Hence, on some of the subcommittees all governments have not chosen to be represented and indeed as I mentioned in one instance, one representative represents three governments: those are strictly committees of experts. But for the CCOs, the Continuing Committee of Officials, it is regarded that the views they express bear within the limits of the way they have expressed them, the approval of the governments they represent.

As they are not voting committees, they do not take decisions; no particular attention or significance should be given to the fact that a government may be represented by one or by two or by three people at the table.

Mr. Lewis: Yes, I see. I appreciate that. You referred to the subcommittees at one point as working committees, if I heard you correctly.

Mr. Davis: Yes.

Mr. Lewis: Would it be violating any confidence if one asked you to give us a list of the 11 senior representatives on the Continuing Committee of Officials? I do not recall ever seeing it. I may have overlooked it.

Mr. Davis: No, I am reminded this is still classified. This has not appeared in the lists we have published. I will just have to verify that for you.

The Joint Chairman (Senator Lamontagne): I have never seen the list but I can give you some names.

Mr. Davis: Sometives [sic] the press has given the names of some the people who have been there.

Mr. Lewis: Could you inquire as to whether it could be declassified? It seems to me important if one knows who the people are who are assisting in this exercise at the top level.

Mr. Davis: Certainly. I would be very glad to inquire of government if I could give you the list and then if they leave me free to do so I could certainly pass it on.

Mr. Osler: Would Mr. Lewis mind a suggestion at this point? Where each of us are citizens of various provinces, it would seem to me that we could demand of our democratic provincial authorities the name of those who are bargaining on our behalf and we could do the same thing federally as federal members.

Mr. Lewis: I do not know whether that is a suggestion. Mr. Davis is here and if he has authority he will give us the names.

The Joint Chairman (Mr. MacGuigan): I would make one suggestion here if I might.

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There may be a number of things we could ask Mr. Davis to obtain permission to declassify. Perhaps we should simply refer this matter to the steering committee for now to collect these things because I would not want to put him in the position of having to write a new letter to the provincial premiers every week to get permission for something else. I think anything that we reasonably request he will certainly put to the premiers; whether or not they will agree is another question.

Mr. Lewis: I appreciate that.

The Joint Chairman (Mr. MacGuigan): There may be half a dozen things we want so perhaps without asking Mr. Davis to get this now, we will let him know some time within the next several months the various things which we think it would be helpful for us to have.

Mr. Lewis: Sure, we will be at this quite a long time.

The Joint Chairman (Mr. MacGuigan): I will ask the Clerk to make a note of that for the next steering committee meeting.

Mr. Lewis: Mr. Davis, are you Secretary of the Continuing Committee as well as of the Conference.

Mr. Davis: Yes. As I mentioned when I was asked about the formation or the structure of the Secretariat, we are a very small unit, and I try to keep in touch with the activities of the constitutional review at all levels. I personally act as Secretary of the Conference, the Continuing Committee and the Ministerial Committees. And then other members of my staff act as Secretary but we are all involved. It is a team operation, a very complex operation, and we are all involved in all of it as it goes along. We are not very status-conscious.

Mr. Lewis: I gather that salaries and expenses come from the federal Treasury; the issue has been raised and Ontario has made a couple of contributions.

Mr. Davis: That is right, Mr. Lewis. Ontario has made two contributions, independently, which I think must be regarded as token contributions.

Mr. Lewis: Is there a budget prepared by you, and if so, to whom does it go and what area of budgetary manoeuvrability have you got?

[Page 93]

Mr. Davis: As background if I could just be permitted to remind the Committee that this is a new kind of organization which was established very quickly and under the administrative wing of the Privy Council Office. Our budget is within the budget of the Privy Council Office and we have just now in the last budgetary period assumed greater administrative autonomy in preparing our own budget and it is segrated [sic] still within the Privy Council budget. We have not been established ei [sic] her by statute or by Order in Council and therefore we have no means of operating within the financial regulations; therefore we operate under the Privy Council budget.

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The Joint Chairman (Senator Lamontagne): Do you recruit your staff yourself?

Mr. Davis: Yes, we recruit our staff directly. Let me give you an example. One of our Program Officers left us just a few weeks ago. I immediately got in touch with the Public Service Commission here and wrote to the ten provinces advising them of the vacancy on the staff, the job qualifications and the salary we were in a position to pay, and asked for candidates to be suggested to us from the 11 governments. We are also looking in the public sector as well for someone to fill this position.

Mr. Lewis: What does the term Program Officer mean?

Mr. Davis: I am not sure it is really a very good term. I am glad you asked about it. I think it is to avoid the title Assistant Secretary; this is really what it amounts to. There is the Secretary and we call my assistants Program Officers.

Mr. Lewis: Who are the chairmen of the four ministerial committees? I think our Minister of Justice is chairman of two of them.

Mr. Davis: Of the two which we call sort of the legal committees. He is Chairman of the Committee on Fundamental Rights and Chairman of the Committee on the Judiciary. Mr. Gerard Pelletier is Chairman of the Official Languages Committee and Mr. Otto Lang is Chairman of the Committee on the Senate.

Mr. Lewis: We were told this morning that they were co-chairmen for that Committee, Mr. Lang and Mr. Martin.

Mr. Davis: I would have check this. There could very well have been changes.

[Page 94]

Mr. Lewis: I do not think I have anything more.

The Joint Chairman (Mr. MacGuigan): I might ask further about the program officers. You said there are now three program officers. How do you define their responsibilities? You said they are something like assistant secretaries.

