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Freedom, Duties of Care, Principles, Constitutions, and Justice
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Constitutional Issues - Part Seven
E. THE HOUSE OF COMMONS
(1) Terms of office will be for four years:
(a) no one may serve more than three terms as a member of the House;
(b) a person who is elected Prime Minister at the beginning of the third term may serve one additional term of office if re-elected as Prime Minister;
(c) elections will be held every four years on a set date;
(d) a government can no longer fall as a result of a non-confidence vote on financial matters in the House of Commons;
(e) no one may serve as Prime Minister for more than two terms.
(2) All elected members of the House will be permitted two free votes of conscience during each sitting of the House. These free votes can be used, or not, at the discretion of the individual members;
(a) any vote concerning a constitutional issue shall not count as one of the allotted two free votes of conscience.
(3) The distribution of powers between the federal government and other levels of government is to be negotiated on a case-by-case basis;
(a) this negotiation will take place during the first three months of the tenure of office of the Federal government;
i) if a new provincial government should be elected after the aforementioned period of negotiation, that government must wait for the next round of negotiations at the beginning of tenure of a newly elected federal government;
ii) the only other avenue for provinces to seek a new power sharing arrangement would be through the medium of constitutional forums or by appeal to the principle of civil disobedience;
(b) the aforementioned negotiations cannot infringe upon any of the areas of responsibility of the Senate;
(c) the negotiations can be asymmetrical in nature. In other words, different arrangements can be made with different provinces, depending on the needs, capabilities, priorities and circumstances of the federal government and the provinces;
(d) the negotiations can involve no more than three areas that are normally under the authority of the federal and provincial governments;
i) the Province of Quebec is one of two exceptions to the provisions of (3)(d). More latitude and flexibility must be given to the negotiations concerning the transfer of powers between Quebec and the federal government. Consequently, up to seven areas of authority may be considered for negotiation;
ii) the Native peoples' provinces are the other exception to the provisions of (3)(d). As is the case with Quebec, up to seven areas of authority, normally under Federal jurisdiction, may be subject to a process of negotiated transfer to provincial jurisdictions;
iii) even in the case of Quebec and the Native peoples' provinces, the structural character of the negotiated arrangement will not be permanent. It will be reassessed at the start of every four-year tenure of a newly elected federal government. If necessary, adjustments will be made at that time which will be of advantage to both the province and the federal government;
iv) in the case of a breakdown in negotiations, the special intergovernmental constitutional forum will make an arbitrated judgement.
(4) The members of the House must sit at least once in every six-month period.
F. DECLARATIONS OF WAR
(1) In cases where the geographical regions of Canada are under direct physical attack, the Prime Minister may take such steps as are necessary to defend the nation;
(a) the decisions made by the Prime Minister cannot undermine, suspend or arbitrarily curtail the rights and entitlements outlined in C.(1) through (3);
(b) any decisions that affect the rights and entitlements of sections C.(I) through (3) must be debated and discussed before a joint session of the Senate and the House of Commons;
i) such a debate/discussion will be followed by a vote of the joint session;
ii) any decision must be supported by a four-fifths majority vote;
iii) the vote will be a free vote of conscience;
iv) this free vote would not count as one of the two free votes allotted to members of the House of Commons;
v) in order for such a vote to be considered valid, a quorum must be present at the time of the vote. A quorum will be considered to be 80% of the members of both the Senate and the House of Commons.
(2) In those cases in which the geographical regions of Canada are not under direct physical attack, any decisions concerning the responsibilities of war-related activities in other parts of the world will be based on a discussion and vote in a joint session of the Senate and the House of Commons. Conditions set forth in sections (b) ii) through (b) v) above will apply in the present case.
(3) If the joint session votes in favour of going to war in another part of the world, the electorate has a right to a referendum on the matter.
(4) If a referendum is held, the electorate will be given the choice between:
(a) offensive actions (carrying the war to an opponent in a way designed to lead to the opponent's defeat);
(b) defensive actions (defending Canadian service personnel and equipment if attacked but not initiating any offensive actions);
(c) peacekeeping operations only;
(d) if a referendum is not held, then, the decision of the joint session will be considered authoritative.
