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Date: 1975-02-19
By: R.G. Robertson
Citation: Memorandum from R.G. Robertson to the Prime Minister (19 February 1975).
Other formats: Click here to view the original document (PDF).

c.c.: Mr. Pitfield
Mr. Bryce
Mr. Carter
Mr. Haney
Mr. Gwyn
Mr. Gravelle
Miss Macdonald

CONFIDENTIAL

Miss Macdonald

February 19th, 1975.

MEMORANDUM FOR THE PRIME MINISTER

The question of an amending
procedure and “patriation”
of the constitution

Since my memorandum to you of February
11th, we have had two very fruitful meetings to
discuss the best way of tackling the amending
procedure and “patriation” of the constitution.
The result does not modify the main part of the
memorandum but we have arrived at a much better
alternative to what I called “Option 5 —
“Patriation” without an amending procedure” —
in other words, what to do if agreement with the
provinces cannot be reached. We came to the
conclusion that the disadvantages in this “last
resort” possibility were so serious that it ought
not to be contemplated even as a negotiating
tactic.

An option based on “accumulating resolutions of approval”

Back in 1949-50, when we were considering
how to establish a new constitution in Canada, we
worked out a plan under which the British Parliament
would, pursuant to a joint resolution of our two
Houses of Parliament, set forth in a final piece of
legislation the text of a new constitution, which
would have been worked out in advance in Canada but
not necessarily agreed to by all the provinces. That
constitution would come into force on a date to be
established by a later proclamation “stating that the
Parliament of Canada and the Legislatures of all
the provinces had passed resolutions” agreeing to
the constitution and requesting that it come into
force. The plan is set forth in a P.C.O. memorandum
dated November 16th, 1950 which I am sure you and I
must have worked on jointly although I do not
recall any details about it. In our second meeting
this week, we considered whether this technique
could not be applied to the establishment of a new
amending procedure in the absence of agreement with
the provinces in advance. We think it could be and
that it would be distinctly better than “Option 5”
in my memorandum of February 11th.

The “1949-50 plan”, as adapted, would
be resorted to only if it was not possible to get
agreement on an amending procedure – either the one
agreed to at Victoria or some modification of it.
If no such agreement were forthcoming, the procedure
could be somewhat as follows:

(a) A Joint Address by the two Houses
of Parliament to the Queen asking
her to cause a bill to be laid
before the British Parliament on
Canada’s behalf.

(b) The Addresses would ask that the
British legislation do the following
things:

(i) amend the BNA Act to change
the title to, say, “The
Constitution of Canada Act”;

(ii) incorporate into that Act a
new “part” which would
contain the amending proce-
dure agreed on at Victoria;

(iii) include a proviso that the
new “part” would have legal
effect only when it had been
approved by the Legislatures
of all of the provinces (the
“part” would have been
included in the Joint Address
and therefore would have been
approved by the two Houses
of Parliament);

(iv) incorporate also in the
“Constitution of Canada Act”
a provision that any part of
it that cannot otherwise be
amended before the new “part”
comes into effect could be
amended by concurrent action
by Parliament and all ten
provincial Legislatures; and

(v) terminate the power of the
British Parliament to
legislate in any way
thereafter with regard to
“The Constitution of Canada
Act”.

(c) Proclamation by the Governor General
of “The Constitution of Canada Act”
with the new “part” containing the
amending procedure.

(d) Await, over time, provincial
resolutions of approval.

Considerations relating to the “1949-50 option”

1. The above option would have a number
of advantages. It would provide for an amending
formula but it would not “impose” it. It would
provide for “legitimacy” through U.K. legislation but
the substance of the action would be “made in Canada”
since the amending formula was devised here and
approved at Victoria and would not come into effect
except on the basis of action by all the Legislatures
of Canada. It would provide a means of making specific
changes in our constitution even if we cannot get
agreement for a number of years on the general
amending procedure. (While this interim method of
specific amendment would call for unanimous consent,
we do not think this presents any substantial risk —
nor do we think that it is in fact genuinely different
from what would be required to get an amendment
through the British Parliament if one were wanted.)
Finally, it would achieve “patriation” of the
constitution without the legal vacuum that is so
great a disadvantage in “Option 5”.