Mr. Davis: Yes, we have divided up the areas of work in relation both to the ministerial committees and to the subcommittees between them and then we have tried to make some logical division, both logical we hope and somehow to share their burden. In an operation of this kind, the staff is small to cope with the volume of work and also it is of necessity a peak and trough kind of thing. Before meetings and during meetings we rise to a period of great activity and then it tends to drop off. There are long periods between meetings in which period we are able to do some background work, but admittedly the load is not as heavy and we have to be staffed to try to meet the peak periods of Committee activity.

The Joint Chairman (Mr. MacGuigan): Mr. Hogarth and then Mr. McQuaid.

Mr. Hogarth: Mr. Davis, regarding this continuing committee that you speak of, it is my understanding that you feel at this time at any rate that the membership is classified?

Mr. Davis: That is right.

Mr. Hogarth: Now the experts that you have spoken of who are advising the continuing committee, would that be classified also?

Mr. Davis: Yes, I take this position because the work of the continuing committee itself is classified and I take this to include not only the deliberations, but also its composition and the people who participate in it.

Mr. Hogarth: I see. I take it that the function of the continuing committee in any event is to consider in a sense exactly what we are considering here, that is to say the proposals that have been made, and to do the necessary examination of them and then to make recommendations for the next Conference? Is that right?

Mr. Davis: Correct.

Mr. Hogarth: There is nothing in that process which involves the public at all, as you have suggested?

Mr. Davis: No. Perhaps I might help by saying that reports of the continuing commit-

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tee which have been submitted to open meetings of the constitutional conference have been declassified.

Mr. Hogarth: Yes.

Mr. Davis: Therefore the work of the continuing committee is not opposed to this—

Mr. Hogarth: The results of the work.

Mr. Davis: The results of the work to the extent that they have been made to the open Conference.

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Mr. Hogarth: Do you know, sir, if any province—and I think the answer is “no” to this as far as my knowledge is concerned, but just to put it on the record formally—has established any legislative committee to hear from the public within that province as to the proposals that have been put forth? Have we any comparative body in any provincial domain?

Mr. Davis: There is a legislative committee in existence in Quebec. We have had nothing to do with this operation, therefore, I am not in a position to say whether it has heard public witnesses or involved the public, but there has been a committee of the legislature in Quebec. It is our understanding that it is the intention in Ontario to form one. However, as far as we know it has not as yet come into being.

Mr. Hogarth: Has the Quebec one had public hearings to your knowledge?

Mr. Davis: Unfortunately I have no information on that.

Mr. Lewis: It is andelated [sic] the constitutional conference, is it not?

Mr. Hogarth: They had a report on that constitutional conference.

Mr. Lewis: It was set u psome [sic] years before 1968, and has had public hearings I think.

Mr. Hogarth: Presumably they filed a report before these conferences began, did they not at one time? I have nothing further. I think the rest is on record.

The Joint Chairman (Mr. MacGuigan): Mr. McQuaid you are next, followed by Senator Yusyk [sic].

Mr. McQuaid: I have one or two questions, Mr. Chairman. Mr. Davis, you mentioned I believe, if I did not misunderstand you, during your presentation that there were cer-

[Page 96]

tain committees which were not a part of the constitutional review machinery. You mentioned specifically the Committee on Regional Economic Disparity. Coming as I do from the Maritimes, I consider this a very important committee. As a matter of fact in the outline of federalism for the future, regional economic disparity was stressed as a very important aspect of this constitutional review. Could you explain to us just what you mean when you say that this committee is not a part of the constitutional review machinery?

Mr. Davis: Yes. At the 1969 Conference there was, as there has been at all the constitutional conferences, considerable discussion of regional disparity, but it was felt by the first ministers that because problems connected with regional disparity should be examined by a ministerial committee without awaiting any suggestions or without being directly related to suggestions for constitutional change which might deal with regional disparity. Although the constitutional aspects of the problem remained within the constitutional review there was, in addition, a decision that a ministerial committee should study the current problem of regional disparity.

Mr. McQuaid: Might I ask, Mr. Chairman, through you, are these reports available to us as members of this Committee? For example, the report of the Committee on Regional Economic Disparity and also the one on Fundamental Rights which I am going to mention in just a minute. Are these committee reports available to us?

Mr. Davis: I am reminded that the ministerial committee on regional disparity met in June of 1969, it having been called together as a result of the February, 1969 Conference and it issued a short communique: However, as far as we are aware no public report has been made of its deliberations. As I mentioned to you, just as in relation to the tax structure committee, it is not regarded as being within the ambit of the constitutional-review. Therefore we, as the constitutional secretariat, are not privy to what they have been doing.

Mr. McQuaid: Mr. Chairman, can these reports be made available to us? It seems to me that regional economic disparity is a very important aspect of our problem. Are these confidential documents that cannot be made available to us or could they be made availa-available [sic] to us?

The Joint Chairman (Mr. MacGuigan): This is another matter on which we are dependant

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on the will of the eleven governments. I suppose we would have to have the consent of all the governments involved before any of these documents were revealed.

Mr. Lewis: Was there a report or was there just a communique? I suspect there was a communique.

Mr. McQuaid: I think on a matter so important there might even have been a report.

The Joint Chairman (Mr. MacGuigan): Could we ask Mr. Davis whether there was a report or just a communique?

