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Date: 1975-10-31
By: R.G. Robertson
Citation: Memorandum from R.G. Robertson to the Prime Minister (31 October 1975).
Other formats: Click here to view the original document (PDF).

CONFIDENTIAL

October 31st, 1975.

MEMORANDUM FOR THE PRIME MINISTER:

Further steps re patriation of the
constitution

Since our conversation at lunch on
Wednesday, I have spoken on the telephone to
Chouinard about the final adjustments made, pursuant to
your notes on my memorandum of October 23rd, in the
draft proclamation and made very clear to him that
the addition of a reference to “social policy”
in Article 39 is the last change of substance that
you are prepared to consider in these discussions about
the draft. I also made clear that you would not be
prepared to attempt to include anything about the
spending power, although you saw no objection whatever
to having that as an early subject for attention
under the amending procedure once patriation has
been accomplished. I also was quite negative
on your behalf with regard to a reference to the
courts or to any attempt to resolve the question
of “communications” before proceeding with patriation.
(I am not certain whether I mentioned this last point
to you. It came up when Mr. Bourassa discussed
the matter with his Cabinet early in October and I
had told Chouinard previously that it was simply
a non-starter.) I ended up by telling Chouinard
that you would be getting in touch with Mr.Bourassa,
probably some time next week, to talk to him further
about this matter and to emphasize that the draft
proclamation is really the end of substantive dis-
cussion on it as far as you are concerned.

Chouinard said he assumed that this
did not mean that we could not still discuss drafting
and presentational aspects. I confirmed that
that was so. The “finality” was as to substance.

Jim Hurley of our office has gone
to Quebec this morning with the new draft in English
and French of the proclamation. It contains a
change in the Article on “Federal-Provincial Agreements”
(formerly Article 39 and now Article 40 in the new
enumeration). It is a point that emerged from
discussion by Mrs. Reed with Messrs. Thorson and
Strayer on Wednesday afternoon. The Article as
now included in the draft going to Quebec reads as
follows:

“Art. 40 In order to ensure a greater harmony
of action by governments, and especially in order
to reduce the possibility of action that could
adversely affect the preservation and development
in Canada of the French language and the culture
based on it, the Government of Canada may continue
to enter into agreements with the Government of any
Province and the Government of any Province may
continue to enter into agreements with the Government
of Canada concerning the exercise of powers accorded
to them under the laws of their respective legis-
latures, particularly in the fields of immigration,
communications and social policy.”

The significant changes and new additions are the under-
lined words. Thorson and Strayer have two points
of concern:

(a) They think that, unless the
words “continue to” are inserted, a declaratory
provision of this kind will be read as
according new constitutional powers which
do not hitherto exist. Their argument
is that a constitutional provision, even if
declaratory, must be intended to have some
substance: it cannot be simply a re-
assertion of an existing situation unless that
is made apparent. They are very worried as
to what might be read into the provision without
these words.

(b) They are also worried, for
similar reasons, about a provision that
referred to “the exercise of powers” without
adding any qualification about “the laws of
their respective legislatures”.

I am pretty sure that Chouinard will be
very unhappy about the inclusion of “continue to”.
I would have preferred to go into this matter further
before sending anything to Quebec but, in order to get things
moving ahead, I decided to send the draft with the
above modifications and to see what reaction we get
from Quebec.

With regard to the points you raised
concerning the draft:

Article 5

You wondered whether there should be specific
reference,in relation to the procedure for amend-
ment,to “including the preamble and this proclamation”.
The inclusion of the proclamation as such is made
clear in Article 7 but Mrs. Reed is examining the
question whether there ought to be any clarification
in Article 5.

Article 16(2)

You wondered why the period of six months
had been settled on in the procedure about appointment
of judges to the Supreme Court. Mrs. Reed has
checked the Victoria transcript and has sent me
a memorandum, a copy of which is attached. I
think six months is a not unreasonable time and
that it would be unfortunate to raise any question
about it unless we get into discussion on any
related parts of this procedure.

Article 37

You queried whether an interpretation of
this would be as limited as Mrs. Reed had suggested.

As I told you on Wednesday, after considering
carefully the points you made, she has revised
her view. She has also discussed the matter
with Messrs. Thorson and Strayer. There is
general agreement that the interpretation
would almost certainly be more along the lines
you suggested. The principal qualification
on the analogy you made with Article 30 is, of
course, the fact that Article 37 will involve matters
of interpretation as to what meaning is to be given
to “adversely affect” and to “the preservation
and development”. We spoke of this in the course
of lunch on Wednesday.

Discussion with Mr. Bourassa

Chouinard thinks that it is unlikely
that he will be able to see Mr. Bourassa before Tuesday
evening or possibly Wednesday morning, since Mr.Bourassa
is only getting back to Quebec on Monday and the
Legislature opens on Tuesday. He thinks that a
telephone call to the Premier made Wednesday or
Thursday or Friday would be best.

Information to the Governor General

The Governor General has, on one or two
occasions, asked me about the patriation exercise
and I have told him in a general way about the dis-
cussions with Quebec and about my visits to the
other provinces. I have not given him any text.
I feel quite sure that he would be very interested
in having a copy of the proclamation as it now stands
— not only because of the substance of the question
but because we are contemplating a situation in which,
if all succeeds, the document will be forthcoming from
him. You might wish to speak to H.E. about the
general approach. If you agree, perhaps I could,
after you have spoken to him, give a copy of the
proclamation to the Governor General and talk to
him about any questions he may want to raise, either
as to substance or as to the procedure we contemplate.

R.G.R.

P.S. (5.30 p.m.)

I have now had a report from Hurley after
his conversation with Chouinard. His reaction to the
modified Article 40 is very much what I expected.

He says it is completely impossible; would be
presentationally destructive and negative; and that
he cannot, in its present form, put it in front of
Mr. Bourassa. I agree with him.

I am going to talk to Thorson and
company on Monday about a possible re-revised version.
Chouinard suggested to Hurley the possibility of
inserting the words “with one another” and
“respective” as indicated in the text below. I think
the Justice worries might be further met by inserting
the words “manner of”. With these insertions,
the original text would then read as follows:

“Article 40 In order to ensure a greater harmony
of action by Governments, and especially in order
to reduce the possibility of action that could
adversely affect the preservation and development
in Canada of the French language and the culture
based on it, the Government of Canada and the
Governments of the Provinces may enter into agree-
ments with one another concerning the manner of
exercise of their respective powers, particularly
in the fields of immigration, communications and
social policy.”

I shall see what Justice have to
say about this on Monday and will then try to get in
touch with Chouinard by telephone. Your own comments
and reactions on the total argument would be most
helpful.

R.G.R.