Constitutional Proposals and Papers
Copyright 1994-2019 William F. Maton
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As water passes under the bridge, so too do constitutional proposals.
There are two sections here: those papers, proposals and drafts before the passing
and proclamation of the Constitution Act,
1982 and those after. Some proposals contain an amending formula
of some kind or another, while others propose entrenching some form of
human rights guarantees. Still others can look like shopping lists of
powers to be traded. Some are in the form of concrete legal drafts and
others are supporting papers, statements, etc.
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 (despite being offered to do so in the late 1920's).
You should also have a look at the
Committees section of this site, for further detailed discussions
found in commissions, committees and miscellaneous reports. Many of these
were also the result or driver behind a few
- Imperial Conference, 1926 Summary of Proceedings.
- Report of the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation, 1929
- A conference covering the powers of disallowance and reservation, as well as a follow-on
to the Balfour Declaration.
- Contains some early fragments of drafts that would become the Statute of Westminster, 1931.
- Imperial Conference, 1930 Summary of Proceedings.
- This conference continued the work of the previous two, with an eye to creating
the Statute of Westminster, 1931.
- Significant for Canada because it was first raised that Canadian provinces needed
to be consulted for the draft statute's impact.
- "The 1936 Formula"
- An obscure amendment formula found in the pages of Paul Gérin-Lajoie's 1950 book,
Constitutional Amendment in Canada at appendix D.
- Based on a proposal by the Attorney General of Ontario in 1935.
- Would have added a section 148 to the British North America Act, 1867.
- Would have split amendments according to a set of rules depending on which section of the British North America Act, 1867, was affected.
- Amending formula of 2/3 of the provinces representing 55% of the population suggested.
- Another version also exists.
- The Fulton Formula, 1961
- Proposed draft bill to create a formula for amending the "constitution" of Canada by federal Minister of Justice and Attorney General E.D. Fulton.
- Unanimity required for hanges to legislature powers of the provinces, provincial assets,
use of English or French language or rights and privileges secured to the legislature or
government of a province.
- Restricted changes to education systems of provinces without provincial consent
- A version of the "7/50 formula" (two-thirds of the provinces representing 50% of
the population) for any other constitutional changes.
- Section 7 would effectively "patriate" the Constitution.
- Section enumerates the documents that are part of the Constitution, but without limiting
the list (similar to saying in the Constitution Act, 1982, section 52(2) "includes" the documents x, y and z).
- Proposes section 92A to the BNA Act, 1867, which contains delegation of legislative
powers in a limited manner.
- The Fulton-Favreau Formula, 1965
- Proposed draft bill to create a formula for amending the "constitution" of Canada by federal Attorney-General, Guy M. Favreau.
- Based on an earlier version by federal Attorney-General, E. D. Fulton in 1961, which failed to get unanimous approval from all provinces.
- With a few changes, received unanimous approval in a federal-provincial attorneys-general meeting.
- Included a French version in its schedule which would have equal force, without objections from the UK.
- A dispute arose over the possibility that the amendment process would "straight-jacket" the country, while Quebec Premier Lesage withdrew his support as not being enough for Quebec.
- A form of this formula would be revived for the Victoria Charter.
- The Amendment of the Constitution of Canada, 1965
- A government publication centred on a discusioon of amending the consitution.
- Gives a background of efforts up to 1964
- Gives an overview of amendments since Confederation, the types of amendments and cirsumstances
- Explains the Fulton Formula and the Fulton-Favreau Formals and comapres the two
- A Canadian Charter of Human Rights, 1968
- A lofty document outlining the philosophy behind a human rights document.
- Set the stage for replacing the Canadian Bill of Rights which is a federal law that didn't apply to provinces and could easily be changed.
- The bulk of the work includes various examples of other human rights documents and laws from around the world, including that of the UN among others.
- Contains a listing of various federal and provincial laws in force as of 1968 related to human rights.
- 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
- Part III defines the provinces and territories that
- 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,
- 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.
- Prime Minister Pierre E. Trudeau's letter to the Premiers, first written April 19, 1975, then tabled in the
House of Commons on April 9, 1976.
- Various letters to the Premiers
- Contains modified pieces of the Victoria Charter plus a draft proclamation to patriate
- Contains a preamble as an example of what could be done with one.
- "A Time For Action," a paper
tabled by Prime Minister Pierre Elliott Trudeau on June 12, 1978 outlining the
process and time table for patriating a new constitution. This accompanied
Bill C-60 later tabled by the Prime Minister on June 20, 1978.
- Though not stated, a response to the election of the Parti Quebecois in 1976.
- Largely ignored by the political classes who had ther own vested interests in the debate
- Built upon the 1972 Special Joint Committee's recommendations.
- The Constitutional Amendment Bill, 1978. Explanatory Document.
- Explanatory notes to Bill C-60, tabled June 20, 1978.
- A preamble
proposed in June 1980 by then Prime Minister Pierre E. Trudeau. House of Commons Debates, 32nd Parliament, 1st Session : Vol. 2, June 10, 1980, p. 1977 Also; PDF, Unpublished Sessional Papers, 321-5/65B.
- Priorities for a New
Canadian Constitution Proposed by the Government of Canada, June 9, 1980. House of Commons Debates, 32nd Parliament, 1st Session : Vol. 2, June 10, 1980, p. 1977. Journals; PDF, Unpublished Sessional Papers, 321-5/65C. Suggested Calendar, Unpublished Sessional Papers, 321-5/65D.