Mr. Davis: I am not aware, Mr. Chairman. As I say this is completely outside our responsibilities and I have no knowledge whether there was a report or not. We happen to know there was a communique because it was public, but it was not issued through us or by us. I could say, Mr. Chairman, there is of course a great deal of record and information on the discussion of regional disparities within the constitutional review. There is a whole wealth of material on that and we can, of course, make that avaialble [sic] to the extent that it is public information. It is not to suggest that the entire subject of regional disparities has been taken out of the constitutional review by any means. That subject was divided and the constitutional aspects were left within the review, but the current elements of it were taken out and given to this other committee.

The Joint Chairman (Mr. MacGuigan): I might just say I think the steering committee will have to consider further what documents we might ask for.

Mr. Davis: I just had put before me a copy of a document which was put forward as a report from this committee and we can see that this is given to you.

Mr. McQuaid: Fine. I have one other question, Mr. Chairman. You did, Mr. Davis, mention I believe there was a report of the Subcommittee on Fundamental Rights. In view of the fact that there is some question by some of the provinces, and I think with some justification, as to whether or not a person’s fundamental rights can best be ensured by writing them into the Constitution, I just wonder if this report of the Subcommittee on Fundamental Rights will be available to this Committee.

[Page 98]

Mr. Davis: Not initially, I am sorry to say. The report will go to the Ministerial Committee on Fundamental Rights and it will be for the ministers to decide whether it will be made public or not. At thi [sic] this stage it is not a public document. I am reminded there is a briefing paper of an earlier discussion which has been declassified, but the report which is in preparation which will be considered by their meeting next Monday and Tuesday must be considered as classified until it has been made to the ministers and they decide whether it is to be made public.

Mr. McQuaid: I think that is all, Mr. Chairman.

The Joint Chairman (Mr. MacGuigan): All right. Senator Yuzyk, and then I would like to ask a question.

Senator Yuzyk: I want to thank, you Mr. Chairman, for allowing me to ask a question. I am not a member of the Committee, but…

The Joint Chairman (Mr. MacGuigan): We are pleased to have you with us.

Senator Yuzyk: …I am keenly interested in the work of the Committee as I indicated in my speech in the Senate.

Last month the fourth volume of the B & B Commission came down and was tabled in Parliament. This report makes 16 definite recommendations regarding language and cultural rights of ethnic groups other than British or French. These groups form nearly 30 per cent of the population and certainly there will be some reference made in the Constitution, if there is going to be a change in the Constitution, regarding the ethnic groups.

My question is this, is there some mechanism within the Continuing Committee of Officials to gauge and examine the needs and the demands, shall we say, of the ethnic groups regarding their language and cultural rights?

Mr. Davis: The Ministerial Committee on Official Languages was set up to examine the recommendations of the B & B Commission without limitation, which means all volumes of its report, although the instruction was given before the appearance of the last volume. As I mentioned, the Ministerial Committee has, at this stage, not had an opportunity to turn its attention to volumes 3 and 4. There is also a Subcommittee on Official Languages which carries out the initial examinations of the recommendations of the B & B Commission. So the best I can say, is as

[Page 99]

far as the general responsibility given to them as a result of the decision in 1969, they have yet to take up these last two volumes.

Senator Yuzyk: They have not started studying them yet.

Mr. Davis: No, they have not started yet.

Senator Yuzyk: Will it probably he this Sub-committee that will be undertaking it?

Mr. Davis: I would expect, if they follow the same procedure as they have followed up to now, the Sub-committee would make the initial examination. It would report on this to the Ministerial Committee who would then carry it a stage farther.

Senator Yuzyk: Thank you.

The Joint Chairman (Mr. MacGuigan): Mr. Davis, there are several questions I want to address to you. The first concerns the value of precedents from any other countries in setting up this rather complicated structure which has evolved. Pakistan, for instance, is now in the process of drafting a new constitution, and shortly of having an election…

The Joint Chairman (Senator Lamontagne): Are you suggesting we seek that goal?

The Joint Chairman (Mr. MacGuigan): Perhaps we ought to be there as observers when this constitutional conference in Pakistan is under way. But the tenor of my question was rather to ask whether there had been precedents from other countries which have been of assistance to you in structuring your Constitutional Conference?

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Mr. Davis: No, I believe this structure is a strictly Canadian confection.

The Joint Chairman (Mr. MacGuigan): Right. In comparing with past federal-provincial conferences, and this is really a kind of federal-provincial conference even though, as you said at the beginning, you have given it the name of Constitutional Conference to distinguish it from the more regular ones, what particularly striking innovations in structure were original for this process that have not been used or used much before this time?

Mr. Davis: I am afraid I do not have sufficient background to give you a really worth-while comparison, but I think there are two elements that strike one in this constitutional

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process to which I referred in my original presentation.

One is that at the two senior levels, that is the ministerial level and the level of this Continuing Committee, the presentations are based on a political appreciation and political factors are introduced. Then it is only at the Subcommittee level that you get a non-governmental study of the elements in the review. This would seem to me to be the two significant factors in this system leaving aside the detail of the organization.

The Joint Chairman (Mr. Lamontagne): Would you say the Continuing Committee is an extension—and working on different topics, of course—of the one which was established in 1955?

Mr. Davis: Yes, except the Continuing Committee operates really under pretty strict instructions from the Conference itself, from the first ministers. It does not really initiate work; it would certainly feel itself free, I am sure, if it became aware of an area which should be studied to suggest to the Conference it should be instructed so to do, but it has now been operating really very strictly within the list of subjects given to it in 1968 which has been wide enough to keep them busy.

