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Date: 1981-01-21
By: Fred Gibson
Citation: Memorandum From Fred Gibson to Prime Minister, Question Period: Questions arising out of the Conservative proposed amendments to the Resolution (21 January 1981).
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CONFIDENTIAL
January 21, 1981

MEMORANDUM FOR THE PRIME MINISTER

Question Period:
Questions arising out of the Conservative proposed amendments to the Resolution

Questions that might arise in the House concerning the Conservative proposed amendments to the Resolution will probably be related to three main issues:

• the immediate substitution of the Vancouver formula for the government’s two-phase approach to the amending formula;
• the separation of patriation with the Vancouver formula (for action by the U.K.) from the Charter and equalization (for subsequent entrenchment in Canada under the terms of the Vancouver formula); and
• the specific proposals for amending the Charter of Rights.

If questions along these lines arise, you may wish to consider replies along the following lines:

1. Patriation with the immediate adoption of the Vancouver formula

Yesterday, the Honourable Jake Epp, on behalf of the Progressive Conservative Party of Canada, presented the amendments of his party to the proposed Resolution respecting the Constitution of Canada.

The Conservative proposals would call upon Parliament to seek the immediate patriation of the Constitution of Canada with the imposition of a Conservative Party version of the alleged Vancouver consensus formula for constitutional amendment. The proposal of the government of Canada, on the other hand,

• would provide for unanimity as the amending formula during a two-year period during which constitutional conferences involving the federal and provincial governments would be held aimed at seeking an amending formula:
  • if all governments were able to agree to an amending formula along the lines of the Vancouver formula, or any other formula, it would come into effect;
  • if seven provinces representing 80% of the population of Canada were to agree upon a formula along the lines of the Vancouver formula or upon any other formula, it could be put to the people for ratification or rejection;
  • if neither of the above procedures were to produce an amending formula, and only in such an event, the Victoria amending formula, accepted by all eleven governments in 1971 and which provided for a national consensus based upon the consent of Parliament and of at least six provincial legislatures distributed among the four regions of Canada and representing at least 80% of the population of Canada, would come into effect. In the event of deadlock, provision is made to enable the people of Canada, distributed among four regions, to decide the issue.

The Conservative proposal makes no provision for a deadlock-breaking mechanism when governments fail to agree – and there is much evidence that for reasons which are often narrow or partisan, they do fail to reach agreement.

The Conservative proposal would impose that party’s version of the Vancouver amending formula forthwith. The government of Canada’s proposal would hold out the hope of unanimous consent during two years of negotiation. Furthermore, if unanimous consent were not possible, seven provinces could ask the people to decide. The government of Canada is convinced that its proposal is more democratic. It provides a reasonable time-frame of two years during which governments can come to agreement, failing which seven provinces representing 80% of the population of Canada could appeal to the people.

Which approach provides greater respect for the provinces and the people of Canada? The immediate imposition of the Conservative Party’s version of the Vancouver formula, or the conciliatory approach of the federal government which permits seven provinces, if unanimity is not possible, to call upon the people of Canada?

The Conservative interpretation of the Vancouver formula is mystifying. The proposal put forward by the Honourable Jake Epp is not the incomplete Vancouver formula of 10 sections put forward by the government of Quebec in September as the provincial point of view, with the Victoria formula appended for certain unspecified amendments of general application where “opting-out” would be inappropriate (e.g., amendments respecting the Supreme Court?). Mr. Epp’s proposal truncates the alleged Vancouver consensus formula of 10 sections to a formula that borrows two paragraphs of one section, coupled with a third completely new paragraph that was not part of the Vancouver formula and seven sections of the federal proposal, for the most part amended.

If the Conservatives are so sure that there was full agreement among the provinces on the Vancouver formula, why can they not produce an authentic copy of it? Furthermore, if they are convinced that there was unanimous agreement, why force the issue now? The provinces would have two years to bring the government and Parliament onside, failing which the people of Canada could decide. Is it that the Conservatives are convinced that the people of Canada would reject the Vancouver formula?

2. Split the Resolution and leave entrenchment of the Charter and equalization for action under the Vancouver formula after patriation

The federal and provincial governments have been discussing the entrenchment of a Charter of Rights and Freedoms since 1968. This is not a new subject of discussion among governments and failure to achieve unanimous consent is in no way related to lack of time to examine the question thoroughly. Furthermore, there is no real prospect that the eleven governments will agree unanimously to the Charter in the near future.

3. Proposed amendments to the Charter of Rights

The various proposed amendments are being carefully examined by the Joint Committee and by officials. We are all eager to find the best way “to effectively protect the rights of all Canadians,” as Mr. Epp said last night. It would be inappropriate for the government to take a position until the Joint Committee has had the opportunity to give full consideration to the proposed amendments.

F. R. Gibson
J. R. Hurley/jam