Canada 1981 Letters from Your Chairs

Dear Delegates,

Welcome to CarleMUN. My name is Mary Werre and I am the Vice-President Finance of the Carleton United Nations Society and for this weekend, I will be your chair for Canada 1981. Throughout my undergraduate degree I found myself becoming more and more interested in the intricacies of the Canadian Constitution and the people who sat at the table in 1981. The First Ministers Conference of 1981 is arguably one of the most important moments in Canadian history and the decisions made during the infamous “Kitchen Accord” have drastically altered the way our political system works. 1981 had some of the influential Canadian political leaders including Prime Minister Pierre Trudeau, Minister of Justice (and future PM) Jean Chretien, Alberta Premier Peter Lougheed and of course, the founder of the Parti Quebecois and Quebec Premier, Rene Levesque.

Throughout Trudeau’s time in office, tensions between the federal government and Canada’s premiers were at a long-time high, with deep feelings of Western Alienation and calls for Quebec separatism constantly growing. It was these men and the debates going on at the time that made me truly fall in love with Canadian history, as early as Grade 10. During this time, politicians were forced to try and understand what it meant to be Canadian and how and by who it should be governed. In our committee, Canada 1981, you will get the chance to play either a premier, a member of cabinet, the prime minister or a relevant interest group and ask yourselves the same questions they did three decades ago. We have three extremely interesting and complex topics to explore throughout the conference. This guide will do its best to give you a solid understanding of the main issues at play and also will provide you with a variety of resources to help you prepare for committee. At the very least, it is recommended that you read the entire background guide and your respective character guide in preparation for the weekend. I also recommended you print this background guide and bring it to committee as it is an easy tool to reference throughout the weekend, whether you need a refresher about the topic or want to know where the other delegates in the room stand on an issue.

Most importantly, I would like to stress to delegates that this committee is also meant to be a learning experience. Please feel free to ask questions and do not hesitate to contact me directly. You can add me on Facebook or you can send an email. There is no such thing as a stupid question and I promise I will do my best, alongside my fantastic co-chair Nikola, to make sure each and every one of you have a positive introduction to Model United Nations.

Good Luck Delegates, Mary Werre Chair & VP Finance, 2015-2016 [email protected]

Mary Werre is one of your two chairs in this exciting committee. She is entering her first year of her Masters in Sustainable Energy Policy after completing her undergrad in Public Affairs and Policy Management specializing in Strategic Public Opinion and Policy Management. This is Mary’s third year as a member of the United Nations Society and her second year on the Executive. Dear Delegates,

My name is Nikola Milutinovic, and you might know me as your Co-director of Training. Over the weekend at CarleMUN, you will have the opportunity to reshape the end of twentieth, and the beginning of twenty-first century, for Canada. We have a culture of taking this nation as is. Too often are the nuances of our founding documents taken for granted, and all too oft are they completely ignored. During this committee you will be asked difficult questions pertaining to what Canada is as a nation, and from where that structure originates. You will answer these questions from the perspective of important Federal Cabinet Ministers, any of the ten Provincial Premiers, or the crucial lobby groups which injected public representation into these debates.

On the roster are three complex topics. You will have the opportunity to assess the strength of the Charter of Rights and Freedoms. The document, as it stands, is simultaneously more and less binding in certain crucial policy areas which you might not expect. You have the difficult (and fun!) task of righting the Charter, and cementing its place, or lack thereof, within Canada’s legislative body.

You will be asked similar questions of the place of the Senate of Canada. Does it belong? How does it belong? From whom does it come? This is a hot-button modern political issue which deserves the chamber of sober thought which this committee will be. Step beyond punditry, and rationally analyze the Senate of Canada on a regional and national level. You even have the opportunity to restructure the balance of federal and provincial powers. Why do the provinces control healthcare and education? And where should the federal government draw the line on its interference in natural resource rights, if there is a line at all?

This committee is an excellent opportunity to ask of yourself what you think of Canada’s being. Most importantly, it is a learning opportunity. For many of you, this will be your first exposure to Model United Nations. Mary and I will do our absolute best to ensure the experience is fun and illuminating. Contact me if you have any questions about rules of procedure, the committee, or CarleMUN in general. Whether you are Pierre Trudeau, Renee Levesque, or The Canada West Foundation, you will have a fantastically exciting weekend, facing the challenge of balancing your government’s, group’s, and personal views during one of the most crucial periods of Canadian policy-making to date.

Good Luck Delegates. Nikola Milutinovic Chair & Co-director of Training, 2015-2016 [email protected]

Nikola Milutinovic is one of your two chairs in this exciting committee. He is a fourth year Economics student, and his field of study is his greatest passion. Nikola has an affinity for puns, and other such low-calibre humour. He is entering his second year with the United Nations Society, and you may know him as one of your Co-Directors of Training. It is with great excitement that he welcomes each delegate to the Canadian First Ministers Constitutional Conference in 1981.

Committee Introduction

The Canadian Constitution comprised of a handful of British Acts of Parliament until the year 1982 when the Trudeau government patriated the Constitution. The lead-up to the 1982 Canada Act and Constitution Act was a smorgasbord of rights legislation, constitutional proposals, and negotiations – and to some – betrayal. Our telling of the story begins in 1960.

The Diefenbaker government of 1960 made it a priority to enshrine a Bill of Rights in the Canadian legislative body, but not in the form in which we know such documents to be. The Bill contained provisions guaranteeing freedom of speech and religion, equality rights, property rights, and other rights which are often found in rights-based documents (See full text here: http://laws- lois.justice.gc.ca/eng/acts/c-12.3/page-1.html). The law had paramountcy over other laws, meaning that other Acts of Canadian Federal Parliament had to act within the confines of the Bill of Rights. The Bill, though, was not infallible.

The most significant drawback of the Bill of Rights 1960, other than some applicability issues, was its lack of constitutional entrenchment. This meant that any simple Act of Parliament could amend or completely remove the Bill of Rights. The Bill was also only applicable for federal legislation, meaning that it could not override any legislation that falls under provincial jurisdiction. In response to these drawbacks, the Diefenbaker and Pearson governments of the 1960s attempted Patriation negotiations with the provinces a number of times. These negotiations, though, bore no success. It was not until Pierre Trudeau’s Victoria Charter proposal in 1971 that the movement was taken more seriously.

The Victoria Charter would have constitutionally enshrined the principles of the Bill of Rights, enumerated voting rights, and the maximum duration of a sitting of Parliament. The Victoria Charter negotiations opened the door for provincial premiers to discuss other types of constitutional reform, well beyond Trudeau’s entrenched Charter of Rights and Freedoms. Patriation and the creation of a made-in-Canada amending formula would mark the first real chance for Premiers to re-negotiate aspects of Canadian federalism including the division of powers, equalization payments, provincial vetoes and Canada’s central governing institutions, the Senate and the House of Commons. In 1971, the Victoria Charter negotiations failed when Quebecois Premier Robert Bourassa, rejected the terms of the Victoria Charter, demanding devolution of Federal Powers. This added fuel to the growing separatist movement in Quebec, which culminated in the 1980 plebiscite on Secession. The “No” side won, and Quebec rejected secession. This gave the Trudeau government the mandate to negotiate Patriation with the provinces.

In 1980, after several frustrating rounds of negotiation, the Trudeau administration intended to go to the United Kingdom’s Parliament with a unilateral request for Patriation and enshrinement of the Victoria Charter. The Federal government attempted to circumvent the Provinces, and create a Canadian-made constitution on its own. This did not bode well with a number of premiers of British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, Nova Scotia, Newfoundland, and Prince Edward Island. They formed “The Gang of Eight”. The Gang created their own constitutional formula, without a Charter, opt-out clauses, and an amending procedure known as the Vancouver Formula. The Formula required the ascent of two-thirds of the provinces representing over fifty-percent of the population in order to amend the constitution. Trudeau rejected this proposal, and pushed ahead with unilateral Patriation.

After lengthy court battles, the Supreme Court ruled that the Federal Government could not Patriate a Canadian constitution which would bind the provinces without the cooperation and consent of a majority of the provincial governments. This led to the First Minister Conference on November 2, 1981; the session which you delegates will be attending. The Conference, like the decade and a half of negotiations preceding it, was tense.

The Gang of Eight remained united, and the Trudeau government, while becoming somewhat more open to compromise, remained stern. Softening its previous offer, The Gang of Eight offered a constitution with a very limited Charter, and the Trudeau camp denied it outright. Over the course of conference, premiers floated removing language rights, reallocating federal powers, and altering amending formulas. These negotiations came to a head when Trudeau, acknowledging the deadlock, offered that the Premiers Patriate the constitution in its current form, but continue negotiations over two years. If deadlock persisted, there would be a referendum on the amending formula and makeup of the Charter. Renee Levesque agreed, while frustrated. He was confident he could saw the Quebecois vote in a referendum, and thought this might give him a stronger negotiating position. The agreement by the Quebecois premier initially looked like a lock for Trudeau, and stunned the other premiers. The Gang of Eight was suddenly in a much more difficult position. Trudeau revealed the text of the federal proposal, with what Levesque saw as a warped version of the 2-year referendum deal. The referendum would only occur if provinces recommending eighty-percent of the population requested it. Levesque reneged on his agreement, and negotiations were back up in the air. Trudeau, at the end of that day’s session, threatened to leave to Westminster the next morning for unilateral Patriation.