I am reminded that one of the other features of this particular review is, with the exception of the one and perhaps more closed working sessions, that the deliberations of the heads of government on the constitutional issue have, in fact, been public.

The Joint Chairman (Mr. MacGuigan): Another question I wanted to direct to you, Mr. Davis, was to ask you to generalize, if you would be willing to do so, on the two types of procedures that have been used, one, the procedure of open conferences and the other of working sessions, as to the relative usefulness of the two ways of proceeding. I am not asking you to judge this from the political viewpoint, but to the extent that you can from the viewpoint of accomplishment of work and from any other viewpoint from you think might be appropriate to comment on it.

Senator Grosart: Mr. Chairman, is your question on the difference between an open session and a working session, whether it is public or in secret?

The Joint Chairman (Mr. MacGuigan): Yes, generally speaking, yes.

Senator Grosart: So we will know if they are not working.

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The Joint Chairman (Mr. Lamontagne): They talk in public and work in camera.

Senator Grosart: I just do not like the working sessions restricted to secret sessions.

Mr. Davis: I think perhaps, Senator, you have put your finger on the reason why the title is used. It was perhaps to avoid the term “secret session”, so the expression “working session” was adopted.

Senator Grosart: It is constitutional euphemism.

Mr. Davis: To try to answer your question, Mr. Chairman, I do not think I could go any farther really than to point out the very obvious fact that if first ministers are meeting in public sessions and are expressing views on constitutional issues, these will almost inevitably be identified as part of their government’s policy. The difficulty then of reaching accommodation would be much greater. If views are exchanged on desirable elements of the new Constitution in private then this same limitation would not be present.

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The Joint Chairman (Mr. MacGuigan): Yes, one of the reasons I raised this question was because of the distinction you made several times between propositions and proposals. I suppose it is more difficult to keep something as a mere proposition when it is held in the light of publicity. Who makes the decision? Is it made by unanimous decision of the conference whether it is to be an open or closed meeting and is this done in advance or is it done at the time the Premiers have already assembled?

Mr. Davis: It is another one of these situations, where the Chairman, I suppose, really tries do identify consensus. There is no voting procedure. There has never to my knowledge, been a vote taken in any of these committees at any level on any subject. It is simply that a consensus has emerged and on some occasions, as I gather Mr. Turner pointed out to you this morning, certain delegations have seen fit to disassociate themselves from what may have been a general consensus. Otherwise, it is accepted as the view of the conference or committee.

The Joint Chairman (Mr. MacGuigan): Could you make any projection of the

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number of open conferences or the proportion of open conferences there would be in the future? Is this a matter strictly for future decision?

Mr. Davis: This is a matter for future decision. I would recall to you that in 1969 one of the specific decisions taken and announced at the time was that there should be more conferences, that is speaking of more meetings of first ministers on the subject. As I hinted to you, I think the next meeting of the conference—there has not yet been one this year, the last one was in December, 1969. The meeting of first ministers which was held in February of this year was not a Constitutional Conference—on current issues is intended to be a working session, a closed working session which, in my view of the calendar could probably not take place before mid-September. At the last December meeting it was then announced there would be an attempt to have another open session before the end of 1970. If that program is followed, it would then mean there would be a closed working session in the early autumn and an opened session some time before the end of the year.

Mr. Lewis: You had better say an open working session.

The Joint Chairman (Mr. MacGuigan): Senator Lamontagne, do you have any questions?

The Joint Chairman (Senator Lamontagne): No, I do not think so. I suppose the difference between these working sessions and the formal open conferences is that you make a proposal to a working session and then a proposition to an open session.

Mr. Davis: I can say, too, that the general conduct of the meeting is probably somewhat different. When the first ministers come together in an open session, they make full statements with regard to their positions whereas if they are in a closed session they can perhaps turn their attention immediately to a specific issue rather than making general declarations.

Mr. Lewis: In an open session they talk to their electors; in a closed session they talk to the first ministers.

The Joint Chairman (Senator Lamontagne): Or they talk to themselves.

Senator Grosart: I do not know how far I am going to go with this, but they sometimes

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speak in respect of the working press, as an old newspaper man. I have often wondered what other kind there is.

Mr. Lewis: Do not pull our tongues. I move adjournment.

Senator Yuzyk: Have you got copies of all the constitutions that ever appeared?

The Joint Chairman (Senator Lamontagne): In the world, do you mean.

Senator Yuzyk: Yes, in the world.

Mr. Davis: I would not like to say we have them all, but we have a large selection of them.

The Joint Chairman (Senator Lamontagne): To complete your series, I hope you will wait until you get your computer.

Mr. Lewis: All translated into one of the official languages.

The Joint Chairman (Senator Lamontagne): Or both.

The Joint Chairman (Mr. MacGuigan): I take it, Mr. Lewis is prepared to move adjournment…

Mr. Lewis: I have done so.

The Joint Chairman (Mr. MacGuigan): …to the call of the Chair. Perhaps before I take a vote on that, I may, on behalf of all of us, express our great thanks to Mr. Davis for his appearance this afternoon and also for the great co-operation which he evidenced in advance of this meeting towards this Committee. Thank you, Mr. Davis.

Senator Grosart: Did you say to the call of the Chair? Are we not meeting at a specified time?

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The Joint Chairman (Mr. MacGuigan): We expect we will be meeting at 3.30 p.m. on the afternoon of June 9, if you prefer me to specify the date. The Clerk suggested in case we need an in camera meeting for any other business, it might be desirable to put it to the call of the Chair, but the next public meeting certainly will be on the afternoon of June 9.

