REFORM PARTY'S NEW CANADA ACT
May, 1998
REFORM PARTY'S NEW CANADA ACT
May, 1998
Table of contents
A description of the current federal and provincial division of powers
A description of the concept of a Constitutional Constituent Assembly
A copy of the Calgary Declaration and the Official Opposition Resolution
Guidelines for the discussion of a Secession Contingency Act
The New Canada Act is a bill being prepared by the Official Opposition in Parliament to make the Canadian federation work better and to strengthen the unity of our country. The Act provides for:
• A new partnership agreement between Canada and its provinces to strengthen our country for the 21st century
• Public input into the content of that agreement, with discussion to be guided by the framework of the Calgary Declaration
• A commitment to strengthen and improve the role of the Federal Government in such key areas as defence, foreign affairs, criminal law, national standards, equalization, and trade
• A commitment to strengthen and improve the role of the Provincial Governments, particularly in the areas of social services like health, education, social assistance, employment training, language, and culture
• Provisions for improving relations between the Federal and Provincial Governments such as limiting the use of the federal spending power in areas of provincial jurisdiction, reforming equalization and federal-provincial fiscal relations, and providing a dispute resolution mechanism
• A provision for recognizing Municipal Governments as the first level of government in Canada
• A provision for transferring the functions and funding of the Department of Indian Affairs to local aboriginal governments over time, provided proper mechanisms are in place to ensure the fiscal and democratic accountability of those governments
• A provision for free votes in the House of Commons
• A provision for appointing only democratically elected Senators to the Senate
• Provisions to make the Supreme Court of Canada more accountable for its decisions
• Provision for any future reform of the Canadian Constitution to be accomplished through a democratic Constitutional Constituent Assembly, with future constitutional proposals being submitted to a national referendum.
The New Canada Act Draft – May, 1998
An Act to Prepare Canada for the 21st Century by making provision for negotiation of a new balance of federal-provincial powers, more accountable federal institutions, and the calling of a Constitutional Constituent Assembly.
Whereas the Parliament of Canada:
confirms its willingness to seek non-constitutional ways of improving the functioning of the Canadian federation for the benefit of all Canada’s citizens;
recognizes that the division of powers between the Federal and Provincial Governments is in need of rebalancing to reflect the conditions of the 21st Century;
recognizes that the unilateral use of the federal spending power in areas of provincial jurisdiction is a source of disunity within the federation;
recognizes the need to clarify its relations with municipal governments and aboriginal governments;
recognizes the need to improve the representativeness and democratic accountability of certain federal institutions;
recognizes that the Constitution has never been democratically ratified by the Canadian people;
considers it essential that there be a mechanism for giving to the people of Canada the power to start the process of constitutional change and to control that process through a Constitutional Constituent Assembly and a national referendum; and
declares that the negotiation of a New Partnership Agreement between the Provinces of Canada and the Federal Government for the 21st Century would promote national unity;
NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada enacts as follows:
Negotiation of a new partnership between Canada and the provinces
1. This Act may be cited as The New Canada Act.
2. The government shall forthwith invite the Premiers of the provinces and the territorial leaders to meet with it to discuss the process to negotiate and the subjects for a new partnership agreement, hereinafter referred to as the “New Canada Agreement”
3. Without limiting the discussion and negotiation of the New Canada Agreement, the government shall:
a) be guided by the framework for discussion provided by the Calgary Declaration and ensure public input into the content of any New Canada Agreement
b) seek to strengthen or improve the exercise of federal legislative and administrative powers in the following areas:
i) defence
ii) foreign affairs
iii) monetary policy
iv) regulation of financial institutions
v) criminal law
vi) establishing national standards
vii) equalization
viii) international trade
ix) interprovincial tradec) seek to strengthen or improve the exercise of provincial legislative and administrative powers in the following areas:
i) natural resources
ii) employment training
iii) social services, including health, education and social assistance
iv) language and culture
v) municipal affairs
vi) sports and recreation
vii) housing
viii) tourism
d) propose the following limits on the federal spending power:
i) that the federal spending power not be used to finance a new program in a field of provincial jurisdiction without the consent of two-thirds of the provinces having not less than 50% of the population of Canada; and
ii) that any province which chooses not to participate in the new program under paragraph i) shall receive a grant equal to the population of the province multiplied by the per capita spending of the Federal Government on the new program in the participating provinces.e) seek to reform federal-provincial fiscal relations by:
i) making all payments to the provinces under jointly funded programs in the form of equal per capita grants; and
ii) addressing disparities in regional opportunities through a single equalization cash transfer based upon the relation of the per capita gross domestic product of a recipient province to the per capita gross domestic product of Canada.f) propose a dispute resolution mechanism regarding all federal-provincial jurisdictional and fiscal matters, including disputes pertaining to the Canada Health Act, comprised of:
i) a person chosen by the Federal Government
ii) a person chosen by the affected province or provinces and
iii) a person who shall be the chair chosen by the other two appointees
none of whom shall be an employee of a government or Crown agency.4(1). The New Canada Agreement negotiated in accordance with this Part shall be submitted to Parliament for approval and, if approved, shall be binding on the Federal Government in its dealings with the provinces and territories that have ratified the Agreement.
