Memorandum from R.G. Robertson [“Patriation” of the constitution; in P.E.I. and N.B.] to the Prime Minister (4 July 1975)
By: R.G. Robertson
Citation: Memorandum from R.G. Robertson to the Prime Minister (4 July 1975).
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cc. Mr. Pitfield
July 4th, 1975.
MEMORANDUM FOR THE PRIME MINISTER:
“Patriation” of the constitution;
in P.E.I. and N.B.
I had meetings on July 2nd and 3rd with
Premiers Campbell and Hatfield on the proposal for
“patriation” of the constitution. ” Both were very
useful meetings but both have served to complicate
the situation a fair bit.
Premier Campbell is quite prepared to
go ahead with the proposal to “patriate” the
constitution on the basis of the Victoria amending
formula — whether modified to meet Mr.Lougheed’s
point or not. He has sympathy with Mr.Bourassa’s
concerns about the security of French culture
and has no objection in principle to constitutional
guarantees. Like Mr. Moores and Mr.Regan, he
would want to look at the text of what is proposed.
Mr. Campbell agrees with Mr.Regan that,
if constitutional guarantees are to be provided as
Mr.Bourassa wishes, there must be something on
regional disparities. He feels, however, that the
formula agreed on at Victoria (Part VII) was not
sufficiently specific or enforceable in relation to the
obligation of the federal Parliament and government
to ensure a general level of services by all provinces
to their citizens at a reasonable level of cost.
You may recall that various attempts were made,
especially by Premier Smith, at an earlier stage in
the constitutional discussions,to get a formulation
that would be very specific and which could be
enforced in a court if the federal Parliament or
government of the future did not make possible the
general level of services in all provinces. Mr.Bennett
was strongest in objection and Part VII was the
maximum that could be got by way of consensus.
I told Premier Campbell that it seemed to me uncertain
whether British Columbia or perhaps the federal
government would be prepared to go as far as he wished.
Premier Campbell would prefer to
see Part IV (the Supreme Court) included in the
Premier Campbell questioned me as to
the degree of our confidence that Premier Bourassa
would really go ahead with this exercise. He
said that apparently Mr. Bourassa had, at the meeting of
Eastern Premiers with the Governors of Northeastern
States in St. Andrews about ten days ago,
stressed the problems that would face him in trying
to take action at an early point on constitutional
“patriation”. He apparently referred to the
difficulty particularly of trying to do anything
before the Olympics were out of the way. I
told Premier Campbell what Mr. Bourassa had told
me in Quebec and that I had nothing to go on other
than that. I said I thought he could be confident
that you would want to be very certain of Mr.Bourassa’s
position before getting inuadiscussions other than
the kind of bilateral talks that I was now having.
After I had outlined to Premier
Hatfield the positions taken by the Premiers I had
seen up to that point, he asked me what the federal
government’s position was with respect to the enlargement
that was being proposed from your original thought
of “patriation” with the Victoria amending formula
only. I said that the various proposals had
not been referred to the Cabinet and that I had not
had a chance to discuss some of them very fully with
you. I said, however, that it was my impression
that you and the federal government would be prepared
to see Part IV (the Supreme Court) added and to have
some form of “constitutional guarantees” if they did
not involve amendment of the BNA Act, change in
the distribution of powers, and were satisfactory
in form. I said I equally thought that the
addition of Part VII (regional disparities) would
be acceptable but I had no way of knowing whether one
could go further along the lines Premier Campbell
wants. Mr. Hatfield was very forthright in saying that th
enlargement of the package caused very real difficulties
for him. The main points he touched on were the
1. The Supreme Court
He is still as opposed as he was at
Victoria to Part IV. He thinks there
should not be consultation about appointments to
the Court and that having it only lends credence
to the idea that there is bias among the
judges if appointments are by the federal
government only. I reminded him that the
suspicion has for some time been such that there
are limits on the use of the Supreme Court for
jurisdictional disputes involving Quebec and
Newfoundland. He recognizes this but his
opposition to Part IV remains.
2. Constitutional guarantees for cultural security
Mr. Hatfield does not like this idea
at all: not because he does not want to see
the French culture preserved and protected
but because anything that smacks of “unilingualism”
causes him trouble in New Brunswick. He said
section 1 of Bill 22 declaring French only to
be the official language of Quebec had been
extremely embarrassing for him. If there now was
some form of guarantee for the French culture,
this embarrassment would be renewed and
deepened. If there has to be any guaranteeing
at all, he wants to be sure it includes both
official languages and cultures.
Apart from this point, Mr.Hatfield
surprised us by saying that, if there are
guarantees, he would like them to “enshrine” the
New Brunswick Official Languages Act constitutionally.
He does not want it to be exposed to repeal
or change by some future legislature.
In reply to a question by me, he was
a bit unclear whether he wanted such protection
also to extend to the federal Official Languages
Act. I told him I thought his idea would
create real difficulties as I did not see how New
Brunswick could be singled out for mention, nor did
I see how any specific provision for Quebec
or for the generality of provinces could be
This part of the discussion ended up
with my saying that we would be giving further
attention to this whole question of “constitutional
guarantees” and his concerns would” be kept in
mind as we tried to see what kind of formulation
might be possible.
3. Regional disparities
Mr. Hatfield agrees that these must be
included if cultural guarantees are included.
He also agrees with Premier Campbell’s
approach: something more specific and
enforceable than Part VII.
4. The amending formula
On the whole, he would prefer to see
it modified as Mr.Lougheed wishes but either
version is acceptable to him.
5. The general exercise and objective
Mr. Hatfield is strongly in favour of
achieving”patriation” and getting complete capacity
to amend in Canada. He thinks that the federal
government should make clear the importance
of this apart from formal status. There are
many jurisdictional conflicts — communications,
resources, off—shore minerals — and consideration
of change is not respectably possible until
there is a method of amendment.
6. The position of Quebec
Mr. Hatfield confirmed what Mr.Campbell
had said about Mr.Bourassa’s remarks at St. Andrews.
He said he had been quite definite about his
concern over the raising of this matter in the
midst of present problems, the Olympics, etc.
As you can see, with eight of the
provinces now covered, the game has taken on new