Senator Grosart: My only point is, I hope there will not be changes.

The Joint Chairman (Mr. MacGuigan): No.

[Page 104]

Senator Grosart: Fine, because some of us have to make arrangements.

The Joint Chairman (Mr. MacGuigan): Right; no, it will be at 3.30 on the afternoon of June 9. I take it Mr. Lewis’ motion is carried. Meeting adjourned.

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APPENDIX “A”

CONCLUSIONS OF MEETINGS OF THE CONSTITUTIONAL CONFERENCE

First Meeting—February 1968

Second Meeting—February 1969

First Working Session—June 1969

Third Meeting—December 1969

CONSTITUTIONAL CONFERENCE FIRST MEETING OTTAWA FEBRUARY 1968 CONSENSUS ON LANGUAGE RIGHTS

  1. Recognition by this Conference that, as proposed by the Royal Commission on Bilingualism and Biculturalism and as a matter of equity, French-speaking Canadians outside of Quebec should have the same rights as English-speaking Canadians in Quebec.
  2. Recognition, as the Royal Commission on Bilingualism and Biculturalism has recommended, of the desirability of proceeding by governmental action as speedily as possible, in ways most appropriate in each province and without diminishing existing rights, recognized by law or usage.
  3. Establishment of a special committee to examine the Report of the Royal Commission on Bilingualism and Biculturalism and the views expressed at this Conference on the Report, and on other matters relating to language rights and their effective provision in practice, and to consult on methods of implementation, including the nature of possible federal assistance, and on the form and the method of constitutional amendment.

Constitutional Conference

Conclusions of February 1968

That a continuing Constitutional Conference be set up, composed of the Prime Ministers and Premiers or their delegates, to supervise the process of constitutional review;

That a Continuing Committee of officials be set up to assist the Constitutional Conference in its task;

That a secretariat be formed by the federal government, after consultation with the provinces, to serve both the Constitutional Conference and the Continuing Committee of officials;

[Page 106]

That the Continuing Committee of officials be allowed to set up sub-committees on specific questions; with the approbation of the Prime Ministers;

That, without limiting the above terms of reference, and taking into account the agreements as to principle and action reached at this Conference, the following questions be examined by the Constitutional Conference and the Continuing Committee of officials: (a) official languages; (b) fundamental rights; (c) distribution of powers; (d) reform of institutions linked with federalism, including the Senate and the Supreme Court of Canada; (e) regional disparities; (f) amending procedure and provisional arrangements; (g) mechanisms of federal-provincial relations.

CONSTITUTIONAL CONFERENCE

SECOND MEETING

OTTAWA

FEBRUARY 1969

[Page 107]

CONSTITUTIONAL CONFERENCE

SECOND MEETING

OTTAWA

FEBRUARY 1969

CONCLUSIONS OF THE MEETING

  1. General objectives of the Constitutional Conference

(Agenda item 2(a))

The Constitutional Conference reaffirms its intent to complete a comprehensive review of the Constitution of Canada, to assess its adequacy for present and future requirements, and to determine the extent to which constitutional change is desirable either through amendment of the existing Constitution or through promulgation of an entirely new Constitution.

  1. Procedure for constitutional review

(Agenda item 2(c))

(a) The Constitutional Conference expresses its intent that the review should proceed at an accelerated pace, now that the basic organizational and background work has been carried out. In this connection, the First Ministers will endeavour to hold more frequent sessions of the Constitutional Conference and, in addition, to have informal working sessions with the Continuing Committee of Officials, to provide more continuous direction to the process of constitutional review.

(b) In order to maintain effective co-ordination of the constitutional review, the Conference agrees that:

(i) all special committees of ministers set up by the Constitutional Conference should report to the Constitutional Conference;

(ii) the Continuing Committee of Officials should assist other ministerial commit- tees, as required;

(iii) all special committees of officials should be constituted as sub-committees of the Continuing Committee of Officials;

(iv) the Continuing Committee of Officials is authorized to establish such sub-committees, working groups or task forces as seem to be required for its purpose;

(v) the Secretariat of the Conference should also serve all such ministerial committees and committees of officials.

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  1. Official Languages

(Agenda item 4(a))

The Constitutional Conference recognizes that important steps have been taken by governments in the past year to encourage a fuller role for the French language throughout Canada, and it affirms that study of linguistic matters should be continued. In particular, the First Ministers agree that:

(a) The recommendations of the Royal Commission on Bilingualism and Biculturalism, together with reports on linguistic matters from the Continuing Committee of Officials and the Sub-Committee on Official Languages, should be referred to a Committee of Ministers which should consider both the constitutional aspects of linguistic matters and the methods of implementation of language policies, including the nature of possible federal assistance for this purpose.

(b) The Royal Commission’s reports, together with other aspects of the subject of official languages, should receive such further consideration by the Continuing Committee of Officials and its Sub-Committee on Official Languages as may be required to assist the Committee of Ministers in its task.

  1. Fundamental Rights

(Agenda item 4(b))

The Constitutional Conference noting the various views and the general interest that have been expressed with regard to guarantees of human rights, including those views brought before the Continuing Committee of Officials, agrees that a Committee of Ministers should be established to study all matters relating to fundamental rights, including the question of entrenchment of such rights in a constitutional charter.

