Canada, Minister of Supply and Services, The Constitutional Amendment Bill, 1978: Explanatory Document (1978)
By: Canada (Parliament)
Citation: Canada, Minister of Supply and Services, The Constitutional Amendment Bill, 1978: Explanatory Document (Ottawa: Minister of Supply and Services, 1978).
Other formats: Click here to view the original document (PDF).
Amendment Bill, 1978
Government of Canada / Gouvernement du Canada
The Government of Canada. mindful of its responsibility to promote the cohesion and well-being of our federation and all its parts, has introduced a bill that would modify the Constitution in many important ways. This document is intended to explain in non-legal language the main clement$ or the proposals in that bill. The reader interested in a more detailed explanation should refer to the bill itself. which has been published with clause by clause-explanatory notes.
Ever since the Fathers of our federation established the country Canada 111 years ago, the terms of their agreement have been evolving. But the. framework of their accord has remained essentially the same as set out in the British North America Act or 1867.
This Act is one of the oldest federal instruments in world and has endured through history’s most turbulent period of nation building. However, as Canada approached its Centennial more than a decade ago, it was becoming apparent that our basic Constitutional arrangements required review. The establishment of the Constitutional Conference in 1968 and continuing talks with the provinces over the following three years set the stage for 3 special effort to reach accord on limited changes in June. 1971 at Victoria, B.C. For various reasons, these efforts did not come to fruition.
In 1975, the Prime Minister proposed to the Premiers that an attempt be made to reach agreement on an amending formula and on bringing final control of the British North America Act home to Canada. The provinces responded with additional proposals for discussion in October, 1976 and a further set of federal proposals was put forward in January, 1977. Even as these proposals were being formulated, however, it was becoming clear that a more fundamental review would be required. The feelings of many Quebeckers that their aspirations cannot be met within Canada, the feelings of isolation and estrangement in Western Canada, the heightened concerns of every region, the uncertainties that are adding seriously to our economic problems, are attributable, at least in part, to shortcomings in our Constitution.
The Government believes that the bill to amend the Constitution will be the first step in a renewal of Canada’s political and federal structures and will mark the beginning of a process leading to a new and wholly Canadian Constitution, fully adequate to Canada’s present needs and to the excitement and promise of its future.
The main elements of the bill, which are discussed in more detail under separate sections, are these:
- the Preamble and the Statement of Aims—setting out for consideration by the people of Canada, a statement of our principles or nationhood and our goals as a national community;
- the Charter of Rights and Freedoms—including linguistic rights and guarantees of other basic rights and freedoms;
- a House of the Federation—a new legislative forum, designed to replace the Senate and to give more effective national representation to Canada’s regions and provinces;
- the Supreme Court—including proposals for modifying and establishing the Court as an integral part of the Constitution and enhancing the role of the provinces in the appointment of Supreme Court justices;
- the Mechanisms of Central Government—setting out a new role for the Governor General and, for the first time establishing in the Constitution, the function of the Prime Minister and the Cabinet. Also proposed are measures affecting federal-provincial relations, including the institutionalizing of First Ministers’ conferences;
- Symbols—consisting of provisions that would give constitutional recognition to the flag, motto, and national and royal anthems.
In its policy paper, A Time for Action, the Government of Canada pledged itself to seek the implementation of constitutional changes in two phases — Phase I to be completed by July 1, Canada Day, 1979; and Phase II, by 1981, the 50th anniversary of Canada’s accession, through the Statute of Westminister, to full independence and international sovereignty.
Each phase is intended to permit the fullest possible discussion and consideration of the proposals by Parliament, provincial governments and the public.
Under the present Constitution, Parliament can:
- amend the Constitution in matters affecting the central institutions of government, including the Senate and the Supreme Court;
- include such changes as the addition of a Preamble and a Charter of Rights and Freedoms, which thereafter would be binding on the Government or Canada. Acceptance by the provincial governments would, however, be necessary to achieve Constitutional entrenchment. These provisions would then apply not only to all provinces but also could not be changed by any government acting on its own.
