Document Information

Date: 1975-05-02
By: Barbara Reed
Citation: Memorandum from Barbara Reed to Mr. Robertson (2 May 1975).
Other formats: Click here to view the original document (PDF).

CONFIDENTIAL

May 2nd, 1975.

MEMORANDUM FOR MR. ROBERTSON

Patriation of the Constitution
Anticipated Questions by Provincial Premiers

The proposal, as I understand it, is that we make
those parts of the Constitution not now amendable in Canada
amendable by the formula agreed upon at Victoria and that we
patriate the Constitution by asking the U.K. Parliament to
divest itself of all legislative authority it presently holds
in respect to Canada.

Questions regarding the following matters may arise
in your discussions with provincial Premiers.

1. Whether the procedure to be used would be precisely the
same as that worked out in 1971?

The same procedure as that worked out in 1971 could
and perhaps should be used to patriate the Constitution.
The only difference between what was planned at that time
and what is planned now is that instead of incorporating
the whole Canadian Constitutional Charter into our Con-
stitution we would be incorporating only the amending
formula from that Charter (Articles 49, 50, 51, 52, 56,
57 and an amended version of 59).

The procedure of patriating the Constitution worked
out in 1971 was agreed upon as being the best method for
providing us with legally legitimate constitutional change
(in the sense of maintaining an unbroken legal authority
for actions having legal consequences) while at the same
time making it clear that the changes to the Constitution
were an exercise of Canadian sovereignty and not a creation
of the U.K. Parliament.

This feeling, that changes to our Constitution should
be autochtonous, may have been stronger in 1971 than it
would be in reference to the present proposal because so
many substantive changes to the Constitution were contem-
plated at that time. Nevertheless I would assume that
much of the sentiment that in 1971 led to the desire to
have changes in our Constitution “made in Canada” instead
of conferred by the U.K. Parliament would still prevail,
thus indicating that the same procedure should be used
even though we are only dealing with the amending formula.

The main operative act under the 1971 procedure
of patriation was the Proclamation by the Governor General.
This would have established the new amending formula (as
well, of course, as the whole Charter), defined the Con~
stitution of Canada (by listing all the documents of which
it consists), while at the same time triggering the opera-
tion of a U.K. statute which would repeal all the Canadian
constitutional documents as U.K. statutes, recognize the
Proclamation of the Governor General, and, divest the U.K.
Parliament of its remaining legislative authority in
respect to Canada.

An alternative procedure to which reference might be
made by provinces in your discussions with them is the pro-
cedure it was planned to use in 1964 to implement the
Fulton-Favreau formula. Under that procedure all provincial
legislatures were to pass resolutions approving the amend-
ing formula and then Parliament was by Joint Address to
request that the U.K. Parliament amend the B.N.A. Act to
confer amending power on federal and provincial legislatures,
simultaneously divesting itself of all remaining legisla-
tive authority in respect to Canada.

While both procedures are in fact equally an exercise
of Canadian sovereignty since the U.K. Parliament will
only act on the request of Canada, the procedure worked out
in 1971 has the advantage in that it has the appearance
of being more autochtonous. It also has the advantage in
that it provides a mechanism for the repeal of Canadian
constitutional documents as U.K. statutes and their coinci-
dent establishment as exclusively Canadian documents.
Another advantage is that the procedure was agreed to in
1971 and if the starting point for discussions with provinces
is the agreement reached in 1971, I suppose you would
prefer to stay as close to that agreement as possible.

2. What was the procedure for patriation worked out in 1971?

The procedure for patriation involved three main
steps which were agreed upon at the Third Working Session
of the Constitutional Conference, February 8-9, 1971.
These are as you know set out at p. 210 of the Secretary’s
Report. They would now become:

(i) Resolutions passed by all provincial
legislatures and both Houses of Parlia-
ment authorizing the issuance of a
Proclamation by the Governor General.
The Proclamation would contain the amend-
ing formula and trigger the operation of
British law (referred to in (ii)) which
would repeal Canadian constitutional docu-
ments as British laws and establish them
at the same time as exclusively Canadian
documents.

