Constitutional Proposals

Copyright 1994, 1995, 1996 ,1997, 1998 William F. Maton

As water passes under the bridge, so too do constitutional proposals. There are two sections here: those proposals before the passing and proclamation of the Constitution Act, 1982 and those after.

The reason for choosing the Constitution Act, 1982 as the historical separation line is because it is this law which allowed Canada the right to change its constitution without asking for the assent of the United Kingdom.

• Pre-1982 Proposals
• Post-1982 Proposals

Pre-1982 Proposals

• The Victoria Charter, 1971
  • A ten-part document outlining constitutional changes.
  • Part I and II was very similar to the present-day Charter of Rights and Freedoms.
  • Part III defines the provinces and territories that constitute Canada.
  • Part IV defined the supreme Court of Canada.
    • Similar to the Charlottetown Accord formula.
    • Difference lies in the process of filling Court vacancies and ultimate decision: There must be an agreement between the Attorney General of Canada and the Attorney General of the province affected. After a period of 3-6 months, failing that, the Attorney General of Canada may appoint alone (Art. 26 - Art. 31).
  • Part V preserves Parliament's power to create other courts.
  • Part VI revises section 94A (Old Age Pensions) of the Constitution Act, 1867, to include supplementary benefits and family, youth and training allowances.
  • Part VII relates to regional disparities, and is embodied in the present section 36 of the Constitution Act, 1982
  • Part VIII provided for the convening of annual Federal-Provincial conferences, unless deemed not necessary for the particular year.
  • Part IX described the procedure for amending the constitution, which is similar to that proposed by the Beaudoin-Edwards Committee, the Charlottetown Accord and embodied in the similar Bill C-110 of 1995.
  • Part X was a transitory set of articles repealing and amending certain constitutional documents, much in the same way the Constitution Act, 1982 does in its schedule.

  • Endorsed by all the premiers and sent to their respective legislatures for consideration. Robert Bourassa, Premier of Quebec, rejected it soon after as not being enough to meet Quebec's demands.

• "A Time For Action," a paper tabled by Prime Minister Pierre Elliott Trudeau in 1978 outlining the process and time table for patriating a new constitution.

• A preamble proposed in June 1980 by then Prime Minister Pierre E. Trudeau.

Post-1982 Proposals

• Meech Lake Accord (1987). (Committee report here)
  • Really a general agreement containing 2 parts: An agreement between Canada and Québec to delegate total control of the reception and integration of any immigrants that settle in that province (This agreement was later finalized).

  • The constitutional accord: Quebec had 5 demands that needed to be fulfilled before they could sign 1982 constitution, "with dignity and honour":

  • A constitutional veto (meaning any one province could block any constitutional amendment).
  • The recognition that Québec is a 'distinct society'.
  • The right to have Supreme Court Justices appointed from names on lists created by the province.
  • The limitation of the federal spending power, namely, the allowance for a province to withdraw from a national program to create its own program with federal funds.
  • Greater provincial control of immigration, by automatically constitutionalizing inter-governmental agreements relating to that.

  • Expired after 3 years, on June 23, 1990. On that date, the House of Commons and eight of the ten provincial legislatures had ratified the accord. However, Aboriginal MLA Elijah Harper of the Manitoba legislature blocked a ratification vote in that province. Newfoundland premier Clyde Wells, having reversed the previous Newfoundland government's ratification saw this as an apparent defeat for the accord, and consequently refused to hold a ratification vote in his legislature.

• The New Brunswick Companion Resolution to the Meech Lake Accord. A last-ditch attempt to address the flaws in the Meech Lake accord:
  • Extended to New Bruswick to some degree what was given to Quebec, with respect to the status of the English and French linguistic communities.
  • Added consideration from the territories of appointment of Judges to the Supreme Court of Canada.
  • Amended the proposed section 25 to specifically allow the territories the same right of appointment of Senators as the provinces were to get.
  • Would have constitutionalized An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick, chapter O-1.1 of the Acts of New Brunswick, 1981.
  • Obligated the Senate to produce an economic statement on the country every 5 years, and present this to any conferences convened under the present section 36 of the Constitution Act, 1982
  • A contradictory notwithstanding clause to allow for the creation of territitories without the unanimous consent of the provinces, as proposed.
  • Would have made constitutional the convocation of hearings on any proposed constitutional amendment by Parliament or the legislatures, as he case may be.
  • Added to the agenda of the proposed section 50 to include discussions on matter relating to aboriginal peoples.
  • Would have obligated the Prime Minister of Canada to invite aboriginal representatives to conferences on issues described immediately above.

