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Date: 1975-02-11
By: R.G. Robertson
Citation: Memorandum from R.G. Robertson to the Prime Minister (17 February 1975).
Other formats: Click here to view the original document (PDF).

CONFIDENTIAL

February 11th, 1975.

MEMORANDUM FOR THE PRIME MINISTER

Discussions with the provinces on
“patriation” of the constitution
and an amending procedure

Since our last discussion concerning the
constitution, I have been giving some thought to the
way of reopening with the provinces the possibility
of working toward some action on the aspects you
referred to in your speech in the Debate on the
Address last October. There are a number of questions
as to substance and procedure that arise and your
views would be very helpful before proceeding further.
The main questions for consideration seem to me to
be the following:

A. The scope of possible action

The options appear to be the following:

1. Revival of the Victoria Charter
(plus “patriation”)

There would appear to be little prospect
of success in trying this. Part II on “language
rights” would bring up a very troublesome debate
with Quebec on Bill 22 and there would seem to be
little chance of having that part accepted in the
form it took in 1971. The fact that the Charter
includes some matters of substance and that Quebec
said in 1971 that it had to secure something of
significance to go with the Charter would make it
inevitable that Quebec would want something done
with regard to the distribution of powers. Last
October, Chouinard told me that they would almost
certainly be seeking something in respect of
immigration, communications and the spending power.

“Cultural sovereignty” would be another almost certain
area. If Quebec raised some demands, other provinces
would more than likely feel that they had to do the
same. I do not see how the Atlantic provinces could
avoid raising the question of offshore mineral rights.
Alberta and Saskatchewan would almost certainly feel
they had to get something on resources and resource
taxation. It does not appear that this is a fruitful
course unless we want to get into a very lengthy
round of constitutional review discussions.

2. A new “constitutional package”
(plus “patriation”)

There is little reason to assume that
something new could be devised which would be very
worthwhile without getting into all the difficulties
referred to above for the Victoria Charter.

3. The “structural parts” of the
Victoria Charter (plus “patriation”)

A possible course would be to avoid those
aspects of the Victoria Charter that get into matters
of policy or substance that affect the individual or
the powers of governments. One could omit the parts
on political rights, language rights, section 94A,
regional disparities, federal-provincial consultation,
etc. The “structural” parts that would be left would
be:

Part IV – Supreme Court
” IX – Amendments to the constitution
” X – Modernization

Part IV would be something attractive to
the provinces which could, to a degree, balance any
sense that the achievement of success on the
procedure of amendment plus “patriation” would be
something that would redound primarily to the credit
of the federal government. It might also help to
make the amending procedure a bit more acceptable
to some of the provinces which do not get a veto
and would therefore find agreement on it as formulated
at Victoria not very attractive.

It is questionable whether Part X
on modernization would be accepted. It would
raise the questions of reservation and disallowance
and it would probably bring up the question of the
Monarchy. Quebec might well feel that it would not
be possible for them to be a party to anything that
dealt in this way with the totality of the B.N.A.
Act without getting into some of the questions of
legislative power.

4. Amending procedure plus
“patriation”

Here there would be two variants.

(a) The Victoria procedure – Part IX

This would certainly be the logical place
to begin. The procedure was worked out with great
care and it was in fact acceptable so far as the
formal positions of governments were concerned at
Victoria. There were criticisms of it at the time
and subsequently in Quebec as establishing a procedure
that would make it too difficult to secure in future
the kinds of changes that were then thought likely to
be desirable to give the province of Quebec the kinds
of powers it might want or need for purposes of
cultural protection, etc. While there were such
comments in 1971, there seems to be a new awareness
in Quebec, partly as a reflection of the lower birth
rate and the steadily diminishing proportion of the
national population in Quebec, that Quebec‘s influence
is not likely to be greater at a future time than it
is now. This could lead to the view that it is better
to accept the Victoria procedure than to gamble on
getting something better at a future time.

(b) A new amending procedure

Unless some province has some specific
formula, it would not seem worthwhile for us to
raise the question of a new procedure. The
Fulton-Favreau formula was more rigid than Victoria
and extremely complicated. It would be worse than
Victoria from the point of view of the criticisms
that were raised in Quebec in 1971. On the other
hand, the critics of the Victoria formula at no time,
so far as I am aware, produced a formula of their
own that would show how it would be possible for
Quebec to secure more freedom of action without
incurring more danger in some areas that it
considers to be essential.