  1. Distribution of Powers

(Agenda item 4(c))

(a) The Constitutional Conference recognizes as a matter of priority the study of the distribution of powers, in particular the taxing and spending powers, and directs the Continuing Committee of Officials to give its immediate attention to this aspect of the Constitution.

(b) The Constitutional Conference, recognizing the urgency of the matter, agrees that the Tax Structure Committee should be convened for the purpose of examining, and reporting at the earliest opportunity to First Ministers, on:

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(i) the occupancy of available tax fields by each of the provincial governments and the Government of Canada, and

(ii) federal-provincial shared-cost programme arrangements.

To this end the Tax Structure Committee would consider the aggregate of government expenditures and their rate of growth; the tax sources available for financing these expenditures and the potential of the total tax system; the level of borrowing by governments and its effect upon the Canadian economy; and the balance of fiscal responsibilities and resources within each of the provinces and the Government of Canada.

  1. Regional Disparities

(Agenda item 4 (e))

The Constitutional Conference agrees that:

(a) the promotion of the full development of all parts of Canada is an essential objective of Confederation;

(b) a Committee of Ministers should, taking into account the views and proposals of the various governments, consider the administrative, financial and consultative arrangements for policies and programmes required immediately to reduce regional disparities;

(c) the Continuing Committee of Officials should give special attention to the constitutional aspects of regional disparities, with a view to reporting to a Committee of Ministers as soon as possible.

  1. Reform of institutions linked with federalism—The Senate

(Agenda item 4 (d))

The Constitutional Conference while recognizing that the reform of the Senate must be considered in the context of other matters related to the basic principles, structure and powers of Government in Canada agree that a Committee of Ministers should study possible constitutional provisions relating to the reform of the Senate and should take account in particular of the following considerations:

(a) The Senate could represent in a more direct and effective manner than at present, the interests of the provinces and regions of Canada;

(b) One of the ways in which this could be achieved is through appropriate changes in

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the method of selecting Senators, and another

could be by altering the tenure of office of

Senators;

(c) It might be appropriate for the Senate to be provided with certain special powers in order to make it a more effective instrument of federalism, while at the same time adjusting its role in relation to legislation generally;

(d) The distribution of membership should reflect in an equitable manner the provinces and regions of Canada;

(e) The Government of Canada should continue to be responsible only to the House of Commons.

  1. Reform of institutions linked with federalism—The Judiciary

(Agenda item 4(d))

The Constitutional Conference agrees that:

(a) The Constitution should provide for the independence of the Judiciary;

(b) A Committee of Ministers should, taking into account the views and proposals of the various governments, consider further provisions concerning the Supreme Court and the Judiciary.

  1. Reform of institutions linked with federalism—The National Capital

(Agenda item 4(d))

The Constitutional Conference, subject to any comments that may be submitted, agrees that:

(a) The cities of Ottawa and Hull and the their [sic] surrounding areas shall be the Canadian Capital area;

(b) No changes be made to provincial boundaries or to the constitutional responsibilities of the governments concerned.

(c) The boundaries of the Canadian Capital area are to be established by agreement of the governments concerned;

(d) In line with the aforementioned objectives, steps must be taken so that the two official languages and the cultural values common to all Canadians are recognized by all governments concerned in these two cities and in the Capital Region in general, so that all Canadians may have a feeling of pride and participation in, and attachment to their Capital.

(e) That the study committee on the Canadian Capital continue its work, giving particular importance to the following:

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(i) the definition of adjacent areas which would eventually constitute, along with the cities of Ottawa and Hull, and their surrounding areas, the Canadian Capital Region.

(ii) the study of the administration and the financing of a tripartite organization.

CONSTITUTIONAL CONFERENCE

FIRST WORKING SESSION

JUNE 11-12, 1969

REPORT ON THE CONCLUSIONS

OF THE MEETING

[Page 112]

CONSTITUTIONAL CONFERENCE

FIRST WORKING SESSION

JUNE 11-12, 1969

REPORT OF THE CONCLUSIONS

OF THE MEETING

The Prime Ministers and Premiers held their First Working Session in Ottawa on June 11 and 12, 1969.

The agenda of the meeting was as follows:

  1. Distribution of Powers in the Constitution: a) The Taxing Powers; b) The Spending Powers.
  2. Constitutional Aspects of Regional Disparities.
  3. Progress Reports from Committees of Ministers.
  4. Programme of Work for the Constitutional Review.
  5. Other Business.

Item 1—General

In the consideration of this item, all governments noted that the present discussions about the taxing and spending powers were subject to a satisfactory division of powers being developed. The Government of Canada and several provinces were concerned that any agreement on the taxing and spending powers was subject to a distribution of legislative powers which would ensure a strong central government. Some provinces made the point that federalism also meant strong provincial governments.

Agenda Item l a)

With one exception, the First Ministers agreed that Parliament and the provincial legislatures should generally have access to all tax fields, the power of the Parliament of Canada applying across the country and the power of each provincial legislature applying within that province. In applying this principle, the following objectives were accepted:

  • The “within the province” limitation of provincial taxing powers should generally be applied with respect both to direct and indirect taxes, so as to protect the taxpayer against the taxation of his

[Page 113]

income, property or purchases by more than one province.

  • The taxing powers of both Parliament and the provincial legislatures should be limited so as to avoid the erection of “tax barriers” to interprovincial trade, and the power to impose customs duties should continue to be confined to Parliament alone.
  • Considering that both Parliament and the provincial legislatures would have access in general to the same sources of tax revenue, there should be more regular and adequate federal-provincial consultations.