There are the kinds of matters which are covered in the new bill. Parliament will be asked soon to establish a joint committee of the House of Commons and the Senate to study the proposals. A Constitutional Conference of First Ministers is planned for early autumn, at which time the proposals will be discussed with the provinces. At that time, also, there will be an opportunity to discuss the possibility or reaching early agreement on an amending formula and bringing final control over the Constitution home to Canada.
This phase, which is also of great importance if renewal is to be achieved, would cover all those sections of the Constitution which require joint federal and provincial action: basically those involving the distribution of powers between the federal and provincial orders of government. The Constitutional Conference in the fall of 1978 will no doubt concern itself with the extensive planning which will be necessary if this complex review is to be successfully carried out over the next three years.
Passage of constitutional legislation is not contemplated for this session of Parliament. Rather, it is hoped, its introduction at this time will give further impetus to the renewal process which began with the tabling of the federal policy document, A Time for Action, and provide a basis for thorough discussion in Parliament and with provincial governments and the Canadian people.
Preamble and Statement of Aims
So that the new Constitution may reflect the ideals of Canadians and the objectives of our nationhood, the Government has drafted a Preamble and Statement of Aims.
The Preamble reads:
The Parliament of Canada, affirming the will of Canadians to live and find their futures together in a federation based on equality and mutual respect, embracing enduring communities of distinctive origins and experiences, so that all may share more fully in a freer and richer life;
Honouring the contribution of Canada’s original inhabitants, of those who built the foundations of the country that is Canada, and of all those whose endeavours through the years have endowed its inheritance;
Welcoming as witness to that inheritance the evolution of the English-speaking and French—speaking communities, in a Canada shaped by men and womenfrom many lands;
And being resolved that a renewal of the Canadian federation, guided by aims set forth in its constitution, can best secure the fulfilment of present and future generations of Canadians.
The Statement of Aims of the Canadian Federation reads:
To protect the fundamental rights of all Canadians and to promote the conditions of life under which their legitimate aspirations and essential worth and dignity may best be realized;
To ensure that its society is governed by institutions and laws whose legitimacy is founded upon the will and consent of the people; and to ensure; as well, that neither the power of government nor the will of a majority shall interfere in an unwarranted or arbitrary manner with the enjoyment by each Canadian of his or her liberty, security and well-being;
To pursue social justice and economic opportunity for all Canadians through the equitable sharing of the benefits and burdens of living in the vast land that is their common inheritance, through the commitment of all Canadians to the balanced development of the land of their common inheritance and to the preservation of its richness and beauty in trust for themselves and generations to come, and through their commitment to overcome unacceptable disparities among Canadians in every region including disparities in the basic public services available to them;
To expand the horizons of Canadians as individuals, and enhance their collective security and distinctiveness as a people, by affirming through their daily lives and governance the fundamental proposition of the new nationality created by their forbears, that is to say, the proposition that fraternity does not require uniformity nor need diversity lead to division; and as elements of that proposition:
- i) to ensure throughout Canada equal respect for English and French as the country’s principal spoken languages, and for those Canadians who use each of them;
- ii) to ensure throughout Canada equal respect for the many origins, creeds and cultures and for the differing regional identities that help shape its society, and for those Canadians who are part of each of them; and
iii) inasmuch as the North American majority is, and seems certain to remain overwhelmingly English-speaking, to recognize a permanent national commitment to the endurance and self-fulfilment of the Canadian French-speaking society centred in but not limited to Quebec;
each of these elements reinforcing the others and lending strength to the distinctiveness of the Canadian nationality and of its contribution to the world community.
Why has the Government proposed the addition of a Preamble and a Statement of Aims to the Constitution?
The Government believes these will contribute to the full examination now taking place across Canada of what it means to be a Canadian. From that examination, the Government hopes, will come a final formulation of values and goals for inclusion in the Constitution so that future generations may be inspired to share the profound love-of-country that Canadians hold in this time of renewal. The Preamble and Aims will also serve as a clear enunciation of the underlying principles and objectives of the Canadian Constitution for the guidance of legislators and courts.
