Memorandum to the Cabinet – “Patriation” of the Constitution

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THIS DOCUMENT IS THE PROPERTY OF THE GOVERNMENT OF CANADA

FOR MINISTERS‘
EYES ONLY

MEMORANDUM TO THE CABINET

“Patriation” of the Constitution
Le patriement de la Constitution

1. Object

In April 1975, the ten provincial Premiers
agreed to study the possibility of “patriating” the British
North America Act by adopting the amending formula that had
been proposed and accepted in principle at Victoria in 1971/
It was agreed that this exercise would not involve a discussion
of the distribution of powers between the two orders of govern-
ment. Approval is sought of a draft Proclamation by the
Governor General as the basis for further discussion.

2. Background

I arranged with the Premiers in April for the
Secretary to the Cabinet for Federal-Provincial Relations to
visit each of them to discuss my proposal to proceed towards
“patriation” on the basis of the amending formula that was
accepted in principle at Victoria. Discussions have been
held with all the Premiers, save Mr. Barrett with whom it has
not, so far, been possible to secure a meeting. The other
Premiers have all agreed in principle to proceeding with the
“patriation” plan. Almost all have, however, proposed the
addition of some other matters to the original proposal which
was intended to include the amending formula only. The
suggested additions are:

(a) Mr. Bourassa: “Constitutional guarantees” for
the “cultural security” of French Canada, with
particular attention to immigrationd communica-
tions and social policy.

(b) Mr. Lougheed: Part IV of the Victoria Charter
concerning consultation with the provinces on
appointments to the Supreme Court. He also
wants the amending formula changed to delete
the population qualification for agreement to
an amendment by the Western provinces. No
such qualification was applied to the Atlantic
provinces. (Compare Article 1 (2) and Article
1 (3) of the draft Form for a Proclamation).

(c) The Atlantic Premiers: Part VII of the Victoria
Charter concerning Regional Disparities. They
feel that their position will not be defensible
If the particular interest of Quebec is dealt
with and their particular interest in the reduc-
tion of regional disparities is not.

(d) Mr. Hatfield: He is opposed to a constitutional
guarantee for the French language and culture
unless there is some equivalence of treatment
of English and French. This brings in the
broader guarantees of the two official languages.
He would also like the Official Languages Act
of New Brunswick to be entrenched in the Consti-
tution. As at Victoria, he is reticent about
the principle of consultation on appointments
to the Supreme Court.

While there are other points of detail that
have been raised, the above are the main suggestions of
substance. The problem of greatest difficulty has been to
devise someform of “constitutional guarantee” to meet
Mr. Bourassa‘s need without becoming involved in the
distribution of powers. All Premiers have expressed
sympathy with Mr. Bourassa’s concern, although they wished
to reserve final judgment until a concrete proposal had
been put forth. After prolonged discussion, including
several personal talks between me and Mr. Bourassa, concepts
have been worked out which are embodied in Articles 38 and
40 of the Appendix to this memorandum. Mr. Bourassa has
now agreed in principle to these as constituting adequate
cultural and linguistic guarantees for the purposes of
this exercise.

3. The Proposal

A draft Proclamation which would be the final
step in “patriating” the British North America Act to Canada
is appended. The main elements are the following:

(a) A Preamble. This is entirely new.

(b) Part I is the amending formula contained in
the Victoria Charter made applicable to those
parts of the Constitution not now amendable
in Canada. Thus Articles 49, 50, 51, 52, 56
and 57 of Part IX of the Victoria Charter are
included, while Articles 53, 54 and 55, which
were designed to replace Articles 91 (1) and
92 (1) of the British North America Act, are
not. The amending formula has not been modified
to take account of the objection raised by
Premier Lougheed concerning the population
qualification for agreement by the Western
provinces. Mr. Barrett will have to be
consulted. (Part IX of the Victoria Charter
is attached as Appendix B for comparison.)

(c) Part II, which is Part IV of the Victoria
Charter concerning the Supreme Court, with a
final Article (included in another Part of the
Victoria Charter) to protect the status of
Judges already appointed.

(d) Part III, which is a modified version of Part
II of the Victoria Charter concerning language
rights. This modified version entrenches the
constitutional status of the English and French
languages federally and permits a province,
under Article 35, to entrench its own provi~
sion, which should answer the points raised by
Mr. Hatfield. It is not possible to reproduce
the whole language provision of the Victoria
Charter without getting into problems over
Quebec’s Bill 22, which has been passed since
Victoria. (Part II of the Victoria Charter
is attached as Appendix C for comparison.)

(e) Part IV, which is a new Article designed to
protect the French language and culture against
adverse action by the Parliament and Government
of Canada and provides a guarantee that
satisfies Mr. Bourassa in principle.

(f) Part V, which is essentially Part VII of the
Victoria Charter on Regional Disparities,
although the presentation has been slightly
altered. There is no change in substance,
although Premier Campbell has asked for
something “stronger”.

(g) Part VI, which is a new Article designed to
indicate the spirit in which Governments may
enter into agreements. In two of the three
areas specifically mentioned, major agreements
with Quebec have been concluded over the past
two years (family allowances and consultation
on immigration). An indication of this spirit
is particularly important to Mr. Bourassa in
view of the sensitivities in Quebec over
immigration, communications and social policy.
The Article does not alter the legal or
constitutional situation as such.

4. Factors

Mr. Lougheed is opposed in principle to the
population qualification for agreement to an amendment among
the Western provinces, and Mr. Barrett has not yet been
consulted. Mr. Bourassa has accepted the draft Proclamation
in principle, but the other Premiers have not yet seen the
document.

5. Recommendation

I recommend:

(a) that the appended draft Proclamation be
approved as the basis for further discussion
with the provincial Premiers on “patriation”
of the Constitution;

(b)that I be authorized to communicate the draft
to the Premiers with the indication that the
federal government would be prepared to proceed
to “patriation” on the basis of it;

(c)that the federal position should be one of
resisting further additions to the Proclama-
tion or substantial changes other than the
modification of the amending formula along
the lines sought by Premier Lougheed; and

(d) that, once the provinces have been consulted
on the draft Proclamation, the document as a
whole be subject to detailed consideration
and approval by Cabinet, including any
modifications that may have been proposed
by the provinces.

The Prime Minister

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