Next morning’s meeting, though, was preceded by a secret midnight meeting. Today, the Canadian government and federalists refer to the proceedings as the Kitchen Accord while the Quebecois government continues to call this event “The Night of the Long Knives”. It went as such: then Minister of Justice, Jean Chretien, met with representatives for Saskatchewan and Ontario in the kitchen of their hotel. They brokered an agreement which would secure the existence of the Charter of Rights and Freedoms, in exchange for the Gang of Eight’s Vancouver Formula, and a notwithstanding clause, allowing provinces to circumvent certain Charter clauses. Alberta Premier, Peter Lougheed and Ontario Premier, Bill Davis brought this deal to members of the Gang of Eight and were able to get them all on board. Trudeau reluctantly accepted, knowing it was his best chance at provincially consented Patriation. The Gang of Eight, Ontario, and The Federal Government had a struck a deal. Every legislature, except for Quebec.

In the morning, Levesque had been informed a deal was struck. He left the conference, and attempted to veto Patriation. The Quebec Superior Court and the Supreme Court of Canada informed him he did not have the right to do so. The Canadian Constitution was Patriated. Now enshrined in the Canadian legislative body were the Constitution Act 1982, the Canada Act 1982, and the Charter of Rights and Freedoms. We had brought Canada home.

But could we have done better? The delegates of this First Ministers Conference have the opportunity to revisit the 1981 negotiations, and do better by Canada. As modern-day Canadians, we have a perspective on Canadian national and regional politics different from any time in history. Knowing what we know about Western Canadian unity, was The Gang of Eight really the best union of regional interests? Given the importance of Quebec and the close referendum of 1995, was it wise to leave them out of the Charter agreement? And what is the value of the Charter of Rights and Freedoms when including a notwithstanding clause? Or should there even be a Charter at all? Delegates have the opportunity to visit these questions, and ask about the Senate and provincial powers over the weekend at CarleMUN.

Committee Structure Canada 1981 will consist of 24 members, each of which have an important role to play in the debate over Canada’s constitutional future. There are three major groups of players: (1) The Prime Minister and the Federal Cabinet, (2) the Premiers and (3) Opposition Leaders and Interest Groups. For this committee there are several different voting formulas.

Procedural Motions: For a procedural motion (voting for anything other than a resolution or amendment) we will simply require a 50% + 1 vote in favour of the members within the room.

Resolutions: For resolutions, we will be trying to keep as close to the 7/50 General Amending Formula adopted in 1981 while still being realistic to the constraints of a Model UN committee. For that reason delegates are broken into two voting “blocs”, each of which need to have a 2/3 majority vote for a resolution to pass. The first bloc will consist of all the premiers (including the territories) while the second bloc will consist of the federal government and other relevant parties. This is to maintain a fairly even split in terms of membership size for each voting bloc.

Resolutions should have a maximum of 3 sponsors and a minimum of 5 signatories.

To assist, the following is a breakdown of who votes with which bloc for resolutions and their respective roles. Each bloc requires a 2/3 vote in favour for a resolution to pass:

Voting Bloc 1: The Premiers (12) Voting Bloc 2: Federal Government & Other Parties (12) • Bill Bennett (BC) • Pierre Trudeau (Prime Minister) • Peter Lougheed (Alberta) • Jean Chretien (Minister of Justice) • Allan Blakeney • Marc Lalonde (Minister of Energy, Mines and (Saskatchewan) Resources) • Sterling Lyon (Manitoba) • Michael Kirby (Secretary to Cabinet for Federal- • Bill Davis (Ontario) provincial relations) • Rene Levesque (Quebec) • Joe Clark (PC leader) • Brian Peckford • Ed Broadbent (NDP leader) (Newfoundland) • Canada West Foundation (Interest Group) • John Buchanan (Nova Scotia) • Canadian Federation of Civil Liberties (Interest • Angus MacLean (Prince Group) Edward Island) • National Action Committee on the Status of • Richard Hatfield (New Women (Interest Group) Brunswick) • Atlantic Provinces Economic Council (Interest • George Braden (Northwest Group) Territories) • The Business Council on National Issues (Interest • Chris Pearson (Yukon) Group)

The committee will flow in a manner similar to a traditional Model UN committee. We will begin with a primary speakers list and delegates will have the opportunity to set the topic as they see fit. Once a topic has been set, a secondary speakers list will be opened with motions for moderated caucus discussions. Subsequently, delegates will have the chance to participate in both moderated and unmoderated caucuses as discussion proceeds although unmoderated caucuses will not be encouraged by the Chairs for at least the first hour of committee.

Unique Rules of Procedure: The committee generally stays true to typical Model UN procedure. The first significant difference in procedure is the aforementioned change in voting procedure, requiring supermajority support of two blocs. The other, less important yet notable, difference, is first- person and third-person speaking. Carleton delegates are typically not encouraged to speak in first person, as they represent countries and dignitaries in Model UN Committees. This will be significantly more difficult, given delegates are representing actual Premiers, Prime Ministers, and other notable historical figures. While this makes speaking in the third person more difficult, we will continue to encourage this practice. But it will not be an enforced component of our rules of procedure.

Tips for New Delegates The following are a series of tips for new delegates to help prepare for their first ever Model United Nations conference. These tips are intended to help delegates understand what to expect over the weekend. If delegates have questions about the content below or anything else pertaining to Model UN, please do not hesitate to contact your chairs at [email protected] or [email protected].

There will be a quick Canada 1981 committee meeting following the Opening Ceremonies on Friday, September 25th. This will be your opportunity to meet your chairs and your fellow delegates as well as ask any questions before committee officially begins on Saturday morning. It is very important that new members attend this evening session as we will go over in detail what delegates should expect.

Research Tips

• The first thing a delegate should do to prepare for committee is read the background guide. The background guide outlines the topics, expectations of the chair and gives useful information about possible debate topics.

• Within the background guide, there are a series of links for further reading/research which delegates can use as a starting point for outside research.

• Remember that you will not be representing your personal opinions on the topic, but instead will need to learn the views of the character or organization you are representing and be able to argue from their perspective – this is the same for all Model UN conferences

• For the purposes of Model UN (and contrary to what you have probably heard for years from teachers and professors) Wikipedia is a great tool to begin your outside research – keep in mind that this should not be your only source of research, more a way to get a basic understanding of the issue

• Pay attention to discussion questions posed throughout your background guide. If you are able to answer these questions from your character’s point of view you should be ready for committee.

• Lastly, the character guides are meant to act as a starting point for forming your position in the committee. Delegates should not feel totally confined by the positions outlined in the character guides. Model UN is about both negotiation and compromise and just like in 1981, delegates will be expected to balance their character’s wants with solutions that would best benefit Canadians as a whole.

Things to Bring

• Notepad/Sticky notes and pens – passing notes will be your primary form of communication with your fellow delegates • Background Guide (Printed) – the background guide is an essential resource that you can use throughout the weekend. Not only will it have information on your character and the topics, but on the other delegates in the room as well. • Printed out research – laptops will not be allowed during moderated caucus. This means that if you have research that you want to use to help you make sure you print it and bring it to committee – if you have a lot of research binders are recommended (but not mandatory) • Laptop – although laptops are not allowed during moderated caucus they are useful for writing resolutions during unmoderated caucus. • Water – As you may be speaking regularly throughout the weekend it is a good idea to have water.

What to Expect During Committee

• First thing that happens in committee is the “Primary Speaker’s List” where delegates can discuss which topic they would like to start with. The Primary Speaker’s List ends when a topic has been voted on and set by the delegates. You should come into the room with an idea of what topic you would like to discuss most as it is common for committees to not touch all topics throughout the weekend. You do not have to discuss the topics in the order presented in the background guide.

• Matters of procedure will be explained in-depth throughout the committee. Do not worry if you do not really understand how Model UN works coming into the room on Saturday. Your chairs will guide you throughout the whole process.

• Understand that many other delegates will also be new to MUN. First and foremost this committee is meant to be a fun educational experience to introduce members to Model UN.

• Do not expect to be able to solve every single issue that existed in 1981. Sometimes the best resolutions are ones that tackle very specific problems of importance to your character. We have given the delegates a wide array of approaches they can take for each topic and it will be up to the delegates in the committee to decide which concerns should be dealt with, which should be taken off the bargaining table and what can be realistically achieved throughout the course of the weekend.

Sample Resolution

On the following page is a sample of the type of resolution you will be working towards in committee. For obvious reasons this resolution is less focused and in-depth than the resolutions you will be drafting, but the structure is correct and it is Carleton university- themed. An early version of this resolution was used during training in the 2014-2015 year.

Working Paper 1.1: Summer U-Pass Extension

Sponsors: Nikola, Mary

Signatories: Canadian Federation of Students, UN Society, Office of Student Affairs, RRRA

Concerned by the per-month cost of transportation for university students from May to August;

Troubled by the fact that OC Transpo’s ‘student’ fee is only given to those 19 or under;

Acknowledging that many students remain in Ottawa for the summer months;

1. Recommends a referendum to be held at the campuses of the University of Ottawa, Algonquin College, and Carleton University, to gauge student interest in this matter

2. Further recommends the lobbying of OC Transpo regarding an extension of U-Pass privileges for university students for the months of May, June, July and August; based on the results of this referendum

3. Calls For a re-evaluation of the cost of the U-Pass for the full 12 months, based on the current established discount provided by the UPass Committee Topics Topic 1: The Scope of the Charter of Rights and Freedoms

History of the Charter of Rights and Freedoms

One of the major outcomes of the original 1981 Constitutional conference was the entrenchment of a Charter of Rights and Freedoms into the Canadian Constitution. By entrenching the Charter, neither the federal of provincial governments would be able to introduce legislation that would infringe upon the individual rights and freedoms outlined in the document. Furthermore, Canadians could even challenge existing laws and have them struck or re-written if it was found they violated rights included in the 1981 Charter. This was a tremendous change from the rights guarantees which existed before the entrenched Charter.