How will the new Preamble and the Statement of Aims be incorporated into the Constitution?
After Parliament has had a full opportunity to consider what is proposed, after discussions with the provincial governments have taken place and there has been time for public consideration, the Government will ask Parliament to enact the Preamble and Aims . Adoption by Parliament would make the Preamble and Aims applicable to Parliament itself, to the Government of Canada and to all federal institutions. When the provinces have also adopted them, the Preamble and Aims would be entrenched in the Constitution, beyond the power of any government to change unilaterally.
Does the Statement of Aims of the Canadian Federation recognize the aspirations of French-speaking Canadians?
The Statement of Aims fully recognizes the linguistic rights of French-speaking Canadians. Ensuring equal respect for the French language throughout Canada is given as one of the basic objectives of the Federation. The Statement of Aims recognizes a permanent national commitment to the endurance and self-fulfilment of the French-speaking society in Canada.
Does the Statement of Aims mention anything about economic disparities between the regions of Canada?
The answer is yes. It states as a fundamental goal of the principle of Canadian nationhood, the commitment to eliminate unacceptable disparities. It indicates as well the commitment to pursue social justice and economic opportunity for all Canadians. The same thing applies to a “balanced development” for Canada. More specifically, it states the commitment to “overcome unacceptable disparities among Canadians in every region including disparities in the basic public services available to them.”
Canadian Charter of Rights and Freedoms
Political philosophers and theorists have traditionally held that the primary purpose of government in a democratic society is to ensure the basic individual and collective rights of that society.
…for without them man loses the peace, dignity, and power of self- expression which should be part of his unique heritage.
Today in Canada there are a number of basic rights and freedoms expressed in a variety of federal laws and provincial statutes. These rights and freedoms vary with legislation from province to province. With few and limited exceptions, none of those rights and freedoms are constitutionally guaranteed. What Parliament or provincial legislatures enacted yesterday, they can remove or restrict tomorrow.
The best means of ensuring that Canadians anywhere in Canada will always enjoy basic rights and freedoms is to place them in the Constitution, where they will be beyond change by Parliament or any provincial legislature acting unilaterally. Most of the rights and freedoms in the new Charter are drawn from existing provisions found in the BNA Act and in federal and provincial laws. These are, however, extended in a number of cases and there are a number of new rights which have been added.
Political and Legal Rights and Freedoms
Freedom of thought, conscience and religion
This provides, in addition to freedom of religion, freedom to have no religion, and, through the “freedom of thought” provision, safeguards against attempts at forced indoctrination.
Freedom of opinion and expression
This re-wording of the traditional “freedom of speech” conveys not only the right to express one’s views, but equally the right to hold those views, even though others may not share them.
Freedom of peaceful assembly and association
Ensures that there is no question about the right of demonstration or association for peaceful purposes in Canada and that the onus is on the Crown to prove that an assembly is for other than peaceful purposes.
Freedom of the press and other communications media
Makes clear that other communications media, such as radio and television, are included under the concept of freedom to disseminate news and opinion.
Right to life, liberty and security of the individual
Ensures that there will be no interference m these areas by the State, except by due process of law.
Right to use and enjoy property
Ensures that there will be no depnvat10n of property by the State except in accordance with proper legal procedures.
Right to equal protection and equality before the law
Designed to ensure the non-discriminatory application of laws and entitlement to all the protection the laws afford, such as fair trial, right to an interpreter, etc.
Protection against arbitrary detention, imprisonment or exile
Ensures that no individual in Canada may be held by police, placed in prison or exiled from Canada without lawful justification.
Right to know reasons for arrest, right to consult counsel and to test validity of detention
Protects against actions by Jaw enforcement authorities which may infringe upon individual liberty.
Right to security against unreasonable searches and seizures
Protects against unjustified police examinations and confiscations.
