Memorandum from R.G. Robertson [Re Article 38 of the proclamation for “patriation” of the constitution] to the Prime Minister (5 December 1975)
By: R.G. Robertson
Citation: Memorandum from R.G. Robertson to the Prime Minister (5 December 1975).
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c.c.: Mr. Pitfield
December 5th, 1975.
MEMORANDUM FOR THE PRIME MINISTER
Re Article 38 of the proclamation
for “patriation” of the constitution
Attached herewith is the original
of a letter dated December 2nd that I have received
from Don Thorson. It follows upon the briefing I
gave to Mr. Basford a week ago concerning the
“patriation” of the constitution and a talk he had
with Thorson on December 1st.
I do not think the letter reflects
any new discovery or concern on Thorson’s part.
I think it may, however, indicate some unease on
Mr. Basford’s side. Apart from everything else,
he is probably imbued with the British tradition
of Parliamentary supremacy and finds it a bit
difficult to get used to the idea of a constitu-
tional limitation on that supremacy. This is,
however, precisely what we had in contemplation
before and at Victoria and what has to be involved
if there are to be any “constitutional guarantees”
of any kind.
I think there might be some value
in my sending Thorson a letter that he can pass on
to Mr. Basford. It could be helpful in preparing
a way for discussion in the Cabinet. Do you think
a letter along the lines of the attached would be
Original signed by
Original signé par
Secretary to the Cabinet for Federal-Provinical Relations
Secrétaire du Cabinet pour les relations fédérales-provinciales
December 5th, 1975.
Dear Mr. Thorson:
Thank you for your letter of
December 2nd about the discussion that you have
had with your Minister concerning the “Form
of a Proclamation of the Governor General” for
the “patriation” of the constitution.
So far as the “form” itself is
concerned, it has been informally communicated
to officials in Quebec who were designated by
Premier Bourassa to work with me on this matter.
I, of course, discussed it fully with the
Prime Minister at all stages in the development
and had his authority to transmit it. It has
gone to the Quebec officials with the indication
that the Prime Minister is prepared to recommend
it to his Colleagues in the Cabinet as a basis
for discussion with the other provinces provided
the government of Quebec would regard it as
acceptable if the federal government and the
other provincial governments agree with it. It
is clearly understood that the document does not,
at this stage, carry the approval of the federal
government and it is also understood that, if the
substance were acceptable, there would almost
certainly have to be modifications in expression
As Mr. Basford has requested, I
am advising the Prime Minister of the views you
express about the two possible interpretations of
Article 38. If the proclamation were to become a
part of the law of Canada, I would rather expect
that it would be the second of the interpretations
you refer to which the Courts would be likely to
D.S. Thorson, Esq., Q.C.,
Deputy Minister of Justice and
Deputy Attorney General of Canada,
adopt – although that is obviously simply a
personal view. As you say, under that interpre-
tation, the Article would operate as “a genuine
constitutional limitation on the legislative
jurisdiction of Parliament”. This is, of course,
precisely the kind of thing that the federal and
provincial governments contemplated in Part I
of the Victoria Charter with regard to Political
Rights and Part II concerning Language Rights.
The most precise expression of such “limitation”
was perhaps in Article 2 which, as you will recall,
“No law of the Parliament of
Canada or the Legislatures
of the Provinces shall
abrogate or abridge any of
the fundamental freedoms
herein recognized and declared”.
As you will recall, the basic
approach of the federal government in the constitu-
tional review had been to give first importance
to the consideration of “rights” which would be
protected by limitations on the jurisdictional
capacities of legislative and governmental
authorities. Article 38 of the proclamation,
in the second interpretation to which you refer,
would be entirely consistent with this basic approach.
As I mentioned to you on the telephone
in our discussion the other day, I am confident that
the Prime Minister is fully conscious of the possible
– or probable – interpretation to which you refer.
In discussion with me, he has compared Article 38 to
the first amendment of the United States Constitution
which, as you know, provides that “Congress shall
make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the Press;…”.
In brief, as I said on the
telephone, the interpretation you refer to will,
I am sure, not come as any surprise to the Prime
Minister nor, I think, will it cause him concern.
What it will mean, if adopted, is that the Courts
of Canada will, in future use, have to decide what
measures or actions by Parliament or government
would or would not have to be constrained by reason
of the second part of Article 38.