5. “Patriation” without an amending
procedure

You will recall that on one or two
occasions in 1970 and 1971 we discussed the possi-
bility of “patriating” the B.N.A. Act without
establishing an amending procedure. We decided
that it would be an undesirable course since it
would place us in a situation in which there would
be no way of amending those parts of the Constitution
that do not come within the amending power of
Parliament under section 91 or of legislatures under
section 92. While undoubtedly “patriation” without
an amending procedure should be a last resort,
there are some reasons why it would be worth
considering, either as a fall back position or as a
tactical element in negotiation. The following
considerations occur to me:

(a) Clear indication that the
federal government is prepared
to consider “patriation” with no amending procedure
would improve our bargaining position greatly. It
would be apparent to Quebec (and to other provinces)
that the federal government is not a prisoner of
provincial consent and that it can act to “bring
the B.N.A. Act to Canada” (along the lines you
discussed last autumn) whether they agree or not.
While it could be argued that simple “patriation”
would not be much of an accomplishment, I think in
fact it would be. It would, after 100 years and more,
end the power of the British Parliament to legislate
in relation to the Constitution of Canada.

(b) Indication that we are
prepared to “patriate” with
no amending procedure would increase the likelihood
that agreement would be worked out on an amending
procedure either now or at a future time. No govern-
ment, either federal or provincial, would feel very
comfortable with no amending procedure. The discomfort
on the provincial side would be a good deal greater
than on the federal side. They would realize that
a future Parliament or a future Supreme Court might
hold that a “vacuum” in legislative power is
intolerable for an independent country in which, in
some form, all powers would then reside. Such a feeling
might lead, at some time, to unilateral action by a
future Parliament. Such action might be upheld by
a future Supreme Court. Any possibility of this kind
would provide quite an incentive to agree on a
procedure.

(c) So far as Quebec is concerned,
the incentive to find some
formula now might well be even greater than for the
other provinces. A “patriated” constitution, with
no procedure, could present the risk referred to
above of a future Parliament acting unilaterally
and taking over the power to amend. Alternatively,
if Parliament did not assume such a power, or if the
Supreme Court ruled against it, there probably could
be no amendment without unanimous consent of the
provinces. This would be a much less attractive
possibility than the Victoria formula for future
constitutional adjustment that Quebec might still
aspire to.

(d) From the federal point of view,
“patriation” without an amending
procedure is probably not a very terrifying prospect.
There seems little likelihood that we will be stuck
in a situation where anything vital cannot be done
or worked out either by the federal Parliament or by
some form of agreement with the provinces. We would
probably not be much, if any, worse off than we are
now.

Altogether, it strikes me that it might
be a good idea to let it be known at a reasonably
early point of discussions that, in order to achieve
the objective of “patriation” to which you referred
so strongly last October, the federal government
would move for that without any amending procedure
if it cannot get agreement on a procedure in the
next 12 months or so. On reflection, I am of the
view that this would be a good deal less hazardous
than to hold out the prospect of the federal govern-
ment moving unilaterally, even after an election,
for “patriation” with a procedure for amendment
that did not have provincial agreement.

If we were to hold out this “last resort”
option, the technique of handling it would require
very careful consideration. In substance, it could
probably be devised in one of two ways:

(i) There could be straight
“patriation”, with legislative
action by the British Parliament
to terminate its power with regard
to the B.N.A. Act for all time,
while saying nothing whatever as
to the method of amendment. The
difficulty about this is that it
might create doubt as to the
legitimacy of any formula for
amendment that might be worked
out in future.

(ii) The British Parliament could,
as part of its legislation, provide
that the amending procedure for those
parts of the constitution that do
not come under sections 91 or 92
should be whatever might be at some
future time agreed upon in Canada
and legislated by the Parliament of
Canada. Something of this sort would
remove doubts about legitimacy.
However, it would have its own
difficulties. Would one try to define
what is meant by “agreed upon”? (By
whom? With what degree of consent?
etc.) It could also raise some
nationalistic objections about our
future constitutional action deriving
its authority from a British statute
rather than from the Canadian people,
etc.

B. Tactical approach

In the light of the above considerations,
I would suggest that the best approach so far as
substance is concerned would be to start with option
no. 4 – a proposal that the federal and provincial
governments agree to having action taken on the
amending procedure that was agreed to at Victoria
plus “patriation”. This would have the advantage of
not being susceptible to representation as a reopening
of total constitutional review or even of the
Victoria Charter as such. On the other hand, it
would rest the substance of the procedure squarely
on the formula that did, at that time, (so far as
formal positions were concerned) achieve unanimous
agreement.

Presumably we should resist anything
that would divert or expand the discussion into
constitutional review generally or consideration
of specific but substantive aspects of change
because this would almost certainly lead to
frustrating discussions that would bog the whole
procedure down. The sole exception might be the
“structural” parts of the Victoria Charter
referred to in option no. 3. If the provincial
governments saw any attraction in having agreement
include Parts IV and X of the constitution
(Supreme Court and modernization),presumably the
federal government should be prepared to go along.
If there is resistance to modernization but there
is a wish to have the adjustments about the
Supreme Court, presumably that ought to be acceptable.