It was recognized that the principle of general access to all tax fields would not enable all provincial governments equally to discharge their constitutional responsibilities, and therefore Parliament should have the explicit power to make equalization grants to provincial governments. One province advocated that, instead of equalization grants to governments, there be established a basic income for all Canadians.

While some differences of views were expressed, the First Ministers agreed that the Continuing Committee of federal and provincial officials be instructed to consider further how these principles, if formally accepted, might be applied in a revised constitution and, in particular, to consider the alternative method of their application to the taxation of estates, transactions and real property. Certain provinces expressed the view that death duties and real property taxes should be excepted from the principle of access.

The Conference recognized that the discussions on the use by Parliament and the legislatures of their taxing powers should proceed concurrently with the constitutional discussions, and that such discussions would be of continuing importance in relation to the discharge by governments of their constitutional responsibilities.

Agenda Item 1 b)

The second major item of discussion concerned the exercise of the spending power of the Parliament of Canada. Most delegations agreed that the present power of Parliament to make payments to individuals or to institutions should not be subjected to any constitu-

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tional limitation; one province, however, reserved its position until the question of the distribution of powers had been dealt with, while some other provinces expressed the view that this federal power should in practice be exercised in consultation with the provinces. It was also noted that some differentiation of institutions might be required before this principle could be finally accepted.

There was general agreement that there should be no constitutional restriction on the power of the Parliament of Canada to make unconditional grants to provincial governments; one province, however, expressed the view that the establishment of a negative income tax plan, administered by the Government of Canada, would make such payments unnecessary.

It was generally agreed that the Parliament of Canada should continue to have the power to make conditional grants to provincial governments, provided there is a satisfactory formula for determining a national consensus in favour of particular programmes, and provided there is a satisfactory formula for compensation in non-participating provinces.

With respect to the formula for determining the consensus, there was agreement that the Parliament of Canada and the provimcial [sic] legislatures would be the appropriate bodies to determine whether a consensus exists, and there was general agreement that the formula should reflect the regional character of the country. However, one province stated that while it agreed with the principle of establishing a consensus, it considered that the formula for amending the Constitution might well provide the basis for reaching consensus. It was further agreed that the Continuing Committee of Officials should look again at alternative formulae.

There was general agreement that there should be no fiscal penalty upon the people of the non-participating provinces and that the ways of achieving this would be discussed at future meetings.

Agenda Item 2

The First Ministers agreed that the objective of reducing disparities across the country should be written into the preamble of a revised constitution as a basic goal of the Canadian people. Some provinces argued further that the Constitution should impose on the Federal Government a specific obligation

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to alleviate disparities. First Ministers agreed that at future discussions on the division of powers, it will be important to ensure that the federal and the provincial governments have appropriate powers to work toward this objective.

Agenda Item 3

The Working Session was advised of the progress which had been made by Commit- tees of Ministers on the following matters:

Official Languages

Fundamental Rights

The Judiciary

The Senate

The First Ministers took note of the progress to date and agreed that all the Committees should endeavour to meet again and report further to the Constitutional Conference before its next meeting.

Agenda Item 4

The Prime Ministers and Premiers agreed to meet again before the end of the year.

CONSTITUTIONAL CONFERENCE

THIRD MEETING

OTTAWA

DECEMBER 1969

CONCLUSIONS OF THE MEETING

[Page 116]

CONSTITUTIONAL CONFERENCE

THIRD MEETING

OTTAWA

DECEMBER 1969

CONCLUSIONS OF THE MEETING

  1. Progress and Procedure in the Constitutional Review

The Prime Ministers and Premiers noted that progress had been achieved in the course of 1969 in the “comprehensive review of the Constitution of Canada” that had been agreed upon at the Second Meeting. The procedure adopted in February 1969 provided for working by means of “more frequent sessions of the Constitutional Conference”, interspersed with “informal working sessions”, together with the reference of particular problems to special Committees of Ministers, the Continuing Committee of Officials and Sub-Committees of Officials. The Conference affirmed its intention to continue this procedure in 1970 and agreed, subject to further discussion at the Federal-Provincial Conference of Prime Ministers and Premiers to be held in February 1970, that a Working Session would be planned for June 1970, and the Fourth Session of the Conference for the autumn.

  1. Income Security and Social Services

(Agenda Item 1(a))

The Constitutional Conference considered the distribution of powers in relation to the fields of income security and social services to try to determine what would be most appropriate to meet the needs of Canadians in the future.

The Conference recognized that there were many complex considerations arising out of the various proposals for distribution of powers related to income security and social services and that the views of governments were necessarily tentative until these considerations could be fully assessed. While there was not full agreement on the definitions, the discussion was carried out under the following categories suggested in the federal proposal, namely,

(i) Income Support;

(ii) Income Insurance;

(iii) Social Services.

(i) Income Support

Quebec maintained the position that the provinces should have exclusive jurisdiction in the

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field of income support. Other First Ministers accepted the principle that Parliament and the provincial legislatures have and should continue to have powers to make general income support payments to persons. Some provinces expressed the view generally that the basic income support payments could logically be made by the Federal Government.

(ii) Income Insurance

The Conference considered the Federal proposal that Parliament and provincial legislatures ought to have concurrent powers in respect of income insurance matters, with the exceptions that: unemployment insurance should continue to be a matter of exclusive federal jurisdiction; workmen’s compensation should continue to be a matter of exclusive provincial jurisdiction; retirement insurance should continue to be a matter of concurrent jurisdiction, but with federal powers becoming paramount.

