Document Information

Date: 1975-11-03
By: James Ross Hurley
Citation: Memorandum from James Ross Hurley to R.G. Robertson (3 November 1975).
Other formats: Click here to view the original document (PDF).

CONFIDENTIAL

November 3, 1975

MEMORANDUM FOR MR. R.G. ROBERTSON

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

Meeting with Judge Chouinard
on the Form for a Proclamation
Quebec, October 31st, 1975

As agreed, I met with Judge Chouinard at the
Palais de Justice in Quebec on Friday, October 31st, 1975,
and gave him a copy in French and in English of the Form
for a Proclamation. We had a full, frank and friendly
conversation for about an hour and a half.

1. Article 40

During an initial period, his comments were directed
solely to Article 40, which he qualified variously as “un
recul”, “ça ne veut rien dire”, and “inacceptable”. He said
that he would not show it to Mr. Bourassa, “autrement, ça
serait la fin du patriement”.

As agreed, I explained to him that this version had
been submitted in the eleventh hour by “des conseillers
juridiques” in the hope of removing certain ambiguities and
for the sake of legal clarity. We went over each of the
points in turn. He maintained that the question of with
whom governments could make agreements and who might take
the initiative could be resolved to his satisfaction by adding
two words to the original formulation: “entre eux”. The
clause would then read: “… le gouvernement du Canada et
les gouvernements des provinces peuvent conclure des ententes
entre eux ….”

He maintained that qualifying such agreements with
a grant of power from the legislatures would narrow in an
unacceptable fashion the spirit of the original proposal,
that it would not legitimize agreements such as the Andras-
Bienvenue Agreement, that it would lead to posturing and
confrontation similar to that in the Duplessis régime, and
that it totally missed the point, which was to symbolize a
new era of cooperation “as of right”. If clarity were needed,
he would add one word, “respectifs”: … relatives à
l’exercice de leurs pouvoirs respectifs ….”

He also queried the use of the verb “continuer”
which, he maintained, would render the Article meaningless;
it would invalidate the notion that a new era of cooperation
as of right was dawning. I asked him whether he could think
of another verb. He could not and said he was quite happy
with the original version. There is no point in giving
something that has not been requested, but if the process
bogs down again, we may have a bargaining point here. Judge
Chouinard’s intent could be strengthened considerably by
saying that governments may and are encouraged to make
agreements. On the other hand, he desires no strengthening:
he is satisfied with the original version.

He was pleased to note that “politique sociale”
had been added, but he did not appear to consider that this
was a concession. Rather, he said that “on a oublié de l’ajouter”
in the earlier version.

In sum, he wishes to return to the earlier version,
adding three words:

“Dans le but d’assurer une plus grande harmonisation
de l’action des gouvernements et plus particulierement
d’éviter toute action qui pourrait compromettre la
sauvegarde et l‘épanouissement de la langue francaise et
de la culture dont elle constitue l’assise, le
gouvernement du Canada et les gouvernements des
provinces peuvent conclure des ententes entre eux
relatives a l’exercice de leurs pouvoirs respectifs,
notamment dans les domaines de l’immigration, des
communications et de la politique sociale”.

2. Article 38

Judge Chouinard expressed great satisfaction with
Article 38, noting that the negative aspect is what gives it
its salience and its strength.

3. Article 29

I explained that Article 29 came from the Part on
Modernization in the Victoria Charter. He understood and
made no comment.

4. Clarity in the French text

In order to properly qualify the degree to which
culture, like language, would be protected, Barbara Reed
suggested that the word “de” should be inserted before
“la culture” in the second last line of the second paragraph
of the preamble; in the second last line of Article 38; and
in the fourth line of Article 40. This would be very prudent
indeed. For the sake of good grammar, I also inserted ni
before “de la langue francaise” in the second last line of
the second paragraph of the preamble. Judge Chouinard noted
that the verb in the first line of the second paragraph of
the preamble should be “soient”, not “soit”. He corrected
his version to take account of all of these points, with
which he agreed. They should now read:

“que soient arrétées des dispositions plus
spécifiques, quant au statut constitutionnel
de l’anglais et du français au Canada et qu’il
importe de ne pas compromettre, par la revision
de la Constitution, l’interprétation de ses disposi-
tions ou l’action du Parlement ou du gouvernement
du Canada, le maintien et l’épanouissement ni de la
langue francaise, ni de la culture qu‘elle sous-tend,”

