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Date: 1975-09-17
By: R.G. Robertson
Citation: Memorandum from R.G. Robertson to Mr. Carter (17 September 1975).
Other formats: Click here to view the original document (PDF).

CONFIDENTIAL

September 17th, 1975

Mr.Gravelle
Mrs. Reed
Mr. Hurley

MEMORANDUM FOR MR. CARTER:

Possible modification of our drafts for the
“patriation” of the constitution

I had a long conversation on the telephone
with Julien Chouinard this morning; He told me that
the Prime Minister had, as he had intended, spoken to
Mr. Bourassa either toward the end of last week or
early this week. He had apparently re-iterated
his firm determination to press ahead with the
patriation of the constitution. Mr. Bourassa
had told him that our drafts did not respond adequately
to his requirements and he apparently referred to his
statement at Mont Gabriel. The Prime Minister
apparently urged him to have them worked on in
Quebec and to see if they cdild not send their
own texts or suggestions for revision to us.
Pursuant to his conversation, Mr. Bourassa spoke
to Chouinard and asked him to get in touch with me
as soon as he saw any possibilities for discussion.
Chouinard’s call was pursuant to this.

Chouinard outlined to me the best
possibilities that he could see, having in mind the
constraints that are imposed by the intention not
to get into constitutional amendment. He has not
discussed these possibilities with Mr. Bourassa
and has asked me to give him a reaction so that he
can do so. His thoughts are as follows:

(a) Our paragraph 3 of Appendix No.1
could be made much stronger and more acceptable
from the point of view of Quebec if three
revisions could be worked into it:

(i) By “singularizing” the French language
(as we have done in the second “Whereas”
paragraph at the beginning) rather than having
the thing completely on the basis of the two
official languages;

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(ii) By adding “culture”; and

(iii) By adding “the negative aspect”.

What Chouinard has in mind in (iii) does not go
as far as the establishment of any “powers to
prevent” by Quebec nor is he suggesting any
specific mention of Quebec at all. What he has in
mind is simply the negative aspect of what is stated in
affirmative in paragraph 3 as it now stands. In
other words, in addition to having the government
and Parliament of Canada “guided” to ensure the
preservation and full development” (of the French
language and culture), there would be something
to the effect that they should not act in any way
that would have a “regressive” consequence for the
French language and culture in Canada.
(He spoke in terms of the government and
Parliament not making any “geste, acte ou
dispositions regressives”.

(b) While he is not at all certain,
he thinks it is possible that Mr.Bourassa could
have a defensible position onguarantees,”spirit” and
on his specific mention of communications and
immigration by the addition to our Appendix No.1
of something about “ententes”. Mr.Chouinard
is well aware that there have been a number of
agreements entered into with respect to immigration.
Mr. Hurley mentioned these in his memorandum as being
quite impressive and something that should be given
permanence at some stage. Chouinard says that
there is a new agreement under negotiation which
goes even further and he thinks all of these could be
used as demonstration of the kind of thing that would
be possible and more definitely called for if some
specific mention were made in Appendix No.1.

What he has in mind is something that
would probably go no further than to say the
governments “peuvent entrer dans des ententes
relatives à l’exercise de leurs pouvoirs”
in relation to – either things in general or things
mentioned specifically. He said he saw three
possibilities:

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(i) To add to our Appendix No.1 a paragraph
saying that the governments could enter
into agreements concerning the exercise
of their powers at large;

(ii) To have such a provision plus an amendment
of section 95 which would introduce this
idea and add “communications” there;

(iii) To have a provision as referred to in
(i) plus the indication that this would
be “notamment dans les domaines de
l’agriculture, l’immigration et des
communications”.

(Chouinard would have “agriculture” mentioned on
the logic that it is parallel with immigration in
section 95 but also because it would be politically
very attractive.)

I told Chouinard that alternative (ii)
would be quite impossible. I said I had some
concern about both the other options but
that I thought they were well worth exploring.
He said he doubted if the first option would
satisfy Mr. Bourassa: the third one might have
a chance.

Chouinard is well aware that the
provision he is suggesting would not add anything in a
strict legalsense and would not geguire the establishment
of agreements. He thinks it would, however,
provide a basis for arguing that such a provision
gives for the first time a specific recognition
to the idea that there ought to be agreements
(which would be particularly attractive with three
fields mentioned) and also that Quebec, because
of this recognition, would have a constitutional
right and obligation to intervene and to call for
discussion and agreement if her interests appeared to
be affected.

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Mr.Chouinard says that there is to be
a special two-day meeting of the Quebec Cabinet on
October 8th and 9th and Mr. Bourassa has announced
that, among other things, the constitutional question
will then be discussed. He thinks it is very
important that we should give him some reaction
before that time if at all possible. I said I
would give the matter immediate attention and try to
talk to him again either tomorrow or Friday. In
the meantime he wants this all to be guarded as
especially confidential and for our eyes and ears
only.

R.G.R.