Document Information

Date: 1971-07-05
By: B.L. Strayer
Citation: Memorandum from B.L. Strayer to file (5 July 1971).
Other formats: Click here to view the original document (PDF).

July 5, 1971.

MEMORANDUM TO FILE

Patriation of the Constitution:
Ministerial Discussion in London,
May 26th, 1971.

A meeting was held at Lancaster House, London,
on the morning of Wednesday, May 26th. Those present on
behalf of the British government were The Right Honourable
Sir Peter Rawlinson, Attorney General; Sir John Fiennes,
Chief Parliamentary Counsel; Messrs. C. Lush and A. Rushford
from the Foreign and Commenwealth Office; and Mr. A. de Winton
of the Attorney General’s office. Those present on behalf
of the Government of Canada were the Honourable John Turner,
Minister of Justice; Mr. R.G. Robertson, Mr. G.V. La Forest,
and Mr. B.L. Strayer.

Mr. Turner outlined the background of our
proposals on patriation. He said that we wished by this
process to ensure beyond a doubt the legitimacy of the
revised Constitution, but we wished to do it as inconspicu-
ously as possible. We recognized the interests of the United
Kingdom in the proposed statute, in that it would limit the
formal law-making power of the United Kingdom Parliament.
The Government of Canada felt that it could unilaterally
request such U.K. legislation on the basis of a joint address
of the two Houses of the Parliament of Canada. However,
for various reasons of policy we were seeking the unanimous
agreement of the provinces for such a move. It is conceivable
however that we would not be able to get unanimity and under
some circumstances the Government of Canada might have to
decide to ask unilaterally for legislation by the U.K.
Thus we were not waiving the right of the Parliament or the
Government of Canada to act alone in requesting legislation
by the United Kingdom. Mr. Turner also reviewed briefuly
the question of the sequence of events as planned and
emphasized that we would that the United Kingdom
legislation follow the passage of resolutions of approval
of the Charter in the Parliament and legislatures in Canada.
It was hoped, however, that once the necessary resolutions
were passed in Canada, the United Kingdom could set fairly
soon in passing the necessary legislation. We would
therefore request that the United Kingdom government
reserve, as inconspicuously as possible, a place in their
legislative timetable for the passage of such legislation.

Sir Peter Rawlingson said that they would do
all they could to assist. He said that they were proceed-
ing on the assumption that the governments and legislatures
of all provinces as well as the Government and Parliament
of Canada would agree to the Charter and to the consequential
processes of patriation. Their consideration of the matter
to date had been on this basis. If unanimity were not possible
and if the Government of Canada still wished to proceed, no
doubt we would be back to discuss with the British government
proceeding on some other basis.

Mr. Robertson said that we had avoided at all
times suggesting to the provinces that unanimity would be
required in order to proceed.

Mr. Turner said that he thought that any draft
which we might work out here should be regarded as a working
draft only, in case changes were required later. He would
also wish to retain for the Government of Canada the option
as to whether the draft would be shown to the provinces
now or at some later date.

Sir Peter Rawlinson said that if the draft
were to be shown to anyone, the Government of Canada should
explain that it was a draft only. It had not yet been
seen by his colleagues, who would wish to consider it;
moreover, it could not be automatically assumed that the
House of Commons would find it acceptable. Therefore,
any draft which emerged now should not be presented as a
fait accompli. It should not be implied that the House
of Commons at Westminster would be a rubber stamp only.
Nor could he assure that when a bill is presented to
Parliament it would be treated simply as a routine matter.
It would probably be free of controversy and probably
would attain easy passage but he could not say that the
bill would not receive publicity and attention in the
United Kingdom. There might well be many in Parliament
who would wish to comment on this significant legislative
step with respect to Canada.

Mr. Turner said that he felt he should take
the position with the provinces that at present he could
not show them the draft because it had not yet been
considered by the United Kingdom government as a whole.
He also felt that this would be the appropriate position
as long as it was uncertain whether the Government of
Canada might have to exercise its right to proceed uni-
laterally to request such legislation. Sir Peter Rawlinson
said that he would rely on Mr. Turner’s discretion not to
treat the draft as a fait accompli.