(ii) Legislation by the U.K. Parliament which
would come into effect upon issuance of
the Governor General’s Proclamation and
would:

(a) recognize the legal validity of the
Canadian Proclamation;

(b) provide that no future British law
should have application to Canada;
and

(c) make any consequential repeal or
amendment of British statutes.

(iii) Proclamation by the Governor General.

At the time of the constitutional review in 1971
it was agreed that the British legislation (ii) above
would be requested by way of an instrument of advice
(i.e., the Governor in Council would advise Governor
General to request Her Majesty to place certain proposed
legislative provisions before the U.K. Parliament). It
was not planned to request U.K. legislative action through
a Joint Address to the Queen by both Houses of Parliament
because it was thought that the other procedure de-emphasized
the U.K. involvement in the patriation process. It is not
clear from the published record of the decision of First
Ministers that this was the procedure contemplated under
step (ii) above because it was framed (p. 210, para. (c) of
the Secretary’s Report) in the following terms:

“a recommendation that the
British Parliament legislate
…..”.

The verbatim record (p. 210) discloses that the decision
was framed in this oblique way to avoid the monarchical
flavour involved in referring directly to the fact that
the request for legislation would be to the Queen. It
also appears from the transcript of the Ad Hoc Meeting
of Ministers, May 31-June 1, 1971 that any British action
should be as inconspicuous as possible.

3. Forms of Resolution to be passed by provincial legisla-
tures and both Houses of Parliament?

A form of Resolution was agreed to during the 1971
review process. The operative words proposed for the
resolutions were accepted at the Ad Hoc Meeting of Ministers
May 31-June 1. This was subsequently confirmed by First
Ministers at the Conference in Victoria, with one minor
change being made in the French version (page 67 of the
verbatim transcript). The form agreed upon established
the essential wording of the resolutions but left room for
additional wording, such as preambles, as desired by the
various legislative bodies. A copy of the form of resolu-
tion agreed upon is attached as Appendix A.

A copy of the provisions respecting patriation and
amendment of the Constitution which would form the sub-
stance of the Governor General’s Proclamation would be
set out in the resolution or appended to it. I am attach-
ing as Appendix B a version of the relevant articles of
the Victoria Charter to indicate the general format this
would probably take. This draft is intended as a pre-
liminary outline only and has not been reviewed by the
legislation section of the Department of Justice.

4. Form of the British legislation.

A final version of the British legislation was
never agreed upon in 1971. Consultations were held with
U.K. draftsmen; specifics of the statute were discussed
and working drafts considered. It was indicated to the
provinces at Victoria that while it was not possible at
that time to circulate a draft, they would be given the
opportunity to consider a draft before the U.K. Parliament
was asked to proceed with the legislation. Presumably
once a draft for present purposes was agreed upon by the
federal and British governments it would be circulated
to provinces for comment. I am attaching as “Appendix C”
copies of the memorandum Mr. Strayer sent to U.K.
officials, prior to discussions with them, to inform
them as to the kind of patriation legislation Canada
would be requesting, as well as copies of Mr. Strayer’s
notes on the Ministerial meeting in London, and a
copy of the last draft U.K. legislation which was pre-
pared.

5. Why not incorporate the amending formula agreed upon
at Victoria in its totality?

It is my understanding that provinces were anxious
during discussions on the amending formula that Parlia-
ment’s present competence derived from section 91(1) of
the B.N.A. Act to amend the Constitution as respects the
powers of the Senate, representation in the Senate and
representation in the House of Commons be limited. It was
their view that amendments in regard to these matters could
make changes in the Constitution of great importance to
the provinces. This position was also taken by them during
the 1950 Constitutional Conference. And, the Fulton-
Favreau formula provided for an integration of these powers,
now held by Parliament under section 91(1), into the
amending formula so that amendments in respect thereto
required provincial consent.

Provinces may therefore suggest that articles 53,
54 and 55 of Part X of the Victoria Charter also be in-
corporated into the present proposal.