Due to the failures of the Bill of Rights, Prime Minister Pierre Trudeau strongly advocated for the inclusion of a Charter of Rights and Freedoms into the soon-to-be patriated Canadian Constitution. Trudeau believed entrenching the Charter into the Constitution was the only way to guarantee the protection of individual rights and fundamental freedoms on a national scale. The current Charter of Rights and Freedoms guarantees eight broad categories of rights: fundamental freedoms, democratic rights, mobility rights, legal rights, equality rights, language rights, minority language education rights and Aboriginal rights. A copy of the Charter can be found in the Annex of this background guide. Although many of the rights included within the Charter were non-contentious and already existed in the 1960 Bill of Rights, the debate surrounding the Charter of Rights and Freedoms in 1981 was extremely heated and contentious. For government leaders, the issue was less about the rights themselves, but the implications of an entrenched Charter on the Canadian political and legal system as a whole.

The Debate Much of the debate in 1981 surrounding the Charter of Rights and Freedoms revolved around the implications of entrenching the Charter instead of simply introducing it as a new piece of legislation in the House of Commons. The entrenchment of a Charter within the Canadian Constitution would drastically influence the political dynamic between the state, its citizens, and the judiciary.

Commonwealth nations operate somewhere along the spectrum between parliamentary supremacies and constitutional supremacies. In the United Kingdom, parliament can change the very makeup of their nation through simple legal amendments and acts. In modern Canada, some laws are not so easy. The Canadian Constitution in its current form is the supreme law of the land, and it is exceedingly difficult to alter. It supersedes all regular legislative acts, and is the high-level guiding principle behind all judicial rulings on matters of legislation. It was Pierre Elliot Trudeau’s goal to put the Charter of Rights and Freedoms in this higher echelon of Canadian law. If the Prime Minister in this committee has his/her way, the freedoms enumerated in the Charter of Rights will be almost absolute. In contrast, many Premiers argued that entrenching the Charter into the Constitution would affect the very nature of Canadian democracy. During the highly publicized debates, Manitoba Premier, Sterling Lyon announced “the entrenchment of a Charter takes power from the people and places it in the hands of men, albeit men learned in law, but not necessarily aware of the everyday concerns of Canadians, I will never agree to an entrenched charter”. Essentially, Premiers were extremely concerned about the potential for judicial supremacy with an entrenched Charter.

For this committee, Premiers and the Federal government alike will need to strike a compromise. How far are you willing to allow the supremacy of your legislatures to be curbed by unelected judges? Will the provinces and federal government allow this document to usurp their power in making social changes? On the other hand, are the delegates in the room open to allowing future governments to play fast-and-loose with civil rights? Does it make sense for a single radical government to set back civil and political rights at the whim of an Act of Parliament? A careful balance must be struck. Making the Charter a simple Act of Parliament, akin to the Canadian Bill of Rights, is one approach to ensuring parliamentary supremacy. Constitutional entrenchment, on the other hand, could guarantee these rights and empower judiciaries for decades to come.

The Notwithstanding Clause Although the Charter of Rights and Freedoms was ultimately entrenched into the Constitution in 1981, its actual effectiveness has been questioned by many scholars due to the existence of one particular clause known as “the notwithstanding clause”. The notwithstanding clause was formed as a compromise struck by then Minister of Justice Jean Chretien, with Premiers Romanow (Saskatchewan) and McMurty (Ontario), to bring provincial support to the Charter of Rights and Freedoms. The notwithstanding clause, found in section 33 of the Charter read as such:

“Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15.

The clause and its sub-clauses allow Canadian governments to circumvent fundamental, legal, equality and other (annexed) rights for periods of five years, upon which they must renew the legislation if they so choose. The reasoning behind the five-year expiry date was that this was also the maximum amount of time that the Parliament or legislature may sit before an election must be called and therefore, if the people wished for the law to be repealed they would have the right to elect representatives which would carry out this wish. This was the great compromise Pierre Elliot Trudeau made. He allowed the Charter of Rights and Freedoms’ most pertinent clauses to be circumvented in exchange for their existence. To Trudeau, the Charter had been “gutted.” To the provinces, their legislatures had maintained their sovereign right to govern. This compromise was a radical deviation from the initial relationship between the state and judiciary envisioned by Prime Minister Trudeau. Suddenly, the provinces and federal government could skip the most binding and pertinent components of the Charter of Rights. The document was, unquestionably, weakened. The override power given through the notwithstanding clause caused it to become one of the most controversial provisions in The Charter. Almost immediately afterwards, the notwithstanding clause was used by Quebec in order to continue to restrict the posting of commercial signs in languages other than French. Although the notwithstanding clause has not been used often, it has been argued that its existence undermines the very purpose of entrenching the Charter in the first place.

In 1981, the Charter in its current form appeared to be the most workable solution. The Charter was entrenched in the Constitution - nearly impossible to amend. Yet the rights and freedoms bore less bite to legislative freedom than initially intended. Is this the best compromise the esteemed Ministers and delegates at the 1981 conference could have achieved? It is put to the delegates of the Canada 1981 Committee to foster a stronger balance between rights and legislative independence; to forge an agreement which the Quebecois delegation may be more inclined to sign; to create a Charter which the Federal government does not feel cheated by. For our many interest groups and opposition parties, it will be your job to ensure that the agreements which do take place do not only benefit greedy politicians but the Canadian people you represent as well. Is it really ok to allow provincial governments to override the rights and freedoms of individual Canadians?

The Reasonable Limits Clause Section 1 of the Canadian Charter of Rights and Freedoms reads as follows:

“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Since the Charter was included within the Constitution and therefore was very difficult to change moving forward, the first clause of the Charter was created to legally allow the government to limit an individual’s Charter rights in rare circumstances. The clause has been used to prevent conduct such as hate speech and obscenity and it has been largely been up to the Supreme Court of Canada to determine whether an infringement of Charter rights falls under the reasonable limits clause. The clause was left intentionally vague due to the Constitution’s rigid nature.

For some, the reasonable limits clause is too vague and gives too much power to judges to determine what is reasonable and what is not. The phrase “as can be demonstrably justified in a free and democratic society” is one that can be interpreted in many different ways, by different people and by different governments and instead, some form of measurement should be included. For others, including the Canadian Civil Liberties Association, the very existence of the clause was a threat to civil liberties, many of which arguing that it had no place in a document enshrining the rights and freedoms of individual Canadians.

It was the task of the Premiers and Federal Government’s representatives at the 1981’s First Ministers Conference to come to discuss whether or not Trudeau’s Charter of Rights and Freedoms should be entrenched in the Constitution, and if so, take into consideration the wording of clauses and their effect on how legislatively it may become. Our committee will meet to discuss Charter entrenchment, the reasonable limits clause, and the notwithstanding clause

Topic 1: Discussion Questions 1. Should the Charter of Rights and Freedoms be entrenched in the Constitution? How will this affect the balance of powers moving forward between the three branches of the Government: judicial, legislative and the executive?

2. Should a notwithstanding clause exist in the Charter? Should this notwithstanding clause be limited in some way? Does the Charter go far enough in protecting individual rights and freedoms?

3. How should reasonable limits be determined in regards to the infringement of Charter Rights? Should it be up to the Courts to decide or should a guideline be put in place for the Constitution?

Topic 1: Resources for Further Reading “Yes, the Charter of Rights has given judges too much power” – Globe and Mail: http://www.theglobeandmail.com/globe- debate/yes-the-charter-of-rights-has-given-judges-too-much- power/article4101032/

“No, the Charter of Rights has not given judges too much power” – Globe and Mail: http://www.theglobeandmail.com/globe-debate/no-the-charter-of- rights-has-not-given-judges-too-much-power/article4101033/

“Notwithstanding Clause Frequently Asked Questions” – CBC News: http://www.cbc.ca/news2/background/cdngovernment/notwithsta nding.html

Topic 2: The Senate

One of the great Westminster traditions in the Commonwealth is the chamber of sober second thought. The bicameral legislature has been a staple in Canada since the dawn of responsible government. Today, the issue divides the nation.

In Canada, the Senate is staffed by representatives appointed by the Governor General on recommendation from the Prime Minister. The Senate Chamber is composed of 105 seats, allocated by region.

Region # of Senators Ontario 24 Quebec 24 The West (BC, Alberta, Saskatchewan and Manitoba) 24 The Maritimes (Nova Scotia, PEI and New Brunswick) 24 Newfoundland and Labrador 6 Northwest Territories 1 Yukon 1 Nunavut (non-existent in 1981) 1

There are no term limits and no elections. In recent years, this legislative chamber has been ripe with controversy and criticisms, ranging from lack of accountability to corruption. The Canada 1981 First Ministers Conference convenes to discuss the role and structure of the Senate of Canada.

1981 was a more flexible time. During this conference, the constitution is wide open, and is more adjustable than at any time in Canadian history. Given the tumultuous time the Senate is experiencing, this committee is optimal for discussing its role and making substantive changes, if the delegates so desire. It is in which direction this committee desires to move that we bring into question. In 1981, there were several different aspects about the Senate that were being hotly debated by Premiers, Cabinet and interest groups.

