Document Information

Date: 1979-02-20
By: Secretariat of the Conference
Citation: Federal-Provincial Conference of First Ministers on the Constitution, Draft proposals… (Ottawa: February 1979).
Other formats: Click here to view the original document (PDF).

FEDERAL-PROVINCIAL CONFERENCE OF
FIRST MINISTERS ON THE CONSTITUTION
OTTAWA, ONT., FEB 1979.

[Draft proposals …]

February 20, 1979 SENATE DEBATES 579

APPENDIX “A”
(See p. 564)

FEDERAL-PROVINCIAL CONFERENCE OF FIRST MINISTERS ON THE CONSTITUTION

List of “Best Effort” Draft Proposals
With Joint Government Input Discussed
By First Ministers

(Draft Proposal Discussed by First Ministers)

RESOURCE OWNERSHIP AND INTERPROVINCIAL TRADE

(1) (present Section 92)

Resources

(2) In each province. the legislature may exclusively make
laws in relation to

a) exploration for non-renewable natural resources in the
province;

b) development, exploitation, extraction, conservation and
management of non-renewable natural resources in the
province, including laws in relation to the rate of primary
production therefrom; and

c) development, exploitation, conservation and management
of forestry resources in the province and of sites and
facilities in the province for the generation of electrical
energy, including laws in relation to the rate of primary
production therefrom.

Export from the province of resource

(3) in each province, the legislature may make laws in relation
to the export from the province of the primary production
from non-renewable natural resources and forestry resources
in the province and the production from facilities in the
province for the generation of electrical energy, but such
laws may not authorize or provide for prices for production
sold for export to another part of Canada that are different
from prices authorized or provided for production not sold
for export from the province.

(1) Carries forward existing Section 92

(2) The draft outlines exclusive provincial legislative jurisdic-
tion over certain natural resources and electric energy
within the province. These resources have been defined as
non-renewable (e.g. crude oil, copper, iron and nickel),
forests and electric energy. This section pertains to legisla-
tive jurisdiction and in no way impairs established proprie-
tary rights of provinces over resources whether these
resources are renewable or nornrenewable.

(3) Provincial governments are given concurrent legislative
authority to pass laws governing the export of the resources
referred to above from the province. This legislative capacity
is in the sphere of both intcrprovincial and international
trade and commerce. Provincial governments are prohibited
from price discrimination between resources consumed in
the province and those destined for consumption in other
provinces. This new provincial legislative capacity applies to
these resources in their raw state and to them in their
processed state but does not apply to materials manufac-
tured from them.

February 20, 1979 SENATE DEBATES 581

LIST OF ALTERNATIVES COVERING THE
DISPOSITIONS OF SECTION 109

Option 1
Maintain the status quo, do not carry forward
Section 109.
Option 2(a)
Property in
lands,
mines, etc.

*” l23.l All lands, mines, minerals and royal-
ties belonging to any province immediately
before this section comes into effect, and all
sums then due or payable in respect of any
such lands, mines, minerals and royalties,
belong immediately after this section comes
into effect to the province or are then due and
payable. iubject to any trusts existing in
respect thereof and to any interest other than
that of the province therein.”
Option 2 (b)
Ownership
or property
*”123.l All property belonging to any province
immediately before this section comes into
effect, belongs immediately after this section
comes into effect to the province, subject to
any trusts existing in respect thereof and to
any interest other than that of the province
therein.”
Option 3
Ownership
of property
“127.1 Nothing in this Act changes the owner-
of property ship in any property owned by Canada or a
province immediately before the coming into
force of this Act.”

*Note: Numbering is lied in to numbering found in Bill C-60.

INDIRECT TAXATION

Taxation within the province by any mode or system of
taxation for provincial purposes, except indirect taxation that
a) constitutes a tax on the entry into or export from the
province or otherwise has effect as a barrier or impediment on
mterprovmcial or international trade, or b) is so imposed that
the burden of the tax is passed outside the province.

SUPREME COURT
The Supreme Court of Canada

Supreme
Court of
Canada
Constitution
of Supreme
Court
1. There shall be a general court of appeal
Court of for Canada called the Supreme Court of
Canada Canada.

Eligibility
for appoint-
ment

Appoint-
ment of
judges from
Quebec

Procedure
on vacancy

Tenure of
office of
judges of
Supreme
Court

Salaries,
allowances
and pen-
sions of
judges of
Supreme
Court

Ultimate
appellate
jurisdiction
of Supreme
Court
Appeals
with leave
of Supreme
Court

2. The Supreme Court of Canada shall con-
sist of a chief justice, to be called the Chief
Justice of Canada, and eight other judges, who
shall be appointed by the Governor General.