Right to refuse to testify without legal safeguards
Assures a witness the right not to testify unless (1) given the opportunity to have counsel present; (2) assured that evidence used in one hearing would not be used in an unrelated hearing; (3) constitutional safeguards are assured, such as a fair and impartial trial.
Right to assistance of an interpreter
Guarantees any individual involved in any formal proceedings the right to an interpreter when proceedings are in a language that individual does not speak or understand.
Right to a fair hearing
Includes among others, the right to a public hearing by an impartial tribunal, the right to know the opponent’s case, the right to examine witnesses and to make a full and complete defence.
Rights of an individual charged with an offence
Includes presumption of innocence, fair trial, reasonable bail, no retroactive justice and no punishment more severe than that prescribed for the offence at the time it was committed.
Protection against cruel and unusual punishment or treatment
Designed to protect against inhuman forms of treatment or punishment.
Rights of Canadian citizens within Canada
The Charter lists fundamental rights inherent in the status of Canadian citizenship: the right to reside in any province or territory in Canada, to move without unreasonable impediment from one province to another in Canada and to enjoy the same benefits of the law as other citizens who reside in that province, without unreasonable discrimination; and the right to own property and to seek a livelihood in any province even if residing in another, subject only to Jaws applying generally in that province.
Protection against discrimination in the enjoyment of any right and freedom on grounds of race, national or ethnic origin, colour, religion, sex, language or age.
Free and democratic elections
Guarantees free and democratic elections based on universal suffrage and non-discrimination, limits the lapse of time between elections to not more than five years (except in declared emergencies) and ensures that Parliament and the legislatures have at least one session during any 12-month period.
The bill would also guarantee protection of language rights. The Charter provides:
- the right to use either English or French as the official languages of Canada in Parliament and in all the legislatures, with statutes, records and journals being published in the two languages for Parliament, and in Ontario, Quebec and New Brunswick;
- protection of identifiable French-speaking or English-speaking communities anywhere in Canada against the reduction of their traditional rights and customs;
- the right of any individual to use English or French before the Supreme Court or any federal court and before the courts in Ontario, Quebec and New Brunswick, and before any court in Canada dealing with a criminal matter or with an offence under provincial law where imprisonment could result;
- the right of the public to use either official language in communicating with the head or central offices of federal departments or agencies, and in areas where numbers warrant, with other principal federal and provincial offices anywhere in Canada; and
- regarding the language of education, the right of any citizen who is not of the majority official language group in any province, to choose the minority language as the language for the education of his or her children, if the number of children in the area warrants the provision of education facilities in the minority language.
What are the “new” rights or freedoms in the Charter?
Several important new rights are included, for example, with respect to the use of the English and French languages in Canada. Freedom of conscience and of thought have been added to the traditional freedom of religion. Protection against unreasonable searches and seizures and against the retroactive application of criminal sanctions has been added. The right of Canadian citizens to move from province to province, to own property and to work in another province would also be guaranteed for the first time. The right to vote and to stand for elective office without discrimination would be expressly assured as well.
Would the Charter be immediately applicable?
Once adopted by Parliament, the Charter would come into effect for matters under federal jurisdiction. Matters relating to the jurisdiction of a province would be subject to the Charter only upon its adoption by that province. Joint action would be required by the federal and provincial governments to have the Charter entrenched i.e., its guarantees placed beyond change by any government acting on its own.
Section 133 of the BNA Act allows the use of either English or French by anyone before the courts in Quebec. Would Quebec be required to continue permitting the use of English in the courts, and what of French in Ontario and elsewhere?
The new Charter proposes that the historic rights of the English-speaking communities in Quebec be continued. It also proposes that in the two other provinces, Ontario and New Brunswick, where substantial populations of French-speaking Canadians live, the same rights be extended for the use of French in the courts. Both these provinces are now making efforts in that direction. It should also be noted that, insofar as criminal matters within the jurisdiction of Parliament are concerned, or matters within provincial jurisdiction which could result in imprisonment, the Charter guarantees the right of persons giving evidence before any Canadian court to use either English or French.
