Document Information

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

CONFIDENTIAL

June 16, 1975

MEMORANDUM FOR THE PRIME MINISTER

“Patriation” of the Constitution: the question
of “constitutional guarantees” for the
“cultural security” of French Canada

Since my memorandum to you of May 29 I have
been giving further thought to the problem of meeting
Mr. Bourassa’s insistence that, for “patriation” of the
constitution to be acceptable in Quebec, there must be
“constitutional guarantees” for its “cultural security”.
It seems to me that:

(a) The request is a thoroughly reasonable
one. The population of Quebec as a proportion of the
population of Canada has declined from about 33% two
or three decades ago to 27.9% in 1971 and all D.B.S.
projections show it at 21% – 24% by 2001. The political
” clout ” of Quebec as the organized expression of French
culture in Canada is diminishing and there is good reason
to seek constitutional buttresses against an unfriendly
federal government at some time in the future.

(b) Any guarantees ought to be in relation to
“culture”, not in relation to language and in no sense
in relation to the province of Quebec. If they relate
to language as such they get immediately into the problems
of Bill-22, bilingualism, etc. and no solution will
emerge. Equally clearly the province of Quebec ought
not to be accorded a special position: it is not
constitutionally the guarantor of the “French fact” or
of French culture: what is wanted is that federal
Parliaments and governments be caused to recognize and
respect the bicultural character of Canada. We ought
clearly to try to cover the French culture in all parts
of Canada, not just in Quebec.

(c) “Guarantees” along the above lines would
be fully consistent with and would help to ensure the
continuation of the basic policy to which you and your
government have been committed: the creation and
maintenance in Canada of a climate in which the French
culture and language have and will continue to have a
sure and equal place.

(d) “Guarantees” can be devised which, while
not being 100% effective, would be significant and
important and this can be done without touching the
distribution of powers.

To indicate the kind of thing that I have in
mind, I am attaching a rough (and incomplete) draft of
a “form” for the Proclamation of the Governor General
which would be the final and operative “act” in the
“patriation”. I stress that it is rough: I drafted
it in the course of my trip last week to Newfoundland
and Nova Scotia and I revised it in discussion with
Frank Carter. Apart from that, it has been discussed
with no one. I hope you will have time to give it con-
sideration. If the general approach appeals to you, I
would like to take it up with the Department of Justice
to get their reaction.

I would make the following points concerning
this proposal:

(a) It would have more strength than a purely
preambular paragraph as I first suggested. Indeed the
question may be whether some will not regard a “guidance”
paragraph, like the final one, as going too far.

(b) If one could get a common form of resolution
by the provincial legislatures and the two Houses of
Parliament, which registered approval for the text of
the proposed Proclamation, we would have as total an
endorsement of the bicultural character of Canada as it
would be realistically possible to get. This would be
of major importance, both constitutionally and politically.

(c) It is probably necessary to have some-
thing about cultures other than the two-based on the
official languages. Clearly, however, that “something”
has to be of a very different order than the provision
for the “two”.

(d) If we have something, whether of this kind
or of a different kind, on “cultural security”, we will
almost certainly have to have something on regional
disparities. As you know, commitment to diminish them
has almost as much sanctity for the four Atlantic
provinces as the cultural question has for Quebec. I
see no problem about that. We could simply add Part
VII of the Victoria Charter to the “package”. (For
your reference I am attaching the text of Part VII.)
I doubt very much if any province would strongly object.
Mr. Bennett’s resistance in 1971 was more personal than
anything else, and I doubt if Mr. Barrett will reflect
it. It would obviously make this package more attractive
and interesting in 7 of the 10 provinces.

Ehen I talked to Mr. Moores and Mr. Regan last
week I told them of Mr. Bourassa’s concern about “con-
stitutional guarantees”, and reminded them that he had
raised the matter at your dinner on April 9. I asked
them whether in principle they would see any objection
to including in the Proclamation some statements of
guarantee if they did not affect the distribution of
powers. (I did not describe the precise idea I am
setting out here.) Mr. Moores was remarkably sympathetic
to Mr. Bourassa’s concern. He said he would want to see
a text but, subject to that, his government “would have
no difficulty in principle” and he was confident there
would be no difficulty in his legislature. Mr. Regan
was also sympathetic but a bit more cautious about want-
ing to see a text and to discuss it with his Cabinet.
He made it clear that if such guarantees were included,
he would want regional disparities covered. (I did not
raise that: it came up from the Nova Scotia side.) On
the principle of including “guarantees”, Mr. Regan has
no objection.

While the above are only two reactions, and
only “in principle”, I think they are encouraging. If
you agree, I would like to test the matter on the same
“in principle” basis with the remaining four Premiers
I have to see. On the whole, I feel engaged to
believe”that we may be able to solve this problem —
although I have no way of knowing whether Mr. Bourassa
would think this approach meets his needs.

I would very much appreciate your comments and
guidance.

R.G.R.

June 10, l975

Possible Form for the Proclamation
of the Governor General

Whereas it is desirable and fitting that it
should be possible to amend the constitution of Canada
in all its aspects by action of the appropriate instru-
mentalities of government in Canada acting separately
or in concert as may be best in relation to the matter
in question;

And whereas changes in the constitution,
interpretation of its provisions,or action by the federal
parliament or government could imperil the continuation
and full development of the culture based on the French
language in Canada;

And whereas it is desirable that the cultures
based on the two official languages of Canada should
both be assured of preservation, and full development
and that Canada continue to be enriched by the cultures
of the Indian and Inuit peoples as well as by those of
other linguistic groups who have come to Canada;

Therefore it is desirable to establish a
method for the amendment in Canada of those parts of
the constitution which cannot now be amended in Canada
in which the consent will be required of the legislatures
of provinces representative of both the official language
groups of Canada as well as the legislatures of provinces
in all of the geographical regions of Canada and to
establish means by which provinces can participate in
the selection of persons to be appointed to the Supreme
Court of Canada and also to establish principles to
guide the Parliament and government of Canada in the
exercise of the powers allotted to them under the con-
stitution or the law of Canada;

Now therefore I …………. do proclaim
as follows:

1. … (the method of amendment
– Part IX of Victoria less paras
53, 54, 55)

2. …(appointments to the Supreme Court
– Part IV of Victoria)

3. The Parliament of Canada, in the exercise
of powers allocated to it under any provision
of the constitution of Canada, and the govern-
ment of Canada in the exercise of any powers
conferred upon it by the constitution of
Canada or by laws passed by the Parliament
of Canada shall be guided, among other con-
siderations for the welfare and advantage
of the people of Canada, by the knowledge
that a fundamental purpose underlying the
federation of Canada is to ensure the
preservation and the full development of
both the cultures based on)the two official
languages of Canada.

PART VII

REGIONAL DISPARITIES

Art. 46. The Parliament and Government of Canada and the
Legislatures and Governments of the Provinces are
committed to:

(1) the promotion of equality of opportunity and
well being for all individuals in Canada;

(2) the assurance, as nearly as possible, that
essential public services of reasonable quality
are available to all individuals in Canada; and

(3) the promotion of economic development to reduce
disparities in the social and economic
opportunities for all individuals in Canada
wherever they may live.

Art. 47. The provisions of this Part shall not have the
affect of altering the distribution of powers and shall
not compel the Parliament of Canada or Legislatures of the
Provinces to exercise their legislative powers.