Doubt was expressed by some that federal paramountcy in the matter of retirement insurance was required or desirable. It was apparent that there were different views concerning the meaning of paramountcy and the implications of providing for federal paramountcy in the case of retirement insurance. It was agreed that the Continuing Committee of Officials should undertake a detailed examination of the application of the concept of paramountcy, federal or provincial, in the field of public retirement insurance.

(iii) Social Services

It was generally agreed that provincial legislatures ought to continue to have exclusive jurisdiction over social services. Several provinces proposed that concurrent jurisdiction in this field should be considered. It was recognized that the federal government could, for the purpose of achieving national objectives, continue to use its spending power, subject to conditions to be defined, to make conditional grants to provincial governments in respect of those services.

There was a question whether federal manpower programmes had components which were essentially social services. The view was put forward notably by the federal government that manpower services were an essential part of the general economic powers and should be considered further when the subject of economic powers came up. In addition,

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it was agreed however that the appropriate federal and provincial ministers should examine the question whether the needs of the country could be more effectively met if the social aspects of manpower services were carried out by the provinces.

  1. The Spending Power: Federal Grants to Provincial Governments

(Agenda Item 1(b))

The Conference considered two questions raised in the federal proposals: the determination as to when there was a sufficient consensus favouring the introduction of new shared-cost programmes in fields of exclusive provincial jurisdiction, and the method which might be adopted for avoiding a fiscal penalty on the people of the provinces which decided not to participate in the programmes.

(i) Consensus—Most first Ministers agreed that the Constitution ought to require the determination of a consensus, on a regional basis, before the Parliament of Canada could enact new and general shared-cost programmes in areas of provincial jurisdiction. The principal suggestions were that the legislatures of three out of four, or three out of five regions of Canada having a majority of the population, ought to be required to agree to any proposal from Parliament for a new federal-provincial programme before it could become effective. (Where a region contained three or four provinces the approval of two legislatures would be required.)

The governments of Manitoba and New Brunswick were of the view that no formal requirement should exist as to how many provinces must agree before Parliament could undertake a new general shared-cost programme. Rather the Constitution should impose an obligation upon the federal government to consult all provinces before initiating such programmes.

(ii) Compensation in Non-Participating Provinces

It was recalled that the Constitutional Conference had agreed in June that there should be no fiscal penalty upon the people of the provinces whose provincial legislatures had decided against participating in a particular federal-provincial programme.

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Three views were expressed as to how a fiscal penalty could be avoided. The first was that the people in such provinces themselves ought to be compensated in an amount which in the aggregate would equal the per capita federal payments to participating provinces. The second view was that the governments of the non-participating provinces ought to receive unconditional grants equal to the conditional grants they would have received had they agreed to participate in the federal-provincial programme. The third view was that taxes imposed by the federal government for the purpose of financing a particular shared- cost programme should not be levied in a non-participating province. It was agreed to defer discussion of this question until further aspects of the distribution of powers had been considered.

  1. Taxation

(Agenda Item 1 (c)

The Constitutional Conference agreed that the Continuing Committee of Officials and its Sub-Committees should continue with the work in progress on the alternative ways of handling sales taxes and dealth duties in a new or revised Constitution.

  1. Regional Disparities

(Agenda Item 2)

The Conference reiterated the earlier agreement that the objective of reducing dis- parities across the country should be written into the preamble of a revised Constitution as a basic goal of the Canadian people.

It was recognized that both levels of government had responsibility for the achievement of this goal and that each should have appropriate powers for this purpose. Eight provinces and the federal government agreed that the federal government should have the power to alleviate regional disparities in relation to the income of individuals, inequality of economic development and standards of public services. British Columbia and Alberta advanced the view that, instead, a guaranteed annual income would remove disparities between individuals wherever they might be in Canada and therefore the effect would be to lessen regional disparities.

There was some support for the inclusion of a substantive provision in the body of the Constitution which would set forth the obli-

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gation, not subject to judicial review, of the federal and provincial governments related to regional disparities.

Because of the significance of the legal questions raised in the discussion, the Conference agreed that the Continuing Committee of Officials should give further study to the implications of placing specific clauses in the Constitution.

  1. Reports from Committees of Ministers

(Agenda Item 3)

(a) The Constitutional Conference received the Progress Report of the Committee of Ministers of Fundamental Rights, and agreed that the Committee should be asked to proceed as quickly as possible with the programme of work proposed in the Report.

(b) The Constitutional Conference received the Progress Report of the Committee of Ministers on the Judiciary, and requested the Committee to carry out the work programme it had proposed in its Report.

(c) The Constitutional Conference received the Progress Report of the Committee of Ministers on Official Languages. It was agreed that bilateral discussions should proceed as quickly as possible between the federal government and the provinces concerning the federal proposal for financial and technical co-operation in implementing the recommendations of the Royal Commission on Bilingualism and Biculturalism. It was agreed, also, that the Sub-Committee on Official Languages and, if it were desired, the Committee of Ministers, should meet again after the bilateral consultations had been completed.

  1. Future Programme of Work

(Agenda Item 4)

First Ministers agreed to meet in camera in Ottawa on the 16th of February to discuss non-constitutional matters, essentially the economic situation, pollution and the report of the Tax Structure Committee.

 

Queen’s Printer for Canada, Ottawa, 1970


Other Issues:

 

Index 1 2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18

 


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