How does the Charter deal with language rights, particularly the language of education?
Citizens belonging to an official language minority could choose the minority language for the education of their children, where the number of such children warrants the establishment of teaching facilities . This right of choice would not apply to non-citizens, nor to citizens who are part of the official language majority. The Charter would, of course, in no way restrict the right of parents to have their children educated in the majority native peoples could, of course, be added to the Charter, if at the close of ongoing discussions between governments and the native peoples, agreement is reached that this should be done.
The House of the Federation
The Government proposes that the present federal Upper House be replaced by a House of the Federation designed to provide Canada’s regions with more effective representation in the national legislative process.
At the time of Confederation, the role of the Senate in this legislative process was envisaged as one of representing Canada’s regional interests and attitudes, thus counterbalancing the Lower House, which is based on representation by population. This followed the pattern of second chambers in other federal systems.
Most observers agree that while the Senate may have played a useful role in Parliament’s legislative activity, it has not constituted an effective forum for the discussion of regionally-based concerns, and that such a forum is needed in Canada’s central Parliament. That is why, at the second meeting of the Constitutional Conference in February, 1969, the federal Government urged that the Senate:
… be reorganized to provide for the expression in it, in a more direct and formal manner than at present, of the interests of the provinces.
… at the same time, the interests of the country as a whole should continue to find expression in the Senate to maintain there an influence for the unity of Canada.
After studying alternative means of achieving these goals, the Government now proposes that in place of the Senate there be created a House of the Federation in which (1) provincial and federal legislatures can each choose members, and (2) the distribution of seats would be weighted to ensure that all provinces and regions could be adequately heard in deliberations on federal legislation. Representation of the four Western Provinces and of Newfoundland would be increased, as compared with their share of seats in the present Senate. Half the membership of the new House from any particular province would be chosen by the House of Commons after each federal election, in proportion to the popular support received in that province by the parties represented in the House of Commons. The other half of the membership for the province would be chosen by the provincial legislature following each provincial election, in proportion to the popular support received by the parties represented in the legislature. Thus, the new House would contain representatives of all major federal and provincial political parties from across the country.
Different members of the House of the Federation would therefore be appointed at different times: members chosen by the Commons would be appointed following each federal election. Similarly, members chosen by the provinces would be appointed following provincial elections.
The new House would be able to exercise a “suspensive” veto, i.e., have the power to delay government legislation by a negative vote for at least two months. Members would also be able to initiate their own bills, except money bills, and the new House would have to approve appointments of Supreme Court judges and heads of certain federal agencies and crown corporations. As well, members could be selected to serve as federal Cabinet ministers.
The House of the Federation would also have a special function as guardian of the status of the English and French languages in Canada. Before measures affecting that status, i.e., “measures of special linguistic significance” could be passed by the House, they would require approval by a majority of English-speaking and a majority of French-speaking members. This “double majority” principle is designed to reflect the concern of Canada’s two major linguistic communities, particularly, of course, the French-speaking community, that their respective languages continue to play a vital role in their daily lives. Furthermore, if a measure of this kind were to be passed by the House of Commons and then fail to receive approval of the “double majority” in the Upper House, it could not become law without being passed by the Commons again, this time by a two-thirds majority.
The powers and composition of the House are designed to attract good members and to provide an effective forum for the regions in the conduct of national affairs. The opportunity for provincial representatives to consider federal legislation, and to ratify appointment of Supreme Court judges and heads of central institutions, should help to bring federal and provincial interests closer together and foster greater co-operation and understanding between each order of government. For these reasons, the Government believes this new regional forum would help improve significantly the functioning of Canada’s federal system.
What is the purpose of the new House of the Federation?
To provide an effective forum for the expression and protection of regional and provincial interests and concerns.
What would be the composition of the new House?
