Document Information

Date: 1980-11
By: Canada, Department of Justice
Citation: DRAFT Memorandum to the Prime Minister Re: Possible Amendments to Constitutional Resolution (November 1980).
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Note: This document is discussed in an article that has been recently submitted to a peer-review journal.

SECRET

DRAFT

MEMORANDUM TO THE PRIME MINISTER

RE: Possible Amendments to Constitutional Resolution

Attached is a memorandum to Ministers (which it is proposed be placed before the Priorities and Planning Committee on November 25) outlining a number of issues respecting possible amendments to the Proposed Resolution on the Constitution. These issues require consideration and decision by Ministers before the Joint Committee begins clause-by-clause examination of the Resolution at which time amendments will be proposed.

As you will see, some proposed amendments relate to matters you have already considered in the context of discussions with Messrs. Broadbent, Blakeney and Davis. Others arise from problems with the wording of the Resolution that have been identified by us, while a number of others emerge from proposals that have been advanced during the Committee proceedings. Not all of them are recommended for approval.

There are particular matters which are not dealt with fully or at all in the memorandum to Ministers to which I would like to draw your special attention since they raise issues of considerable political sensitivity.

1. Long Title to Canada Act

The Canada Act has the long title “An Act to amend the Constitution of Canada”. This title reflects the language customarily used in seeking constitutional amendments in the past.

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However, in view of the controversy which is likely to surround this Bill when it is before the United Kingdom Parliament, including the possibility of attempts to amend it, the United Kingdom Parliamentary Counsel has suggested that the title be changed to “An Act to Give Effect to a Joint Resolution of the Senate and House of Commons of Canada”.

In this way, it is felt, debate on the Bill in the British Parliament would be more limited in scope since it would have to be confined to matters coming within the Joint Resolution rather than being permitted to range over any aspect of the Constitution of Canada. Equally, it would prevent amendments on matters not within the scope of the Resolution.

While there thus may be some advantage in the proposed change, there are obviously problems with proposing such a change in the Joint Committee since any explanation of it would be seen by the opposition as yet another attempt to stifle debate on the measure. The only possibly plausible explanation would be that since this measure is designed not only to amend the Constitution but also to “patriate” it, the title proposed by the British is more appropriate than those which have been used on previous occasions.

2. Institutional Language Rights for Ontario

This matter is not raised in the memorandum to Ministers since it is so sensitive.

It is now clear that Premier Hatfield will propose to the Joint Committee that institutional language rights (use of English and French in the legislature, statutes and courts) be included in the Charter for New Brunswick, putting that province on the same footing as Quebec and Manitoba.

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It is equally evident that great pressure will be exerted on the Committee (and within the Committee) to apply these rights to Ontario. The Commissioner for Official Languages has already advocated such a move and other witnesses will also be making the same case. Within the Committee, David Crombie has indicated that he will be moving an amendment to this end and the NDP members are prepared to support it. Bryce Mackasey has also indicated he would favour such an amendment and there are other Liberal members on the Committee who share his view.

The question is thus how to handle this situation in light of your discussions with Premier Davis. It seems evident that Ontario still remains strongly opposed to entrenchment of section 133 rights. Roy McMurtry in two recent public statements has indicated that Ontario’s legal and court systems are simply not equipped to provide trials in French as required by section 133.

There would appear two options open to you. The first would be to instruct the government members of the Joint Committee to oppose any amendment to include Ontario. This may be very difficult for government members from New Brunswick, Quebec and Manitoba (and those from French speaking parts of Ontario) to accept, given the intensity of feeling on the subject. It will also harden the resistance of Quebec members to the provision on minority language education rights, which some of them would find more palatable if Ontario were brought into the section 133 rights.

The second option would be to instruct the government members to support such an amendment.