This would entail the repeal of sections 91(1)
and 92(1) of the B.N.A. Act but the substance of those
sections would be re-enacted in articles 53 and 54.
Therefore, it would not result in an extensive alteration
to the existing Constitution.

Therefore, if provinces raise this issue you may
want to consider that approach, especially since it has the
advantage of being closer to the agreement respecting the
amending formula reached at Victoria since it would
provide for the incorporation of the whole formula agreed
upon at that time.

6. “Fall-back” Position

I know you do not plan raising this issue in
your initial discussions with provinces. Nevertheless,
Premier Bourassa’s recent public statements on the
issue may prompt questions in respect to the federal
government’s plans if Quebec does not agree to the
proposal. Therefore I am attaching a memorandum which
sets out the various possible alternative courses of
action, their advantages and disadvantages in this
regard.

Barbara Reed

Attachs.

cc: Mr. R.B. Bryce
Mr. F.A.G. Carter
Mr. B.L. Strayer
P. Gravelle

MEMORANDUM ON THE PATRIATION OF THE CONSTITUTION:

“FALL-BACK” POSITION

If all provinces do not agree to patriation of the
Constitution and an accompanying amending formula, Parliament
could proceed alone, or backed by those provinces that do
consent, to request the appropriate legislative action from
Westminster. For this purpose a joint resolution by the
Senate and House of Commons would be passed embodying the
request for legislative action.

Alternatives

(1) Westminster could be asked to incorporate into
our Constitution the appropriate sections of the
amending formula agreed on at Victoria (Articles
49, 50, 51, 52, 56, 57, and an amended version of
59) thereby providing an amending procedure for
those parts of the Constitution not now amendable
in Canada. These provisions could be made im-
mediate operative despite the objection of one
of more provinces. At the same time the U.K.
Parliament could be asked to amend or repeal, as
appropriate, those sections of the Statute of
Westminster which expressly preserve to the U.K.
Parliament competence to enact legislation relating
to Canada (sections 4 and 7) and expressly provide
that no future laws of that Parliament shall apply
to Canada (a self-denying ordinance).

This method of proceeding would be the most
effective method of obtaining a patriated and amend-
able Constitution while at the same time removing
from the provinces the opportunity to demand a re-
distribution of constitutional legislative powers
in return for agreeing to patriation and an amending
formula.

This method of proceeding would also un-
doubtedly create the most friction with those
provinces that did not agree to the patriation and
it could be expected that those provincial govern-
ments would persevere in their opposition to the
extent of petitioning the U.K. Parliament requesting
that that body not enact the patriation legislation
requested by the Canadian Parliament. It seems un-
likely that the U.K. Parliament would not accede to
such a provincial request (although it should be noted
that in the London discussions of 1971, the British
Minister indicated that they were assuming we would be
able to get unanimous approval of the provinces).
Nevertheless it could create a noisy political contro-
versy which might also be taken up by nationalist
parties in the British House of Commons.

Before dismissing this alternative completely
however, it would seem necessary to attempt to make an
assessment as to whether provincial opposition would
in fact be any less if one of the alternative procedures
set out below were followed. Opposition might not be
any less because any positive action on the part
of the federal government (even though that action
did not have the legal effect of overriding provin-
cial dissent) could be characterized for purposes of
public consumption as patriation without consent of
all provinces (members of the public generally may not
make the fine distinction we make between the various
alternative procedures). I have in mind that Premier
Bourassa may be able to make the same political mile-
age out of any positive action taken by the federal
government under any of the procedures set out in this
memorandum merely by labelling it patriation (or amend-
ment to the Constitution) without Quebec’s consent
even if as a matter of legal fact it did not have
this effect.

(2) Westminster could be asked to incorporate into our
Constitution the appropriate sections of the amending
formula agreed on at Victoria thereby providing an
amending procedure for those parts of the Constitution
not now amendable in Canada; that formula only to
become operative after all provincial legislatures had
passed resolutions consenting. At the same time the
U.K. Parliament could be asked to repeal or amend
sections 4 and 7 of the Statute of Westminster and to
pass a self-denying ordinance which would come into
operation immediately. Under this scheme it might
take ten years or longer to obtain all resolutions and
therefore an amending formula; however, once a provin-
cial legislature had enacted a consenting resolution
it could not be withdrawn.