There would be 118 representatives, 58 chosen by the House of Commons after each national election and 58 by the provincial legislatures, each of the latter making its choice of representatives following a provincial election. There would also be one representative each from the Yukon and Northwest Territories chosen by the Governor General in Council following each territorial election and after consultation with territorial Council members.
What are the proposed changes to the distribution of seats in the new House of the Federation?
With the proposed changes, no province or region would lose any seats, and representation from Quebec and Ontario would remain, as in the past, at 24 each. The Western Provinces, on the other hand, would now have almost a third of all seats, as compared with less than a fourth in the present Senate (rising from a total of 24 to a total of 36). The Atlantic Provinces’ total would be raised from 30 to 32 to give proportionately fairer representation in the region to Newfoundland. The Yukon and Northwest Territories would continue with one representative each.
Could the members of the House of the Federation also be members of Parliament or of provincial legislatures?
No. This is to ensure that members of the House of the Federation have sufficient time and energy to fulfil their mandate.
Why not let provincial legislatures choose all the members?
If the new House is to function as intended, it must express regional viewpoints-not only those of the provincial legislatures but also of the members of the federal Parliament who themselves represent Canadians of every region.
Could they be selected for a second term?
Yes. No limit is proposed on the number of times a person might be selected.
Would not the work of the House of the Federation be disrupted during every provincial election?
Not to any large extent. Provincially selected members would continue to serve until replaced following an election. Maximum turnover after any one election – for instance, following an election in Ontario or Quebec which would have the largest number of members – would not be more than 10 per cent of total House membership.
Would the Government be able to appoint members of the House of the Federation to the federal Cabinet?
Yes, in exceptional cases, should there be too few potential ministers in the Commons from a given region. Ministers appointed in this way would be able to answer questions and participate in Commons debates (with leave of the Speaker and the House) although, of course, without the right to vote in that Chamber.
Would there still be a need for federal-provincial conferences?
Yes. The work accomplished by federal-provincial conferences and negotiations would remain essential. Indeed, the Government has proposed that annual con- ferences of First Ministers be made mandatory under the new Constitution. But while conferences at various levels would continue to play a major role in the Canadian federal system, the creation of the House of the Federation as a new political institution of regional significance would have been added to further facilitate the reconciliation of inter-regional differences in this country.
Would the less populous areas and regions be given adequate representation in the House of the Federation?
That is one of the Government’s aims in creating this Chamber. Essentially, seat distribution would be weighted in favour of the seven less populous provinces. The idea is to counterbalance the more populous provinces which are certain to be well-heard in the House of Commons where representation is based on population.
With the provision of additional seats for the Western Provinces and Newfoundland in the new House of the Federation, would not Quebec’s relative influence be reduced?
Not significantly. Quebec (and Ontario) would have relatively fewer seats in the new House than in the Senate. Quebec representatives, however, would undoubtedly furnish far more than half the French-speaking members of the new House and would thus constitute a majority within the French-speaking group which must approve all measures of special linguistic significance.
Is there not a danger that the “double majority” idea for linguistic measures would place French speakers and English speakers against each other in a divisive fashion?
On the contrary. By providing increased protection for the linguistic rights of speakers of the two official languages in Canada, this “double majority” arrangement is likely to promote co-operation and trust. In particular, with regard to French-speaking Canadians, this measure is intended to give full assurance that, when the Parliament of Canada acts in relation to language, their needs would not be overlooked by a majority of English-speaking Parliamentarians.
For this “double majority” on measures of linguistic significance, how would English and French-speaking members of the House of the Federation identify themselves as belonging to one group or the other?
The bill proposes that members whose first spoken language is French, or who learned that language in childhood and still speak it, and who notify the Speaker of the House of the Federation to that effect, would constitute the members of the French-speaking group. The other members of the House would then form the English-speaking group.
Surely this “double majority” arrangement is meaningless when, in the final analysis, the English-speaking majority in the House of Commons will have its way?
