Document Information

Date: 1981-10-27
By: Eddie Goldenberg
Citation: Memorandum from Eddie Goldenberg to the Hon. Jean Chretien, First Ministers Conference (27 October 1981).
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Note: This document is discussed in an article that has been recently submitted to a peer-review journal.

SECRET

October 27, 1981

MEMORANDUM TO THE HON. JEAN CHRETIEN

First Ministers Conference

The following are my ideas on how to approach the First Ministers Conference.

It is important to determine first what is essential for the Federal government and why and then to determine what flexibility is required to shake loose some of the provinces.

Clearly the Charter of Rights is a cornerstone not only of Federal government policy but also of Liberal Party policy. It is something to which Ministers and caucus are deeply committed.

The Charter reflects a great deal of hard work and compromise and cannot easily be improved. The substance of it is very popular and appeals to a wide ranging constituency. Any weakening of the Charter would run the risk of attack from multi-cultural groups, women’ s groups, the handicapped, civil liberties groups, etc. Each of these have backers in caucus and you would have to deal with a great number of unhappy members.

A concrete example of the difficultly of compromising on the Charter is Section 23 on language of education. Each draft caused different problems with different interests. To change it again to bring it more into line with Bill 101 would create opposition from English speaking members from Montreal, from Senator Rizzuto and the Italian community and from members representing ridings in Montreal North.

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Because of the popularity of the Charter, the Prime Minister might want to indicate his willingness to accept improvements. He could suggest adding a guarantee of property rights and extending Section 133 to all provinces as examples of improvements.

If flexibility is required on the Charter, it can be found in the timing of its implementation. Equality rights will not come into effect for three years. Perhaps the provinces might want a similar time period for legal rights.

The problem with making concessions on the Charter is that the substance is very good. Once some concessions are made the whole thing can begin to unravel. That is why I would be very reluctant to having some sections subject to opting-in. The obvious question would be if some parts are subject to opting-in, why not the whole thing. And for this, there is no satisfactory answer. The effort of the last year has been too great to end up in a situation where only fundamental freedoms and democratic rights (which have never been in danger) are protected. There would be no social reform in such a Charter.

My strong view is that if a few provinces really want to come on side, concessions on the Charter are not necessary. A real willingness on their part to be part of a consensus can be met by considerable flexibility on the amending formula. And if there is no real willingness to be part of a consensus, minor concessions on the Charter will not help.

The Position of the Provinces

In order to determine where the Federal government may be flexible, I want to look at the position of each of the provinces :

Newfoundland

Premier Peckford has concentrated his opposition to the package on the grounds that the Terms of Union could theoretically be changed without the consent of Newfoundland. This problem can be met by providing in

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the amending formula that unanimity will be required to change the provision that states that amendments affecting one or more provinces require the agreement of such provinces. Such a concession would be very important to Peckford and would not in practice change anything.

It is interesting to note that Newfoundland in the past has supported the principle of a Charter of Rights.

Prince Edward Island

Apart from belonging to the Gang of Eight, there is nothing Prince Edward Island particularly wants. In the past, it has supported the principle of a Charter of Rights although its position seems now to be closer to that of Manitoba.

Nova Scotia

Nova Scotia’s main concern seems to be an agreement on offshore oil and gas. It has no fundamental objections to the content of the package.

Quebec

Quebec is clearly opposed to any tampering with the power of the National Assembly over language and mobility. Nothing other than opting-in could satisfy Levesque. There is no point trying to make compromises for Levesque.

Manitoba

Clearly, Premier Lyon will not change his position on the Charter. There is no possible compromise with him.

Saskatchewan

Premier Blakeney is opposed to the referendum aspect of the deadlock breaking mechanism. If he is willing to compromise, he might be satisfied with our

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offer of last January whereby a referendum could not be called if it were opposed by a majority of provincial legislatures representing a majority of the population of Canada.

As well, Blakeney is opposed to the permanent veto for Ontario. This could be overcome by offering the Toronto consensus which provides for seven provinces with eighty-five percent of the population. I would add a provision requiring Quebec’ s consent to changes respecting official languages.

Blakeney will probably bargain for some jurisdiction on some aspects of international trade in resources. We made him an offer to this effect in January. I would make that offer again. Saskatchewan’s support is very important and we should be prepared to go the extra mile. If the Federal government had gone the extra mile with Quebec in 1971 after Victoria, history might be different today. We should not make the same mistake with Saskatchewan this time.

Blakeney may also oppose the Senate veto.   I do not think there is any point giving in on this area because of the difficulties it would cause in Ottawa unless (and this is highly unlikely),the Senate veto were to be the key to a very wide consensus.

Finally, Blakeney is opposed to enshrining equality rights. Clearly, there is no room for compromise on this issue. It would be useful for the Prime Minister to be able to deal with equality rights in public.

Alberta

Premier Lougheed has in the past supported the principle of an entrenched Charter. His two objections apart from the process are first to the perpetual veto for Ontario and second to the possibility of a Federal resource grab. Both of these objections can be met by the Toronto Consensus which does not give a permanent veto to any province and which requires unanimity with respect to amendments regarding resources.

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British Columbia

British Columbia has the same problem as Alberta with respect to the amending formula. It can be resolved in the same way.

Process

The major issue obviously is one of process. Even those who are not fundamentally opposed to a Charter of Rights object to one which is not “made in Canada”. There are two possible solutions which I would find acceptable.

My preferred position would be to have the Charter come into effect immediately and to remain in effect unless in five or seven years, the provincial legislatures necessary for constitutional amendment (be they seven provinces with 85 percent of the population or the six required by Victoria) call for a referendum seeking the abolition of all or part of the Charter. In such a case, all or part of the Charter would be abolished if there were a national majority and a majority in the required provinces.

The second option would be to state that the Charter would remain in effect unless in five or seven years, the same provincial legislatures as above agree that the Charter or part of it should not apply to the provinces.

Recommendations

1. That Premier Peckford’ s concerns be met.

2. That the Toronto Consensus be proposed with a veto for Quebec in respect of language.

3. That the offer to Saskatchewan with respect to the deadlock breaking mechanism be made again.

4. That consideration be given to resolving Saskatchewan’ s problem with international trade.

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5. That there be no opting-in on any part of the Charter.

6. That suggestions for improvements be made to the Charter e.g., property rights.

7. That there be flexibility on the corning into effect of various sections of the Charter.

8. That the Charter be in effect for a trial period and that a national referendum called by a majority of the provinces at the end of the trial period of five to seven years be the only mechanism for abolishing all or part of the Charter.

Eddie