Document Information

Date: 1975-07-16
By: Barbara Reed
Citation: Memorandum from Barbara Reed to Mr. Robertson (16 July 1975).
Other formats: Click here to view the original document (PDF).

Copies to: Mr. Carter
Mr. Gravelle
Mr. Hurley

July 16, 1975.

MEMORANDUM FOR MR. ROBERTSON

Re: Revised Form for a Proclamation of the
Governor General: “First Approach”

Attached for your consideration is a copy of a
memorandum from Mr. Gibson containing comments on the draft
preamble which occurred to him from a draftsman’s point of
view.

With respect to the suggestion in paragraph 1 of
his memorandum, I believe the word “equally” was chosen to
emphasize that the principles in the second and third para-
graphs were of equal importance although I think the para-
graph reads more smoothly without the word.

He notes in paragraph 3 of his memorandum that
the phrasing in paragraph (a) of the preamble is difficult
of interpretation. This is so but perhaps we have no choice
but to leave it as it is since I think the suggested alterna-
tive says something different from the original and perhaps
is more explicit than you would want to be.

Mr. Gibson comments in paragraph 4 of his memo-
randum that sub-paragraph (b) of the draft preamble, referring
to the Supreme Court, doesn’t seem related to the opening
preambular statements in the same way that sub-paragraphs (a)
and (c) are related. I wonder if you would want to consider
whether it is desirable to convert sub-paragraph (b) into
an opening preambular statement coming after the first para-
graph of the preamble, at the same time contracting the
present sub-paragraph (b). Thus the second opening preambular
statement could read:

“And whereas it is desirable
to provide means by which provinces
can participate in the selection
of persons to be appointed to the
Supreme Court of Canada.”

and sub-paragraph (b) could read:

“means by which provinces can
participate in appointments to
the Supreme Court; and …”.

I am inclined to think that all the other changes
he suggests would improve the “flow” of the draft if they are
adopted.

Barbara Reed

Attach. (1)

DEPARTMENT OF JUSTICE

Ottawa,
July 15, 1975.

MEMORANDUM FOR: MRS. BARBARA REED

FROM: F. E. Gibson

RE: Patriation of the Constitution
This is in reply to your note of July 14
enclosing a confidential document dated July 11,
1975 entitled ‘Revised Form for a Proclamation of
the Governor General: “First Approach”‘.

I would like to record the following
comments with regard to the document. I have
endeavoured to restrict my comments to matters of
form and interpretation only.

1. I would suggest deletion of the
word “equally” in the first line of the third
paragraph of the preamble. Unless, as a
matter of policy, it is desirable to highlight
the equality of importance between the prin-
ciples stated in the second and third paragraph
of the preamble, it strikes me that the word in
question is liable to be considered as argumen-
tative.

2. The whole of the document as far
as the words “Now therefore I….” is preambu-
latory. In order to maintain the preambulatory tone,
I would suggest that the opening words of the
fourth paragraph be amended to read as follows:
“And whereas it is therefore desirable to esta-
blish:”

3. The phrase “legislatures of
provinces representative of both the official
language groups of Canada” in paragraph (a) of
the fourth paragraph of the preamble causes me
some difficulty. Can it be said that a
legislature of a province or a province (I am
not sure which is the antecedent of “represen-
tative”) is “representative” of an “official
language group of Canada”? For example, would
members of the Manitoba Government or of the
Legislature of that province readily admit that
their Legislature is not representative of
French speaking Canadians as well as English
speaking Canadians? Perhaps the same concept
could be expressed by words indicating that
consent will be required from the Legislature
of a province or provinces the majority of the
residents of which are French speaking as well as
from the Legislature of a province or provinces
the majority of the residents of which are
English speaking.

4. The fourth paragraph of the preamble
consists of a series of three conclusions which,
apparently, can be drawn from the first three
paragraphs. I have difficulty relating paragraph (b)
of the fourth paragraph to any of the principles
set out in the first three paragraphs.

5. Paragraph (c) of the fourth paragraph
of the preamble is largely a contraction of the
conclusion stated in paragraph 3 of the substantive
portion of the document. It appears to me to
lose some clarity in the contraction. I would
suggest that it might as follows:

“(c) principles to guide the Parliament
of Canada in the exercise of powers allotted
to it under the constitution of
Canada and to guide the Government
of Canada in the exercise of powers
conferred upon it by the constitu-
tion of Canada and by laws enacted
by the Parliament of Canada;”

6. The following points are largely nit-
picks on paragraph 3 of the substantive portion
of the document:

Substitution of the word “allotted” for
the word “allocated” in line 2 would provide con-
sistency with paragraph 4(c);

The words “any provision of” in the second
and third lines are superfluous as is the
word “any” in the fourth line;

I would suggest that the word “and” be
substituted for the word “or” in the
6th line and that the word “enacted” be
substituted for the word “passed” in the
same line;

Finally, I would be inclined to place
the word “by” immediately after the word
“guided” in the 7th line and delete the
word “by” in the 9th line.

7. I refrain from commenting on
paragraph 4 of the substantive portion in view
of the fact that the paragraph is identical
to an equivalent paragraph agreed to at Victoria.

F.E. Gibson,
Director, Legislation Section