Regional Representation – Allocation of Seats Traditionally, the Senate is a regional body. With Ontario and Quebec having 24 senators each, Western and Atlantic provinces have regularly argued that central Canada bear too much clout in the chamber. In Western Canada, the Canada West Foundation held conferences to discuss growing feelings of Western Alienation and many Western premiers argued for more senate representation or for even Senate representation among all provinces. Some examples include BC Premier, Bill Bennett, who argued for a “House of Provinces” in which provincial governments could choose senators to act as their delegates to the central government. Bennett was against the regional groupings, particularly the inclusion of BC as “The West” and wanted BC to be able to appoint its own Senators. For Peter Lougheed, Trudeau’s National Energy Program had angered Albertans and Lougheed felt that a directly elected senate with an equal number of senators for each provinces would provide that essential check, marking the beginning of calls for a “Triple E- Senate” (elected, equal, effective).

Conversely, when looking at Atlantic Canada, there also exists the notion that Atlantic Canada is overrepresented relative to its low population. Is it fair that three provinces which make up a small percentage of the Canadian populace should have the same overall number of Senators than the four Western provinces? The issue of overrepresentation in Atlantic Canada has been debated dating back as early as 1868 when George Etienne Cartier stated: “It might be thought that Nova Scotia and New Brunswick got more than their share in the originally adopted distribution, but it must be recollected that they had been independent provinces, and the count of heads must not always be permitted to out-weigh every other consideration”.

At the same time, there is the question of whether or not a regional body is necessary given the election of MP’s from ridings of every region of the nation. Although some premiers felt that the Senate was an important check on the federal government, in practice, from 1930 until 1981 the Senate was largely compliant and passive, rarely ever challenging decisions made by the House of Commons For this reason, some argue that the very existence of a Senate is a waste of taxpayer dollars with very little actual benefit to the Canadian people. It is up to the delegates in the committee to decide whether or not changes in regional seat allocations are needed at all.

Senate Appointments – The Selection Process Past the issue of allocation, the selection process itself is significantly more varied. Many politicians and pundits today have floated Proportional Representation, Mixed Member Proportional Representation, Ranked Ballots, and several other methods (annex). Modern governments have tried to remain faithful to the status quo, with provincial recommendations, committees on selection, or not making appointments at all. This committee could even choose to completely maintain the status quo. The First Ministers may view the Prime Minister’s recommendations to the Governor General as the most reliable method of appointment. You, the delegates, may take Senatorial selections in whichever direction is most desired. The possibilities for Senate selection and allocation are limitless. If the delegates of Canada 1981 decide to stay true to the political climate of the day, there are far more polarizing approaches they could take. Total abolition is entirely within the scope of the 1981 negotiations. On the converse, completely maintaining the current system is also on the table. Delegates must consider the regional and intergovernmental implications of their decision. Quebec and Ontario have typically had large representations in the Canadian chambers, but that may displease Western and Atlantic partners. Similarly, under representing central Canada would alienate the two most populous provinces in the country. A fully elected senate may sound democratic, but it could add partisanship to an institution which claims to be the house of sober second thought and there is a wide array of methods as to how the election process could go. Term limits are appealing, but creating a Senate election cycle could politicize the upper chamber. Total abolition could concentrate too much power in the hands of the House of Commons and take away an important chamber for substantive, non-politicized debate.

What the above points illustrate is the need for a balanced approach to our discussion on the Senate. To other bicameral legislatures around the world, there is a value to having a second chamber. It is within the realm of possibility to create a non-partisan secondary legislative body. Bearing in mind the flexibility of the Constitution in 1981, we ask the delegates to consider every potential option, and create a solution for the Senate that works for every province, the federal government and most importantly, the Canadian people.

Topic 2: Discussion Questions 1. What is the purpose of the Senate? Should the Senate continue to exist alongside the House of Commons as a Chamber of “sober second thought”? Should the Senate be given more power over the House of Commons similar to the US model?

2. How should seats be distributed to provinces in the Senate? Should there be flexibility in the number of senators over time?

3. Should senators be elected or appointed (and if so, how or by who)? Is it best to stay with the status quo or should a new selection process be required? Should term limits be included with the appointment or election of a senator?

Topic 2: Resources for Further Reading Library of Parliament Background Paper: Reforming the Senate of Canada – Frequently Asked Questions: http://www.parl.gc.ca/Content/LOP/ResearchPublications/2011-83- e.pdf

Reforming the Senate: CBC News http://www.cbc.ca/news/canada/reforming-the-senate-1.762459

Special Series: Working Paper on Senate Reform (Queens University) http://www.queensu.ca/iigr/WorkingPapers/papers/2008-01.pdf

Topic 3: Division of Powers

Introduction When Canada was founded in 1867, it was created on the principle of federalist structural governance. Federal governments often address defense, trade, interregional commerce, and other such characteristically national issues. Below are the state or provincial governments. These governments are tasked with more localized issues, which are often healthcare, commerce, and property rights. The aim of these systems is to have bodies which specialize in national issues, and those which address local issues. Each supersedes the other within their respective jurisdictions, and they often work in conjunction.

Historically, Canadian relations between the two levels of government, federal and provincial, have been tense. These tensions came to a head in the 1960s to 1980s. There were many sources of disagreement; cultural and natural regionalism among them. Tensions which governance can more directly address, though, are divisions of sovereign power. It was the allocation of many of these powers which cause intergovernmental relations to face such a trying time. And it is that allocation which delegates will attempt to reconcile in this topic.

The First Ministers Conference of 1981 is tasked with renegotiating the relationship between the Federal government and the Provincial Governments. More specifically, reallocation of the powers described in the British North America Act, and clarifying the Act’s position on the rights of provinces and the federal government to manage non-renewable natural resources (oil, forests, lakes, etc.).

The official powers of each level government are named in the British North America Act of 1867, on the following page. Section 91 lists the federal powers, and section 92 lists the provincial powers of government. Sections 91 and 92 of the BNA Act can be found in the Annex of this background guide. It is recommended delegates leverage this list and the resources provided at the end of this topic to develop a further understanding of what these division entail. For a thorough legislative outline, sections 91-95 of the British North America Act 1867 clearly define the divisions of power between the federal and provincial governments at this website: http://laws- lois.justice.gc.ca/eng/const/page-4.html.

The federal government maintains power over taxation, employment insurance, raising debt, the military, banking, currency, and general financial and administrative issues. The provinces, on the other hand, have authority over direct taxation, management of public property, healthcare, prisons, commercial issues, interprovincial transportation of resources and commerce. The provincial legislatures can, on a surface level, control natural resources, education, agriculture, and immigration laws. The federal government, outside of section 91, has control over old age pensions. This distribution of powers is a large source of conflict between the levels of government, and delegates may desire to appropriately reallocate these responsibilities.

Background Issues

National Energy Program, Offshore Oil and the Allocation of Natural Resources A commonly cited source of provincial angst is Prime Minister Pierre Trudeau’s National Energy Program. The program was broad in its objectives. Canada was still reeling from unstable oil prices, and the effects on the economy as an oil producing nation. A stopgap measure was put in place by the federal government: import, price, taxation, and production controls. The Trudeau administration Canadian oil prices at 85% of the import price, to discourage purchases of foreign oil. At the same time, it set a moving federal oil tax rate, topping out at a targeted 24% in 1985. To finish off their strategy of economic control, the program set production and quantity targets.

This policy initiative angered provincial partners – namely Alberta. The decline in prices, control of production, and federal taxation resulted in a major loss to Albertan business, and their provincial coffers. Economists have estimated the program to cost Alberta upwards of $100 billion dollars. During the NEP, the phrase “Let the Eastern ba*****s freeze in the dark” became extremely popular and could be found on bumper stickers to emphasize the anger and frustration Western Canadians felt towards central Canada. In contrast, Minister of Natural Resources, Marc Lalonde passionately argued that after years of gaining assistance from central Canada (particularly when manufacturing in Ontario was at its peak) it was only right that Western Canada be willing to assist central Canada to avoid a great fiscal imbalance across the country. A half decade later, in 1985, the National Energy Program was canceled, and Canadian oil prices were free to float as they pleased. This was a classic example, according to Alberta’s Premier Peter Lougheed, of poor federal interventionism in local matters.

This led to the discussion of a controversial issue in intergovernmental relations in 1981: the rights of provinces or the federal government to explore, utilize, tax, and price natural resources within Canadian territory and waters. Peter Lougheed pushed for Section 92A to be added to the British North America Act, which largely allocates these powers exclusively to the provinces.

“92A. (1) In each province, the legislature may exclusively make laws in relation to (a) exploration for non-renewable natural resources in the province; (b) development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom; and (c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.”

Essentially, this clause gave the provinces have the right to discover, develop, and utilize non-renewable resources as they see fit. Note that section 92A says nothing about pricing, sales, or general commerce. It only allocates the right of the actual extraction of the goods to the provincial legislatures. Furthermore, this section is not clear about jurisdictions surrounding off-shore oil, an issue of extreme importance to Atlantic Provinces such as Newfoundland whose economies are dependent on natural resources that are not distinctly found within provincial borders. With the inclusion of this clause, the National Energy Program would still be able to dictate the price of oil, in order to discourage importing of the resource. It pegged production targets for the provinces, and levied a tax to increase federal revenues. Counterintuitively, this was completely in line with the text of the British North America Act 1867. Perhaps, if the delegates see fit, they may wish to change that.