G. ELECTION REFORM
(1) Campaign contributions, whether in the form of money, goods or equipment, may not be directed toward individual candidates or parties.
(2) Campaign contributions must be given to a general campaign fund from which:
(a) all candidates may draw in equal shares for non-promotional expenses;
(b) money may be drawn to finance debates or campaign literature in which all candidates are given equal time.
(3) During the election campaign, neither parties nor individuals may engage in mass promotional activities on their own;
(a) mass promotional activities encompass the use of any media-whether written, spoken or visual-that is designed to reach a substantial proportion of the electorate within a very short period of time;
(b) all mass promotional activities must be done in concert with other candidates for the same office.
(4) The restrictions on mass promotional activities is not intended to interfere with one-on-one or small group (30 people or less) discussions concerning the campaign;
(5) No one may receive money for advising candidates or providing candidates with consultation services concerning any aspect of a campaign.
(6) All campaign help must be of a volunteer nature.
(7) Candidates may not engage in negative campaigning;
(a) negative campaigning is defined as attacks on another candidate's integrity, character, religion, race, sex, ethnic background, family life or past history;
(b) all criticisms of a candidate must focus on the candidate's political/ philosophical position within the context of the issues of the campaign;
i) these criticisms must be carried out in a way that provides the candidate being criticized with an opportunity to respond to the criticisms;
ii) usually, such criticisms must be restricted to public debates, forums, and campaign literature in which all candidates may participate and to which they may contribute.
(8) The mass media must provide time and/or space of equal worth and prominence to all candidates.
(9) Incumbent candidates cannot use their easy access to the media and the public as a means of promoting their own campaign or the campaigns of others. Their campaign-ing activities must be done in conjunction with other candidates.
(10) There will be no nomination fees required in order to be able to file for seeking office.
(11) To be considered a candidate, a person must either, in the case of traditional parties, win a party's nomination, or, in the case of independent groups, acquire the signatures of 10% of a riding's eligible voters.
(a) there is a distinction to be drawn between eligible and registered voters;
(b) registered voters are those people who have satisfied the conditions necessary to entitle them to vote in a given riding;
(c) eligible voters are those people who satisfy all criteria for being a registered voter in a given riding except that of going through the registration process;
(d) petition initiatives directed toward gaining official recognition as a candidate are subject to verification by an independent party;
(e) the verification process mentioned in (d) above will be done under the supervision of representatives of the Senate subcommittee on appointments.
H. RECALL PROCEDURE
(1) Once elected, any official is subject to recall by the electorate;
(a) recall procedures cannot be initiated until one year of an official's tenure of office has passed;
(b) once initiated, recall may assume two forms:
i) a vote is taken by a given constituency that requires an elected official to return immediately to his or her constituency and respond to their questions, criticisms and concerns;
ii) elected officials also are subject to a referendum on recall that could remove the officials from office;
(c) if a move to recall fails to gather enough support, then, further recall action cannot be taken for another year unless substantial evidence of malfeasance of office can be demonstrated during the interim period;
(d) if a move to undertake the first kind of recall outlined above in (b) is successful, the official remains susceptible to further recall action at any time after a period of two months. As such, the official is on probation during the two-month interim period, as well as during the time following that two-month period;
(e) in order for a recall action to be considered warranted, it must be supported by 60% of the electorate of a given constituency This is determined by means of a poll;
(f) in order for a recall vote to be considered valid, 80% of the eligible voters in a given constituency must vote;
i) in addition, two-thirds of the voters who do cast a ballot must be in favour of a recall of either the first or second form [see (b) i) and (b) ii) above] in order for the vote to be considered acceptable and have authority;
ii) voters will have a choice between recalling officials either for the purposes of discussion or for the purpose of removal from office;
iii) if the total number of people voting for removal from office does not achieve the necessary level of majority, but the total number of people voting for one or the other kind of recall does achieve, when taken together, the necessary level of majority, the official will be recalled to be confronted by his or her constituents.
REFERENDUM
(1) The electorate is entitled to the referendum process under three circumstances:
(a) decisions of the joint session of the Senate and House of Commons concerning war-related activities;
(b) decisions of the House of Commons concerning Senate and constitutional forum judgements with respect to constitutional issues;
(c) decisions dealing with the question of whether or not a given elected official should be recalled.
