Document Information

Date: 1981-10-05
By: Roger Tassé
Citation: Memorandum from Deputy Minister [Roger Tassé] to Minister of Justice [Jean Chrétien], Final Steps to Patriation (5 October 1981)
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Department of Justice

MEMORANDUM

Security Classification

CONFIDENTIAL

Date

October 5, 1981

TO/A:                          Minister

FROM/DE:                 Deputy Minister

SUBJECT/OBJET:     Final Steps to Patriation

Comments

Professor Dale Gibson is now preparing a summary outline and explanation of the remaining steps required in the United Kingdom to patriate the constitution. We discussed this with him on Sunday, October 4th, and he will have a revised draft paper ready by the end of this week.

The general purpose of the document will be to outline, primarily with a United Kingdom audience in mind, an explanation of the process in what might be called layman’s terms, for both the population generally and for members of Parliament. The intention would be to publish this document just prior to debate in the British Parliament. A more detailed and legalistic paper may be required, as well as a somewhat different paper, focussing on the Canadian convention, for purposes of discussion here in Canada. These would not likely be for publication, but rather as background material for debates in the Parliament and speeches by Ministers.

The approach proposed in the Gibson paper is to:

1. Reaffirm the legality of the Government of Canada in adopting the Resolution and transmitting it to Westminster.

2. Explain the need for the United Kingdom to complete the legal link in the patriation and amendment process.

3. Emphasize Canadian independence in fact, but not in law.

4. Explain the anomaly of the necessity of action by the U.K. Parliament (Statute of Westminster, etc.) to make the law correspond to reality.

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5. Point out that this will free the United Kingdom at last from its technical legal role in the internal affairs of a sovereign state.

6. Emphasize the fifty-four years of impasse and the exhaustive study and debate that has gone on in Canada, and which justify the Canadian request despite the convention of substantial provincial consent.

7. Clear up some of the misunderstandings underlying the Kershaw Committee’s position, particularly that regarding the role of the U.K. Parliament as guardian of the federal system in Canada.

8. Emphasize the usual practice of the British in always acting upon Canadian requests, without any inquiry into the merits of the request or the degree of provincial consent or opposition. This practice has been recognized in past British government statements including the statements by Lord Trefgarne in July 1979 and that of Lord Jowitt in 1940 (cited with approval by the 7 to 2 majority of the Supreme court) to the effect that the only task of the U.K. is to operate the old legal machinery to give effect to Canada’s request.

9. Stress the political nature of what is being asked, emphasizing that all political responsibility for its consequences rest with the Canadian government alone.

10. Emphasize the fact, as stated by the Supreme Court majority, that the resolution request is a procedure involving the intergovernmental and international link between Canada and Britain, and one which does not involve the provinces.

11. Emphasize the ending of an anomaly and the continuation of a strong and friendly relationship between the U.K. and Canada, resulting from prompt British compliance with the Canadian request.

I will report to you further as soon as Professor Gibson’s paper is received.

RT