• Canada's Future Together (1991).
  • This paper served as the basis for the Charlottetown Accord: English and French.

• Charlottetown Accord (1992). The unofficial consensus report of August 28, 1992 and the draft legal texts are here. The salient points follow:
  • Virtually a rehash of the Meech Lake Accord.
  • "Canada Clause" which entrenched ethnic duality, rather than bilingual characteristics.
  • Included a "Triple-E" (Equal, elected and effective) Senate (Equal by province).
  • Included a commitment to negotiate right to self-government of First Nations.
  • Included social charter to complement the "Canada Clause."
  • On October 26, 1992, separate referenda in Canada and in Québec rejected the accord, albeit for different reasons. As a result, the Mulroney government and the Premiers let the accord "die."

• Bill C-110, 1995
  • Part of the Chrétien government's "Unity Package."
  • Original wording of the proposed bill is reproduced here; later changed to give British Columbia a constitutional veto.
  • Legally binding only on Parliament, and because it is not part of the Constitution, it can be repealed by a later Parliament.

• Bill C-110, 1995, amended
  • An amended version of the bill, which now gives British Columbia a veto.
  • Passed by the House of Commons, 13 December, 1995.
  • Again, only legally binding on Parliament.

• Bill C-xxx, 1996, (Constitution Amendment - Newfoundland)
  • Repeals and replaces Term 17 of the Newfoundland Act.
  • Allows the government of Newfoundland to take control of establishing and continuing denominational and nondenominational schools.
  • Proposal of the amendment was approved by provincial referendum in the Fall of 1995.
  • Proclaimed as the Constitution Amendment Proclamation, 1997 (Newfoundland Act).
  • Later on challenged by many in Newfoundland and Labrador, and eventually the Newfoundland Supreme Court identified a conflict between the amendment and the Schools Act of Newfoundland. This gave rise to the new text of Term 17's replacement (see below).

• Motion to amend the Constitution Act, 1867, Quebec. Available in English and French
  • Adds a new section, 93A, which excludes Quebec from section 93.
  • As the preamble more or less states, it allows Quebec to exercise exclusive power over education.
  • Also in the preamble is an attempted re-affirmation that Quebec is not party to the Constitution Act, 1982.
  • The amendment now passes on to Parliament (see below).

• New proposed text of Term 17 of the Newfoundland Act.
  • Approved by general referendum in the Province of Newfoundland and Labrador on September 2^nd, 1997.
  • A simplification of the original amendment. It eliminates the requirement to elect school board members by denomination and removes the "power to assign or dismiss teachers based on their religion."
  • Passed by the Senate, December 18, 1997. The Amendment now goes for Royal Assent by the Governor General of Canada.

• Proposed text of the Constitution amendment regarding Quebec schools.
  • Would add a new section, 93A, to the Constitution Act, 1867, that would exclude Quebec from section 93, which provides for the protection of denominational schools.
  • This would open the way for Quebec to re-organize schools based on any method it chooses, but as stated in the proposed resolution, the method would be based on linguistic classification (English and French).
  • Passed by the Senate, December 15, 1997.

• The Calgary Framework
  • A set of seven points agreed to by First Ministers (except Quebec's separatist premier Lucien Bouchard) on September 14, 1997, for further discussions on the Constitution.
  • The Ontario government has made a web site dedicated to the framework for Ontarians, which features a questionaire that was to be filled by December 15, 1997.

• Bill C-39, Part II, The Constitution Act, 1999 (Nunavut)
  • Amends the Constitution Act, 1867.
  • Increases the number of Senators from 104 to 105, giving the territory of Nunavut one Senator.
  • Increases the maximum number of Senators to 113 for any one time.
  • Royal Assent given June 13, 1998., and Part II is enacted as the Constitution Act, 1999, (Nunavut).

Last updated: 14 July, 1998.