This alternative might avoid some provincial
opposition because it can be argued that the federal
government is not forcing on provinces an amending
formula to which they never agreed. However, this
procedure may not necessarily move us closer to .
acquiring a final amending formula. While those pro-
visions of the Statute of Westminster which preserve
the U.K. Parliament’s authority to amend the B.N.A.
Act would be repealed and a section of the new U.K.
legislation would expressly state that Acts of the U.K.
Parliament no longer apply to Canada, the B.N.A. Act,
the Statute of Westminster and this new legislation
would continue to be U.K. statutes. Therefore, in
theory at least it would always be legally possible
for the U.K. Parliament to pass an Act to amend those
statutes.

The problem that would arise is that now we
have a well-defined convention under which the U.K.
Parliament in exercise of its powers preserved under
section 7 of the Statute of Westminster will amend
the B.N.A. Act at the request of the federal govern-
ment (the extent to which they would proceed in the
face of provincial opposition is uncertain but it could
undoubtedly do so) and section 4 of the Statute of
Westminster expressly provides that Westminster may
pass other laws in relation to the Dominion of Canada
when the Dominion has requested and consented to the
enactment. The repeal of sections 4 and 7 of the
Statute of Westminster and the enactment of a self-
denying ordinance by Westminster would leave us in a
position of uncertainty in that we would no
longer have an established convention or an express
statutory provision indicating at whose request
the U.K. Parliament would in future act to amend
this new legislation. Would the U.K. Parliament still
continue to do so at the request of the federal
government? Would they only act on a request for
amendment when all provincial governments and the
federal government agreed to the request? Or, having
having deliberately divested themselves of legislative
authority over Canada, would they refuse categorically
to take any action?

Unfortunately, therefore, this method of
proceeding might strengthen rather than weaken the
provinces’ bargaining position vis-à-vis the federal
government. While an amending formula would be
potentially provided, any province could prevent the
operation of that formula by refusing consent and
demand instead that the U.K. Parliament be asked to
enact a different amending formula as well as amendments
redistributing federal and provincial legislative
powers. At the same time the federal government would
possibly have relinquished the option presently open
to it to request constitutional amendment despite
lack of agreement by all provinces.

(3) The procedure set out in paragraph (2) above could
be adopted with the provision added that until all
provinces consented, an interim amending formula would
operate sowthat matters now amendable only by the
U.K. Parliament might be amended by unanimous consent
of Parliament and the legislatures.

This alternative would constitute a more
genuine patriation of the Constitution than the pro-
cedure set out in paragraph (2) and would remove from
provinces the opportunity to demand a quid pro quo
for agreeing to patriation. It is subject to the same
consideration as the proposal set out in paragraph
(2), however, in that it could be argued that the
B.N.A. Act without unanimous provincial consent. It
could, of course, be said that as a practical matter
such an amendment does nothing more than convert
what is present practice, as a matter of constitutional
convention, into a statutory requirement because
the federal government has in the past when seeking
an amendment where the rights of all the provinces
were affected, (e.g., finding an amending formula)
proceeded on the premise that the consent of all the
provinces was desirable.

federal government would thereby relinquish its present
undefined ability to obtain an amendment to the
The disadvantage with this procedure is that
although we are speaking about the requirement of
unanimous consent as an interim amending procedure it
might very well become the permanent amending formula
because certain provinces might never be willing
to give the veto power that they would have under
it but not under the Victoria formula. Thus we
would be left with an amending formula which would
contain those qualities of rigidity and inflexi-
bility that we have so long been attempting to
avoid. This approach was suggested at the first
Attorney-Generals’ Conference in 1960 and was
rejected by the provinces. It was also considered
briefly in September, 1970, at a Working Session
of the Constitutional Review and not considered
acceptable.