Presumably one ought not to say anything
about option no. 5 unless a province indicates that
it would not be prepared to go along with agreement
on an amending procedure or that it thinks it is
futile to reopen the matter because no agreement
will be achieved. At that point, possibly the
position should be taken that your government is of
the View that it is simply not in keeping with
the status of this country to have the legislature
of another country continue to have the power to
legislate about our constitution. You made this
clear in October 1974; there was general indication
of agreement on all sides in the House of Commons;
and the government is determined to bring this
situation to an end during its present term of
office. While it would prefer to do that with
agreement on a suitable procedure for amendment,
it is prepared to do it without such agreement, if
necessary.

Indication of the above decision would,
of course, bring not only the argument of the
technical difficulties referred to under option
no. 5 but it would also bring the allegation that
this would be “unilateral action” which would be
“unconstitutional” or “not in accordance with
the spirit of Confederation” or something of that
kind. To this, the response would seem to be
two-fold:

(a) Governments have been trying
for nearly 50 years to get
agreement on a procedure and
you are trying once more. It
would not be for lack of con-
sultation or willingness to
agree that the federal government
would move to action of this kind.

(b) What is proposed under option
no. 5 is not unilateral action to
establish a procedure of
amendment. It is simply unilateral
action, because agreed action would
have been demonstrated to be
impossible, to terminate the power
of the British Parliament to-
legislate for Canada. It would not
add to the power of Parliament in
relation to the legislatures; it
would not establish any amending
procedure; and it would leave
completely open to future agreement
whatever the governments of a
future day might decide upon as an
appropriate procedure for amendment.

C. The opening of discussions with the provinces

It seems to me that the opening of this
matter should be “low key” and by way of bilateral
discussions. However, to make that effective, it
might be desirable for you to use an informal and
private moment during the conference of April 9th-
10th – perhaps at a dinner that you might be giving
to the Premiers – to say that you do want to reopen
with them the question whether we cannot, at long
last, “patriate” our constitution. You could indicate
that it is a matter of national indignity to
perpetuate the present situation and that you would
hope that you and they might be able to bring it
to an end without getting into all the problems of
constitutional revision that frustrated the last
effort. You could say that you would be writing
to each of them shortly about your ideas on the
matter and that you would be asking me to go to
see each of them in order to talk about the
possibility of getting action in the very near
future.

Between now and the conference, we
can have a letter from you to each Premier made
ready so that it can be sent shortly after the
conference with whatever adjustment may be desirable
in the light of developments there and of any reaction
you get in the informal discussion suggested above.
Subject to further consideration, the letter could
be devised in terms of the “tactical approach”
suggested in pages 6 to 8 (above). The letter
could end with the request that each Premier see me
at a time that would be convenient to him. I would
then plan to visit each province sometime in the
latter part of April and May.

Almost certainly, the Premiers will
want to have their Attorneys General and possibly
a legal officer or two present for the discussions
and probably I should have someone from the
Department of Justice with me. However, I would
suggest very strongly that the initial discussion
should not be essentially a “legal” one and
should not be by the Minister of Justice with the
Attorneys General. If success is to be achieved
in this, I think it is essential that the discussions
be launched as being by you with the Premiers – and
it is for this reason that I think some initial,
however brief, discussion occur between you
personally and the Premiers collectively during the
April 9th-10th conference. Depending on developments,
it will probably be necessary to have discussions of
a more legal kind later on, but clearly these should
be later.

Further consideration here

I have talked to Don Thorson briefly
on the ideas I have outlined above and I am having
a meeting with him and our own people on Monday.

Following that discussion, I will have a clearer
impression of the reactions we must anticipate
and of the problems of policy and tactics that
need to be considered. There is no need for me
to have any reaction from you before the meeting
on Monday, but it would be most helpful to have
your comments and direction before you leave on
your European trip if at all possible.

I should add that if you agree with
the suggestion that I visit each Premier on your
behalf in the course of April and May, I think
it would be wise for the occasion to be used to
discuss matters other than the amending procedure
and “patriation”. Frank Carter and I have very
few opportunities to talk to the Premiers about
questions that are particularly bothering them
and which often they have very little chance to
discuss with you. I think it would be useful if
Frank went with me on the visits; if we used
the meetings for general discussions with the
Premiers; and if, in addition, we arrange to meet
individual Ministers and senior officers as required
to discuss whatever problems may be most important
in each case.

R.G.R.