3. (1) A person is eligible to be appointed as
a judge of the Supreme Court if, after having
been admitted to the bar of any province, the
person has, for a total period of at least ten
years. been a judge of any court in Canada or
a barrister or advocate at the bar of any
province.

(2) At least three of the judges of the
Supreme Court shall be appointed from among
persons who, after having been admitted to the
bar of Quebec, have, for a total period of at
least ten years, been judges of any court of that
province or of a court established by Parlia-
ment or advocates at the bar of Quebec.

4. Where a vacancy in the Supreme Court
occurs, the Minister of Justice of Canada shall
consult with the Attorney General of the prov»
ince or Attorneys General of the provinces
from which the persons being considered for
appointment come.

5. (1) Thejudges of the Supreme Court hold
office during good behaviour until they attain
the age of seventy years but are removable by
the Governor General on address of the Senate
and the House of Commons.

(2) The salaries, allowances and pensions of
the judges of the Supreme Court shall be fixed
and provided by Parliament.

6. The Supreme Court has exclusive ulti-

mate appellate civil and criminal jurisdiction
within and for Canada.

7. An appeal to the Supreme Court lies with
leave of the Supreme Court from any judg-
ment of the highest court of final resort in a
province, or a judge thereof, in which judg-
ment can be had in the particular case sought
to be appealed to the Supreme Court, where, in

February 20, 1979 SENATE DEBATES 583

such duties as are assigned by the appropriate
chief justice or chief judge, and his or her
appointment may be terminated at the pleas-
ure of the Governor in Council.

Interpreta-
tion

20. For the purposes of this Division, the
term “province” includes the Yukon Territory
and the Northwest Territories.

FAMILY LAW

1. Repeal head 26 of section 9l-“Marriage and divorce”.
2. Repeal head 12 of section 92-“The solemnization of
marriage in the Province” and substitute therefore “Marriage, _
including the validity of marriage in the Province”.

3. Add after section 95 the following section:

95A(l) The Legislature of each Province may make
laws in relation to divorce in the Province, except that
Parliament has exclusive authority to make laws in rela-
tion to the recognition of divorce decrccs granted within
or outside Canada, and in relation to the jurisdictional
basis upon which a court may entertain an application for
divorce.

(2) The Parliament of Canada may make laws in
relation to divorce, except that the Legislature of each
Province has exclusive authority to make laws in relation
to alimony, maintenance, custody and any other relief
corollary to divorce.

(3) Where the Legislature of a Province enacts a law in
respect of any of the matters in which it has concurrent
authority with the Parliament of Canada under this sec-
tion, the Parliament of Canada ceases to have authority
[in respect of that Province] in all concurrent matters
under this section while any such law of the Legislature
continues in force.

4. Add to section 96 of the B.N.A. Act the following
subsection:

“(2) Notwithstanding that the judges are not appointed
under subsection 1, the legislature of a province may
confer, or authorize the Lieutenant Governor of the prov-
ince to confer, concurrently or exclusively, upon any court
or division ofa court or all or any judges of any court, the
judges of which are appointed by the Lieutenant Gover-
nor of the province, the jurisdiction of a judge of a
superior court of the province in any matters arising out
of family relationships, including divorce. annulment of
marriage, decrees of validity or nullity of marriage. sepa-
ration,support, maintenance, adoption, custody, access,
affiliation, family property, and rights and obligations
among members of a family recognized as such in law”.

5. Add in the transitional provisions of the Act a provision
for the continuation of the application of the Dovorce Act

(Canada) in respect of corollary relief for a period sufficient to
allow Provinces to put their legislation in place.

EQUALIZATION AND REGIONAL DEVELOPMENT

“96(l) Without altering the legislative authority of Parlia-
ment or of the legislatures or of the rights of any of them with
respect to the exercise of their legislative authority, Parliament
and the legislatures, together with the Government of Canada
and the Governments of the Provinces, are committed to

(a) promoting equal opportunities for the well-being of
Canadians;

(b) furthering economic development to reduce dispari-
ty in opportunities for social and economic well-being;
and,

(c) providing essential public services of reasonable
quality to all Canadians.

(2) Parliament and the Government of Canada are further
committed to the principle of making equalization payments to
provinces that are unable to provide essential public services of
reasonable quality without imposing an undue burden of taxa-
tion, or to the principle of making arrangements equivalent to
equalization payments to meet the commitment specified in
Section 96(1)(c).”

(3) The Prime Minister of Canada and the First Ministers
of the Provinces shall review together the questions of equali-
zation and regional development at least once every five years
at a meeting convened pursuant to section 97.