2. As a negotiating factor, this
option would have all the advantages I suggested for
“Option 5”. In particular, it would remove from
provincial hands the possibility of using the federal
desire to achieve agreement on an amending formula
as a lever to secure substantive amendments that they
think the federal government would not otherwise
concede. While removing this leverage from the
provinces, it would do it without adding in any
unilateral way to the legislative power of the
Parliament of Canada. It would be extremely
difficult to attack.

3. While it could be argued that it
might take years to accumulate ten resolutions of
approval for the amending procedure, this is not a
serious disadvantage since there would be provision
for specific amendments. The position would be no
different than the situation that often exists in
the United States for constitutional amendments there.
Often it requires a good many years before the necessary
proportion of approvals by State Legislatures is
accumulated for constitutional amendments.

4. One question for consideration would
be whether there should be any provision that a
resolution of approval by a provincial Legislature
should be irrevocable. On the whole we are inclined
to think it should be. If it is not irrevocable, it
would mean that a provincial government could at some
time withdraw a resolution of approval that had been
given earlier in order to use it as a bargaining
tactic against the federal government or against other
provinces. Irrevocability might somewhat slow down
the passage of resolutions of approval but this
would not be a serious factor since a pretty considerable
time lag would be involved anyway.

5. It would be for consideration,
partly depending on what had emerged in the course
of discussions with the provinces, whether the
federal government would want to cause the Victoria
provisions on the Supreme Court also to be incorporated
in “The Constitution of Canada Act”. There would be
advantage in doing this as an earnest of the federal
government’s wish to have a thoroughly equitable
situation in our constitution of the future. The
disadvantage would be that it would be a unilateral
concession of something that might be a bargaining
counter later. If the Supreme Court provisions were
to be included at the outset, a further question would
be whether they should come into effect forthwith or
whether they should not come into effect until the
same time as the amending procedure did. The latter
provision would provide an incentive to provinces to
pass resolutions of approval for the amending procedure
and for the Supreme Court provisions»

6. There could be considerable attraction
in this option for Mr. Bourassa in the sense that it
would remove any need to put a measure before the
Assemblée nationale at this time. He could wait until
whenever he thought the time was ripe to move. This
could be a very real advantage if the political
situation in Quebec is precarious.

Tactical approach

In general we agreed with the tactical
approach outlined in section B of my memorandum of
February 11th — that we start with “Option 4”
(the amending procedure agreed on at Victoria plus
“patriation”); that we be prepared to consider
modifications to the Victoria amending procedure;
that we be prepared to consider inclusion of Part
X of Victoria on the Supreme Court and that we make
a serious effort to get agreement for action on this
basis. In short, agreed action would be the prime
objective.

If one could not get agreement on the
above basis, our recommendation would be that, at
an appropriate time, it be made clear that the
federal government will proceed on the “1949-50
option”. One question is whether indication of the
federal government’s determination to use this option,
if it cannot get agreement, should not be made at a
fairly early point. The main reason for doing that
would be to make clear that the federal government
is not going to be subject to “blackmail” to concede
other constitutional revision in order to achieve
“patriation”. This knowledge might substantially
alter the attitudes the provincial governments would
take in the negotiations.

If, in the end, action had to be on the
basis of the “1949-50 option”, our thought would
be that, in moving the Joint Address before the
House of Commons, you should table the Victoria
Charter (with or without modifications) as the
substance of what your government would propose as
the first amendment to be made to “The Constitution
of Canada Act” once the proposed amending formula had
come into effect. That would make clear that securing
the amending formula was not “the end of the line”
as far as you and the government are concerned, but
is rather a means of securing the other desirable
things that were in the Charter: political rights,
language rights, modernization, removal of reservation
and disallowance, etc., etc.

The opening of discussions with the provinces

In general we are still of the view
expressed in Part C of my memorandum of February 11th
to the effect that the opening of this matter should
be “low key”; that it should proceed by way of
bilateral discussions; and that the process should
be initiated by you at a reasonably early point.
We think it is for further consideration whether it
would be best for you to do that informally and
privately during the conference of April 9th-10th,
or by means of letters after the conference. It
might depend on the way the conference goes and
on what the mood is.

We will be carrying on work on this
matter in the course of the next few weeks. Any
comments or guidance would be helpful whenever
you have time to consider this.

R.G.R.