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Date: 1981-10-13
By: Michael Kirby
Citation: Memorandum from Michael Kirby for the Prime Minister, Constitutional Proposal (13 October 1981).
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SECRET
October 13, 1981

MEMORANDUM FOR THE PRIME MINISTER

Constitutional Proposal

Attached is an outline in point form of the constitutional amendment proposal which you described to Mr. Pitfield, Fred Gibson, and myself at Harrington Lake on Saturday. The outline was prepared by Fred Gibson and reviewed in detail with Roger Tasse and with me. Roger, Fred, and I are satisfied that it is feasible to modify the current Resolution to incorporate the proposal.

We would appreciate your confirmation that the outline accurately reflects your proposal. If it is inaccurate in any respect, we will need to review the proposal again with you.

If the outline is accurate, we will need your authority to proceed with the preparation of a narrative textual description of the proposal for your use and for use in a press release. We will also need your authority to instruct a team of legislative drafters so that the legal text of the necessary amendments to the Resolution can be prepared. Roger estimates that this task can be completed to the point of having a draft in both languages for your consideration within 48 hours of receipt of your authority to proceed.

The outline of the proposal would result in the following time sequences, assuming final adoption of the Resolution by Canadian Parliament by November 1:

• Negotiations with the provinces under the proposal would continue to October 31, 1982.
• Assuming no unanimous agreement on the whole of the package under negotiation by October 31, 1982, a referendum could be held at any time between June 1983 and the end of October 1984.

Michael Kirby

SECRET
October 13, 1981

Proposal:

1. Patriation and amending formula provisions of the measure would come into force as per the terms of the measure, except as to a timing change referred to in paragraphs 4 and 5 for the commencement of the negotiation period to achieve a final amending formula and a reduction of that period from two years to one year.
2. Official languages provisions, which are applicable only to the federal authority and New Brunswick, would come into force on proclamation following adoption at Westminster.
3. The Charter (except official language provisions), aboriginal rights, equalization, and natural resources provisions would be postponed in their coming into force to allow for federal/provincial negotiation of their terms.
4. Negotiations referred to in paragraph 3 would be among the federal and provincial governments (and the native peoples on aboriginal rights) and would continue for a maximum period of one year from the date the measure is approved by the Senate under the terms of the present special order of the Senate.
5. Negotiations on the final amending formula would be conducted in conjunction with, and on the same timeframe as, the negotiations provided for in paragraphs 3 and 4.
6. If, at any time during the negotiation period, a text of all the provisions under negotiation provided for in paragraphs 3 and 4 were approved unanimously by First Ministers, any modifications necessary to bring the text of the measure into conformity with the approved text would be adopted in the manner provided in Clause 37 (the formula for making amendments during the unanimity period) to be effective simultaneously with the proclamation into force of the provisions under negotiation.
7. If, at the end of the negotiation period, a text of all the provisions under negotiation provided for in paragraphs 3 and 4 were not approved unanimously by First Ministers, the issue of whether or not those provisions should be proclaimed would be put to the people of Canada in a referendum. Changes to individual provisions agreed to during negotiations could be implemented following the referendum and proclamation of the unmodified text by way of the adopted constitutional amending formula.
8. If proclamation is approved in the referendum by:
   • A majority of the people voting in Canada,
   • A majority of the people voting in Quebec,
   • A majority of the people voting in Ontario,
   • A majority of the people voting in two of the four Atlantic provinces,
   • A majority of the people voting in two of the four western provinces,

   then the provisions forming the basis of the referendum would be proclaimed. In any other case, the authority to proclaim the provisions would not be exercised and would be treated as spent.

9. In the event that a consensus among First Ministers in favour of this proposal is reached at the FMC on October 20, the Prime Minister will endeavour to obtain unanimous agreement in the House of Commons and Senate to amendments to the measure to provide authority to implement the proposal.
10. In the event that a consensus among First Ministers in favour of this proposal is not reached at the FMC on October 20, the Prime Minister might nonetheless endeavour to obtain unanimous agreement in the House of Commons and Senate to amendments to the measure to provide authority to implement the proposal.
11. In the event that the unanimous agreement referred to in paragraphs 9 and 10 is not obtained, the House of Commons and Senate would be invited to approve the measure without change. On approval, the measure would be sent to Westminster. At the earliest feasible time and prior to proclamation, a resolution to provide authority to implement the proposal would be introduced in Parliament. Provinces would be given until May 1, 1982, to adopt equivalent resolutions. If resolutions were adopted in Parliament and all legislatures, the proposal would be given effect under Section 37 of the measure. If resolutions were not adopted in Parliament and all legislatures, the measure would be proclaimed without modification after May 1, 1982.

PROCLAMATION

Delayed Provisions

• Whole of Part 1 up to and including Clause 15
• Clause 23
• Clause 24(2), 25
• Clause 27
• Clauses 29, 30, 31, 32
• Parts II and III (34 & 35)
• Clause 55(c) & (d)
• Part VII

Consequential Changes

• Clause 36(1)
• Clause 42(b)
• Clause 43(3) – consequential change to 42(b)
• Clause 64
• Clause 65

Immediate Provisions

• Canada Act
• Clauses 16 to 22
• Clause 24(1)
• Clause 26
• Clause 28
• Clause 33
• Part IV (36)
• Part V – changed in 42
• Part VI (except 55(c) & (d))
• Part VII (check consequential)

Clause 42(b): Comes into effect one year after the date of approval by the Senate.