SPENDING POWER

Legislative Text
Renumber section 91 of the B.N.A. Act as subsection 91(1)
and add the following:

Alternative (2) A

The Parliament of Canada may make laws for the expendi-
ture of money, or for conferring a benefit equivalent to that
which would result from the expenditure of money, in relation
to any matter not coming within the legislative jurisdiction of
Parliament, and not within the concurrent legislative jurisdic-
tion of Parliament and the legislatures where a law of Parlia-
ment has paramountcy, subject to such of the following condi-
tions and restrictions as are applicable in any particular case.

Alternative (2) B

(2) The Parliament of Canada may make laws for the
expenditure of money, or for conferring a benefit equivalent to
that which would result from the expenditure of money,
subject to such of the following conditions and restrictions as
are applicable in any particular case.

February 20, 1979 SENATE DEBATES 585

Revocation
or limitation
of declara-
tion

(5) Parliament may revoke any declaration
of a work to be a work for the general advan-
tage of Canada or for the advantage of two or
more provinces made before or after the
coming into force of this section and may limit

or subject to subsections (2) to (4), extend the
purposes for which any such declaration had
been made.”

February 20, 1979 SENATE DEBATES 587

Comparative Summary of Bill C-60
Provisions and New Proposals

BILL C-60 PROVISIONS

A. Fundamental Freedoms

1. Freedom of thought, conscience and religion.
2. Freedom of opinion and expression.

3. Freedom of peaceful assembly and of association.
Limitation Clause
Those reasonably justifiable in a free and democratic
society in interests of
–public safety or health
–peace and security of public
–rights and freedoms of others.
Override Clause

None

B. Democratic Rights

1. Principles of universal suffrage and free and democratic
elections.

2. Right of citizen to vote and to qualify for election in
House of Commons or legislature without discrimina-
tion based on race, national or ethnic origin, language,
color, religion or sex.

3. Limits on maximum duration of House of Commons
and legislatures except in case of national emergency.

Limitation Clause

On first two only: same as under fundamental freedoms.
Override Clause

None

C. Legal Rights

1. Right against unreasonable searches and seizures.

2. Right against arbitrary detention, imprisonment or
exile.

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

4. Right not to testify in any proceedings if denied counsel,
protection against self-crtmination or other constitution-
al safeguards.

NEW DRAFT PROPOSALS
A. Fundamental Freedoms
1. Freedom of conscience and religion.
2. Freedom of thought. opinion and expression, including
freedom of press and other media.
3. Freedom of peaceful assembly and of association.
Limitation Clause
Those prescribed by law as are reasonably jusfifiable in
a free and democratic society in the interests of
–national security
–public safety, order, health or morals
–any rights and freedoms of others.

Override Clause

None

B. Democratic Rights

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

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

3. Requirement for annual sittings of Parliament and
legislatures.

Limitation Clause

None, except as built into first two.

Override Clause

None

C. Legal Rights

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

1. Right against unreasonable searches and seizures.

2. Right against unreasonable interference with privacy.

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

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

February 20, l979 SENATE DEBATES 589

1. Right of person not to be arbitrarily exiled
from Canada.

2. Right of citizens to take up residence, acquire
and hold property and pursue a livelihood,
subject to laws of general application, but
without discrimination based on province of
residence or previous residence.

Limitation Clause
Same as under fundamental freedoms.

Override Clause
None

F. Property Rights

1. Right to use and enjoyment of property by individual.
and right not to be deprived thereof except in accord-
ance with law.

2. Right to acquire and hold property without discrimina-
tion based upon province of residence.

Limitation Clause
Same as under fundamental freedoms.

Override Clause
None

G. Language Rights

1. Power of Parliarnent and legislatures to declare English
and French official languages of Canada for all purposes
declared.

2. Power of Parliament and legislatures to provide for
more extensive rights to use English and French

3. Right to use English or French in all debates and other
proceedings of Parliament or any legislature.

47-1979-2

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

2. Right of citizen or “landed immigrant” to
change province ofresidence or to pursue livcli~
hood in another province, subject to laws of
general application, but withoutdiscrimination
based only on province of present or previous
residence.

Limitation Clause

Those prescribed by law as are reasonably justifiable in
a free and democratic society in the interests of
–national security
–public safety, order, health or morals
–overriding economic or social considerations.

Override Clause
None

F. Property Rights

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

Limitation Clause

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

2. Laws which are justifiable in a free and democratic
society in the interests of
–national security
–public safety, order, health or morals.

Override Clause
None

G. Language Rights

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

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

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

February 20, 1979 SENATE DEBATES 591

H. Undeclared Rights

1. Protection of any undeclared rights existing at time of
adoption of Charter, including those of native peoples
under Royal Proclamation of 1763.