4(2). A province may ratify the New Canada Agreement at any time notwithstanding that it did not participate in the negotiations or that at any time prior to the ratification it had rejected the agreement.
Municipal and Aboriginal Governments
5. The Government of Canada hereby recognizes Municipal Governments as the first level of government in Canada, and agrees to ensure Municipal Government representation at federal-provincial conferences dealing with the provision and financing of essential services.
6. The Government of Canada shall over time transfer the functions and funding of the Indian Affairs portion of the Department of Indian Affairs and Northern Development to local aboriginal governments, provided the proper mechanisms are in place to ensure the fiscal and democratic accountability of those governments to taxpayers and their own people.
Democratic Reform of Federal Institutions
7. In order to better represent the interests of their constituents, the Members of the House of Commons shall be entitled to vote for or against all Bills and motions and all amendments to Bills and motions free of party discipline, and no defeat of the government other than the adoption by the House of an explicit motion of non-confidence in the government, shall require the government to resign.
8. In order to make the Senate more accountable to the people of Canada, only persons who have been democratically elected under provincial legislation shall be appointed to fill any vacancy occurring in the Senate after the coming into force of this Act.
9. In order to make the Senate an effective voice for regional interests, the Government of Canada shall on the coming into force of this Act convene a meeting of the Federal, Provincial and Territorial Governments to prepare a constitutional amendment providing for equality of representation of the provinces and appropriate representation of the territories in the Senate.
10. In order to make the House of Commons more representative of the population of Canada, section 51 of the Constitution Act, 1867 is amended by striking out all that portion of the section after “from time to time provides” and substituting therefor “to provide a redistribution of seats based on strict representation by population subject only to the guarantee provided by clause 41(b) of the Constitution Act, 1982.”
11. In order to ensure the supremacy of the elected representatives of the people of Canada and the accountability of the judiciary, a Judicial Review Committee of the House of Commons shall be established and shall
a) review all decisions of the Supreme Court of Canada and advise the House whether any decision of the Supreme Court of Canada appears to violate
the basis upon which Parliament passed legislation or the original intent of the Charter of Rights and Freedoms and whether any legislative action is necessary to restore the legislation or the application of the Charter to its original intent;
b) hold hearings into the qualifications and judicial philosophy of any person proposed for appointment by the Prime Minister to the Supreme Court
of Canada.12. No person shall be appointed a judge of a provincial Court of Appeal unless that person has been nominated after hearings by the legislature of the province in question into the person’s qualifications and judicial philosophy.
Constitutional Constituent Assembly
13. The Government of Canada shall convene a Constitutional Constituent Assembly in accordance with the provisions of this Part whenever:
a) the Parliament of Canada has passed a resolution;
b) four or more provincial legislatures have passed a resolution; or
c) a petition is presented to Parliament signed by Canadian citizens eligible
to vote numbering not less than 3% of the total eligible voters at the last federal election;
requesting such an assembly.14. Each province shall be assigned a number of elected members of the Constitutional Constituent Assembly equal to one-third that province’s combined representation in the Senate and House of Commons rounded upwards and each territory shall be entitled to one elected member.
15. In addition to the elected members, the First Minister and Leader of the
Official Opposition of Canada and of each province and territory are members of the Constitutional Constituent Assembly.16. Election of members shall be held on a province-wide basis with a single transferable ballot, be organized by Elections Canada, have a campaign period of 36 days, and each candidate shall be limited to the average per capita spending allowance in that province for candidates for the House of Commons in the last federal election.
17. The members of the Constitutional Constituent Assembly shall convene at a location to be designated by the Governor-in-Council not less than 15 days and not more than 30 days after the elections have been held and shall, subject to section 19, sit for a term to be determined by resolution of Parliament.
18. The Constitutional Constituent Assembly shall elect its own Speaker, establish its own rules of procedure, set up such committees as it considers appropriate and hold all of its deliberations in public.