(4) Westminster could be asked to enact legislation
making those sections of our legislation not now
amendable in Canada amendable by the Victoria
formula, providing also in that legislation for
the repeal of sections 4 and 7 of the Statute of
Westminster and the inclusion of a self-denying
ordinance; the whole statutory provision only to
become operative after all provincial legislatures
had passed resolutions consenting.

The main advantages to this alternative
are that it avoids the necessity for an interim
amending procedure and the possible attendant
rigidities resulting from alternative 2 and, at
the same time, it avoids the uncertainty that would
result from alternative 3. The main disadvantage
with this alternative is that it changes nothing
until there is final agreement on the Victoria
formula. This alternative then could be the
subject of criticism by both those persons who
would like to see our Constitution effectively
patriated immediately despite provincial opposition
and by those persons who object to the federal
government taking any action to patriate the Con-
stitution (even though in fact it may only be
an inchoate patriation) without unanimous provincial
consent.

APPENDIX A

Agreed Form of Resolution

(English)

” … that this House Assembly, etc.
approve the issuance of a Proclamation
by the Governor General, proclaiming
the following provisions respecting the
Constitution of Canada to come into
force on a date to be fixed by that
Proclamation.”

(French)

” … que cette Chambre (Assemblée,
etc.) approuve l’emission d’une
proclamation par le gouverneur général
énoncant que les dispositions qui
suivent relatives à la Constitution
du Canada entreront en vigueur à une
date fixée par cette proclamation.”

APPENDIX B

SUBSTANCE OF PROCLAMATION

1. Amendments to the Constitution of Canada may
from time to time be made by Proclamation issued by
the Governor General under the Great Seal of Canada
when so authorized by resolutions of the Senate and
House of Commons and of the Legislative Assemblies of
at least a majority of the Provinces that includes:

(1) every Province that at any time before
the issue of such Proclamation had, accord-
ing to any previous general census, a
population of at least twenty-five per cent
of the population of Canada;

(2) at least two of the Atlantic Provinces;

(3) at least two of the western Provinces
that have, according to the then latest
general census, combined populations of
at least fifty per cent of the population
of all the Western Provinces.

2. Amendments to the Constitution of Canada in
relation to any provision that applies to one or more,
but not all, of the Provinces may from time to time
be made by Proclamation issued by the Governor General
under the Great Seal of Canada when so authorized by
resolutions of the Senate and House of Commons and of
the Legislative Assembly of each Province to which
an amendment applies.

3. An amendment may be made by Proclamation under
Articles 1 or 2 without a resolution of the Senate
authorizing the issue of the Proclamation if within
ninety days of the passage of a resolution by the
House of Commons authorizing its issue the Senate has
not passed such a resolution and at any time after the
expiration of the ninety days the House of Commons
again passes the resolution, but any period when Parlia-
ment is prorogued or dissolved shall not be counted
in computing the ninety days.

4. The following rules apply to the procedures
for amendment described in Articles 1 and 2:

(1) either of these procedures may be initiated
by the Senate or the House of Commons or the
Legislative Assembly of a Province;

(2) a resolution made for the purposes of this
Part may be revoked at any time before the
issue of a Proclamation authorized by it.

APPENDIX B

5. The procedure prescribed in Article 1 may not
be used to make an amendment when there is another pro-
vision for making such amendment in the Constitution
of Canada, but that procedure may nonetheless be used
to amend any provision for amending the Constitution,
including this Article, or in making a general consoli-
dation and revision of the Constitution.

6. In this Proclamation “Atlantic Provinces”
means the Provinces of Nova Scotia, New Brunswick, Prince
Edward Island and Newfoundland, and “Western Provinces”
means the Provinces of Manitoba, British Columbia,
Saskatchewan and Alberta.

7. The enactments set out in the Schedule shall
continue as law in Canada and as such shall, together
with this Proclamation, collectively be known as the
Constitution of Canada, and amendments thereto shall
henceforth be made only according to the authority con-
tained therein.

SCHEDULE

This Schedule is NOT final,
Subject to confirmation.

Enactments

British North
America Act, 1867,
30-31 Vict., c, 3
(U.K.).

