Document Information

Date: 1981-10-26
By: Eddie Goldenberg
Citation: Memorandum from Eddie Goldenberg to Michael Kirby (26 October 1981).
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Note: This document is discussed in an article that has been recently submitted to a peer-review journal.

S E C R E T

October 26, 1981.

MEMORANDUM FOR MICHAEL KIRBY

I am enclosing a table which sets out the positions of each province and possible federal responses. The table is useful only in terms of preparing our own position.    It does not deal with the principal issue for the Eight which is the legitimacy of unilateral action.

In a sense, if there is no will to agree on the part of the provinces, the only utility in making offers is to show a genuine effort in order to bolster our public position. If there is a will to agree on the part of some of the provinces, a genuine effort may bring a number of provinces on side.

The crucial issue in one sense is the Charter of Rights. There is no doubt that a Charter which applies only at the Federal level and which has an opting-in provision would bring if not unanimity, at least a very large consensus. However such a concession is equivalent to giving up everything the government has stood for in the last year and a half.  The Prime Minister would have to be sure of the support of his Cabinet and caucus and Party before making such a concession.

The problem with making concessions on the Charter is that the substance is very good. Once some concessions are made the whole thing can begin to unravel. That is why I would be very reluctant to having some sections subject to opting-in. The obvious question would be that if some parts are made subject to opting-in, why not the whole thing. And to this there is no satisfactory answer.

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My own view is that if a few provinces really want to come on side, there is no need to make concessions on the Charter. A real willingness on their part to be part of a consensus can be met by considerable flexibility on the amending formula. And if there is no real willing­ ness to be part of a consensus, minor concessions on the Charter will be of no use.

Saskatchewan as always is a special case and will probably once again raise the issue of some jurisdiction over aspects of international trade. I remain as convinced today as I was last January of the importance of having the support of Saskatchewan.        If this means bending over backwards, I would not be adverse to so doing. What is very important is that we do not put ourselves in a position which a few years from now will appear in hindsight to have been overly rigid as was the case after Victoria in 1971.

In addition to the table which I have prepared, I am enclosing

1) Premier Davis’ statement of September 1980 in which at page 2 he deals with the language of criminal trials;

2) section 13 of the Victoria Charter.

Eddie Goldenberg

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