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Date: 1981-10-24
By: Michael Kirby
Citation: Memorandum from Michael Kirby for the Prime Minister re Possible Changes that might be Acceptable if they Result in a Provincial Consensus (24 October 1981).
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Note: This document is discussed in an article that has been recently submitted to a peer-review journal.

ATTACHMENT 3

S E C R E T

October 24, 1981

MEMORANDUM FOR THE PRIME MINISTER

Possible Changes that might be Acceptable if they Result in a Provincial Consensus

This note discusses the kind of possible changes to the constitutional measure that the government might be prepared to accept in order to attract increased provincial support. It thus relates to the process by which substantial provincial consent might be secured as distinct from the content of the package, which is the subject of a separate note.

These possible changes – or trade off positions – represent constitutional packages which are somewhat less than the implementation of the full resolution immediately upon proclamation and more than (or better for the federal government than) our final compromise offer. They represent options that, for one reason or another, the federal government cannot offer but that it might find acceptable if they were offered by a province and were to carry substantial provincial support.

We have identified three such packages:

• The B.C. package
• A “non-obstante” clause
• The Toronto consensus

^{[what of the [illegible]?]}

1. The B.C. Package

Our understanding is that such a package would roughly take the following form:

1. Patriation
2. unanimity for two ^{[[illegible]this timing with present delay]} years followed by a referendum to decide between a provincial and federal amending formula, if there is no agreement
3. Splitting the remainder of the resolution into two Parts: The Charter and Canadian Conventions.

[Page 2]

The “Canadian Conventions” would include minority language education rights, mobility rights, and the equalization provisions now in the resolution. Also included in this Part could be democratic rights and, possibly, fundamental freedoms. This Part of the resolution would go into effect immediately and would be binding on all jurisdictions.

The remainder of the Charter of Rights (legal rights, equality rights) as it now stands in the resolution, along with Native rights would be negotiated over a two-year period after which it would come into effect either with an opting-in provision or by application of the amending formula that will be in effect at the end of the two-year period (or possibly four-year depending on whether there is a referendum on the amending formula or not). If the Victoria formula were to be in force at that time, the Charter could be brought into force through federal-provincial agreement or ^{[Does B.C. say [illegible]?]} through a national referendum provided that the referendum passed regionally as well as nationally as now called for in the resolution. Even if Victoria was not in force at that time, there could be a provision for the coming into force of the Charter but only after a referendum passed regionally as well as nationally as now called for in the resolution.

It is not clear from the discussions we have had with the B.C. people how the other language rights and the natural resources provisions will be dealt with in the B.C. package. Insofar as language rights (other than education rights) are concerned, we would insist that they come into force immediately, possibly as part of the 11 Canadian Conventions” since they affect only those governments that have agreed to them. Different considerations apply to the natural resources provisions and these are discussed elsewhere in this package of material.

Looking at the merits of such a package, it is to be noted that patriation would be immediately effected and that the ultimate amending formula, if there is no federal-provincial agreement after two years of negotiations, would be decided upon by way of a referendum. On these two counts, this is essentially what the measure now provides for. Regarding the Charter of Rights, the advantage insofar as we are concerned, is that those parts of the Charter that we regard as essential (minority language education rights, mobility rights) are implemented immediately, while, at the same time, saving face for those Premiers who have argued that they do not want a Charter of Rights.

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Insofar as federal objectives are concerned, it would certainly be preferable to have a situation where the two key elements of the Charter (minority language education rights and mobility rights) with possibly democratic rights and fundamental freedoms go into effect immediately and everywhere, with the remainder subject to an opting-in or opting-out provision, rather than a situation where the whole Charter s put at risk through a referendum, or we find ourselves in a checker-board situation if an opting-in or out provision were used rather than a referendum.

Of course, the key question is whether substantial provincial support will develop for such an approach. Some provinces (like B.C., Saskatchewan, perhaps Nova Scotia and P.E.I.) might find it attractive. It is clear that Quebec (because of its opposition to both minority language education rights and mobility rights) and Newfoundland (because of its opposition to mobility rights) are likely to strenuously oppose such an approach. Other provinces might also oppose such a move for a variety of reasons. However, a number of provinces might decide to go along with this approach depending on the changes that we might find acceptable in respect of the coming into force or the implementation of the Charter and possibly the amending formula itself.

2. A Non-Obstante Clause

Under this option, the patriation and amending formula, equalization and natural resources provisions would remain as is subject to such “refinements” in respect of the amending formula as you might accept.

The Charter of Rights and the Native rights would also be immediately entrenched.