(2) Condition outlined in section H.(1)(e) is also applicable to referenda.
(3) Once a referendum has been called for, it must be completed within two months of its time of initiation.
(4) In order for a referendum vote to be considered valid, 80% of the eligible voters in the constituency must vote;
(a) In addition, two-thirds of the voters who do cast a ballot must be for one of the choices in order for the referendum to be considered valid;
i) in the case of recall votes, condition H.(1)(f)iii) holds;
ii) in the case of votes in constitutional issues, if no one choice receives a clear two-thirds majority vote, then, the matter reverts to the full Senate body for further discussion and vote;
iii) this discussion and the subsequent constitutional motion which is to be voted on must reflect, to some substantial degree, the voting pattern expressed in the referendum;
iv) this post-referendum vote of the full Senate body will be considered authoritative.
J. THE USE OF POLLS
(1) Polling techniques are to be used in conjunction with both recall procedures and referendum initiatives.
(2) Such techniques and methods are to be used to determine if there are enough people in a given constituency or the electorate as a whole who favour the taking of a formal vote.
(3) The polling process is to be conducted, as a community service, by universities and/or community colleges.
(4) In order for the results of any given polling process to be accepted as valid, the results must be independently confirmed by two other polls which are run simultaneously.
(5) The assignment of the three polling processes will be done by the Senate subcommittee on government appointments.
(6) The Senate subcommittee on constitutional issues will have the responsibility of initiating, supervising, verifying and making public the results of the polling process.
K. NATIVE AND ABORIGINAL PEOPLES
(1) The Indian Act and the Ministry of Native Affairs must be dismantled.
(2) There will be two (possibly three) new provinces created out of portions of: the Yukon, the Northwest Territories and certain areas of the northern portions of a number of provinces extending from British Columbia to Ontario.
(3) Native and aboriginal peoples will retain majority control of their provincial governments under all circumstances.
(4) (3) above does not preclude non-Native minorities from seeking and acquiring public office.
(5) All provisions of a reconstituted Senate will apply to the newly created Native peoples' provinces, subject to the following qualifications:
(a) half of all elected Senators from the Native provinces must be drawn from the Native and aboriginal peoples of those provinces;
(b) half of all elected Senators from the Native provinces must be drawn from the non-Native population of those provinces;
(c) half, plus one, of all constitutional forums in Native provinces must consist of Native and aboriginal peoples.
(6) The Native peoples' provinces will be entitled to send elected representatives to both the National Senate as well as the House of Commons;
(a) half of the elected Senators from the Native peoples' provinces will be non-Natives. This is necessary in order to ensure that the Senate as a whole, as well as individual subcommittees, are not inordinately weighted in favor of Native peoples;
(b) half of the elected Senators must be from the Native and aboriginal peoples. This is to ensure that, should the demographic character of these provinces change so that Native peoples become a minority, their interests, needs and concerns will be protected through a continued presence of Native and aboriginal peoples.
(7) As is the case with Quebec, the provinces of the Native peoples will have, relative to other provinces, an asymmetrical relation with the Federal government. This relationship will encompass a greater degree of flexibility in the number of areas, normally under Federal jurisdiction, which can be subject to a negotiated transfer of powers to the provinces at the beginning of the term of office of the Federal government.
(8) Native and aboriginal peoples will retain control of sacred burial grounds outside of the proposed new provinces.
L. AMENDING THE CONSTITUTION
(1) A distinction must be drawn between: (a) the written structural character of the Constitution; and, (b) interpreting the set of degrees of freedom and constraints which give expression to the character of the written Constitution.
(2) Amending the Constitution refers to any addition to, or modification of, the written character of the Constitution.
(3) The amending process can be initiated only by the Senate Subcommittee on Constitutional Issues.