Art. 38 Le Parlement du Canada, dans l’exercice des pouvoirs
que lui confère la Constitution du Canada, et le
gouvernement du Canada, dans l’exercice des pouvoirs
que lui attribuent la Constitution et les lois
adoptées par le Parlement du Canada, sont tenus
de prendre en consideration, outre, notamment, le
bien-être et l’intérêt du peuple canadien, le
fait que l’un des buts essentiels de la fédération
canadienne est de garantir la sauvegarde et
l’épanouissement de la langue française et la
culture dont elle constitue l’assise. Ni le
Parlement du Canada, ni le gouvernement du Canada,
dans l’exercice de leurs pouvoirs respectifs, agira
de manière à compromettre la sauvegarde et l’épanouisse-
ment de la langue française et de la culture dont
elle constitue l’assise.

Art. 40 Dans le but d‘assurer une plus grande harmonisation
de l’action des gouvernements et plus particulièrement
d’éviter toute action qui pourrait compromettre la
sauvegarde et l’épanouissement de la langue française
et de la culture dont elle constitue l’assise ….”

5. Article 7

On initial reading, Judge Chouinard was of the
impression that Article 7 was sufficient to cover the amending
formula for the Proclamation.

6. The Spending Power

He mentioned that Mr. Bourassa was still interested
in the spending power. I gave him some photocopies from the
Secretary of the Constitutional Conference’s report on the
constitutional review which summarized the various positions
taken, a copy of the text published under the name of the
Prime Minister in mid-1969 which summarized the federal
position, and a brief summary of the main items of debate.
I discussed some of the difficulties in arriving at an
agreement in this field, pointing out that federal contribu-
tions might well come from the “fonds consolidé” and could
not be related directly to personal income tax points, a
matter which does not appear to have been covered in the
Secretary’s summary. We agreed that it would probably take
several years to come to any agreement. He suggested that
Mr. Bourassa might accept a firm commitment to pursue this
matter on the part of the Prime Minister as adequate if such
commitment were made publicly prior to patriation.

7. An agreement in the field of communications

Judge Chouinard agreed that the two recent agreements
in the fields of immigration and social policy would be
sufficient to hold out serious hope for a subsequent agree-
ment in the field of communications. However, he added that
if steps were taken to begin the process of a negotiated
agreement in the field of communications in the near future,
Mr. Bourassa might make his agreement to patriation dependent
upon the progress of such negotiations during the period of
ratification of the Proclamation. This might lead to procras-
tination, an on-again-off-again attitude on the part of Mr.
Bourassa and further bargaining. A “firm commitment” from
Mr. Bourassa may bear conditions attached to the state of
negotiations in the field of communications or, for that matter,
of the federal spending power which he could just as likely
add to his list.

8. A reference to the courts

Judge Chouinard did not appear very happy about
the Prime Minister’s rejection of a court reference. The
idea originated with Mr. Bourassa. He had made a review
of the time factor involved in a Quebec reference that was
agreed to by the Cabinet of Quebec in mid-1963, although
the “arrêté” was not published until January 1964. The.
matter was dealt with first by the Quebec Court of Appeal
and then by the Supreme Court and was disposed of in mid-
1965. This would suggest that the time period required for
a double reference would be about 18 months. If one went
directly to the Supreme Court, he felt that it would take
about a year. I summarized the objections and suggested that
a protfacted public examination might permit the media to
try to manipulate opinion and change the positions of various
parties. He merely noted that positions do change over a
period of time. He suggested that Mr. Bourassa might want
to consult the population in 1977 and that the Proclamation
could prove to be an important element in his request for a
mandate. I got the impression that Mr. Bourassa does not
feel a great urgency in this matter and that, while negotia-
tions may continue and a final draft might be agreed to
informally over the, next few months, Mr. Bourassa does not,
at present, envisage a ratification of the Proclamation
before he is ready for an election.

I offered Judge Chouinard a second set of the
draft Form in English and in French, but he declined,
noting that the current version is unacceptable and that
he would not present it to Mr. Bourassa.

James Ross Hurley