Document Information

Date: 1975-10-16
By: James Ross Hurley
Citation: Memorandum from James Ross Hurley to R.G. Robertson (21 October 1975).
Other formats: Click here to view the original document (PDF).

CONFIDENTIAL

October 16, 1975

MEMORANDUM FOR MR. R.G. ROBERTSON

cc: Mr. F.A.G. Carter
Mr. P. Jodouin
Mrs. B.J. Reed

Comments on the reaction from Quebec to the
latest draft for the Proclamation on the
Constitution

Your memorandum of October 10th to the Prime
Minister was rather encouraging, although some of the points
raised on the Quebec side could cause problems.

1. The Amending Formula

According to Barbara Reed, dispositions already
exist to have the Proclamation included as part of the
Constitution of Canada covered by the amending formula,
so this point will not occasion any problems.

2. Modification of Article 6

Earlier, we had thought of the possibility of keeping
“culture” in reserve as a bargaining point. There is no
reason why “social policy” (without agriculture) could not
be used instead, as you point out. Indeed, it may be
advantageous from a federal point of view. Quebec has, in
recent years, been insisting on some form of provincial
primacy in the field of social policy. Inclusion of
social policy in Article 6 might be construed as a tacit
recognition of a legitimate federal concern with social
policy and an abandonment of an absolute “souverainiste”
stance on the part of Quebec.

3. The Federal Exercise of the Spending Power

This was one of the key proposals in Claude Ryan’s
editorial, “Pour que le rendez—vous réussisse”, which appeared
in Le Devoir on July 30th, 1975. Mr. Ryan claimed that the
“Conférence constitutionnelle était également convenue” in
June 1971 on the principle of fiscal equivalence, but that
the parties in cause differed on the technique of payment —
to governments or individuals. Mr. Bourassa might be
relying on Mr. Ryan’s “memory” of the events which you
queried at the time, both in terms of date (1969 rather than
1971) and the nature of “convenue” (agreement to disagree
rather than agreement). Attached please find the editorial
with the covering memorandum of August 5th, 1975.

Although it may be possible to devise a formula
that could allow a province or some provinces to restrain
new federal initiatives in the field of shared programmes or
to act as a disincentive for such new ventures, it would
probably be wise to reject the matter at the present time.
It was not a part of the Victoria agreement; the Premiers
agreed that the discussions on Patriation should not involve
the distribution of powers, and Mr. Bourassa’s proposal would
represent a major departure from this agreement; the matter
is extremely complex and would hold up Patriation indefinitely;
and finally, Article 4 already stipulates that the government
of Canada and the Parliament of Canada shall not act in a
manner that will adversely affect the preservation and
development of the French language and the culture based on
it, which surely means that even in the event of new federal
initiatives, the new shared programmes could not be injurious
to the language and culture of the majority in Quebec –
this in itself is a fairly major constraint, and one that
was not contemplated at Victoria.

4. Reference to the Courts

This is a very shrewd request and, on the surface,
it makes sense. Quebec has asked for cultural guarantees.
The Proclamation contains some principles or guidelines that,
it is hoped, would meet Quebec’s demands. Rather than rely
on the opinion of various constitutional advisors, it might
be best to go directly to the final arbiter and ask for an
opinion.

On the other hand, asking the Supreme Court for an
opinion is a very dicey matter. First of all, since no
litigation would be before the Court, the Justices would have
to reach an opinion in the abstract. Secondly, the nature
of the request itself would be very vague; it is not as though
the government were asking the Justices to indicate whether
a contemplated piece of legislation would be considered
intra or extra vires. This having been said, this matter
is not quite as abstract as the question of off-shore
mineral rights, where there were no concrete provisions
in the British North America Act, where there was no nego-
tiated agreement among the parties in cause, and where there
was no proposal of a constitutional settlement upon which
the opinion of the Justices might be sought. In this case,
we do have something more “concrete”: the Proclamation,
including Article 4, does represent a negotiated settlement
among the various parties (if the other Premiers agree to
it) and would become part of the Constitution of the land
if accepted by the eleven Legislatures. What would be sought
would be the opinion of the Justices on the significance,
meaning, importance or restraining power of the Proclamation
(or of Article 4) should it become part of the Constitution
of Canada.

In the abstract, then, the request would appear
to be receivable. Refusing to receive it, furthermore, might
be construed by Quebec officials as indicating that their
federal counterparts do not really believe that the principles
or guidelines would stand up in Court, in which case there
is no real “guarantee”. But what can one ask of the Justices?
This seems to be the crux of the matter. What is a “guarantee”?
What is to be guaranteed? Must one define culture? Does
Article 4 of the Proclamation supersede the general power
of the federal government to make laws for the peace, order
and good government of Canada? One could go on.

If the Prime Minister is now “moins opposé” to a
reference, it might be best, before making a final decision,
to analyze carefully the way in which the request might be
formulated to ensure the greatest possible chance of a
favourable opinion. Nothing could do greater harm to the
success of the patriation exercise than to have a negative
or even a mitigated opinion.

In the event that a request could be formulated
that would be meaningful to Quebec and that would in all
probability elicit a favourable opinion from the Justices
and, in such an event, if the matter were to be sent to the
courts for an opinion, there would be two options: to
refer the matter to the Court of Appeal of Quebec or to refer
it directly to the Supreme Court of Canada. I see no real
adyantage in the first option. It might be argued that the
Court of Appeal pf Quebec is perceived by Quebeckers as being
“more legitimate” or more “sympathique” than the Supreme
Court of Canada, but this begs the question: whether or
not the Court of Appeal gives a favourable opinion, the
matter would still have to be sent to the Supreme Court to
ensure that the ultimate arbiter is of the same opinion.
It would be ruinous for the patriation exercise if the
Court of Appeal gave a favourable opinion and the Supreme
Court of Canada a negative one: it would only confirm old
suspicions. Things would be almost as bad if the Supreme
Court upheld the opinion of the Quebec Court, but for
different (“the wrong”?) reasons. Coupled with the time
factor, the arguments against a reference to the Court of
Appeal would appear telling.

It would be best to avoid any public mention of
a reference case until a firm federal position has been
decided, but I fear that if other news is slack in the
near future, Claude Ryan, by a strange process of osmosis,
will suggest such a course of action in an editorial, in
which case it will become almost impossible to refuse
to refer the matter.

If the Prime Minister were to decide that it would
be preferable not to have a reference case, he might remind
Mr. Bourassa that, at present, the retirement age for Supreme
Court Justices is 75. If the Patriation Proclamation were
agreed to immediately, the age would drop to 70 (Article
34 of Part IV, Victoria Charter). This would automatically
create three vacancies, including one from the Quebec Bar.
Within five years, the majority of Justices (5) shall have
been appointed under the new formula with provincial partici-
pation. Ergo, why bother with a test case before the current
Supreme Court when the majority of judges will have been
appointed under the new formula in a few years’ time and the
Court, at that time, might appear to be more “legitimate”?
This might not wash, but it would not hurt the case to remind
Mr. Bourassa that the moment the Proclamation is entrenched,
participate in the selection of a new Justice from the
Quebec Bar.

I suspect, however, that it will not be possible
to refuse to refer this matter to the Courts for political
reasons. If so, it might be best to argue for a direct referal
to the Supreme Court. In the meantime, we should try to work
on the best possible formulation of the request to ensure
its ultimate success. Judge Chouinard appears, from your
memorandum, to be somewhat more optimistic than I. Should
we ask him, confidentially, to suggest the most fruitful
formulation, in his opinion, to attain the desired results?

James Ross Hurley