True, the House of Commons could, by a two-thirds majority vote, force passage of a measure which had failed to pass the House of the Federation. This arrangement recognizes the ultimate supremacy of the House of Commons, a principle deeply rooted in our traditions, and the Government does not suggest that it be changed.
Nevertheless, there is significant protection against irresponsible use of this supremacy: one, the “double majority” requirement, ensuring that French-speaking members can fully and publicly express their views, and two, the requirement that any move to override the House of the Federation be supported by two-thirds of the voting members of the House of Commons. If in spite of these protections, a law should pass which adversely affected the preservation of the language spoken or otherwise enjoyed by any substantial, identifiable French or English linguistic community, there would be the possibility of the law being challenged under the Charter of Rights and Freedoms.
How would the House of the Federation and the House of Commons function together?
The House of the Federation would have the power to delay legislation for at least two months through the suspensive veto. Compromise, involving changes to legis- lation, would therefore have to be reached between the two Houses to avoid such delays. This is intended to ensure that regional interests are recognized.
Why not have direct elections for the House of the Federation?
This can work in a congressional system based on the separation of powers, such as that of the United States. In the parliamentary system, however, the Government can only govern so long as it enjoys the confidence of the House of Commons. The elected members of Parliament are, in that sense, supreme. Having two elected Chambers could confuse the issue of where ultimate responsibility should lie, and always leave questions open about the supremacy of the House of Commons. The Government believes it would be wiser to have members of the new House selected by members of the House of Commons and provincial legislatures who have themselves been elected by the people in accordance with our democratic traditions.
The Supreme Court
The Supreme Court of Canada is the highest court in the land. Its jurisdiction covers all matters of constitutional, federal and provincial law. Although one of Canada’s basic institutions, it exists only by virtue of a federal law (The Supreme Court Act) that any majority in Parliament could repeal or change.
The Supreme Court of Canada is the highest court in the land. Its jurisdiction covers all matters of constitutional, federal and provincial law.
Although one of Canada’s basic institutions, it exists only by virtue of a federal law (The Supreme Court Act) that any majority in Parliament could repeal or change.
In order to provide a more appropriate status for the Court, the Government intends to make its composition, organization and role part of the Constitution of Canada, beyond the capacity of any single government to change unilaterally.
This change in the status of the Court is particularly important in view of the Government’s intention to enshrine a Charter of Rights and Freedoms in the new Constitution. It would be the Court’s new and heavy responsibility to apply and interpret that Charter in keeping with the spirit of the new Constitution.
The Government also intends to ensure that the Court adequately reflects Canada’s regional diversity by (i) increasing the number of judges to 11 to permit a more balanced regional distribution of judges and (ii) providing provincial governments with a voice in nominations and appointments.
In this connection, it is proposed that there be four Supreme Court judges from the Quebec Bar, one more than now. The remaining seven positions would be filled so that there would always be at least one judge from each of four areas: the Atlantic Provinces, Ontario, the Prairie Provinces, and British Columbia.
Appointment to the Supreme Court would be made subsequent to agreement between the federal government and the relevant province. If no agreement is reached, then an impartial nominating council would be responsible for selection. The person finally selected would have to be approved by the proposed House of the Federation where provincial interests would be represented.
The Court would continue to be the general Court of Appeal of Canada. However, the judges of the Court appointed from the Quebec Bar would be the sole judges ol questions relating to Quebec civil law.
These changes are intended to enhance the unique role of the Supreme Court of Canada as an integral part of Canada’s federal system. Strengthening the position of the Court in this manner will help to ensure that it remains a court of law based on the soundest traditions of the judicial process rendering justice freely and equitably, whether between citizen and citizen, citizen and government or government and government.
Why include the role and jurisdiction of the Supreme Court in the Constitution?
To provide basic protection against arbitrary modification to one of the fundamental institutions of the Canadian Federation. This is especially important when we consider the primary role of the Court as the guardian and final arbiter of the Constitution and its Charter of Rights and Freedoms.
When will the provisions on the Supreme Court be incorporated into the Canadian Constitution?
