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Date: 1975-05-29
By: R.G. Robertson
Citation: Memorandum from R.G. Robertson to Mr. Carter (29 May 1975).
Other formats: Click here to view the original document (PDF).

Mrs. Reed
Mr.Gravelle
Mr.Hurley

May 29th, 1975.

MEMORANDUM FOR MR. CARTER:

“Patriation” of the constitution:
Quebec position

Attached is a copy of the memorandum
for the Prime Minister to which I referred in our
telephone conversation this morning. I am sending
copies also to Mrs. Reed and Messrs. Gravelle and Hurley
and I would appreciate it if all would regard the
material as being for their own eyes only.

While I left the challenge with Julien
Chouinard to come up with some kind of a paragraph
that would have the further protection that Mr.Bourassa
is talking about, I think we must equally bend our
minds to what might be possible. Don Thorson outlined
an idea the other day which is helpful. I think
it would not, as he formulated it, go quite far
enough. In any event, what we must do is see
what kinds of thing we can devise that would help to
meet the Quebec position while still having some chance of
being acceptable in Ottawa. Perhaps we can
get together in a couple of weeks to see what we have
been able to contrive.

R.G.R.

May 27th, 1975.

“CONSTITUTIONAL GUARANTEES’ RE CULTURE

A. The categories of action in respect of which a
“constitutional guarantee” might be sought in
order to provide a degree of protection

The following would appear to be the
types of action in respect of which a guarantee would
be relevant or desired:

Constitutional change

1. A diminution in provincial powers
re culture –

– covered by “veto” in amending
formula.

2. An increase in or change of federal
powers re culture –

– covered by amending formula

(No. 1 and No. 2 require a “negative guarantee”
– a prohibition against constitutional
change without assent of Quebec.)

3. Federal action under present powers
which could be injurious to French
culture. Two possible situations:

Unconstitu-
tional action

(a) Action that is ultra vires

– protection is the Supreme Court

-Part IV would help guarantee
a good court

Constitutional
action that is
“not liked”

(b) Action that is intra vires

-Possible protections-

(i) An “intent” clause in the
Proclamation

(ii) Something re language
or cultural “rights”

(iii) A “Scottish” provision.

B. Forms of guarantee for early discussion with
Mr. Bourassa

A constitutional provision based on the
kind of thing that is applied in the United Kingdom
with regard to measures exclusively directed toward
Scotland, Wales and Northern Ireland would seem to be
much too fundamental and complex for any discussion
at an early point. It would probably, moreover, be
difficult to devise in a way that would seem relevant
to Quebec. They are not particularly interested in
a measure that is specifically or exclusively directed
toward Quebec but rather in general programs that they
consider could be injurious to the French culture –
such as immigration policy, television and radio
broadcasting. Theoretically there could be something
negative and prohibitory with regard to immigration
and communications but this too would be difficult
to devise. It would also be difficult, once the
principle had been conceded, to hold anything to these
two subject-areas.

In the light of the above considerations,
the following would appear to be the kinds of matter
that lend themselves to discussion as “constitutional
guarantees”.

l. The amending formula itself

With its veto for Quebec, this provides
a “negative guarantee” — a guarantee against
constitutional change that could be injurious to the
French culture.

2. Victoria Part IV — the Supreme Court
This would provide two types of guarantee:

(i) through the requirement of
consultation, a guarantee
that the court of ultimate
jurisdiction on constitutional
cases will be fair and objective.

(ii) Through the provision with regard
to cases involving Quebec civil
law, a guarantee against distortion
or erosion of the legal base for
French culture.

3. Provisions re language rights

Difficulties with respect to the
Victoria provisions appear to be:

(i) Would they be deemed to
conflict with Bill 22 in
fact or in spirit? If so,
Quebec might not want them.

(ii) Would they be acceptable to
other provinces especially
since the passage of Bill 22?

4. A preambular clause in the Proclamation
of the Governor General

This could be a clause which could recite,
as a consideration in instituting the amending procedure,
the importance of ensuring the preservation and the
protection of the use of the two official languages
and the preservation and development of the cultures
based on them through ensuring that in any constitutional
change there must be the consent of provinces that
are representative of the two cultural streams. This
could be expanded to be more specific with regard to
“culture” if wording could be devised.

Thorson advises that a preamble of this
kind would be deemed to be influential by the courts
in constitutional interpretation and legal decision.
He compares it with the preamble to the B.N.A. Act
with its reference to “a constitution similar in
principle to that of the United Kingdom”.

5. A positive provision re communications

It might be possible to have a provision
in the Proclamation itself (not in the preamble) which
would require that “where television and radio services
are provided (in Quebec?), (in Canada?) they shall
take into account the language composition of
(the province), (the country)”.

It might be difficult to have a provision
of this kind without getting into specifics— what
percentage of population, etc.

DRAFT PREAMBULE

Whereas the Parliament of the United Kingdom
has hitherto had authority to enact laws extending to
Canada as part of the law thereof, including constitu-
tional laws, and neither the Parliament of Canada nor
the legislatures of the provinces have been able to
alter the Constitution of Canada in certain respects.

And whereas it is in accord with the status
of Canada as an independent state that the Canadian
people should be able through their chosen represent-
atives to [provide for themselves the means by which to
alter their own Constitution in all respects.

And whereas French and English are the two
official languages of Canada and Canada is characterized
by a rich diversity of cultural heritages and regional
identities.

And whereas it is desirable for the continued
enrichment of Canada that the two main linguistic com-
munities and the several regions and cultures of Canada
fluorish.

And whereas it is desirable that amendments
to the Constitution be made in a manner which will ensure
that changes affecting the rights of people belonging to
the two official language groups should not be made without
the consent of provinces representative of those language
groups without the participation of the provinces concerned
affecting the use of the French or the English language

And whereas it is desirable that amendments to
the Constitution be made in a manner which will ensure
that changes affecting the rights of people in the several
regions of Canada should not be made without the consent
of provinces representative of those regions without the
participation of the provinces concerned.

And whereas the Senate and the House of Commons
and the Legislatures of all the Provinces have agreed that
the following be proclaimed part of the Constitution of
Canada

Now therefore……

And whereas the Senate and the House of Commons and the
Legislatures of all the Provinces recognized the necessity
of mutual consultation in areas interrelated…….