I. Enforcement Provisions

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

2. Where no other remedy exists, courts empowered to
grant declaratory, injunctive or similar relief where
anyone seeks to have Charter rights defined or enforced.

H. Undeclared Rights

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

I. Enforcement Provisions

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

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

564 SENATE DEBATES February 20, 1979

provinces who wish to enact their own divorce laws to do so,
while, for those provinces who do not wish to exercise that
power, the federal Divorce Act would remain in force. Reten-
tion of federal jurisdiction over recognition of divorce ensures
Canada-wide recognition of divorces wherever they are grant-
ed in Canada.

Finally, in reply to the main point in Senator Forsey’s
question, I can say that the question of how best to proceed
with respect to constitutional amendment relating to family
law is currently under active consideration by the government.

Honourable senators. two documents have been provided
with respect to the recent First Ministers’ Conference on the
Constitution. They are of such length that it is not possible to
read them nor it be desirable to do so under these circum«
stances. However, I am quite willing to table them. The first
document is entitled, “The List of Best Effort Draft Proposals
with a Joint Government Input Discussed by First Ministers.”
The second document, entitled “Federal Draft Proposals Dis-
cussed by First Ministers.” deals with Communications, Off-
shore Resourees, and Charter of Rights.

Senator Flynn: Prepared by whom?

Senator Perrault: These documents were prepared principal-
ly by federal authorities–draft proposals discussed by the
First Ministers in their consultations.

Senator Flynn: Prepared by the Federal-Provincial Rela~
tions Office?

Senator Perrault: Like all efforts of this kind it is a co-oper-
ative endeavour. I cannot tell the exact authors of the docu-
ments. The documentation is the result of diligent work on the
part of people at both federal and provincial levels.

Senator Croll: The secretariat.

Senator Perrault: Yes, the secretariat was very much
involved. As I say. these are documents that l would be
pleased to table.

An Hon. Senator: Or they could be printed as appendixes to
today’s Hanrard.

Senator Perrault: Yes, we could make them part of today’s
Hansard, whichever course honourable senators desire.

The Hon. the Speaker: is it agreed, honourable senators,
that these documents shall form part of today’s proceedings?

Hon. Senators: Agreed.

[For text of documents, see appendixes “A” and “B”, pp.
579 to 591.]

Senator Perrault: Honourable senators, I have some further
replies that I should like to give this evening, but there may be
some other verbal questions which honourable senators would
like to put at this time.

Senator Smith (Colchester): I wonder if I might ask the
Leader of the Government whether the document he referred
to on the equalization proposition is included in the documents

[Senator Perrault]

that he agreed to make part of today’s proceedings? If it is not,
could it also be included?

Senator Perrault: Equalization is mentioned in the
documentation.

Senator Smith (Colchcster): I am speaking now of the one
the leader mentioned a few moments ago when he spoke of

equalization specifically.

Senator Perrault: Those words, of course. will appear in
today’s record. They constitute an official reply given on
behalf of the government. But included in the documentation
there is material with respect to the subject of equalization.

PARLIAMENT
SUPPLY OF INFORMATION TO SENATORS–QUESTION

Senator Marshall: Honourable senators, evidently I was not
aware of the proper approach when l was ignored in the point
of order I brought up earlier. But with respect to our order of
business–Presentation of Petitions, Reading of Petitions,
Reports of Committees, Notice of inquiries, Notices of
Motions–it is obvious to me from my experience in the other
place that there is a lot of information that is not coming to me
as a member of the Senate, and I refer particularly in one
instance to the Canada Works Program.

Despite the fact that I am trying to represent people in the
district that l represented when I was a member of the House
of Commons, I am not receiving information that is directed to
members of Parliament in the other place. I would suggest that
those responsible for sending out information are remiss in
their duties. I would ask the Leader of the Government in the
Senate if the matter could be investigated. because certainly if
the information is not forthcoming to all members of Parlia-
ment–and i think we can be classified in that way–then
there may be some delinquency on the part of those sending
out the information. I would repeat my request that, the leader
cause an investigation of the matter to ensure that I, as a
member of Parliament, receive all information going out to
members of Parliament in the other place.

Senator Perrault: Honourable senators, I know of no occa-
sion when information has been denied to members of this
house when that information has been requested. All of the
main documents of the government are tabled in this chamber.
Additionally, I note that Senator Marshall has over 40 written
questions on the order paper. I commend him for his diligence.
It is an additional method of obtaining information. It is
certainly the intention to have those questions answered for the
senator’s elucidation if not to his entire satisfaction.
if there are occasions when senators feel they are not
obtaining information to which they feel entitled. I hope they
bring that fact immediately to the attention of the leader’s
office.