However, an amendment would be made to the measure to allow the federal Parliament and provincial legislatures to enact legislation that is in conflict with or derogates from the rights and freedoms guaranteed by the Charter and possibly the native rights provisions. In each and every such case of derogation the federal or provincial legislation would have to specially provide that the legislation is enacted notwithstanding the provisions of the Charter.

[Page 4]

The advantage of such a provision is that it meets the argument that many Premiers have made that an entrenched Charter is not consistent with the principle of Parliamentary Supremacy. It would also meet the point that some Premiers have made that the measure should not affect or diminish the powers and rights of provincial legislatures. A “notwithstanding” clause would leave with each provincial legislature the power to make a law that is in conflict with the Charter. In other words, the provincial legislature would still be supreme.

The danger, of course, is that there might be a flood of derogations enacted by provincial legislatures. The experience, however, in Canada, with such a derogation mechanism would tend to indicate that such danger is not great.

Insofar as the Canadian Bill of Rights is concerned, in 20 years a “notwithstanding” clause has been used once. In Alberta, in 10 years, such a clause has been used once, and in Quebec, once as well, in 4 years. This shows that governments are very reluctant to pass legislation that is in conflict with what their electorate consider to be fundamental values shared by all. To do otherwise would be done at great risk and peril.

In order to ensure that such a device is only used in the most exceptional and deserving situation, we could consider providing for the following:

• A “notwithstanding” clause would be valid for five years only. It could be renewed for another five years, which would mean that the legislature would need to debate the question before the clause would be passed again.
• We could provide that a “notwithstanding clause would need to relate specifically both to a specific clause of the derogating legislation and the specific section of the Charter that it is in conflict with.
• There could be a refinement that a “notwithstanding” clause must be passed by 60% or 66% of the members of the legislative assembly.

With these safeguards, we could probably accept the concept of a “notwithstanding” clause. In effect, both politically and legally, the non-obstante laws of the kind discussed here constitute a most demanding form of opting-out.

[Page 5]

3. The Toronto Consensus

The so-called “Toronto consensus” formula which received broad provincial support in 1978-79 provided for unanimity on changes in provisions which affect provincial ownership of or jurisdiction over natural resources. This formula would have required the consent of at least seven provincial legislatures representing at least 85 per cent of Canada’s population for all other entrenched matters. Implicitly, the “Toronto consensus” gave a veto to both Quebec and Ontario (85% of the population) and to at least one province in each of the four regions (7 provinces). It gave explicit recognition to Alberta’s concern (unanimity for amendments respecting natural resources.)

Ontario is now prepared to give up its veto, but would not insist that Quebec do the same. In the final analysis, Ontario can live with a seven provinces and §0% formula in which one of the provinces must be Quebec.

If this formula, with the changes just referred to, were to be agreed to by the provinces, including Quebec, we should accept it. This would represent a major breakthrough.

This option does not deal with the other provisions of the measure, like the Charter, etc. Our options in this respect are discussed earlier in this note and in separate notes.

As you will have realized, the B.C. package and the “non-obstante” deal with the Charter of Rights while the “Toronto consensus” option deals with the amending formula. This last option could therefore be merged into a broader package with either of the two other options on the Charter.

4. A Substantial Provincial Consensus

A difficult question we would be faced with in respect of any of these options would be: What is a substantial provincial consensus? Would the support of six provinces representing 60% of the population of Canada be substantial for that purpose? Would any six provinces do or should account be taken of their distribution? For example, would the support of the four Atlantic provinces, plus Quebec and Ontario be sufficient? Or would the support of all provinces except Alberta, Newfoundland and Quebec be adequate? Or would the support of all provinces except Quebec be sufficient?

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One possible measure of substantial provincial support is to be found in the amending formula (Victoria) that the federal government has proposed in the measure or possibly in amending formulae that have been proposed in the past, like the Toronto consensus. These formulae all require for constitutional changes, a national and provincial or regional consensus and recognize the special position of Quebec by extending it a veto power.

To proceed with the B.C. package without the consent of Quebec, and perhaps without the consent of one or two other provinces, would raise the question as to whether this is in accord with what the Supreme Court said on the Convention. A strong argument could be made that, conventionally, the consent of Quebec is required in matters relating to language of education in the province. The judgment of the Supreme Court leaves that possibility very much open.

In the final analysis, a difficult trade-off decision may be required as to whether it is preferable to agree to a package like the B.C. one if it were supported by all provinces except Quebec and perhaps Alberta and Newfoundland, rather than to adopt one of our compromise offers which is assigned to “conventionalize” the measure.

Michael J.L. Kirby