Passage of the bill would make the basic provisions concerning the Supreme Court part of the Canadian Constitution, but still subject to change by Parliament. “Entrenchment” – that is, guaranteeing that these provisions could not be changed by Parliament acting on its own – would be achieved once provinces have indicated their support for the provisions and a formal constitutional amendment procedure has been put in place.
Why is it necessary to enlarge the Supreme Court and to provide for a provincial role in appointments?
Much of the present crisis of federalism can be traced, the Government believes, to the growing dissatisfaction of Canada’s regions with their inability to influence or affect national policies and institutions. These changes relating to the Supreme Court are among several constitutional changes designed to meet those dissatisfactions without unduly weakening Canada’s central administration.
Regional balance has always to some degree affected the composition of the Supreme Court. The growing self-consciousness of Canada’s regions now makes it necessary to provide more explicitly for regional balance and influence. This should meet the arguments of those Canadians who feel that the Court would thereby be better able to perceive the diversity of regional concerns across Canada. However, it is expected that judges will continue to make their decisions on the basis of conscience and legal considerations. They are not expected to become their regions’ advocates.
Mechanisms of Central Government
Some changes of function are proposed for the Governor General, and a change of title for the Privy Council for Canada. Other changes include a description of the role of Cabinet, institutionalizing the conferences of First Ministers and other provisions respecting federal-provincial relations.
The Office of the Governor General should be altered, the Government believes. Except when the Queen is in Canada, the Governor General now exercises all the prerogatives, functions and authority belonging to the Queen in respect of Canada. Under the bill, he would continue to represent the Queen and to act for her. However, his authority to do this would, in future, flow from the Constitution itself. In addition Parliament would henceforth be made up of the Governor General and the two Houses and laws would be passed in his name. Only Canadian citizens would be eligible for this appointment. These changes are intended to enhance the dignity of the office. At the same time, the Queen remains as always the sovereign head of Canada. She would continue to appoint the Governors General and to exercise her full powers when in Canada.
The Title of Council of State would replace that of the Privy Council for Canada, in order to reflect more clearly the function of the Council, which is to advise the Governor General.
The Functions of Cabinet are, for the first time, to be set out in the Constitution to give formal recognition to that body as a vital element in Canada’s system of government. The Cabinet is a committee of the Council of State, consisting of the Prime Minister and ministers (who must be members of one of the Houses of Parliament or qualified to be a candidate for the House of Commons), which may exercise the powers, duties and functions of the Council of State. The Cabinet is responsible to the House of Commons for the management and direction of the Government of Canada and must have the confidence of the House of Commons. The proposed new Constitution sets out the traditional alternatives for action should the Cabinet lose the confidence of the House of Commons.
Provisions for the Conferences of First Ministers and Other Federal-Provincial Matters are also proposed under the bill. Four changes are suggested: that there should be (i) constitutional provision for an annual conference of First Ministers, (ii) the power of the federal government to “declare” any work-even if wholly situated within a province-to be for the general welfare of Ca nada and therefore under the jurisdiction of Parliament would be subject to prior consultation with the province concerned, (iii) the appointment of each Lieutenant Governor would be subject to advance consultation with the province concerned, and (iv) provision would be made so that assurance could be given against sudden termination of statutory payments to provinces by creating a binding obligation on the Parliament of Canada that whenever those payments are made subject to Constitutional Article 99, they could not be altered or discontinued arbitrarily.
The bill would add a new section to the Constitution recognizing the flag, the national and royal anthems and the motto as follows :
- the red and white flag with the red maple leaf (the current Canadian flag);
- “O Canada”, the national anthem, and “God Save The Queen”, the royal anthem;
- Canada’s motto, “A mari usque ad mare” (From Sea to Sea).
 Requests for copies should be addressed to P.O. Box 1986, Station “B”, Ottawa, Ontario KIP 6G6
 The Constitution and the People of Canada, Ottawa, 1969, p. 14
 The Constitution and the People of Canada, 1969, p. 30
 loc. cit.
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