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Date: 1975-06-16
By: R.G. Robertson
Citation: Memorandum from R.G. Robertson to Mrs. Reed (16 June 1975).
Other formats: Click here to view the original document (PDF).

CONFIDENTIAL

June 16th, 1975.

c.c.: Mr. Carter
Mr. Gravelle
Mr. Hurley

MEMORANDUM FOR MRS. REED

The problem of “constitutional guarantees”
for “cultural security”

See the attached copy of a memorandum
plus a rough draft of a “form” for the proclamation
of the Governor General on the ”patriation“ of the
constitution. As you will see, it is an attempt to
put into a broader formulation the kind of possibili-
ties that we discussed here. The final paragraph of
the “form” is along the lines of the idea Don
Thorson suggested but rather broader than just
“communications”.

Would you please take a good look
at this proposal and let me have your comments on
any aspect of it that you think is important.
Primarily, I would want to know whether you see
any constitutional difficulties about something
along these lines. How much influence do you think
a paragraph such as the final one would have?
would it be a significant protection for Quebec?
would it be too serious an inhibition for the federal
Parliament or government?

The question of Article 59 of Victoria

The Nova Scotia officials raised a
question that had not come up previously in my
discussions. It was whether it will not be
necessary in the proclamation to include a modified
version of Article 59 of the Victoria Charter. Their
point was that without such an Article the status of
the “patriated” B.N.A. Act would not be clear and the
content of “The Constitution of Canada” for purposes
of the application of the amending procedure would not
be clear. It may well be that they are right. I
would welcome your comments.If something along the
lines of Article 59 has to be included, clearly there
would have to be a modified schedule.

R.G.R.

P.S.: I am not sending a copy of the memorandum and
the draft “form” to Don Thorson at this stage
since I would like to have the Prime Minister’s
reactions before I formally take this matter up
with any other department of government. Just
as soon as I have the Prime Minister’s reactions,
if they are favourable, I will of course refer
the matter to Don. If, in the meantime, you
think you should discuss it with him, I would
have no objection whatever.

R.G.R.

June 16th, 1975.

MEMORANDUM FOR MR. CARTER

The question of “constitutional guarantees”

Further to our discussions in the course
of our trip, I have now done a memorandum for the
Prime Minister of the kind we talked about and I am
sending it to him today with the “form” for the
proclamation that we discussed. The latter remains
precisely as we left it. I think the amendments
that you proposed make it very much better than it
was originally.

I am sending copies of the memorandum to
Messrs. Gravelle and Hurley and to Mrs. Reed. It
could well be that it would be useful for us to
have a meeting in the course of the next few days
to see what comments people have and to carry
consideration of this a bit further. I am not for
the moment sending a copy of the memorandum and of
the “form” to Don Thorson since I would rather have
the Prime Minister’s reaction before discussing this
with any other department or agency. It may well be
that Barbara Reed will discuss the matter with
Thorson in any event. I will make clear to her
why I have not sent the memorandum to Don at this
stage.

R.G.R.

DISCUSSION WITH PREMIERS RE “PATRIATION” OF CONSTITUTION
Nova Scotia — Premier Regan — June 13, 1975

Meeting — 12:00 noon with Premier Regan, Innis MacLeod
Hal Stevens, Carter, RGR.
(Was to have been at 11:00 but Premier held in
legislature for emergency legislation to end
nurses’ strike.)

Presentation— Outlined position of Premiers seen to date:
Schreyer, Lougheed, Davis, Bourassa and Moores.
Said essentially wanted to know whether N.S.
would go along with proposal; whether it had any
special problems or proposals; whether would agree
in principle to some kind of “constitutional
guarantees” for security of French culture.

Points Discussed:

(a) Mr. Regan was unclear on the precise plan:
had the impression that all of Victoria Charter
was proposed. Clarified this point.

(b) On amendment formula,Regan expressed some
initial concern over apy change in the Victoria
provisions. Said there had been some criticism
of veto for Ontario (OK for Quebec on cultural
grounds) — it was “no more a province than N.S.”.
His defense had been it was an agreed package.
If it were changed, there could be renewed
criticism. However, on reflection he decided
this would not be too difficult: if B.C. could
accept an Ontario veto, N.S. could.