An Act to amend and
continue the Act 32
and 33 Victoria
chapter 3; and to
establish and provide
for the Government of
the Province of
Manitoba, 1870, 33
Vict.. C. 3 (Can.).

Order of Her Majesty
in Council admitting
British Columbia
into the Union, dated
the 16th day of May
1871.

British North
America Act, 1871.
34-35 Vict., C. 28
(U.K.), and all acts
enacted under
section 3 thereof.

Order of Her Majesty
in Council admitting
Prince Edward Island
into the Union,
dated the 26th day
of June, 1873.

Parliament uf
Canada Act, 1875,
38-39 Vict.,
c. 38 (U.K.).

Order of Her Majesty
in Council admitting
all British posses-
sions and
Territories in North
America and islands
adjacent thereto into
the Union, dated the
31st day of July,
1880.

British North
America Act, 1880,
49-50 Vict., c. 35
(U.K.).

Canada (Ontario
Boundary) Act,
1889, 52-53
Vict., c. 28
(U.K.)

Canadian Speaker
(Appointment of
Deputy) Act, 1895,
Session 2, 59 Vict.,
c. 3 (U.K.).

Alberta Act, 1905,
4-5 Edw. VII, c. 3
(Can.).

Saskatchewan Act,
1905, 4-5 Edw. VII,
c. 42 (Can.).

British North
America Act, 1907,
7 Edw. VII, c. 11
(U.K.).

British North
America Act, 1915,
5-6 Geo. V, c. 45
(U.K.).

British North
America Act, 1930,
20-21 Geo. V, c. 26
(U.K.).

Statute of West-
minater, 1931, 22
Geo. V, c. 4 (U.K.)
in so far as it
applies to Canada.

British North
America Act, 1940,
3-4 Geo. VI, c. 36
(U.K.).

British North
America Act, 1943,
7 Geo. VI, c. 30
(U.K.).

British North
America Act, 1946,
10 Geo. VI, c. 63
(U.K.).

British North
America Act, 1949,
12 and 13 Geo. VI,
c. 22 (U.K.).

British North
America (No. 2) Act,
1949, 13 Geo.
VI, C. 81 (U.K.)

British North
America Act, R.S.C.,
1952, c. 304 (Can.).

British North
America Act, 1960,
9 Eliz. II, c. 2
(U.K.).

British North
America Act, 1964,
12 and 13, Eliz. II,
c. 73 (U.K.).

British North
America Act. 1965,
14 Eliz. II, c. 4,
Part I, (Can.).

APPENDIX C

S E C R E T

(For Canadian and United Kingdom
Eyes Only)

May 17th, 1971.

“PATRIATION” OF THE CONSTITUTION OF CANADA

Introduction

The Conclusions of the Working Session of the
Constitutional Conference (of the Prime Minister of Canada
and the first ministers of the provinces) on February 8-9
stated as follows:

“Patriation of the Constitution

2. The Constitutional Conference agreed
on a procedure to be undertaken in Canada at
a very early date in order to bring home the
Constitution and to transfer to the people of
Canada, through their elected representatives,
the exclusive power to amend and to enact
constitutional provisions affecting Canada.
This procedure would involve:

(a) Agreement among the governments
as to changes and procedure.

(b) Approval of a resolution in the
usual way, by legislatures plus
the two Houses of Parliament,
authorizing the issuance of a
Proclamation by the Governor
General to contain the amendment
formula and whatever changes are
agreed upon.

(c) Recommendation that the British
Parliament legislate to:

(i) recognize the legal validity
of the Canadian Proclamation
and its provisions;

(ii) provide that no future British
law should have application to
Canada; and

(iii) make any consequential repeal
or amendment of British stat-
utes affecting the Canadian
‘Constitution.

(d) Issuance of the Proclamation by the
Governor General on a date to coincide
with the effective date of the British
law.”