- Proposed 1981 resolution with amendments Tabled with the Special Joint Committee on the Constitution, 1980-1981.
- The Role of the United Kingdom in the Amendment of the Canadian Constitution, March, 1981
- A convincing rebuttal of the Kershaw Report, issued by the UK House of Commons Foreign Affairs Committee.
- An examination of the history of constitutional amendment in Canada and the role the UK
has played before and since the passing of the Statute of Westminster, 1931.
- The Canadian Constitution: 1981, proposed resolution with Amendments, House of Commons Debates, House of Commons Journals, April 23, 1981, pp. 1741-1781; Senate Journals pp.1150-1176, April 24, 1981.
- The "Kitchen Accord".
- A two-page hand-written document by Roy Romanow, creating the accord drafted by the
efforts of Attorneys General Jean Chretien, Roy Romanow and Roy McMurtry on Nov 4, 1981.
- Drafted in the kitchen of the Ottawa Congress Centre in Ottawa on a break during
the First Ministers' Meeting.
- Saw the inclusion of the Notwithstanding clause, section 33 of the Constitution Act, 1982.
- Proposed resolution for a Joint Address to Her Majesty the Queen as altered by the First Minister's agreement on Nov 5, 1981; motion, Nov. 20, 1981 House of Commons Journals Issue 260, pp. 4005-4033. Resolution with amendments approved by House of Commons Dec 2, 1981, Debates Vol 268, p. 4336. Senate motion, Dec. 3, 1981, Journals, Issue 159, p. 1617; Resolution approved without amendment by Senate Dec. 8, 1981, Journals Vol 162, p. 1788.
These documents serve as a documentary history of proposals since
the passing and proclamation of the Constitution Act, 1982. Some went
on to become actual amendments while others didn't make it.
- The 1983 Constitutional Accord on Aboriginal Rights [ Accord | Motion attached as schedule ]. Tabled, House of Commons Debates Mar 17, 1983, p. 23882; Journals, Mar 17, 1938, p. 5712. Unpublished Sessional Paper 321-5/69.
- First proposed constitutional amendment after patriation.
- Agenda included changes to the Charter, amending formula, consideration of
self-government, repeal of sections 42(1)(e) and (f), amendments to Part III and
an obligation for another First Ministers' conference; most of which proved
- Contains proposed motion for proclaiming a change to the Constitution.
- Became the Constitution Amendment Proclamation, 1983
- Meech Lake
Accord (1987). (Committee report
- Follow-on from the 1986 Edmonton Declaration
- Technically called the Constitution Amendment, 1987, but
named after the location of the private First Ministers meeting.
- 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 government had 5 demands that needed
to be fulfilled before they could sign the 1982 constitution, "with
dignity and honour":
- A constitutional veto (meaning any one province could block
any constitutional amendment) relating to central institutions,
the creation of new provinces, and the use of the English or French language.
- The recognition that Québec is a 'distinct society'.
- The right to have Supreme Court Justices appointed from names
on lists created by the province, similarly to future Senate appointments.
- 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, especially in regards
to provincial jurisdiction.
- Greater provincial control of immigration, by automatically
constitutionalizing inter-governmental agreements relating to
- Made mandatory an annual First Ministers' Conference on the
economy and any constitutional matters.
- 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.
- Ultimately most of Quebec's 5 demands have been have acted on
in practice without amending the constitution.
- The New Brunswick Companion Resolution to the
Meech Lake Accord. A last-ditch attempt to address the flaws in the Meech
Lake accord (Committee Report:
- Extended to New Brunswick to some degree what was given to
Quebec, with respect to the status of the English and French linguistic
- 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 territories without the unanimous consent of the provinces,
- Would have made constitutional the convocation of hearings
on any proposed constitutional amendment by Parliament or the
legislatures, as the case may be.
- Added to the agenda of the proposed section 50 to include
discussions on matters relating to aboriginal peoples.
- Would have obligated the Prime Minister of Canada to invite
aboriginal representatives to conferences on issues described
- Worded in such a way that pieces of it could be taken in turn
and approved under the various amending mechanisms separately.
- 1990 Constitutional Agreement
- This agreement was a last-ditch attempt to have Meech Lake
approved before the 3-year deadline.
- Obligated New Brunswick, Manitoba and Newfoundland to finally
approve the Meech Lake accord before June 23, 1990.
- If the amendment passes, obligates the First Ministers to engage
in Senate reform before the end of the year and failing that by
July 1, 1995 the Senate seats would be redistributed.
- This agreement's motion would only take effect if the Meech Lake amendment
passed, which ultimately it didn't.
- Canada's Future Together (1991). English [PDF] and French.
- Tabled in Parliament and eventually referred to committee
- This paper served as the basis for the Charlottetown Accord.
- Charlottetown Accord (1992). The unofficial consensus
report of August 28, 1992 and the draft
legal texts of October 9, 1992, 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."
- Part of approval preparations included the passing of the Referendum Act
S.C. 1992, c. 40, which provides for the optional calling of a consultative referendum
on constitutional proposals.
- 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."
- Draft 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,
- A Federal, self-imposed amending formula.
- 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
- 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
- Approved by general referendum in the Province of Newfoundland
and Labrador on September 2nd, 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
- 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 had made a
web site (
http://www.ontariospeaks.com/) dedicated to the
framework for Ontarians, which featured 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: 24 September, 2019.
William F. Maton