19. The Constitutional Constituent Assembly shall submit an interim report to Parliament and the provincial and territorial legislatures no later than the time fixed by the Parliamentary resolution and shall then adjourn for 90 days to permit Parliament and the legislatures to hold hearings on the report and suggest modifications for consideration by the Assembly.
20. Any proposals passed by the Constitutional Constituent Assembly shall be submitted to a national referendum in accordance with the Referendum Act.
21. All expenses of the Constituent Constitutional Assembly shall be paid out of
the Consolidated Revenue Fund.22. This Act comes into force on royal assent but shall expire on December 31, 2008.
The current division of powers between Federal and Provincial Governments. The division of powers between the Federal Government and the provinces was made by the Fathers of Confederation and is set out in Part VI, Sections 91 to 101 of the Constitution Act, 1867. Generally, the Federal Government was given control over matters necessary for the functioning of the federation as a whole while the provinces were given power over matters of a local or private nature in the province. There have been some changes in the division of powers since 1867 notably giving the Federal Government power over unemployment insurance and old age pensions.
The current division of powers between Federal and Provincial Governments
The division of powers between the Federal Government and the provinces was made by the Fathers of Confederation and is set out in Part VI, Sections 91 to 101 of the Constitution Act, 1867. Generally, the Federal Government was given control over matters necessary for the functioning of the federation as a whole while the provinces were given power over matters of a local or private nature in the province. There have been some changes in the division of powers since 1867 notably giving the Federal Government power over unemployment insurance and old age pensions.
Federal powers include:
• Regulation of trade and commerce
• Postal services
• Census
• Defence
• Navigation and shipping
• Fisheries
• Currency, banking and interest
• Weights and measures
• Patents and copyright
• Criminal law and penitentiaries
• Marriage and divorce
• Indians and lands reserved for Indians
Provincial powers include:
• Public lands and natural resources
• Education
• Hospitals
• Municipal institutions
• Business licenses
• Incorporation of companies
• Solemnization of marriage
• Administration of justiceBoth the Federal and Provincial Governments can make laws relating to agriculture and immigration but the federal law is supreme if there is a conflict.
The courts have held that the Federal Government doesn’t need to have a specific constitutional role to play in a field in order for it to spend money in that field. This is called the federal spending power. It has been very useful in launching programs like Medicare but it can be used to bribe provinces into changing their programs and priorities to meet the federal goals rather than the provincial priorities. Generally, this is done by the Federal Government promising to pay a portion of the expenses of a province that launches the program.
When the Federal Government spends money in an area of provincial jurisdiction like health or education, or when it arbitrarily withdraws its funding from an area of provincial jurisdiction, this can lead to problems with the provinces and the provision of services.
Federal institutions: A brief overview
The basic structure of Canada’s federal system was set out in the British North America Act of 1867 - now called the Constitution Act, 1867. It provided for a division of responsibility between the Federal Government and the Provincial Governments, provided for the creation of provincial legislatures and established the Parliament in Ottawa with a House of Commons and a Senate.
The House of Commons is intended to represent the Canadian people in general. Seats are distributed in accordance with the principle of representation by population, although the population of federal constituencies ranges from 24,700 in the constituency of Nunavut to 125,000 in Laurentides. The current distribution of seats is:
Province
Number of seats
Electors in 1997 election
Average
BC
34
2,332,083
68,591
Alta
26
1,811,413
69,670
Sask
14
679,806
48,558
Man
14
758,526
54,180
Ont
103
7,115,785
69,085
Que
75
5,117,159
68,229
NB
10
551,530
55,153
NS
11
677,164
61,560
PEI
4
97,802
24,451
Nfld
7
407,109
58,158
Yukon
1
19,934
19,934
NWT
2
35,167
17,584
Total
301
19,603,478
65,128
Because the MPs almost always vote strictly along party lines, there is no effective check on the Prime Minister as long as he commands a majority in the House of Commons.
The Senate was intended to provide a chamber of sober second thought and to ensure that the voice of the regions would be heard. Since the appointed Senate has no democratic legitimacy to oppose the House, it has not been able to fulfill its purpose. The Senate consists of 104 members divided as follows: Que. and Ont., 24 each; N.S. and N.B., 10 each; Nfld., Man., Sask., Alta. and B.C., 6 each; P.E.I., 4; Territories, 1 each. The Prime Minister also has the power to appoint an extra 8 Senators. This was only done once to push the GST through the Senate.
