Document Information
Date: 1981-10-31
By: Eddie Goldenberg
Citation: Memorandum from Eddie Goldenberg to Michael Kirby re Gang of Eight (31 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 31, 1981
MEMORANDUM FOR MICHAEL KIRBY
Last night I met with Jim Matkin and Mark Krasnick. The purpose of this note is to report on what they said and then to make some recommendations based on what I learned.
A) The Position of the Gang of Eight
(The following is a report of a conversation not an assessment)
It is very clear that the gang of eight have not been able to agree on any compromise position. They have nothing to propose other than the April Accord and none of them will make individual proposals except as a reaction to whatever might be proposed by either the Federal government or Ontario. It will only be when we make proposals that there will be any chance that the eight will begin to break apart.
Leaving Levesque aside, the toughest members of the eight are Lougheed, Lyon and Peckford. The position of British Columbia will be to stick with them for as long as possible in order to try at the appropriate time to bring them along. British Columbia wants to act as a mediator and will therefore sit back and say nothing for a long time.
In looking at each Premier, they believe that Peckford is close to Bennett and will in the end do what Bennett wants. Buchanan very much wants a deal. His only major concern is the referendum. McLean is tougher than Buchanan, but in the end will follow Buchanan.
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Levesque is probably impossible. Lyon may not be completely intractable because of the political imperatives in Manitoba of looking reasonable if he can claim a partial victory. Blakeney is moderate but does riot want to be out in front of the others; he understands that he has lost a lot of credibility and does not know how to regain it; Lougheed is hung-up on the amendment formula which he considers crucial to his conception of Canada; Bennett wants to be the mediator and wants a deal. He is not concerned with substance as.much as with the process of getting a deal.
B) Tactics
In terms of tactics, the greatest fear is that the meeting will fail not because the elements of a deal are not possible but because no one will have the courage to make the first move. In addition another stumbling block will be the distrust each participant has for each other. It was suggested that if each Premier were asked to list his ten favorite people, no name of any Premier would appear on any list!
They want the Prime Minister to be flexible and to compromise. But they are afraid of how the Prime Minister may do so. They do not want him to produce complete texts early on because this will be looked upon by those who are paranoid as a set up or as another unilateral act.
Mark and Jim disagree with each other on the opening statements. They both admit that several of the eight will be very tough and the best to expect from any of them is the expression of a general willingness to negotiate in good faith without stating where they might demonstrate their own flexibility.
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Jim believes that the Prime Minister should merely outline the historical background and should state that he will make concrete proposals in private. Mark is afraid that sticking to the historical back ground will quickly lead to an argument over the interpretation of history and that the Prime Minister would do better to outline areas where he will be flexible without tabling drafts. My views are found later in this memo.
Both Mark and Jim see long private sessions with a great deal of shadow boxing at the beginning. They do not expect a demonstration of a willingness to compromise from many Premiers for quite a while.
C) Substance
We had a very long discussion on substance and explored a great number of possibilities. I will subdivide this section into the amending formula and the Charter. There was a recognition that the more we move towards the provincial amending formula the more the provinces will move towards our Charter of Rights.
i) Amending Formula
It is very clear that for all of the Gang of Eight other than Lyon and Lévesque the amending formula is much more fundamental than the Charter. The basic problems with our formula are the ones we know i.e., the Terms of Union for Newfoundland, the perpetual veto for Ontario and Quebec, the inadequate protection of resources, the deadlock-breaking mechanism and, for dramatic effect, the Senate veto which will be raised by more than just Saskatchewan.
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In terms of resolving the problems if we proceed using our formula as a basis, the most difficult issue will be that of the perpetual vetoes. Jim made clear that a numerical formula would be acceptable if it were close to the formula in the Accord. In other words, the eight do not want to see the 85% figure in the Toronto Consensus because it gives a de facto veto to Ontario. Even if Ontario were prepared to compromise, I do not know how to resolve the problem it would create not for the government of Quebec but for us in Quebec.
I do not see much difficulty in resolving the other issues relating to our amending formula.