Official Languages and Quebec Secession Prior to the National Energy Program was the introduction of the Official Languages Act in 1969. The provinces responded asymmetrically. Ontario made French language services available, to a low degree, in certain regions and not in others. Quebec, in a biting response, drastically curbed the availability of English services. The federal government’s approach to this cultural tension exacerbated regional conflicts, contributing to the fiery Quebecois secessionist movement. The premiers, federal ministers, and lobbyists of this committee should make it a priority to ensure regional tensions of this magnitude have no reason to arise once more. With the flexibility of the constitution during the year in which you, the delegates of this committee, are debating, there is a massive opportunity to alter federal-provincial relations in a manner which suits all parties involved. This is your chance to create a Canada which lasts.

Equalization Payments Another heated debate in 1981 regarding the role of the federal and provincial governments surrounded equalization payments. The objective of the Equalization program (first put into place in 1957) was to reduce the fiscal disparities among the provinces by enabling the fiscally less well-off provinces to provide services that are reasonably comparable to those in other provinces. This objective is realized through government transfers to the “have-not” provinces. In 1981, the Atlantic Provinces and federal government fought (and won) for equalization payments to be included into the Canadian Constitution. This specific section can be found in the attached annex. The concept of equalization payments has always been hotly contested. To some, equalization payments deter development and encourage provinces to remain dependent on federal government “hand-outs”. To others, equalization payments are essential to ensure fair access to services across Canada, asserting that provinces should not be punished for being naturally disadvantaged (in terms of access to profitable natural resources). The role of equalization payments hits at the very core of debates over whether or not Canada should be a “single, unified country” or a “union of provinces”. It will be up to delegates to determine which vision for Canada will most benefit Canadians.

Final Thoughts There are a multitude of directions from which to approach national energy strategies and the division of federal and provincial powers. . Provincial vs. Federal “turf wars” have been a common theme throughout much of Canadian History. Various governments have been embroiled in this conflict since Confederation itself. You, the delegates, have an opportunity to take steps in the right direction for all of Canada. In crafting a solution to provincial powers, equalization payments and resource rights, bear in mind that this is a solution that is to be workable for generations of Canadians to come. The bare form of the question we ask of you is: What is the Canadian government, and where does it come from?

Topic 3: Discussion Questions 1. Is it more useful for Canada to have a unitary and centralized government which can prescribe solutions and protection to all Canadians, or should provinces be allowed to address issues at a local level in which they have more expertise?

2. Do natural resources and the fruits of their existence belong to all Canadians, or just the provinces and municipalities in which they lay?

3. How different are we willing to allow each province to be, in terms of policy? How strong should the Canadian state, as a unified whole, be?

4. To what degree should equalization payments be guaranteed to have-not provinces? Are equalization payments the best way to ensure “fairness” across Canada?

Topic 3: Resources for Further Reading Gives a good basic understanding of Division of Powers http://en.wikibooks.org/wiki/Canadian_Constitutional_Law/Distrib ution_of_powers

Meech Lake Accord and Charlottetown Accord Wikipedia http://en.wikipedia.org/wiki/Meech_Lake_Accord http://en.wikipedia.org/wiki/Charlottetown_Accord

More information on Division of Powers – (Canadian Encyclopedia always good first step) http://www.thecanadianencyclopedia.ca/en/article/distribution-of- powers/

List of Federal Transfers to Provinces http://www.fin.gc.ca/access/fedprov-eng.asp

A Brief History of the Fiscal Relations Debate in Canada http://www.fin.gc.ca/budget06/fp/fpa1-eng.asp

Broad Resources for Further Research The following are several resources that can be used for further research. We highly recommend that after going through the background guide that delegates take it upon themselves to do some further research. Below are three types of resources: online electronic reading, books, and videos (usually on YouTube). Delegates should not feel like they need to read all the resources provided below, these are just recommended as a way to get started.

Video Resources

News release in November 1981 – hosted by Peter Mansbridge, Mike Duffy http://www.cbc.ca/player/Digital+Archives/Politics/Parties+and+Le aders/Ren%C3%A9+L%C3%A9vesque/ID/1818451861/

“Quebec History 32 – Referendum and Constitution” – An interesting documentary from Levesque’s (Quebec’s) point of view https://www.youtube.com/watch?v=4hsMoIq1-bA

The Three Amigos of the Constitution on the Agenda with Steve Paikin – interview with Jean Chretien, Roy Romanov and Roy McMurty (creators of Kitchen Accord) https://www.youtube.com/watch?v=-15a773nqnQ

News Release – Gang of Eight Agreement Announcement in September 1981 (before November conference) https://www.youtube.com/watch?v=oyZlxPro7jE

Online Reading

“November 4, 1981: The night of the long knives” – by Marc Dupont http://ipolitics.ca/2011/11/04/marc-dupont-november-4-1981- pierre-trudeaus-strategy-on-the-night-of-the-long-knives/

“Reflections on the Kitchen Accord” by Roy McMurty - http://go.galegroup.com.proxy.library.carleton.ca/ps/i.do?p=AONE &u=ocul_carleton&id=GALE|A306859803&v=2.1&it=r&userGroup=o cul_carleton&authCount=1

“Patriation of the Constitution” – Canadian Encyclopedia - http://www.thecanadianencyclopedia.ca/en/article/patriation-of- the-constitution/

“The Myth of the Long Knives” by Ron Graham http://www.theglobeandmail.com/news/politics/the-myth-of-the- long-knives/article4182838/?page=all

The Theory and Practice of Constitutional Reform by Peter W. Hogg (1981) (Extremely good and accessible overview of all topics, written in the context of the negotiations. Peter Hogg is well-known as the leading authority on Canadian constitutional law) http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?articl e=1847&context=scholarly_works

Books

Note: All books can be found in the Carleton Library. One of your chairs, Mary Werre, also owns some of the books below (*) and would be willing to lend the books if desired to delegates in her committee. • “Constitutional Odyssey” by Peter H. Russell* • “The Last Act: Pierre Trudeau, the Gang of Eight, and the Fight for Canada” by Ron Graham • “Canada – notwithstanding: the making of the Constitution” by Roy Romanow • “Towards a Just Society: The Trudeau Years” edited by Thomas S. Axworthy and Pierre Trudeau* • “Canadian Politics: Critical Approaches” written by Rand Dyck • “The Canadian Constitution” by Adam Dodek* • “Memoirs and Reflections” by Roy McMurty (an author of the Kitchen Accord)

Committee Actors (Character Profiles) Because this committee is heavily research based, the following is a list that outlines the basic policy positions of all the members of Canada 1981. It is important to note that this guide is NOT all-inclusive and delegates will still be expected to do their own independent research. This list of committee members is intended to be a starting point for delegates.

Lastly, in preparing for this committee, please do not hesitate to contact your chairs, Mary Werre ([email protected]) or Nikola Milutinovic ([email protected]). We are more than willing to help any delegate in terms of suggesting materials, understanding the topics, understanding the procedure etc.

Premiers

Bill Bennett – Premier of British Columbia (Social Credit Party) • Bill Bennett felt that Trudeau’s Charter of Rights and Freedoms was an encroachment on their powers. If a Charter was to be passed, Bennett was a lone advocate for the inclusion of property rights in the Charter.

• Bill Bennett supported a new Senate which he called the “House of the Provinces” in which provincial governments would choose senators to act as their delegates to the central government. Bennett also strongly believed that BC should be separated from “The West” when determining seat allocation in the Senate (what he called the “five regions”).

• Although Bennett agreed to the entrenchment of equalization payments into the Constitution, Bennett did not agree with the concept of richer provinces helping poorer provinces. He believed a more efficient system would focus on transferring wealth to people, not regions.

Peter Lougheed – Premier of Alberta (Progressive Conservative Party)

• Peter Lougheed and Rene Levesque have regularly been referred to as the leaders of the “Gang of Eight”. Although both Premiers represented extremely different interests, they were unified in their disdain for Trudeau and the federal government’s repeated attempts to encroach on provincial powers. As each were the “enemy to their enemy” they became unlikely allies.

• In 1972, Peter Lougheed’s government introduced an Alberta Bill of Rights and within that Bill of Rights was a notwithstanding clause, showing that he was not opposed to the concept of rights guarantees in some form. This clause became the inspiration for the Charter’s notwithstanding clause, an attempt by Lougheed to find a middle ground between Trudeau (pro-Charter), Allan Blakeney and Sterling Lyon (anti-Charter).

• After being angered by Trudeau’s National Energy Program, Peter Lougheed established a task force to look at ways in reforming the Senate to keep Ottawa from intruding on provincial affairs. This task force recommended the direct election of senators with an equal number of senators for each province, similar to the American model.

• Lougheed strongly believed that provinces should be able to be in control of their own natural resources. Lougheed pushed for section 92A to be added to the Constitution Act 1982 outlining the exclusive power of provincial legislatures to make laws for exploration, development, conservation and management of provincial non-renewable resources and forestry resources. Lougheed also liked the idea of opting out with financial compensation in the Victoria Charter.

Allan Blakeney – Premier of Saskatchewan (New Democratic Party) • Blakeney was originally an outspoken opponent to Trudeau’s Charter of Rights and Freedoms as he was concerned that it would take power out of the hands of elected officials and put them in the hands of unelected officials – he only agreed to the Charter after negotiating for a notwithstanding clause which allowed the Charter to be overruled by elected Legislatures. He was extremely outspoken against NDP federal party leader, Ed Broadbent, for supporting Trudeau’s proposals, as he believed provinces were best suited to provide social programs (using Saskatchewan’s public healthcare – the first in North America - as an example).

