Copyright 1994-2019 William F. Maton
[ Archive |
As water passes under the bridge, so too do constitutional proposals.
There are two sections here: those 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 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.
- "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.
- Amending formula of 2/3 of the provinces representing 55% of the population suggested.
- 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.
- 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. Also.
- Priorities for a New
Canadian Consitutution 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.
- Proposed 1981 resolution with amendments
- House of Commons Debates, The Canadian Constitution: 1981, proposed resolution with Amendments, 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 during a break during
the First Ministers' Meeting.
- Saw the inclusion of the Notwithstanding clause, section 33 of the Constitution Act, 1082.
These documents serve as a documentary history of proposals since
the passing and proclamation of the Constitution Act, 1982.
- Meech Lake
Accord (1987). (Committee report
- 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 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
- 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
- Extended to New Bruswick 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
- Canada's Future Together (1991).
- This paper served as the basis for the Charlottetown Accord:
English [PDF] 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."
- 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 issues.
- 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: 7 September, 2019.
William F. Maton