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“Patriation” of the Constitution
meeting with Mr. Bourassa

-Québec, May 28, 1975

Dinner-meeting at Café d’Europe, 8:00 p.m.
– present only Mr. Bourassa, Julien Chouinard and myself.
Meeting went on until 11:15 p.m.

Presentation

I started by outlining the reactions I had
had from the Premiers I had visited so far:
Mr. Schreyer – would go along with “patriation” +
amending formula; Mr. Lougheed – subject to Cabinet,
would go with the plan but (a) change in “Western”
part of the formula to eliminate the population
provision, and (b) include Part IV on the Supreme
Court; Mr. Davis – would like to see “patriation”;
possibly the Supreme Court; would “not see Quebec
isolated”.

Mr. Bourassa did not comment on any of the
positions and did not seem surprised. He said Chouinard
had told him of my report by telephone after I saw
Mr. Davis.

Attitude toward “Patriation”

(1) “If we cannot do it when Pierre is at
Ottawa and I am here, we never can”.

In that sense, Mr. Bourassa was completely favourable
to an attempt to “patriate”.

(2) It cannot be only “patriation” + the
amending formula: there must be
some “guarantees” that the “patriation” could not
expose Quebec to action that would erode or destroy its
culture.

Mr. Bourassa said that, after 200 years
of history in which the decisions and actions in
London had been fair and just on the whole, the Quebec
people believe, rightly or wrongly, that there is a
“protection” in our having to go there to amend the
essential parts of our constitution. While “the
man on St. Jean Street” (50 feet away) never thinks
of the constitution, once the question is raised,
and fears are aroused, he will be very concerned
if he thinks complete control will be in Canada,
in the hands of the “majority” with no clear
protections for his way of life – the Quebec “culture”.
The “man in the street” is probably right that London
can be expected to be more objective than a government
in Ottawa which is an interested party. He does not
understand any subtleties about the British Parliament
not going behind a resolution from the Canadian
Parliament.

The protection that would be reassuring –
and politically necessary – would not have to be
a change in the distribution of powers, but some kind
of “constitutional guarantees”.

(3) While the amending formula is not
a “bargaining lever”, it is going
to be almost impossible to persuade large numbers of
people, both those who are informed and those who are
not, that Quebec is not “giving up something” in
accepting a formula. There is some substance in this
in the sense referred to above: a “historic protection”
would be removed. He said also Quebecers are “un peu
normand” and do not want to be nailed down on something
where they cannot really see what it may mean at some
time. The comment seemed to add up to an underlining
of the argument that some kind of “guarantee” is needed.

(4) While the demographic projections are
relevant and important (decline in
the Quebec proportion of Canadian population from
1971 – 27.95% to 2001 – 21.6-23.7%), they could not
be argued strongly as a factor for “patriation”.
To do so would give emphasis to the “pessimistic”
position of French Canada and would produce adverse
reactions in a variety of ways. They would also, if
argued, add to the pressure for very secure guarantees
against a weakening position.

The nature of “constitutional guarantees”

I discussed “guarantees” on the basis of my
document of May 28 (attached). Said that different
kinds of “action” that could be a threat to French
culture had to be met in different ways

– action to change the constitution –
a Quebec veto in the formula (provided
for)

– biased interpretation by the Supreme
Court – protections about appointments
(provided for in Victoria, Part IV)

– ultra vires action by the federal government
– protection by the Supreme Court
(as above)

– intra vires action by the federal government
(or Parliament) – it seemed to be
this that is the problem.

“Guarantees” against intra vires action
that could be a threat to Quebec culture could take
a variety of forms:

(a) The Victoria language rights clauses

Mr. Bourassa said these would not be
They would revive the controversy over Bill 22,
said, was now being accepted even if it was
by both English-speaking and French-speaking.

(b) A paragraph in the preamble to the Proclamation
on “principles” relating to, either, the French culture,
based on the French language, or the two cultures based
on the two official languages.

I went into this and referred to the
B.N.A. Act preamble with its “similar in principle”
to the British constitution. Both Mr. Bourassa and
Mr. Chouinard were interested, but felt this would in
itself not be enough to reassure.