• Blakeney believed that there was no effective representation of the regions at the centre. In a reflection paper Blakeney stated that there needs to be more regional influence at the center and he believed that Senate reform was the easiest way for this to happen. Blakeney strongly disliked the ineffectiveness of the Senate and was one of the few who reacted positively to the “House of the Federation” proposed in Trudeau’s Bill C-60.

• Strongly believed that the provinces should have complete control over their own resources and revenues from those resources, he fought alongside Peter Lougheed for provincial rights over minerals, oil and gas. During his time in office, Blakeney created several Crown Corporations such as SASKOIL in order for the Saskatchewan government to become a key player in resource development

Sterling Lyon – Premier of Manitoba (Progressive Conservative Party) • Sterling Lyon and Allan Blakeney were known as the two most vocal opponents of the Charter of Rights and Freedoms. In one instance, Lyon announced that he would “never agree to an entrenched Charter” as unlike the federal and provincial bills of rights already in place, Trudeau’s Charter would be imposed from the top down across the country and prove almost impossible to amend or revoke.

• On most issues, Sterling Lyon, alongside Allan Blakeney and Peter Lougheed put forward a united front against the federal government as defenders of Western Canada. Although Lyon is best known for leading the charge against the Charter, as Premier of Manitoba Lyon would be in favour of any Senate arrangement or division of powers that would benefit Saskatchewan or Western Canada as a whole.

Bill Davis – Premier of Ontario (Progressive Conservative Party) • Although Bill Davis did not like everything that was on the table, more than anything Davis wanted action and the fear of failure pushed him past every doubt and criticism he had of Trudeau’s proposals. Davis explained that “to do nothing at this point, not to seek Patriation and reform, would be to admit a victory to those who say this nation is unworkable”. He believed that Patriating the Constitution and entrenching a charter of rights was not a power play by the federal government, but essential to national sovereignty and national unity.

• Although it appears Davis never vocalized an opinion about Senate reform, it should be noted that the current arrangement now puts a lot of power in the hands of Ontario and Quebec and it would be unlikely that Davis would easily let this weaken without fair negotiation.

• Bill Davis shared Trudeau’s centralist view of government. Davis believed that Canada was one country, and that as a single country “we do have some national obligations to each other that only the federal government can discharge”. This aligned with the majority of Ontarians who believed that their interest was aligned with the national interest, which was reinforced by polls at the time which showed that Ontario was the only province in which most people saw themselves as citizens of their country first, ahead of their region or province.”

René Levesque –Premier of Quebec (Parti Quebecois)

• Rene Levesque was the founder of the Parti Quebecois, holding the first Quebec separatism (technically referred to as sovereignty-association) referendum in 1980. He wanted Quebec to be politically independent from Canada, but continue to have an economic association (i.e. free trade, common currency etc.)

• As the Quebec Premier, although there isn’t much outright stating his opinion on the Senate, it is unlikely that Levesque would be in favour of anything diminishing the influence of Quebec in the Senate. Levesque did once state that he thought it was “working backwards” to discuss reforming the Senate before a proper discussion on the division of powers had taken place (which would more directly affect the federal/provincial balance).

• Rene Levesque is often portrayed as one of the Leaders of the Group of Eight alongside Peter Lougheed. According to some, Levesque goal was never to get an agreement but instead to ensure that an agreement never went through. Levesque strongly opposed the Charter of Rights and Freedoms and regularly insisted on constitutional recognition of Quebec as a distinct society and for a constitutional veto. He also pushed for the abolition of the federal authority to disallow or reserve provincial legislation.

• Note from the chair: Levesque is a difficult character to play because of what happened at the “Night of the Long Knives”. As the Premier of Quebec you will need to try to balance the desires of Quebec nationalists/separatists with trying to get what would be considered a “good deal” for Quebec

Brian Peckford – Newfoundland (Progressive Conservative Party) • Peckford desperately wanted ownership of offshore resources and joint control of fisheries, which fell under federal jurisdiction. Peckford believed that by wrestling control away from outside interests for offshore oil, fisheries and ideally hydroelectric developments (search: Quebec Churchill Falls), Newfoundland and Labrador would end its status as the poorest province in the country. During the Clark government, Peckford was able to gain limited agreement by the federal government for this arrangement.

• Although Peckford was a member of the Gang of Eight, Newfoundland did assert that there must be a strong federal government in the nation, stating that it the intention was not to undermine the power of the federal government, but to act for all Canadians when it is in the national interest to do so. One example of this would be equalization payments.

• In 1978, Newfoundland expressed support for a provincially appointed Senate, but did not want a provincial Senate to undermine the importance of having regular first minister’s conferences between premiers and federal government representatives.

John Buchanan – Nova Scotia (Progressive Conservative Party

• Buchanan indicated his skepticism about the efficacy of entrenching a Charter of Rights.

• Buchanan was in favour of direct provincial representatives to a reformed Senate, but did not want the reforms to in any way hinder the ability of the Senate to remain as a chamber of sober second thought.

• When it came to the division of powers, Buchanan stated that there should be no transfer of powers from the central government to the provincial governments without a “transfer of some sort of additional fiscal capacity” for less affluent provinces. Alongside MacLean, Buchanan was concerned that the ability of provinces to levy indirect taxes could exaggerate disparity between the resource rich and resource poor provinces. Over time, Buchanan also asserted that Atlantic provinces should have some jurisdiction regarding fisheries, as well as for offshore resources. Unlike Newfoundland, Nova Scotia supported joint jurisdiction over fisheries with the federal government out of concerns regarding international aspects of laws surrounding fisheries and potential complications that could arise with sharing conflicting jurisdictions over fisheries between provinces. As with almost all Atlantic provinces, Buchanan wanted a constitutional guarantee behind the concept of equalization payments.

Angus MacLean – Prince Edward Island (Progressive Conservative Party)

• At this point in time Angus MacLean had already announced his intention to resign upon election of a new party leader on November 17, 1981.

• Angus MacLean, alongside Manitoba, was outspoken against including property rights in the Charter (if a Charter was to be entrenched). MacLean argued that land was PEI’s only resource and the government had to retain the ability to limit ownership (which was done in 1982 with the PEI Lands Protection Act). As a member of the group of eight, PEI did state its opposition regarding an entrenched Charter. MacLean was concerned that an entrenched Charter would weaken parliamentary democracy as judges would be asked to make decisions which shaped the character of a community instead of those decisions being made by elected representatives of the people.

• Angus MacLean was in favour of regional representation in Ottawa but did not go into a great deal of detail as to how that should be done. MacLean felt it was important that the upper house be meaningful and truly represent the unique regional dynamics of the country.

• Wanted equalization payments to raise their government services to the level offered by wealthier provinces. Angus MacLean was a member of the group of eight but was also aware of his province’s interest in maintaining a strong central government. MacLean argued this was still possible without being at the expense of the provinces, and generally was more willing to compromise than some of the other premiers in the room.

Richard Hatfield – New Brunswick (Progressive Conservative Party) • Hatfield indicated that he was in full agreement with the principles behind an entrenched Charter of civil and linguistic rights.

• Wanted equalization payments to raise their government services to the level offered by wealthier provinces and official bilingualism for New Brunswick. Both of which were promised to him by Trudeau for his support in the constitutional debates. Hatfield allied with Trudeau, stating that he was fed up with the “pettiness, power-mongering or personal picque of the opposition”. Hatfield did not fear a strong central government. Hatfield embraced Trudeau’s vision of a pluralistic Canada with guaranteed individual rights.

• New Brunswick was largely opposed to the idea of provincial participation in the Senate. Hatfield argued that the Senate was a national institution which must continue to be appointed by the federal government. He openly opposed most proposed changes to the Senate, the Monarchy or the Supreme Court. He was known for being the most traditional of all the Atlantic premiers.

George Braden – Northwest Territories (Independent)

• In a presentation to the Special Joint Standing Committee on the Constitution, George Braden expressed his expectation that Section 27 (a declaration for the national value of multiculturalism) apply to the Northwest Territories regardless of its lack in provincial status. Furthermore, Braden wanted special status for native people, arguing that there should be constitutional recognition of native languages alongside English and French.

• In all instances, one of the biggest issues the NWT has is that its rights, privileges and jurisdictions are severely limited due to its territorial status. Essentially, it is the desire of the NWT to gain more power and influence within the federation, while at the same time encouraging an arrangement that can support the federal government economically, seeing as currently most funding for the NWT comes from the federal government.

Chris Pearson – Yukon (Progressive Conservative Party) • In a presentation to the Special Joint Standing Committee on the Constitution, Chris Pearson was concerned that a new patriated constitution may make it more difficult for Yukon to eventually reach provincial status without an included constitutional guarantee. For this reason, Pearson put forward the following proposed clause:

“Upon satisfying Canada that the majority of the electors in Yukon have indicated, by means of a referendum, that provincial status is desirable, the Government of Yukon may apply to become a province with all the same powers and jurisdictions held by provinces.” • Pearson also agreed with the premiers in terms of ownership over natural resources and expressed that although Yukon is a territory, it should also be given these rights in order to grow economically and become more self-sufficient.

Federal Government

Pierre Trudeau – Prime Minister of Canada (Liberal Party)

• Pierre Trudeau strongly believed in the importance of having an entrenched Charter of Rights and Freedoms. To Trudeau, the Charter would be his legacy and under no circumstances would he agree to a deal that didn’t include the existence of a Charter of Rights and Freedoms. To Trudeau, the Charter “implicitly established the primacy of the individual over the state and all government institutions, and in so doing, recognized that all sovereignty resides in the people. In this respect, the Canadian Charter was a new beginning for the Canadian nation: it sought to strengthen the country’s unity by basing the sovereignty of the Canadian people on a set of values common to all, and in particular on the notion of quality among all Canadians.”