The other approach which Jim suggested is to begin with the Accord and state that we would be prepared reluctantly to accept it with certain refinements. The refinements he suggested relate to opting-out. He made three proposals. The first would be to have unanimity instead of opting-out. This resembles Fulton-Favreau. The second would be to permit opting-out only by referendum within a province. The third would be to create a mechanism to ensure that Federal approval of an amendment would only come after the position of all the provinces is known. The result of this would be to enable Parliament to veto an amendment because some provinces have opted out.
ii) Charter of Rights
In discussing the Charter, it is interesting that neither Jim nor Mark even spoke of opting-in or opting-out. They agreed that no one has any real problems with democratic rights or fundamental freedoms. Mobility for most is less a problem of principle than of drafting. There is concern that the Courts should not be the final arbiter in conflicts over mobility.
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We discussed a possible compromise stemming from suggestions made in the summer of 1980. The solution would be the following: Section six would remain as is with the proviso that a provincial law specifically contravening it would be effective if approved by a majority of the legislatures representing a majority of the population of Canada.
With respect to language rights, the difficulty that struck me is the apparent reluctance on Jim’s part (reflecting the views of some of the provinces) to recognize that for a deal to be made with the Federal government, it will be necessary to break with Levesque. He kept asking about a half-way house which could satisfy Levesque. Of course, that does not exist. He made it clear that Lougheed does not want to isolate Levesque.
With respect to legal rights, a compromise based on an over-ride clause would be satisfactory. The same would be true for equality rights inasmuch as an over-ride clause would be necessary for age, sex, and disability. We spoke of an over-ride clause requiring a two-thirds majority of a legislature and which would have a sunset clause. What surprised me was Jim’s view that an over-ride clause which preserves the theory of parliamentary supremacy might be enough to bring Lyon along at the end. I should point out that there is already a limited over-ride clause in Section 4 on the life of a Parliament.
iii) Assessment and Recommendations
My assessment of the meeting is that if we can get the ball rolling, the elements of a deal are there to be had. To get the ball rolling would require the Prime Minister to demonstrate flexibility in his opening statement and to put some cards on the table in public. For example, he should state immediately that
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he is prepared
a) to find ways of resolving Newfoundland’s problem;
b) to change the deadlock-breaking mechanism to what he offered Saskatchewan;
c) to find a formula to treat all provinces equally while recognizing Quebec’s language and cultural particularities;
d) to examine how to preserve legislative supremacy in areas where rights are in the process of evolution.
To me it is very important to get the conference off to a good start and to force each province to think of compromise from the start. The old way was for opening statements to reiterate and firm-up old positions. The old way has not worked.
iv) Elements of a Deal
In my view, we should be seeking a consensus that would be along the following lines:
a) Amending Formula
– No entrenched veto other than Quebec on language Unanimity on resources
– Unanimity on changes in the amending formula dealing with amendments concerning only one province
– Seven provinces representing seventy-five per cent of the population.
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– Deadlock-breaking mechanism subject to a veto by a majority of legislatures
– No perpetual Senate veto (if absolutely necessary).
Charter of Rights
– Fundamental freedoms, democratic rights and language rights applicable across the country
– Mobility rights subject to over-ride by a majority of legislatures
– Legal rights subject to over-ride by two-thirds of a legislature with a five year sunset clause
– Equality rights applicable across the board except for age, sex, and disability which would be subject to an over-ride.
Equalization, Resources and Native Rights
– As is.
Timing of the Charter
I far prefer using the over-ride as a bargaining tool than suggesting changes in coming into effect of all or part of the Charter. The over-ride is very useful in that it allows some flexibility in dealing with bad Court decisions. It would not be a compromise merely for the provinces, it would be potentially very useful to all governments in the future.
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v) A Bold Approach
There is one possible approach different from anything that has been suggested which could ensure a deal. While it is probably not attractive to you or the Prime Minister, I hope you will think about it. It is simply to state at the very beginning that if the provinces were to accept the Charter of Rights with a few refinements, the Federal government would accept the provincial amending formula with a few refinements.
Since the provincial formula provides for a Federal veto, since we would have a Charter of Rights, and since constitutions are not easily or often amended, I do not believe that in reality we would be losing very much by taking such a bold step.
Eddie Goldenberg