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Date: 1981-10-01
By: Eddie Goldenberg
Citation: Memorandum from Eddie Goldenberg to Michael Kirby Re: Assessment of Constitutional Position (1 October 1981).
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Note: This document is discussed in an article that has been recently submitted to a peer-review journal.

SECRET
October 1, 1981.

MEMORANDUM FOR MICHAEL KIRBY

Re: Assessment of Constitutional Position

I thought that I would put down for you my views as to where we are and where we should be going.

While we may have been disappointed by the answer to Question Two and by the division of Question Three, it did not come as a surprise. There is no doubt that what we always wanted was a victory on legality. We have won that victory. The fact that the court told us that the sanction is political and not legal is something we should welcome. It confirms everything we have said for a year.

The decision to face the political consequences of acting without the consent of the provinces was made one year ago. All that is changed since Monday is that we are closer to the final stage. That undoubtedly contributes to some nervousness. While there is adverse press, I do not think that it is worse than what we have gone through over the last year. We always knew that the battle would be very rough.

New Brunswick and Ontario are still very much on side. From a conversation with Svend Robinson this morning, I am of the impression that the N.D.P. will remain on side if a meeting of First Ministers does not produce agreement on the Charter of Rights. What is essential is a demonstration of a willingness to hold a meeting. The N.D.P. wants the Prime Minister to display some humility. It does not want us to compromise our principles.

SECRET

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It is clear that our goal of patriation and an amending formula has been met. The historic opportunity to achieve a Charter of Rights is at hand. If we were to let it go now, it will be gone forever.

This is a point which must be stressed. There are those who argue that dropping the Charter would be a magnanimous act which would reduce the political temperature in the country. I have no doubt that they are correct. However, the question to ask is whether a Charter of Rights is important, not whether we will have it now or a few years from now. I am convinced that it is now or never. It will be up to the Cabinet to determine whether sacrificing the Charter is an acceptable price to pay for peace, especially in Quebec.

The issue in my mind is whether there should be a Charter, not whether we should compromise on the contents of the Charter or whether it should be subject to opting in or opting out.

Opting in or opting out would likely result in a situation where the Charter would eventually apply everywhere except Quebec. A special status for Quebec on fundamental rights would put the country on a very slippery slope. In addition, could minority language education rights exist everywhere except in Quebec?

It is my very strong view that we should proceed with the whole package. In order to regain N.D.P. support, I believe that the Prime Minister should announce his willingness to meet the Premiers at 24 Sussex on Tuesday, October 13. While he should not set any preconditions for the meeting, he should state that his intention is to find out where the Premiers stand on patriation, an amending formula, and the Charter of Rights.

SECRET

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He should make it clear that he remains committed to each, but he should not refuse to meet if the Premiers say that they will not discuss the Charter of Rights. It is the willingness to hold the meeting that is essential for the support of the N.D.P.

There is no question that the Prime Minister needs to be willing to compromise. Surely if we are to have a Charter of Rights, we could compromise on the amending formula and even move towards the Vancouver formula. Opting out will not be a real problem if fundamental rights are guaranteed across the country. This is so because opting out could only occur where Parliament agrees, as the formula gives Parliament a veto in all amendments.

As far as Quebec is concerned, I share the worries expressed by Roger Tasse. However, I am not sure whether Roger has concluded anything other than the fact that the situation is serious.

While the Quebec media is full of the P.Q. position, this is something that we have been living with for years. I do not see how Levesque will be able to sustain public interest in a matter as esoteric as the powers of the National Assembly. This is especially so as we will be able to hammer home our point that the substance of the Resolution in fact adopts the convention recognized by the Supreme Court by giving the provinces a legal say in constitutional amendment and by going further and giving Quebec a veto over future amendments. Premier Levesque will be forced to concentrate his fight against the Charter of Rights. That is not a popular position even in Quebec. Furthermore, the first court decision will probably relate to the least popular part of Bill 101, and the P.Q. will then have to fight on weak ground. He will have difficulty arguing against allowing an English-speaking child from Ontario to go to school in English.

The fact that the issue is personalized around the Prime Minister is to our advantage. First, he is very popular in Quebec and should spend time spreading the message in that province. Second, much of the opposition is focused on the process and on the fact that it is in keeping with the so-called arrogance of the Prime Minister. While he will have to bear the burden of these attacks, he may not be around forever. At that point, some of the divisiveness will dissipate. What will be left will be the substance, and history will not take long to forget the process. The Prime Minister will get the credit he deserves for the substance.

SECRET

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The greatest danger we face is the prolongation of the debate. All Liberal MPs to whom I have spoken want to get the issue behind us. They are fearful of having it hang over our heads in the weeks and months ahead.

The best scenario would be a one-day closed meeting with the Premiers around October 13. The Prime Minister should set no conditions for the meeting. It would be better if the refusal to hold a meeting came from the Premiers rather than from the Prime Minister. As well, the Prime Minister should have some compromises ready which appear reasonable and which the Premiers will reject.

If there is no consensus on a Charter of Rights, Cabinet and caucus should meet the next day. The Resolution should be introduced as quickly as possible. Ideally, it should be the day before the budget. If a budget follows the next day, attention will finally turn to other matters as the provinces will have something more concrete to complain about.

Eddie Goldenberg
Special Advisor