• In 1978, Trudeau’s “Constitutional Amendment Bill” C-60 included a proposal to transform the Senate into a new upper legislature known as the “House of the Federation”. Some key components of this House was that federal and provincial governments would have been entitled to appoint members. The federal government would appoint one-half of the members and individual provinces would appoint the remainder based on the four traditional Senate regions and the proposal included a new allocation of seats counts. In Trudeau’s proposal, this Upper House would only have a suspensive veto (could only delay passage of federal legislation, not stop it), with the exception of legislation regarding “special linguistic significance” of which they would have an absolute veto.

• When Meech Lake and Charlottetown was introduced Trudeau became a major opponent. Trudeau believed that giving too much power (particularly veto powers) to the provinces was against the very nature of Canadian federalism. Trudeau was a devoted federalist, “a particular way of sharing political power among different peoples within a state…those who believe in federalism hold that different peoples do not need states of their own in order to enjoy self-determination.”

Jean Chretien – Minister of Justice (Liberal Party) • Although Chretien was from Quebec, Chretien was extremely vocal that the Constitution should be for all Canadians and not just serve any single or particular group of provinces. Along these lines, Chretien was known for being strongly opposed to the Quebec sovereignty movement and instead supported official bilingualism and multiculturalism. Chretien argued that the Charter was not intended to change the balance of powers between the provinces and federal government, but instead between the citizens and their governments. Jean Chretien is credited as being one of the main orchestrators of the famous “Kitchen Accord”.

• As a devoted federalist and member of the Liberal Cabinet, Chretien disagreed with the concept of allowing the provinces to use the Senate as their regional spokesmen and therefore was against proposals for a solely provincially appointed Senate. As a member of the federal government, Chretien could be persuaded to a compromise position.

• Alongside Trudeau, Chretien was likely to be in favour of constitutionally entrenched equalization payments (as this was seen as fundamental to a unified Canadian economy) but had concerns that too much decentralization of powers would threaten Ottawa’s ability to manage the economy. Like Trudeau, Chretien felt that constant economic competition between provinces was wasteful. Instead of competing against each other, it would be better for Canadian provinces to work together towards a prosperous Canada.

Michael Kirby – Secretary to Cabinet for Federal-Provincial Relations (Liberal Party)

• On the eve of the First Ministers’ meeting in Ottawa, Rene Levesque’s minister of intergovernmental affairs was able to obtain a document stamped “Ministers’ Eyes Only” which had been put together under the direction of Michael Kirby – portions of the Kirby Memorandum in full can be found at this link (highly encouraged you read this, it has a lot about federal strategy as well going into the conference): http://faculty.marianopolis.edu/c.belanger/quebechistory/docs /1982/17.htm o The last line considering unilateral action had a devastating impact on the relationship between the premiers and the federal cabinet upon entering the room

• Kirby believed that the federal government should position itself in favour of issues that were popular with the Canadian public, not just the Premiers. Kirby’s memorandum argued that Canadian people prefer their rights to be protected by unbiased judges than by politicians.

• Kirby strongly supported Trudeau’s “people’s package” in which if the premiers did not agree to work with the federal government, the federal government would unilaterally request Patriation from the UK parliament, as well as the entrenchment of a charter of rights and would call for a referendum to be held within two years on the amending formula. Kirby was not against compromising with the Premiers, but was extremely keen on maintaining favourable public opinion, regardless of which actions the federal government took.

• Kirby recommended that Trudeau should be prepared to give ground on the amending formula, provincial control over natural resources or appointments to the Supreme Court if he wanted to get Patriation, a charter of rights and an economic union

Marc Lalonde – Minister of Energy, Mines and Resources (Liberal Party) • Although born in Quebec, Marc Lalonde was a staunch federalist who acted as one of Trudeau’s chief advisors on the situation in Quebec. For this reason you can assume that his views are very similar to Trudeau’s on most issues.

• Marc Lalonde was the Minister who introduced the contentious National Energy Program. In 1988, Lalonde admitted that “the major factor behind the NEP wasn’t Canadianization or getting more from the industry or even self-sufficiency. The determinant factor was the fiscal imbalance between the provinces and the federal government”. This statement contributed to the long-standing resentment of the Liberal Party in Alberta.

• As Minister of State for Federal-Provincial Relations, Lalonde was the chief architect behind the federal government’s proposal for the House of the Federation. This proposal pushed for a house of 118 senators, half of which would be appointed by the federal government and half by the provincial governments that would have greater political authority than the existing senate.

• Tip for delegate: Although you may have to do some digging, we would highly recommend you check out Hansards (essentially Minutes from the House of Commons) from 1980/1981 as he was an active voice in Parliament. Lalonde was also Minister of State for federal-provincial affairs in the late 1970s, meaning he was the mind behind many of the federal government’s constitutional recommendations.

Interest Groups and Other Committee Actors

Joe Clark – Official Opposition (Leader of the Federal Progressive Conservative Party) • Clark supported Patriation and the Charter in general terms, but vehemently opposed the process and the details. Joe Clark argued that Canada was a community of communities. Clark fought hard alongside the provinces when Trudeau attempted to unilaterally patriate the Constitution. o Joe Clark was a supporter of including privacy rights and property rights in the Charter.

• Joe Clark had a very difficult position as leader of the federal progressive conservatives. Two premiers, in two of the PC’s most important provinces, Ontario and Alberta were directly opposed to one another at the start of the Constitutional debates of 1981. Clark had to be careful that his actions appealed to constituents in Alberta and in Ontario.

• Joe Clark was generally in favour of off-shore resource ownership by the Provinces and regularly butted heads with Trudeau over this issue.

Ed Broadbent – (Leader of the Federal New Democratic Party

• Throughout the Constitutional debates, Broadbent was an ally to Trudeau. Broadbent shared Trudeau’s view of the national interest, wanted Patriation and a charter and had little fear of a strong central government. For his support, Trudeau initially agreed to a clause protecting and expanding the provinces’ control over their natural resources. Broadbent also felt it was essential to entrench the mandate of the equalization program into the Canadian constitution.

• Although after the time of this conference, in the early 1980s Broadbent vocalized his support for complete abolition of the Senate. He believed that instead of focusing on restructuring the Senate, it would be better to look at restructuring the House of Commons in a way that promoted regional equality.

Canada West Foundation

• Presented at the Joint Standing Committee on the Constitution in 1980 (briefings can be found in the Carleton Library)

• The Canada West Foundation felt it would be a mistake to entrench the Charter into the Constitution instead of incorporating into ordinary statute as they believed it would lead to the politicization of the judicial branch and take power away from elected officials. Also concerned that entrenchment would cause too much rigidity during periods of rapid social change. Put forward the idea that if a Charter was inevitable, a new amending formula should be introduced strictly for Charter amendments (ideally through referendum).

• The Canada West Foundation presented in 1981 a proposal to adopt a single transferable vote system to choose senators. Their proposal argues for the simultaneity of Senate and House of Commons elections. They proposed that province-wide constituencies were created and that redistribution of senatorial districts would happen after each ten year census.

• Supported Peter Lougheed and stated that Westerners feel like they are treating the Prairie Provinces as third class (below Ontario, Quebec and BC). Supported the opt- out protocol with reasonable financial compensation suggested in the Vancouver Formula.

Canadian Civil Liberties Association

• Section one of the charter received almost universal condemnation from civil rights groups. The consequence of almost complete judicial deference to legislative choice, which would be produced in section 1, would, they argued, make a mockery out of the Charter. The Civil Liberties Association argued that section 1 allowed for judicial abdication and if mandated by the provinces, the Civil Liberties Association wanted a built-in necessity test to ensure that the rights and freedoms of Canadians would be reasonably protected.

• The Canadian Civil Liberties Association will play a very important role throughout this weekend. Unlike most of the other interest groups, the Canadian Civil Liberties Association represents the individual Canadian, with no ties to specific regions. The Civil Liberties Association will need to ensure that the proposals put forward by political leaders will not disadvantage the everyday Canadian citizen, whether it be through their taxpayer dollars or through their guaranteed rights and freedoms.

• Fun fact: When Trudeau was a labour lawyer, he joined the Canadian Civil Liberties Association, denouncing Duplessis’ abuses of powers.

The Business Council on National Issues

• Renamed the Canadian Council of Chief Executives in 2001, the Business Council on National Issues (BCNI) was founded in 1976 shortly after the 1973 oil crisis to strengthen the voice of business on issues of national importance and to put forward constructive courses of action for the country. Was very concerned with economic instability that would come from uncertainty over unresolved constitutional negotiations.

• In September 1980, the BCNI submitted comments to the Special Joint Committee on the Constitution of Canada. These comments can be found here: http://historyofrights.ca/wp- content/uploads/committee/bcni.pdf

• In 1983, the BCNI made a presentation regarding Senate Reform and Regional Representation in Canada (http://www.ceocouncil.ca/wp- content/uploads/archives/OCT_17_83_ENG_Submission_Refor m_of_the_Senate.pdf) The BCNI believes that the powers granted to the Upper Chamber are less important than how the Senate is actually chosen. The BCNI believe that the Senate should be elected, preferably with equal provincial representation in the Senate.

