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CONFIDENTIAL

May 11, 1971.

Patriation of the Constitution

Introduction

The Conclusions of the Working Session of the
Constitutional Conference on February 8-9 stated as
follows:

“Patriation of the Constitution

2. The Constitutional Conference agreed
on a procedure to be undertaken in Canada at a
very early date in order to bring home the
Constitution and to transfer to the people of
Canada, through their elected representatives,-
the exclusive power to amend and to enact
constitutional provisions affecting Canada.
This procedure would involve:

(a) Agreement among the governments as to
changes and procedure.

(b) Approval of a resolution in the usual way,
by legislatures plus the two Houses of
Parliament, authorizing the issuance of
a proclamation by the Governor General
to contain the amendment formula and
whatever changes are agreed upon.

(c) Recommendation that the British Parliament
legislate to:

(i) recognize the legal validity of the
Canadian proclamation and its
provisions;

(ii) provide that no future British law
should have application to Canada;
and

(iii) make any consequential repeal or
amendment of British statutes
affecting the Canadian Constitution.

(d) Issuance of the proclamation by the Governor
General on a date to coincide with the
effective date of the British law.”

Thus, once the Constitutional Conference agrees
on the texts of specific constitutional changes, there
will be three major steps to be taken to achieve patriation:
approval of the changes by legislatures of the provinces
and by the Houses of the federal Parliament; legislation
by the United Kingdom Parliament; and the issue of a
Proclamation by the Governor General.

Resolutions of Approval

It is desirable that the main content and operative
words of the resolutions submitted to the provincial and
federal legislatures should be as uniform as possible. If
there were to be wide variation, inconsistencies of language
might result which could give rise at a later stage to

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questions as to whether there had in fact been consent
to the same effect by the various legislative bodies.
To avoid this difficulty, it would seem preferable that
prior agreement be reached (at the Victoria meeting if
possible] on an appropriate general form which first
ministers could use in submitting the resolutions to
their legislative bodies for approval. Essentially,
the resolutions should approve the issuance of a
Proclamation to bring into effect the Canadian Con-
stitutional Charter as part of our Constitution. Perhaps
a wording such as the following would be appropriate:

“… that this House Assembly, etc. approve the
issuance of a Proclamation by the Governor General,
proclaiming the following provisions respecting
the Constitution of Canada to come into force on
a date to be fixed by that Proclamation.”

This would not of course preclude the inclusion of such
other material in the resolutions, not inconsistent with
this approval, as is appropriate for each legislative
body. Because of certain procedural requirements the
resolutions submitted to the Senate and House of Commons
should probably contain the text of the Proclamation
itself as well as the Charter.

The United Kingdom Enactment

After resolutions of approval have been adopted
by legislative bodies in Canada, the British Parliament
would be requested to pass appropriate legislation. The
British enactment would refer to the approval expressed
by legislative bodies in Canada for such constitutional
changes, and would specifically recognize the validity
of the Proclamation (containing the Canadian Constitutional
Charter) to be issued subsequently by the Governor General
This recognition of validity is essential to remove any
possibility of challenge in some court of law at some time
concerning the legal and constitutional basis for the new
provisions. The U.K. legislation would also terminate
all remaining formal legislative authority which the
British Parliament now has with respect to Canada.

Discussions will be held with the British
government before the Victoria Conference to be sure that
there are no legal or procedural problems that could
cause difficulty and to ensure that preparations for this
aspect of patriation may be effected as smoothly as possible.

Achievement of patriation will also involve the
repeal of parts of the Statute of Westminster, 1931 as it
applies to Canada. The provisions requiring repeal are
section 4 as it applies to Canada, section 7 (1), and the
references to Newfoundland as a separate Dominion in
sections 1 and 10 (3). These changes in the Statute of
Westminster, 1931 have been provided for in the text
relating to Modernization of the Constitution (already
distributed) which will form part of the Canadian Con-
stitutional Charter to be given effect by the Governor
Generalfs Proclamation.

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The Proclamation of the Governor General

As agreed in February, the final stage would be
the Proclamation of the Governor General, issued in his
name and under the Great Seal of Canada.

The Proclamation, after making appropriate
reference to the changes as having been effected by the
representatives of the Canadian people, would proclaim
the Canadian Constitutional Charter which would form an
Annex to it. The Charter and the United Kingdom statute
would be designed to come into force at the same time.

Result

From the day of the coming into force of these
instruments the Constitution of Canada (as modified thereby)
will continue as before, but it will be fully amendable
in Canada by the new amending procedure and there will
no longer be any formal authority of the United Kingdom
Parliament to alter it in any respect.

Depending on agreement on the proposals
to be made on this subject, a final stage, which would
require some time to accomplish, would be the con-
solidation of the various constitutional documents into
a single, comprehensive statement of the legal provisions
that constitute the “Constitution of Canada”.