(C) On Supreme Court, Regan was strongly for in-
clusion. Agrees fully with Lougheed.

(d) On cultural guarantees, N.S. “would do the
best it could” to accept and go along, but he
would have to see the precise text proposed and
would have to consult his colleagues. If properly
worded, it could have some attraction for
Acadians in N.S.

(e) If provisions went in with respect to cul-
ture, there would be pressure to have something
in about regional disparities. This was funda-
mentally important to N.S. I said this clearly
could not be ruled out as being contrary to the
ground rules and that I would raise it with the
P.M. (Part VII of Victoria)

(f) Regan asked about the Senate: had it not
been covered by Victoria (appt. by the provinces
to some degree). I said not. He referred to dis-
cussions (possibly Feb/71 or private) when P.M.
had indicated would consider action on once
amending formula agreed. He would like this
raised with P.M. — not as a condition and not
as something to be included in the package. I
said I would mention to P.M.

(g) N.S. would be favourable to action for
“patriation” on the basis proposed but:

(i) would need to see the “constitutional
guarantees”, and

(ii) if they were in, would want to have
something like Part VII on Regional
Disparities.

Procedure – Mr. Regan said he thought a conference was not
necessary and probably should be avoided if
agreement could be reached through bilateral
discussions. He said they would like to see a
text whenever one was ready. He planned to talk
to “Dick” (Hatfield) and “Alex” (Campbell) at a
meeting with the Governors of the New England
states they would be attending shortly.

Separate Meeting with MacLeod and Stevens

From 11:00 to 12:00, while waiting for Regan, Carter
and I met with MacLeod and Stevens. Two technical points
were raised:

(a) Re Part IX: omission of Articles 53, 54, 55

MacLeod pointed out substantive aspects:
would leave procedure re change in Senate and
powers of Senate in 91(1), also office of the
Queen, also proportional rep. Could this change
not be included in package? I pointed out ground
rules: not get into BNA Act – “not break the
shell”. If did, no way to stop. If change that,
why not powers re broadcasting; disallowance;
reservation. He saw point, but said would have
to raise with his Premier. I said OK: but be
clear that it would not “worsen” the situation,
would only leave it as it now is.

(b) Re Article 59: is it not needed?

Stevens argued that if not in, the status
of BNA Act, after process, would not be clear.
Would it be a Canadian statute? A part of the
Canadian constitution? (Here he and MacLeod also
tied Act 59 to Part IX). I promised to take up
with Justice.

DISCUSSION WITH PREMIERS RE “PATRIATION” OF CONSTITUTION

Newfoundland — Premier Moores — June 11, 1975

Meeting – 3:15 p.m. – Premier Moores, Jim Channing, Cy
Abery, Frank Carter, RGR.

Presentation – Explained P.M.’s objective – dinner of April 9
and letter of April 19. Told of sequence with
other provinces and positions taken by Messrs.
Schreyer, Lougheed, Davis and Bourassa.

Discussion – (a) Mr. Moores said Nfld. has no problems with
the proposal for “patriation” on the basis of
the Victoria amendment formula.

(b) Re Mr. Lougheed’s two points:

(i) The change re “Western provinces” would
be for them to decide. He would expect a good
deal of pressure on Mr. Barrett by the other
three western Premiers.

(ii) He would favour inclusion of the Supreme
Court proposals. He commented that there had never
been a Supreme Court judge from Nfld.

(c) Re Mr. Bourassa’s “constitutional guarantees”,
Mr. Moores said Nfld. would have no difficulty in
principle. They had much sympathy for Quebec’s
feeling about its culture. They would want to
look at what guarantees might be proposed, but
they “would be sympathetic”.

(d) Completion by the summer of 1976 would be
quite feasible for Nfld. They would have no
difficulty in their legislature. I told Mr.
Moores, in reply to a question by him, that Mr.
Bourassa “did not exclude” action in 1976 but
felt that this matter would be of such importance
that there might have to be “some kind of popular
ratification”, whether by referendum or in an
election. This could affect timing.