Atlantic Provinces Economic Council (APEC)

• APEC is a private, non-profit research organization whose mandate is to promote economic and social development for the four Atlantic provinces

• APEC would be in favour of any proposals that would encourage the development of Atlantic Canada. For this reason, APEC expressed support for ownership of off-shore natural resources, entrenched equalization rights and provincial ownership over fisheries. APEC will need to decide whether it would be more beneficial for Atlantic Canada as a whole to support Newfoundland’s full ownership of fisheries proposal or Nova Scotia’s joint ownership of fisheries proposal with the federal government.

• APEC will act as another voice for Atlantic Canada in the room. Similar to the Canada West Foundation, APEC would be in favour of institutional arrangements that would not disadvantage Atlantic Canada.

National Action Committee (for Women)

• The NAC did not like the imprecise wording found within the reasonable limits clause, section 1 of the Charter. They felt that it was too up for interpretation and at present would be better to remove in its entirety. Furthermore, the NAC disagreed with the clauses regarding “Application of the Charter” (see below) as it allowed provinces to delay following the Charter.

• The National Action Committee also pushed for further emphasis on sex with regards to Aboriginal Rights.

• Due to concerns about increasing role of judges with the entrenchment of the Charter, the NAC felt that there should be a guaranteed percentage of women represented in the Supreme Court to insure that women’s rights cases were not being unfairly decided by a panel of male judges.

• Although the NAC didn’t say much about regional division of powers and of the Senate, one can infer based on their stances surrounding the Charter that it is of pivotal importance that government institutions provide some sort of assurances that women will not be disadvantaged through these institutions. The person playing this group can have some leeway in terms of whether or not this should be accomplished through affirmative action, quotas, non-discriminatory clauses etc.

Annex BNA Act: Important Sections The Senate

Number of Senators

21. The Senate shall, subject to the Provisions of this Act, consist of One Hundred and five Members, who shall be styled Senators. (11)

Representation of Provinces in Senate

22. In relation to the Constitution of the Senate Canada shall be deemed to consist of Four Divisions:

1. Ontario;

2. Quebec;

3. The Maritime Provinces, Nova Scotia and New Brunswick, and Prince Edward Island;

4. The Western Provinces of Manitoba, British Columbia, Saskatchewan, and Alberta;

which Four Divisions shall (subject to the Provisions of this Act) be equally represented in the Senate as follows: Ontario by twenty-four senators; Quebec by twenty-four senators; the Maritime Provinces and Prince Edward Island by twenty-four senators, ten thereof representing Nova Scotia, ten thereof representing New Brunswick, and four thereof representing Prince Edward Island; the Western Provinces by twenty-four senators, six thereof representing Manitoba, six thereof representing British Columbia, six thereof representing Saskatchewan, and six thereof representing Alberta; Newfoundland shall be entitled to be represented in the Senate by six members; the Yukon Territory, the Northwest Territories and Nunavut shall be entitled to be represented in the Senate by one member each.

In the Case of Quebec each of the Twenty-four Senators representing that Province shall be appointed for One of the Twenty-four Electoral Divisions of Lower Canada specified in Schedule A. to Chapter One of the Consolidated Statutes of Canada. (12)

Equalization Payments (Added in Constitution Act 1982)

36 (2) Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation."

Section 91: Powers of the Federal Parliament

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

1. Repealed. (44)

1A. The Public Debt and Property. (45)

2. The Regulation of Trade and Commerce.

2A. Unemployment insurance. (46)

3. The raising of Money by any Mode or System of Taxation.

4. The borrowing of Money on the Public Credit.

5. Postal Service.

6. The Census and Statistics.

7. Militia, Military and Naval Service, and Defence.

8. The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada.

9. Beacons, Buoys, Lighthouses, and Sable Island.

10. Navigation and Shipping.

11. Quarantine and the Establishment and Maintenance of Marine Hospitals.

12. Sea Coast and Inland Fisheries.

13. Ferries between a Province and any British or Foreign Country or between Two Provinces.

14. Currency and Coinage.

15. Banking, Incorporation of Banks, and the Issue of Paper Money.

16. Savings Banks.

17. Weights and Measures.

18. Bills of Exchange and Promissory Notes.

19. Interest.

20. Legal Tender.

21. Bankruptcy and Insolvency.

22. Patents of Invention and Discovery.

23. Copyrights.

24. Indians, and Lands reserved for the Indians. 25. Naturalization and Aliens.

26. Marriage and Divorce.

27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

28. The Establishment, Maintenance, and Management of Penitentiaries.

29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces. And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces. (47)

Section 92. Exclusive Powers of Provincial Legislatures

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

1. Repealed. (48)

2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.

3. The borrowing of Money on the sole Credit of the Province.

4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.

5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.

6. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province.

7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.

8. Municipal Institutions in the Province.

9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.

10. Local Works and Undertakings other than such as are of the following Classes:

o (a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:

o (b) Lines of Steam Ships between the Province and any British or Foreign Country: o (c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

11. The Incorporation of Companies with Provincial Objects.

12. The Solemnization of Marriage in the Province.

13. Property and Civil Rights in the Province.

14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.

15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.

16. Generally all Matters of a merely local or private Nature in the Province.

Authority of Parliament

(3) Nothing in subsection (2) derogates from the authority of Parliament to enact laws in relation to the matters referred to in that subsection and, where such a law of Parliament and a law of a province conflict, the law of Parliament prevails to the extent of the conflict.

Taxation of resources

(4) In each province, the legislature may make laws in relation to the raising of money by any mode or system of taxation in respect of

o (a) non-renewable natural resources and forestry resources in the province and the primary production therefrom, and

o (b) sites and facilities in the province for the generation of electrical energy and the production therefrom, whether or not such production is exported in whole or in part from the province, but such laws may not authorize or provide for taxation that differentiates between production exported to another part of Canada and production not exported from the province.

“Primary production”

(5) The expression “primary production” has the meaning assigned by the Sixth Schedule.

Existing powers or rights

(6) Nothing in subsections (1) to (5) derogates from any powers or rights that a legislature or government of a province had immediately before the coming into force of this section. (49)

CONSTITUTION ACT, 1982

PART I CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

GUARANTEE OF RIGHTS AND FREEDOMS

Rights and freedoms in Canada

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

FUNDAMENTAL FREEDOMS

Fundamental freedoms

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

DEMOCRATIC RIGHTS

Democratic rights of citizens

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

Maximum duration of legislative bodies

4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members. (81)

Continuation in special circumstances (2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be. (82)

Annual sitting of legislative bodies

5. There shall be a sitting of Parliament and of each legislature at least once every twelve months. (83)

MOBILITY RIGHTS

Mobility of citizens

• 6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

Rights to move and gain livelihood

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

o (a) to move to and take up residence in any province; and

o (b) to pursue the gaining of a livelihood in any province.

Limitation

(3) The rights specified in subsection (2) are subject to

o (a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and

o (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

Affirmative action programs

(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

LEGAL RIGHTS

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned. Arrest or detention

10. Everyone has the right on arrest or detention

• (a) to be informed promptly of the reasons therefor;

• (b) to retain and instruct counsel without delay and to be informed of that right; and

• (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Proceedings in criminal and penal matters

11. Any person charged with an offence has the right

• (a) to be informed without unreasonable delay of the specific offence;

• (b) to be tried within a reasonable time;

• (c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

• (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

• (e) not to be denied reasonable bail without just cause;

• (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

• (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

• (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

• (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Treatment or punishment

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Self-crimination

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Interpreter

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. EQUALITY RIGHTS

Equality before and under law and equal protection and benefit of law

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (84)

OFFICIAL LANGUAGES OF CANADA

Official languages of Canada

16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

Official languages of New Brunswick

(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.

Advancement of status and use

(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

English and French linguistic communities in New Brunswick

16.1 (1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.

Role of the legislature and government of New Brunswick

(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed. (85)

Proceedings of Parliament

17. (1) Everyone has the right to use English or French in any debates and other proceedings of Parliament. (86)

Proceedings of New Brunswick legislature

(2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick. (87) Parliamentary statutes and records

18. (1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative. (88)

New Brunswick statutes and records

(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative. (89)

Proceedings in courts established by Parliament

19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament. (90)

Proceedings in New Brunswick courts

(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick. (91)

Communications by public with federal institutions

20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where

o (a) there is a significant demand for communications with and services from that office in such language; or

o (b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

Communications by public with New Brunswick institutions

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

Continuation of existing constitutional provisions

21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada. (92)

Rights and privileges preserved

22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.

MINORITY LANGUAGE EDUCATIONAL RIGHTS

Language of instruction 23. (1) Citizens of Canada

o (a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or

o (b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,

have the right to have their children receive primary and secondary school instruction in that language in that province. (93)

Continuity of language instruction

(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.

Application where numbers warrant

(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province

o (a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and

o (b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

ENFORCEMENT

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

GENERAL

Aboriginal rights and freedoms not affected by Charter

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including • (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

• (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. (94)

Other rights and freedoms not affected by Charter

26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

Multicultural heritage

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

Rights guaranteed equally to both sexes

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

Rights respecting certain schools preserved

29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools. (95)

Application to territories and territorial authorities

30. A reference in this Charter to a province or to the legislative assembly or legislature of a province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or to the appropriate legislative authority thereof, as the case may be.

Legislative powers not extended

31. Nothing in this Charter extends the legislative powers of any body or authority.

APPLICATION OF CHARTER

Application of Charter

32. (1) This Charter applies

o (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

o (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

Exception

(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force. Exception where express declaration

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

Operation of exception

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

Five year limitation

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

Re-enactment

(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

Five year limitation

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).