The Supreme Court has been Canada’s final court of appeal since 1949. It consists of 9 judges appointed by the Prime Minister. Traditionally, 3 judges come from Quebec, 3 from Ontario, 2 from the West and 1 from Atlantic Canada. There is no public participation whatsoever in the choice of a judge of the Supreme Court even though under the Charter of Rights and Freedoms the Court wields great power.
Constitutional Constituent Assembly: What is it?
A Constitutional Constituent Assembly is a special, temporary institution created solely for the purpose of amending or reforming a country’s Constitution.
The New Canada Act provides for a Constitutional Constituent Assembly, for use if and when Canadians decide they want to fundamentally change their Constitution.
In Canada during the 20th century, constitutional reform has almost always been initiated through first ministers’ conferences. In the Meech Lake and Charlottetown Accords, this process proved unsuccessful, with the public feeling that constitutional proposals were being developed and imposed “from the top down.”
Constitutional Constituent Assemblies have been used around the world as a more broadly based democratic tool that can be effective in breaking constitutional impasses. While the basic idea is simple - give a body independent of day to day political pressures the mandate to rethink all or part of the Constitution - there is no magic formula for an effective Constituent Assembly. The factors that have to be considered in establishing such an Assembly are:
Number of members – large enough to provide a cross section of interests but small enough to be effective. An Assembly of about 160 members would probably suffice.
Method of selection – elected or appointed or a combination. Elected is preferable, with first ministers and leaders of the opposition being entitled to sit.
Distribution of members – by unit (province), population or some combination. Our proposal by basing representation on one-third of the combined representation of a province in the House and Senate gives the smaller provinces more representation than they would receive on strict numbers.
Mandate – start from scratch or examine a limited number of provisions. The Assembly should be free to decide for itself which parts of the Constitution need to be changed.
Role – develop proposals for ratification or merely as suggestions to other bodies (Parliament and legislatures). The Assembly should develop proposals for a national referendum, then provide an interim report so Canadians generally, Parliament and the provinces can provide feedback to the Assembly before it finalizes its proposals.
Duration – a crisis atmosphere leads to a short timeline while revision of existing provisions generally takes much longer. Parliament should decide the term, and could provide an extension if it felt more time was required.
Voting – Each member votes individually or members from a province vote as a bloc. The Assembly should be the master of its procedures but, as this is a non-partisan body with a specific task, voting should be free of any party discipline.
There have been several proposals for and academic studies of constituent assemblies by Canadians. For further information, we suggest:
Citizens and Constitutions, Canada West Foundation, 1981
Constituent Assemblies: A Comparative Study, Queen’s University 1991
Constituent Assemblies: The Canadian Debate in Comparative and
Historical Context, York University 1992
Referendum Act of 1992
Parliament passed The Referendum Act in 1992 for the purpose of holding a referendum on the Charlottetown Accord. It is still in force and provides the necessary rules to hold a referendum at any time. The main provisions of the Act are:
Question – The Cabinet is required to propose the question or questions in a resolution that is to be debated in the House of Commons and Senate. The Leader of the Opposition and the leaders of all other parties having 12 members in the House are to receive notice of the proposed question at least 3 days before the Government presents the resolution.
Referendum period – Cabinet issues a writ but it must do so within 45 days of the resolution being passed by Parliament. The minimum referendum campaign period is 36 days. The referendum cannot be held during a federal election campaign.
Voters list – The Act provides for an enumeration but the new, electronic voting list procedures under the Canada Elections Act would apply so it would only be necessary to update that list.
Referendum committees – Committees must register with Elections Canada and indicate in which ridings they will campaign. The committees are required to have official agents and auditors and must file a report on their expenses and a list of contributors within 4 months after the referendum.
Committee expenditures – Committees are restricted to spending an amount equal to the product of the number of electors in the ridings in which they will be active by an amount determined by the formula set out in the Act. In 1992, the amount was 56.4 cents per elector.
Individual expenditures – Persons who are not part of a referendum committee are limited to $5,000 in expenses for the referendum.Broadcasting – The Act provides for a Broadcasting Auditor to apportion among the referendum committees the free time broadcasts so that equal time is provided to the supporters and opponents of the referendum question. Network operators are required to provide 3 hours of free time broadcasts during prime time in the period extending from the 18th day to the second day before the vote.
Premiers’ Calgary Declaration (September 14, 1997)
On September 14-15, 1997, nine premiers and two territorial leaders unanimously agreed on a framework for open and grass roots public consultation with Canadians on strengthening the Canadian federation. This framework focused on guidelines and principles for non-constitutional approaches to reform, as follows:
Guidelines for the Process of Public Consultation on the Declaration
1. Will be open to the general citizenry.
2. Efforts should be made to find creative ways of engaging Canadians in each provincial consultation process.
3. Governments should act as catalyst for the process of consultation.
4. It is acknowledged that provinces and territories may wish to have processes of consultation in stages but the advantage of a co-ordinated time frame is recognized.
