Memorandum from R.G. Robertson [Next steps on the “patriation” of the constitution] to Prime Minister (21 October 1975)
By: R.G. Robertson
Citation: Memorandum from R.G. Robertson to Prime Minister (21 October 1975).
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October 21st, 1975.
MEMORANDUM FOR THE PRIME MINISTER
Next steps on the
“patriation” of the constitution
Since my memorandum to you of October
10, we have here, in the FPRO, considered further
the points raised by Chouinard in his telephone
conversation with me. That further consideration
does not alter the views that I then expressed
to you. Further thought, however, throws a
good deal more doubt on the wisdom of having any
reference of the proclamation to the Courts. In
summary, our views on the points raised by
Chouinard are as follows:
(a) The proclamation should come
under the amending formula
as being a part of the
“Constitution of Canada“.
(b) There appears to be no reason
not to add “social policy“ to
the specific references in the
proclamation about “agreements”.
(c) We should not consider adding
anything about the spending
power to the proclamation.
(d) We should be completely negative
about a reference of the procla-
mation to the Courts.
The question of reference to the Courts
Mrs. Reed, on behalf of the Department
of Justice, thinks that a reference to the Court
“would not be in the least helpful”. Even if a
question could be posed in an appropriate legal
way (about which she thinks there would be great
difficulty), she thinks the answer would almost
certainly be one that would lack the conclusive
quality that would help Mr. Bourassa. In her
view, it would be likely to be to the effect
that the paragraph (paragraph 6 in the draft we
sent to Quebec) contains “a non-enforceable
obligation and is directory only”. While the
“directory” part is very important so far as a
constitutionalist is concerned, it would seem
inconclusive to commentators and critics and they
would focus on the “non-enforceable” aspect.
Mr. Hurley shares Mrs. Reed’s concerns
and feels that, apart from the problem of delay,
a Court reference would be more likely to
prejudice than to help the success of the “patria-
tion” exercise. Both Mrs. Reed and Mr. Hurley feel
that if a Court reference were to be made it should
be to the Supreme Court direct since a reference
to the Court of Appeal of Quebec would, at best,
be inconclusive. To go there would simply be to
add to the hazard of an inconclusive opinion and
to lose time.
Having thought about the matter in the
light of the views that I have received, I think
it would be very unwise to insert a Court reference
of any kind into the programme.
The “patriation” proclamation
I am attaching herewith, in English
and in French, a copy of the “form for a proclamation”
as fully drafted to include the full text of the
parts on the amending formula, the Supreme Court and
the language rights. I think the document is a
pretty impressive one and I wonder whether we are
not at the point where we ought to try to move it
ahead to a more conclusive stage with Quebec,
possibly with the Cabinet and then with the other
I think the document can be validly
represented as having a fair bit of attraction
for pretty well all the parties. For the federal
government, there would be the establishment of
the amending procedure and a firmer foundation
than we now have for language rights and protection
of the French culture. For Quebec, there would be
the linguistic and cultural advantages plus elements
of “constitutional guarantee”. For seven of the ten
provinces, there would be the provision on regional
disparities. For all of the provinces, apart from
Quebec, there would be some attraction in having
this constitutional problem out of the way and
there would be a gain in the provisions with regard
to the Supreme Court. So far as the Court is
concerned, Mr. Hurley points out that the change
to 70 years as the retirement age would automatically
create three vacancies, including one from the
Quebec Bar. Within five years, the majority of
judges (five) would have been appointed under the
new formula with provincial participation.
I am very dubious whether longer
consideration is going to produce a much better
document for presentation to the nine provinces
that have not, so far, seen this one.
If you agree with the above analysis,
it seems to me that either you should speak to
Mr. Bourassa or I should speak to Mr. Chouinard
(or both) to indicate the conclusions set forth
at the outset of this memorandum and to say that
we are sending a full-text of the proclamation.
Perhaps it could be on the basis that there is
nothing more we feel can be added and that we
think it should be acceptable to Quebec in this
form. I am not sure what Mr. Bourassa‘s reaction
will be and, because of that uncertainty, there
would be undoubted advantage if you could find time
to speak to him.
If it looks as though Quebec is going
to be prepared to go along with the document as it
now stands, presumably our next steps should be:
(1) Submission of the text to the
As you know, neither the
text nor the results thus far of the process of
discussion have been in front of Ministers.
Dependent on the answer from Quebec, we would
seem to be at the point where Ministers ought
to look at the proposals before they go further.
(2) Transmission of the text to
the Premiers of the other provinces.
A question here is how best
to communicate the text to the other Premiers.
Probably the best course would be to do it under
a letter from you which would give a degree of
explanation as to the considerations that have led
to this document. Most of them will probably want
to have more explanation than can be given in a
letter and probably also the chance to talk about
particular points or problems that occur to them.
Your letter could perhaps say that I would, before
a certain date, get in touch with each Premier to
see whether he would like to have me (or a Minister ?)
come to talk about the text with him.
I shall still of course try to arrange
an interview with Mr. Barrett. I have not pushed
this during the last couple of weeks when the
situation has been so charged and so uncertain with
regard to the restraint programme and the provincial
response to it.