Memorandum from James Ross Hurley [The Patriation Exercise: A Tally of the Points Raised by Mr. Chouinard and the Reactions of the Prime Minister] to Mr. R.G. Robertson (29 October 1975)

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Date: 1975-10-29
By: James Ross Hurley
Citation: Memorandum from James Ross Hurley to Mr. R.G. Robertson (29 October 1975).
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October 29, 1975


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

The Patriation Exercise:
A Tally of the Points Raised by Mr. Chouinard
and the Reactions of the Prime Minister

1. Points Raised by Mr. Chouinard

On October 8th, 1975, Mr. Chouinard conveyed to you,
by telephone, the reactions of Mr. Bourassa to the draft Form
for a Proclamation. He made the following comments:

a) Mr. Bourassa was “très enthousiaste”.

b) The draft should be modified so that it is clear
that the amending formula applies to the Proclama-
tion as well as to the other documents that consti-
tute “The Constitution of Canada”.

c) Reference to social olic should be included in
the Part (now Article 395 on Federal-Provincial

d) A provision to limit the federal exercise of the
spending Bower should be added to the proclamation.

e) One should consider the question of a reference to
the courts of the Proclamation with particuIar
attention to constitutional guarantee of the French
language and culture to be honoured by the Government
and Parliament of Canada.

On October 15th, 1975, Mr. Chouinard had another
telephone conversation with you, following the special meeting
of the Quebec Cabinet at which the question of patriation
was discussed. He made the following comments:

a) The Cabinet was “pas très enthousiaste” in large
measure because it was felt that the patriation
exercise would cause problems concerning Bill 22
and related matters.

b) There was a generally held view that it would be
important to try, if possible, to resolve the question
of communications before proceeding with patriation.

c) Without renouncing the idea of proceeding on patria-
tion, Mr. Bourassa was now “un peu moins enthousiaste”.

d) Mr. Bourassa raised the possibility of working out
an agreement on communications that would demonstrate
the force of the Part on Federal-Provincial Agreements.

e) Mr. Bourassa again raised the possibility of
including limits on the spending power of the Govern-
ment and Parliament of Canada in the package.

f) Mr. Chouinard would like to have a copy of the
spending power proposals and the record of positions
taken and the final disposition.

You transmitted these comments to the Prime Minister
(save Mr. Chouinard’s last request and I do not find a written
comment on communications) and he made the following comments:

a) Making sure that the Proclamation itself is covered
by the amending formula was not raised by Mr. Bourassa,
but the Prime Minister agrees that this should be done.

N.B.: Article 7 of the last draft of the Form for
Proclamation does in fact stipulate that the
Proclamation will become a part of the
Constitution of Canada.

b) Initially, the Prime Minister felt that inclusion
of social policy in the Article on Federal-Provincial
Agreements should be kept as a last concession, but
he now feels that it should be included with the
provision that this is the very last modification
that will be countenanced.

c) Mr. Bourassa had raised the question of the spending
power with the Prime Minister who rejected it as a
matter to consider prior to patriation, although
he would not exclude discussion of it after patria-
tion had been accomplished.

d) The Prime Minister initially was not very optimistic
about the chances of a court reference being settled
in a matter of a few months and concurred in your
assessment that it would be a mistake to have a
reference. His subsequent preoccupations with timing
and the danger of last minute concessions being
engineered by the Quebec media would add further
doubt to the wisdom of a court reference.

e) The Prime Minister did not comment upon the Quebec
request for a prior agreement in the field of commu-
nications before proceeding with patriation, but his
desire to move ahead and to stop further requests
from Quebec prior to patriation would lead one to
suspect that his reaction to this would not be
favourable. In any event, of the three items that
have been specifically mentioned under the heading
Federal-Provincial Agreements, mutually satisfactory
agreements have been reached in social policy and
immigration. This should be evidence enough that
it may be possible to reach mutually satisfactory
agreements in the third area, communications.

In addition, the Prime Minister raised several other points:

a) Why was such a long period included in the provisions
of Article 16 (2) concerning the nomination proce-
dures for Supreme Court Justices? Barbara Reed
is checking this.

b) He feels that the last three lines of Article 37
(guiding principals) would be binding. After
careful scrutiny, Barbara Reed and I are of the
opinion that it might be possible to lend a stronger
meaning to the last three lines than we might have

c) Bargaining with Quebec shall now cease.

d) The final text should now be submitted to Quebec
and, if Quebec commits itself, a submission should
be made to Cabinet. Subsequently, the proposal
could be presented to the other First Ministers
for approval; if they balk at the special provisions
or the French language and culture, Mr. Bourassa
ould be invited to sell the package since he has
ong protested that his fellow First Ministers
upport him in these matters. If Quebec commitment
is not forthcoming, unilateral action should be
contemplated: Mr. Bourassa and his Cabinet are
aware of this.

James Ross Hurley

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