(4) Proposals for amending the Constitution will be put before the full Senate body;
(a) the proposal must be discussed and debated before being voted upon;
(b) a voting quorum is defined according to section D.(6)(g);
(c) changing the written character of the Constitution requires a two-thirds majority vote;
(d) if the proposed changes are rejected, the style of the rejection may take two forms:
i) with recommendations for further changes in the wording of the proposal;
ii) with no recommendation for further changes;
iii) in the case of ii) above, the rejection shall be considered absolute and the proposal in question cannot be reintroduced into the full Senate body for at least one year;
iv) in the case of i) above, the proposal can be rewritten in light of the recommendations and, at the discretion of the subcommittee, can be subsequently reintroduced into the full Senate body for discussion and a vote;
(e) if the necessary two-thirds majority vote is achieved in a quorum vote of the full Senate, the House of Commons has a right to take the matter under advisement.
(5) When a proposed constitutional change is taken under advisement, the House of Commons can accept or reject that proposal;
(a) all votes must be preceded by discussion and debate;
(b) a quorum is defined according to section D.(6)(g);
(c) acceptance of the Senate vote requires a two-thirds majority vote of the House of Commons; anything less than this will constitute a rejection of the proposed amendment;
(d) the members of the House shall be entitled to a free vote of conscience on such issues;
(e) this free vote shall not count as one of the two free votes of conscience per sitting allocated to House members.
(6) Following the vote of the House of Commons, the electorate is entitled to a referendum on the proposed amendment;
(a) the electorate will have three choices:
i) to endorse the proposed change which has been passed by the required majorities of both the full Senate as well as the House of Commons;
ii) to reject the proposed change which has been passed by the required majorities of both bodies of Parliament;
iii) to choose between the votes of the Senate and the House, when the former has passed the amendment and the latter has rejected the amendment;
(b) 80% of the eligible voters must participate in the vote in order for the vote to be considered valid;
(c) two-thirds of voters must indicate endorsement in order for the proposed amendment to be considered to have been accepted;
i) this two-thirds vote must occur in at least eight of the ten provinces and two territories;
ii) one of these eight provinces must be either Ontario or Quebec;
(d) if an endorsement vote greater than 50% does not achieve the necessary two-thirds majority, the amendment is considered to be rejected;
(e) if 80% of the eligible voters do not participate in the referendum, the amendment is considered to be rejected.
(7) A proposed amendment change that has been rejected by referendum cannot be introduced again for consideration during the tenure of office of the current Senate body.
M. LEGAL RIGHTS
(1) The protections afforded individuals in the Constitution Act of 1982 concerning legal rights are endorsed herein, but with the following qualifications:
(a) principles of fundamental justice may vary from community to community and people to people;
(b) a people or community has the right to negotiate with the provincial and/or Federal government in order to establish systems of law that reflect, and give expression to, that people's or community's principles of fundamental justice;
i) these systems of law must be administered among only those who are willing participants in such a system:
a) willingness of participation will be indicated through an officially sanctioned registry process;
b) once registered, the individual's willing participation is considered to be in effect until such time as an official application has been filed and approved which revokes one's willing participation;
c) revoking of one's registration in a given system of law will not negate whatever agreements, understandings, contracts, undertakings or obligations were entered into while registered as a willing participant in a given system of law;
d) revoking of registration means that an individual reverts to the jurisdiction of the system of law governing the majority of Canadians;
e) children under the age of majority will be subject to such a system of law only if both parents or the guardian(s) of the children is(are) willing participants in that system;
f) upon reaching the age of majority, a person has the right to register or not register in a given system of law to which one had been bound previously through one's parents or guardian(s);
ii) nothing in these negotiated systems of law may contravene the rights, entitlements, duties of care or principles of the Canadian Constitution;
iii) in order to be established, some substantial proportion of a given people or community must request such a system of law;
a) what constitutes a "substantial proportion" will vary from case to case;
b) in the case of Native peoples and other minorities, this proportion may vary anywhere from: less than 500,000, but more than 20,000 or 30,000 people;
iv) these systems of law need not be all-inclusive bodies of jurisprudence; they may encompass only certain aspects of legal issues;
v) all proceedings of such legal proceedings are subject to review by indepen-dent observers in order to ensure that the process is consistent with the provisions of the Canadian Constitution;
vi) as long as the proceedings of these systems of law take place in accordance with the provisions of the Canadian Constitution, they will be considered valid and enforceable;
vii) any appeals to constitutional forums concerning the judgements of the tribunals governing such systems of law may only concern questions of procedural integrity, provided that the provisions of section M, items (1)(b) i), (1)(b) v) and (1)(b) vi), have been observed and maintained;
viii) appeals concerning procedural integrity will be made to an appropriate constitutional forum;
ix) constitutional forums either will verify the procedural integrity of the given tribunal's judgement determination process, or they will uncover evidence of procedural irregularities that warrants a new hearing by a different tribunal within the community in question.