Agreement Among Governments

Discussions have been carried on since that
time concerning draft texts of constitutional changes in-
corporating the matters dealt with in the February Conclu-
sions. The most recent draft, now under discussion, is
attached hereto. It will be noted that all the constitu-
tional changes have been put together in a single draft
instrument called the “Canadian Constitutional Charter”.
It is hoped that at the next session of the Constitutional
Conference in Victoria on June 14-16 agreement can be
reached among all first ministers to recommend such a text,
perhaps with modifications, to their respective legislatures
or Houses of Parliament for approval. The outcome of the
Victoria meeting is, of course, by no means certain at this
point because there are a number of issues still requiring
resolution.

If the Constitutional Conference does agree
on the texts of specific constitutional changes, there will
then be three major steps to be taken to achieve patriation
as set out in the February Conclusions: approval of the
changes by legislatures of the provinces and the Houses of
the federal Parliament; legislation by the United Kingdom
Parliament; and the issue of a Proclamation by the Governor
General.

Resolutions of Approval

It would seem preferable that prior agreement
be reached (at the Victoria meeting if possible) on an appro-
priate general form which first ministers could use in sub-
mitting the resolutions to their legislative bodies for
approval. Essentially, the resolutions should approve the
issuance in future of a Proclamation to bring into effect
the Canadian Constitutional Charter as part of our Constitu-
tion. Perhaps a wording such as the following would be
appropriate:

“… that this House Assembly, etc.
approve the issuance of a Proclamation
by the Governor General, proclaiming
the following provisions respecting the
Constitution of Canada to come into
force on a date to be fixed by that
Proclamation.”

This would not of course preclude the inclusion of such other
material in the resolutions, not inconsistent with this approval,
as is appropriate for each legislative body. Because of certain
procedural requirements the resolutions submitted to the Senate
and House of Commons should probably contain the text of the
Proclamation itself as well as the Charter.

It is hoped that this stage in the process might
be completed by March of 1972.

The United Kingdom Enactment

After resolutions of approval have been adopted
by legislative bodies in Canada, the Prime Minister of Canada
would advise the Governor General to request of Her Majesty
that a measure be placed before the United Kingdom Parliament.

In the view of the Government of Canada, this
measure should include the following elements.

The preamble should include:

(i) a reference to the approval expressed
by legislative bodies in Canada of the
Canadian Constitutional Charter;

(ii) a recognition of the right of Canada to
make provision for these changes in the
Constitution of Canada;

(iii) a reference to the request and consent
of Canada with respect to this enactment.

The body of the statute should include:

(i) a recognition of the validity of the
Canadian Constitutional Charter;

(ii) a termination of all remaining legisla-
tive authority which the United Kingdom
Parliament now has with respect to Canada;

(iii) a provision that the enactment will come
into force on the day fixed by the Governor
General’s Proclamation for the coming into
force of the Canadian Constitutional Charter.

It would appear that the only United Kingdom
statute requiring alteration to effect repatriation – or
perhaps, more strictly “patriation” – of the Canadian Consti-
tution would be the Statute of Westminster, 1931. The follow-
ing sections of that statute should be repealed for this
purpose: section 4 as it applies to Canada, and section 7(1).
The Government of Canada would prefer to include these among
the sections of various statutes repealed by Article 54 of the
Canadian Constitutional Charter (the most recent draft of
which is attached).

It is hoped that, once approval of the Canadian
Constitutional Charter has been given in both Houses of the
Parliament of Canada and in the provincial legislatures, and
a formal request is made by the Government of Canada for
legislation by the United Kingdom Parliament, such legislation
can proceed as soon as possible.

The Proclamation of the Governor General

As agreed at the Working Session in February,
the final stage would be the proclamation of the Governor
General, issued in his name, and under the Great Seal of Canada.
It would probably be issued soon after the passage of the
United Kingdom statute.

The Proclamation, after making appropriate
reference to the changes as having been effected by the chosen
representatives of the Canadian people, would proclaim the
Canadian Constitutional Charter which would form an Annex to
it. The Charter and the United Kingdom statute would be
designed to come into force at the same time.

Result

From the day of the coming into force of these
instruments the Constitution of Canada (as modified thereby)
will continue as before but it will be fully amendable in
Canada by the new amending procedure, and there will no longer
be any formal authority of the United Kingdom Parliament to
alter it in any respect.

Attach. (1)