5. Each province and territory is free to decide on the range or scope of consultation as well as the most appropriate mechanism for consultation.Suggested Principles for Guiding Public Consultation
1. All Canadians are equal and have rights protected by law.
2. All provinces, while diverse in their characteristics, have equality of status.
3. Canada is graced by a diversity, tolerance, compassion and an equality of opportunity that is without rival in the world.
4. Canada’s gift of diversity includes Aboriginal peoples and cultures, the vitality of the English and French languages and a multicultural citizenry drawn from all parts of the world.
5. In Canada’s federal system, where respect for diversity and equality underlies unity, the unique character of Quebec society, including its French speaking majority, its culture and its tradition of civil law, is fundamental to the well being of Canada. Consequently, the legislature and Government of Quebec have a role to protect and develop the unique character of Quebec society within Canada.
6. If any future constitutional amendment confers powers on one province, these powers must be available to all provinces.
7. Canada is a federal system where Federal, Provincial, and Territorial Governments work in partnership while respecting each other’s jurisdictions. Canadians want their governments to work co-operatively and with flexibility to ensure the efficiency and effectiveness of the federation. Canadians want their governments to work together particularly in the delivery of their social programs. Provinces and territories renew their commitment to work in partnership with the Government of Canada to best serve the needs of Canadians.
The Calgary Declaration: An update
As of April 30th, 1998, the legislatures of all provinces and territories except Quebec and Ontario had passed resolutions supporting the above principles. Ontario has indicated they will do likewise.
The Government of Quebec has not participated in public consultation initiated by the Calgary Declaration, nor has the Federal Government made any effort to date to distribute the Calgary Declaration in Quebec or to familiarize the people of Quebec with its contents.
On November 25, 1997 the House of Commons passed the following Reform Party resolution pertaining to the Calgary Declaration:
That this House recognize that strengthening the unity of Canada is its highest priority and given that nine provincial premiers and two territorial leaders have begun a process of consultation on national unity built on the Calgary Declaration, this House:
1. endorses the efforts of the premiers, the territorial leaders and grass-roots Canadians to foster national unity;
2. declares its support for the consultation process begun by the premiers and territorial leaders;
3. urges Canadians to become involved in the consultation process and in particular to express their approval of, disapproval of, or suggested improvements to such principles as the equality of citizens and provinces and special status for none, respect for diversity including the unique character of Quebec society, and the need for re-balancing the powers of the Provincial and Federal Governments;
4. urges the Government of Canada and Members of this House to communicate with Quebecers regarding the Calgary Declaration, and to consult the people of Quebec on its contents;
5. and regrets that the separatist Government of Quebec has chosen not to participate in the discussion on national unity, and has refused to include Quebecers in the consultation on the Calgary Declaration.
Guidelines for the discussion of a Secession Contingency Act
The Official Opposition in Parliament has argued in the past that the Federal Government has an obligation to fully and frankly address questions, which would arise if a province should attempt a unilateral declaration of independence or if a province attempts to secede by a more democratic procedure.
The Official Opposition has also maintained that the Federal Government has an obligation to make clear the consequences of secession to Canadians, including the people of any province contemplating such an action.
In recent months, the Federal Government has partially responded to these demands, namely by seeking a Supreme Court ruling on the legality of secession, and publicly discussing the concept that “if Canada is democratically divisible, so is Quebec,” i.e., the idea that partition of Quebec might be a very real consequence of any act of secession.
Concerned citizens within Quebec and outside of Quebec, in addition to giving parliamentarians feedback on the New Canada Act, may wish to give further guidance to parliamentarians with respect to the following questions:
1. Do you feel that the Federal Government should develop contingency legislation making clear what the federal response would be to:
a) A unilateral declaration of independence by the government or legislature
of a province;
b) The attempt by a province to secede by more democratic means, namely via a democratic referendum on the question of secession.2. Do you feel that the Federal Government, for the purposes of making clear the likely consequences of an act of secession, should spell out:
a) The subjects/issues which even a democratic secession attempt would raise for both parties, i.e., debt division, boundaries, passports, currency, etc.
b) The principles which would guide the Federal Government in the negotiation of the terms and conditions of any agreement with a province which has voted to secede by a fair process in response to a fair question.