(2) All appellate courts, including the Supreme Court of Canada, are restricted to reviewing only issues involving principles of substantive law (i.e., legal matters that do not contravene or raise constitutional issues);
(a) substantive legal issues encompass events that transpire within a court room, judges' chambers, or the like, during a trial or hearing;
(b) substantive legal issues give legitimate, permissible expression to the constraints and degrees of freedom of constitutional provisions;
(c) the Supreme Court of Canada will have final jurisdiction in all matters of substantive law that do not infringe (i.e., contravene or violate) constitutional principles, values and provisions.
(3) All questions of constitutional rights or constitutional duties of care that arise prior to, or during, a trial/hearing must be referred, upon appeal, to the appropriate constitutional forum;
(a) if a constitutional appeal brings into question the constitutional appropriateness of proceeding to trial in a given case due to, for example, a possible violation of basic legal rights guaranteed under the Constitution, then, the constitutional issue must be settled first;
i) constitutional forums have the authority, upon successful appeal, to stay all legal proceedings, or any portions thereof, that are found to be in contravention of the provisions of the Constitution;
ii) if, subsequent to an appeal, a constitutional forum finds that no provisions of the Constitution would be contravened in a proposed legal proceeding, the trial/hearing may take place;
(b) if a constitutional appeal is made concerning issues that arise while a trial/ hearing is in progress, the legal proceedings normally will be permitted to reach their conclusion;
i) exceptions to (b) above would occur when the constitutional issues raised upon appeal are so substantial that considerable legal/court time, resources, and money could be lost if the appeal were successful, and yet the trial hearing had been allowed to continue;
ii) constitutional issues that are raised through appeal during a trial/ hearing must be settled before the sentencing in a criminal case or the execution of judgement in a civil case can take place;
iii) if a constitutional appeal, initiated while a trial/hearing is in progress, is successful, then, the courts are obligated to reflect the character of the arbitrated judgement of the constitutional forum in their legal deliberations, proceedings and/or judgements;
iv)the findings of constitutional forums with respect to the constitutionality of legal proceedings are considered final unless altered by the Senate subcommittee during its review process of the arbitrated judgements of constitutional forums;
(c) constitutional appeals maybe made in conjunction with a trial/hearing that has been completed;
i) successful appeals could lead to a new trial;
ii) if a constitutional appeal is not successful, then, subject to the determination of appellate courts concerning substantive legal issues, the findings/ judgements of the courts will be final;
iii (c) above will not apply to court cases completed prior to 1991;
(d) constitutional appeals concerning legal proceedings may be made only by the parties involved in those legal proceedings.
Suggested Further Readings
Asch, Michael. Home and Native Land-Aboriginal Rights and the Canadian Constitution. Toronto: Nelson, 1984.
Banting, Keith and Simeon, Richard (editors). And No One Cheered: Federalism, Democracy and the Constitution Act. Toronto: Methuen, 1983.
Borovoy, A. Alan. When Freedoms Collide: The Case for Our Civil Liberties (2nd edition). Toronto: Lester & Orpen Dennys, 1988.
Dworkin, Ronald. A Matter of Principle. Cambridge: Harvard University Press, 1985.
Ely, John Hart. Democracy and Distrust. Cambridge: Harvard University Press, 1980.
Hart, H.L.A. The Concept of Law.Oxford: Oxford University Press, 1961.
Rawls, John. A Theory of Justice.Cambridge: Harvard University Press, 1971.
Russell, Peter H. Leading Constitutional Decisions (3rd edition). Ottawa: Carleton University Press, 1984.
Zuber, T.G. Report of the Ontario Courts Inquiry. Toronto: Ontario Ministry of the Ontario General, 1987.
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