(c) Some substantive provision that would
establish a right to challenge or
prevent adverse action

I said I could not see how this would be
established without getting into “powers”. Both
Mr. Bourassa and Mr. Chouinard said they thought it
could. I asked if they had any draft. Chouinard
said he had worked on some but had nothing ready.
I said I ,thought it would be for him to produce
something and we could look at it. He said he would
do so. I warned that it must not get into “powers”
– not touch sections 91 or 92 – or we would never
be able to limit the pressures by one and all.
Both Mr. Bourassa and Mr. Chouinard agreed.

I left with Chouinard a copy of my analysis
and of Barbara Reed’s memorandum on preambles (May 28,
1975) (attached).

Areas to be protected against

I asked Mr. Bourassa what he thought the
sensitive areas were in respect of which protections
would have to seem convincing. He said that “social
policy” was no longer a field of concern. Arrangements
were d eveloping well and he did not think we had to
worry about it. The main areas were the onei that he
had mentioned in various speeches – immigration and
communications.

So far as immigration was concerned, he
thought that, as in the case of social policy,
practical arrangements might carry adequate conviction.
I formed the impression that the unstated half
of his view was that he does not see how one can have
provisions that would mean anything as long as there is
freedom of movement across provincial boundaries within
Canada.

Mr. Bourassa focussed on communications.
He said it was not enough to be satisfied with a
situation that was secure when Pierre Trudeau was
Prime Minister and Gerard Pelletier was Minister of
Communications. There had to be something that would
provide some confidence against a situation when
Leonard Jones was Minister and there was a government
with little or weak francophone representation. It
was a matter of ensuring that the federal government
and federal agencies could not cause or allow things
to happen, especially in radio and television
broadcasting, that would gradually undermine this
important instrument of French culture. He thought
that Mr. Pelletier had been unduly rigid in the
recent conferences and that there was a failure
at Ottawa to try to imagine the reality of the risk
there could be with a government of quite different
complexion.

There was only a passing reference to
the use of the federal spending power in relation
to the arts and letters. Mr. Bourassa did say,
however, that he did not see why it was so difficult
to try to get some arrangement under which there
would be consultation with the government of Quebec
about what orchestras were going to be supported by
federal funds, what galleries, etc. He did not, at
any time, suggest that the federal funds should be
put into provincial hands for payment – or that there
should be a provincial veto.

Possible action

(1) An acceptable solution would,
in Mr. Bourassa’s judgment, have to be presented
in some way for “ratification” by the Quebec people.

Mr. Bourassa thinks· a referendum
would be very dangerous: would play right into the
hands of the Parti Quebecois and their referendum
proposal.

The best course would be presentation
in an election on “‘patriation’ plus other things”.
He would be prepared to contemplate this about, say,
the autumn of 1976.

(2) A possibility would be to present a
resolution to the Assemblee nationale some time in
t he session of 1975-76 with the intention of not
carrying it to conclusion at that time. This would
provide the means of explaining and arguing for the
proposition with a view to “ratification” at an
election.

(3) Mr. Bourassa expressed his very strong
hope that nothing would be done that would put him in
the position of appearing to block action or of having
to say “non” again. He said he was genuinely interested
in trying to solve the problem but there had to be
some confidence in his judgment as to what he could
sell to Quebec. To attempt to force something that
would be wide open to attack or that would create
strong negative emotions would play into the
hands of the separatists. He was a federalist;
he wanted to see the country held together; and he
would do what he could but there were limits to the
possible.

(4) Mr. Bourassa said he hoped there
would be no question of unilateral action by Ottawa
to “patriate” and establish an amending procedure.
He said he thought this too would afford great
advantage to the separatist cause. (I said nothing
about the kind of fall-back position that has been
discussed.)

Information to the Premiers

I asked Mr. Bourassa what I could say to
the other Premiers about his position. He said I
could inform them that he was interested in the
Prime Minister’s proposal to achieve “patriation”
with the amending formula agreed on at Victoria but
that he was satisfied that there would also have to
be some kind of “constitutional guarantees” which
would be regarded as convincing in Quebec against
the future risks to its culture. He said nothing
whatever either at that point or during the discussion
about any change in the distribution of powers so
presumably this fact can be reflected in describing
his position.

Mr. Bourassa agreed that there was no
reason why I should not go ahead to discuss the
proposal with the other Premiers as the Prime
Minister had suggested.