Memorandum from R.G. Robertson [The next developments on the “patriation” of the constitution] to Mr. Gravelle, Mrs. Reed, and Mr. Hurley (17 September 1975)
By: R.G. Robertson
Citation: Memorandum from R.G. Robertson to Mr. Gravelle, Mrs. Reed, and Mr. Hurley (17 September 1975).
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Federal-Provincial Relations Office
Bureau des relations fédérales-provinciales
See the attached copy
of a memorandum I have done for
Mr. Carter on the “patriation”
exercise. Please give this
some thought. I think we may
well want to have some discussion
about the questions that are
raised here before the end
of this week.
September 15, 1975.
c.c.: Mr. Gravelle
MEMORANDUM FOR MR. CARTER
The next developments on the
“patriation” of the constitution
I had a brief discussion with the Prime
Minister on September 10 on the “patriation” exercise
and there will, I hope, be an opportunity for a
further discussion before too long. The Prime Minister
had read Jim Hurley’s memorandum of September 5 with
its attachments and my covering memorandum of
September 8. The discussion that we had was in
advance of a meeting of a quite different purpose
and it did not cover everything that is involved.
It was, however, helpful on several points.
With regard to the three questions for
decision raised in my memorandum:
(a) The Prime Minister agrees that
you and I should try to see Mr.
Barrett in order to complete the
round of discussions with the
provinces. I shall get in touch
with his office in the next day
or two to see what can be arranged.
(b) The Prime Minister may try himself
to speak to Mr. Bourassa to get
further clarification of his position.
He is likely to be in touch with him
on other matters and, if so, he will
use the occasion for some discussion.
(C) We had some short discussion of
strategy in the light of recent
developments. The Prime Minister,
subject to his discussion with
Mr. Bourassa, is not very optimistic
about getting an agreed position
that would permit agreed action
in 1976. On the other hand, he is
reluctant to slow down the process
of discussion and accept a delay
until 1977. The only alternative
to those is,of course,use of the
“fall back” position. It has
I told the Prime Minister that I had been
wondering whether there should not be a further effort
at discussion – and a further effort to get agreement –
in which the “fall back” position would be used. We
have not made any reference to it at all as yet and
it is likely that the Premiers think that, failing
agreement, the Prime Minister and the federal govern-
ment will be stalled in getting “patriation” and the
amending procedure. If it were made clear that this
is not going to be the case and that there is a course
which will permit action on a unilateral basis, it is
not impossible that that could lead to some modifications
of position. I told the Prime Minister that it seemed
to me that, as compared with the “fall back” action,
there is something for at least 8 of the 10 provinces
that would be advantageous in the “package” that we
are seeking to get agreement on.
If we were to move on the “fall back”
option, it would establish purely and simply the
Victoria amending formula to come into effect when all
10 provinces had passed a resolution of approval.
As compared with that situation, if there were agreement
on the “package”, there would be attractions for most
of the provinces:
For Quebec – constitutional guarantees
plus the Supreme Court
provision plus regional
For the Atlantic provinces– the regional
For Alberta – the Supreme Court provision
and possibly a change in the
amending formula re western
For Saskatchewan and Manitoba – the same
items as for Alberta plus the
provision on regional disparities.
The only provinces for which there is
no specific attraction in an agreed “package”
rather than in the “fall back” are British Columbia
and Ontario. Ontario would almost certainly come
along if Quebec and the other provinces do so.
This may well leave only British Columbia with a
disposition against the agreed “package”.
Apart from the above considerations,
it is quite possible that all the Premiers might
be disposed to find it more attractive to be
participants in an historic action to “patriate”
the constitution and end the frustration of an
amending formula than to be by-standers while
the Prime Minister and the federal government
accomplish this alone. In that sense, there may
be some attraction for all 10 in seeing that the
“fall back” option is not used.
The Prime Minister was interested in
this idea and asked me to give it further thought
with a view to more discussion when that is possible.
I would very much like to have-your comments and
suggestions. At one stage or another – probably
at a fairly early point – it seems almost certain
that we are going to have to say something about
the “fall back” possibility. I think we must
consider very carefully just how best to do this
since it is obviously a pretty explosive item.
Perhaps we should try to get together
to talk about this matter in this office before
the end of the week. So far as I am concerned,
Wednesday or Thursday afternoon about 4 would do.
If either time would suit you, please let Louise
know and we will arrange a meeting.