Letter from Deputy Minister Thorson [Re: “Form of a Proclamation of the Governor General”] to Mr. Gordon Robertson (2 December 1975)
By: Deputy Minister Thorson
Citation: Letter from Deputy Minister Thorson to Mr. Gordon Robertson (2 December 1975).
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Deputy Minister of Justice and
Deputy Attorney General of Canada
Sous-ministre de la Justice et
sous-procurer général du Canada
Ottawa, December 2, 1975.
Mr. Gordon Robertson,
Secretary to the Cabinet,
59 Sparks Street,
Re: “Form of a Proclamation
of the Governor General”
Dear Mr. Robertson:
Following your recent discussion of
this matter with the Minister of Justice and our telephone
conversation yesterday, I met with my Minister today to
review with him the general framework of the above docu-
ment and its more important implications.
We did not attempt to discuss the
language of the document in any detail, on the understand-
ing that you, in your several discussions with Quebec
officials, have repeatedly made it clear that the different
drafts through which the document has gone were for discus-
sion purposes only, and did not constitute settled proposals
which the Government was prepared to put forward without
Not unexpectedly the provision that
gives both the Minister and myself the most concern from
a legal point of view is article 38. While the first branch
of article 38 can, we think, be read as being merely for the
guidance of Parliament and the Government in exercising their
respective powers, the second branch of article 38 (beginning
with the words “and neither”) appears to be of a quite dif-
One interpretation of this second branch
of article 38 is that it is, at most, a constitutional direc-
tion to Parliament and to the Government of Canada as to how
each shall comport itself in doing that which it may
lawfully do, now or in the future, under the consti-
tution as it now stands.
The other interpretation, which
obviously carries with it much more far-reaching conse-
quences, is that the second branch of article 38 is, in
fact, a genuine constitutional limitation on the legis-
lative jurisdiction of Parliament and on the authority
of the Government of Canada to exercise the powers con-
ferred upon it by law. On this interpretation, Parlia-
ment, notwithstanding its present exclusive jurisdiction
in relation to, say, “the criminal law”, could henceforth
be viewed as being limited by article 38 in the manner in
which it could constitutionally exercise that jurisdic-
tion, without being challenged on the ground that, in so
doing, it had exceeded its jurisdiction.
While it would be possible to express
a view as to which of the above two interpretations appears
to be the better one, perhaps the only question that needs
to be asked at this stage is whether there is a real possi-
bility that the courts of Canada might adopt the second
interpretation. Both the Minister of Justice and I are
agreed that there is such a real possibility, i.e. that no
assurance can be given that the second interpretation would
be unlikely to prevail.
Mr. Basford has asked me to convey this
advice to you, and to ask you to so inform the Prime Minister.
In this regard he is aware of the Prime Minister’s intention,
as we understand it, of speaking to Premier Bourassa on the
subject at an early date, perhaps later this week.