(At this point the draft statute as prepared
by Sir John Fiennes and attached to his letter to me of
May 24th was examined. Several points were considered
tentatively and it was agreed that officials should resume
the discussion on the details after lunch.)

Follow-up Discussion by Officials

Subsequently Sir John Fiennes and Mr. Rushford
continued the discussion with Messrs. Robertson, La Forest
and Strayer. Sir John’s draft of May 24th was considered
in detail and a number of changes were agreed upon. The
most important of those was the insertion in section 1 of
the concept of “recognition” and “as well in the United
Kingdom as in Canada” (both expressions having reference to
the recognition of the force of law of the Canadian Consti-
tutional Charter). There was a lengthy discussion about the
short title for the statute. In the previous discussions
which I had with officials of the Foreign and Commonwealth
Office the short title “the Canada Act, 1972” had emerged
and had been included in the draft. When this was considered
again on May 26th there were some misgivings about the
title but no good alternative was found. The main considera-
tions were that on the one hand a title which was too
pedestrian or low-key could be regarded in the British
Parliament as inaccurate and misleading, while a title which
unduly emphasized the importance and effect of the Act
could offend sensitivities in Canada, particularly of those
who feel any action by the United Kingdom in this matter
is unnecessary and an affront to Canadian sovereignty.
Having regard to these considerations, the title “the Canada
Act, 1972” seemed to represent about as good a balance as
any. However, it was recognized that this and all other
points in the draft statute would have to be subject to
further consideration by the British and Canadian Cabinets,
and that further revisions might also be made necessary
by future events.

(Sir John Fiennes subsequently revised the
draft in the light of the foregoing discussions and his
revised draft, together with alternative preamble, was
forwarded to me in a letter of May 26th. This letter,
together with the draft is attached .

B.L. Strayer

DRAFT
OF A
BILL

With respect to the Constitution of Canada.

Whereas the Canadian Constitutional Charter embodies
provisions with respect to the Constitution of Canada and
to the means whereby it may be hereafter amended;

And whereas the people of Canada through resolutions
of the Senate and House of Commons of Canada and legislative
assemblies of the Provinces of Canada have approved both the
provisions of the Charter and its promulgation by Proclamation
of the Governor General of Canada;

[And whereas hitherto certain amendments to the Constitution
of Canada have been made by the Parliament of the United Kingdom
at the request and with the consent of Canada;]

And whereas it is fitting that recognition should be given
to the Charter;

And whereas Canada has requested, and consented to, the
enactment of an Act of the Parliament of the United Kingdom to
make appropriate provision in connection with the matters
aforesaid:

Be it therefore enacted etc.,

1. The Canadian Constitutional Charter, when promulgated
by Proclamation of the Governor General of Canada, shall as
well in the United Kingdom as in Canada be recognised as
having by virtue of the Proclamation the force of law as
from such date so may be specified in the Proclamation; and

(a) no Act of the Parliament of the United
Kingdom passed after that date shall
extend, or be deemed to extend, to Canada
or to any province or territory of Canada
as part of its law; and

(b) as from that date the enactments mentioned
in the Schedule to this Act shall, to the
extent specified in column 3 of the Schedule,
cease to have effect, and are hereby repealed
as enactments of the Parliament of the United
Kingdom, but without prejudice to any operation
which any of those enactments and any law,
order, rule or regulation made thereunder may
continue to have by virtue of the Charter.

2. This Act may be cited as the Canada Act 1972.

Canada Bill

Alternative form of recitals

Whereas the Canadian Constitutional Charter
embodies provisions with respect to the Constitution
of Canada and to the means whereby it may be hereafter
amended;

And whereas the Canadian people through resolutions
of the Senate and House of Commons of Canada and legislative
assemblies of the Provinces of Canada have approved both
the provisions of the Charter and its promulgation by
Proclamation of the Governor General of Canada, and it is
fitting that recognition should be given to the Charter;

And whereas hitherto certain amendments to the
Constitution of Canada have been made by the Parliament
of the United Kingdom at the request and with the consent
of Canada, and Canada has requested, and consented to the
enactment of an Act of the Parliament of the United Kingdom
to make appropriate provision in connection with the matters
above recited: