“Patriation” of the Constitution: The Fall-Back position

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May 21, 1975.


(a) Content of the Fall-back

To provide an incentive to the provinces
to adopt the package, by action reasonably soon after
“patriation”, it should include:

1. The amending procedure

– Part IX less Articles 53-55

– Article 49 modified to call for “2 of the
Western Provinces” without the “50% of
population” provision

2. The Supreme Court provisions (PART IV)

While not a part of the “attraction”,
there clearly should be an interim amending provision.

Part IV will be attractive to all
provinces, although Mr. Hatfield personally may not
like it. While it is not attractive to the federal
government, it would be a small price to pay for
getting a good amending procedure.

Part IV should not be made effective
fortwith, as obviously could be done, for two

1. To provide an incentive to adopt the
amending procedure, and

2. Because it is an inhibition on the federal
government and it ought not to accept that
if there is no net constitutional gain.

(b) Tactics with the Fall-back

1. It ought not to be mentioned or
hinted at in the first round at all. Mention of
it could be interpreted as a threat.

2. After the first round, there probably should
be a second round of visits, although that may not
have to be complete. Possibly some of the Premiers
could be advised by letter from the Prime Minister
with indication that I would visit them to discuss
if they do wish.

3. Subject to further developments in
“Round One”, the provinces to be notified by actual
visit, and the probable sequence, would be:

(i) Quebec
(ii) B.C. – because of the change in Article 49
(iii) Ontario – because of importance
(iv) N.B. – because of Mr. Hatfield’s personal
views on Part IV
(v) Alberta – to gain the strong personal
support of Mr. Lougheed for “his”

4. It could well be desirable not to proceed
to the “fall-back” action without a meeting of the
Prime Minister and Premiers. Not to have a discussion,
with a last chance to agree, might seem unduly high-

(c) Quebec and the “Fall-back”

The “fall-back” may be subject to harsh
attack in Quebec if it does not have somewhere some
recognition of the problem of “securité culturelle
This could not be in the substance of the provisions
without clearly departing from the basis in the
Victoria Charter. Possibilities might be:

(i) Something from or based on the
Language Rights provisions of Victoria;

(ii) A preambular paragraph for the proposed
Proclamation of the Governor General which
would relate to culture and language as things
requiring the support of provinces of both “groups”
for amendments;

(iii) Conceivably some provision like
the Scottish rights” provision in Britan to be
brought in with the “package” – either an integral
part of it or a severable one,


– to apply in respect of actions by the
Parliament or government of Canada which
adversely affect the security of the
French culture in Canada (or Quebec?)

– to be triggered by a resolution of the
Assemblée Nationale of Quebec (2/3 majority?)

– to call for debate in the House of Commons
within 90(?) days

– action to reject resolution of Assemblée
Nationale to require a majority of the
members of the House of Commons including
a majority of the Members of Parliament
from Quebec

– action on the resolution not to affect
directly any law or action, but to
be “indicative”.)

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