Highlights of the Kirby Memorandum
[This document, dated August 30, 1980, was prepared by a group of government officials led by Michael Kirby and intended for "Ministers' Eyes Only." It was leaked by a federal official to the Quebec delegation just prior to the September 1980 First Ministers' Conference on the Constitution. It soon came into the hands of provincial delegations and the news media. In spite of the fact that their strategy was now known to the provinces, federal officials stuck closely to the options outlined in this document. It therefore offers valuable insight into the considerations behind the federal position, while providing a glimpse of the approach federal civil servants and politicians took to this issue.] *
This paper is intended to provide Ministers with a review and assessment of the summer's constitutional discussions, to propose positions and a strategy for the forthcoming First Ministers' Conference (FMC) on the Constitution, and to consider various courses of action for handling a constitutional resolution in Parliament this fall and other related matters.
For this purpose, the memorandum is divided into six main sections:
[ After a brief account of the mood surrounding con-stitutional matters in the summer of 1980, the Kirby memorandum reviewed the status of the twelve issues on the agenda: the federal stand on each, the pro-vincial stand, and the proposed position to be taken by Ottawa at the First Ministers' Conference. This section concluded with a proposal for conference strategy. Selected portions follow.]
Conclusions - Proposed First Ministers' Conference Strategy
The strategy which is proposed below is predicated on the assumption that the preferred outcome of the Conference is an agreement on the greatest possible number of issues. Such an agreement as far as the federal government is concerned must include as a minimum the elements of the People's Package. As far as the provinces are concerned, it is very clear that without agreement on issues of particular concern to them within the Package on Government Powers and Institutions, there will be no agreement on the People's Package alone. Therefore, any agreement, can only be on a very large number of items.
While the federal government must maintain its position that elements in one package cannot be bargained against elements in the other, it must also understand in terms of its own strategy that the more it is possible to reach agreement in the area of Powers and Institutions, the easier it will be at the end of the day for the provinces to accept the People's Package.
There is a genuine fear amongst the provinces that the federal government is not interested in the Powers and Institutions Package. Much of the resistance to the People's Package has been to try to force the federal government to bargain within the Institutions and Powers Package.
The federal strategy from the beginning has been, and must continue to be, to demonstrate very clearly its interest in both packages and its intention to bar-gain wifhin the Powers and Institutions Package. The federal government must make very clear that it understands that an agreement means that no one will be entirely happy on every item, but that everyone should be able to claim victory on something.
The strategy on the People's Package is really very simple. The federal positions on the issues within the package are clearly very popular with the Canadian public and should be presented on television in the most favourable light possible. The Premiers who are opposed should be put on the defensive very quickly and should be made to appear that they prefer to trust politicians rather than impartial and non-partisan courts in the protection of the basic rights of citizens in a democratic society. It is evident that the Canadian people prefer their rights protected by judges rather than by politicians. As far as patriation is concerned, the issue can very easily be developed to make those provinces who oppose it look as though they believe that they are happy with Canada's problems being debated in the Parliament of another country.
In private, the provinces must be told that there is absolutely no question but that the federal govern-ment will proceed very quickly with at least all the elements of the People's Package and that it would therefore be to their advantage to bargain in good faith on the other issues so that they too will be rela-tively satisfied after the Conference. It should be made abundantly clear that on Powers and Institutions, the federal government expects give from the provinces as well as take.
The CCMC meetings have probably laid the groundwork for a deal on Powers and Institutions. The federal strategy was to take the initiative and to put the provinces on the defensive. Yet the federal government demonstrated at the required moment enough flexibility to allow the provinces to save some face. The same strategy must be followed at the FMC.
A deal must include something for everyone. And this is now distinctly possible because the federal government has been able to maintain the initiative and has used extremely effectively its principal weapon which is the economic union item. . . .
[All emphases in original throughout]
[The third section of the Kirby memorandum set out four alternative packages of items from which Ottawa is to choose, assuming that the September 1980 con-ference produced no agreement. This discussion is followed by a section setting out strategy options for the period following the conference. Included as one option was the approach actually taken by the govern-ment: a parliamentary resolution tabled in the House and sent to a special committee. Here is the account of this option.]
2. Start the Debate September 29, sending the Resolution to Committee when the Budget is Presented on or Soon After October 15
This option pre-supposes one of two circumstances:
It is proposed that if there is reference to Committee there would be identical references in the House and Senate to a Special Joint Committee of the Senate and the House. It is to be expected that the House would not welcome (but would accept) a Joint Committee. It would probably please the Senate.
Whether or not there is reference to Committee, there should be no mention of such a reference in the Resolution when it is tabled. The debate should open on the assumption that there is only one objective, to bring the matter to a vote. From a tactical point of view, reference to Committee would best be made in response to Opposition demands.
A committee, however set up, might come to see itself as a committee of inquiry, or a Royal Com-mission, labour for many months and produce a voluminous report that could be very difficult to cope with. Certainly some elements in the public would push the Committee in this direction.
In Committee the government's position is likely to suffer. Attackers would be louder and more numerous than defenders. Careful choice of government members would be essential, and careful orchestration of hearings would be needed to ensure effective presentation of the government's position.
[The Kirby memorandum showed that the govern-ment was well aware of the problems of proceeding unilaterally without the consent of the provinces. This document anticipated what proved to be the decision of the Supreme Court on the matter: that the federal government's unilateral action violated Canadian con-stitutional convention.]
4. POSSIBLE LEGAL CHALLENGES TO A UNILATERAL IMPLEMENTATION PROCESS
l. The Legal Position
As soon as the contents of a unilateral patriation package become known, upon introduction in Parlia-ment, it can be assumed that `opposition both inside and outside Parliament will focus more on the validity of the procedure than on the contents of the package and most likely will demand that a reference be taken to the Supreme Court before the resolution proceeds further in Parliament. It will be necessary to have a position on this matter at that time.
As to the question of validity, it is the view of the Department of Justice that a law passed by the UK. Parliament to patriate the Constitution, with an amendment formula and other changes, could not be successfully attacked in the courts. It seems abun-dantly clear that the legal power remains for the U.K. Parliament to enact such a law for Canada, and it also seems clear that they will do so whenever so requested by the Parliament and Government of Canada.
The more troublesome question is that of the requirements of the conventions (i.e., practices) of the Canadian Constitution with respect to constitutional amendment. While the British convention is that the U.K. Parliament will act when requested to do so by the Canadian Parliament, there is a potential problem with the Canadian convention concerning the role of the provinces prior to such a request being made. An argument is already being advanced by Ontario that patriation with an amendment formula would involve a change of a fundamental nature affecting the provinces and that on the basis of past practices there is now a clear convention in Canada that such action requires consultation with, and the consent of, all provinces. This is based on the premise that the "uni-lateral" adoption of an amending formula would affect existing rights of the provinces, at least their "right" of veto over amendments. (Unilateral patriation combined only with an amending formula requiring unanimity would, on this basis, not be assailable.)
Further, it is argued that this convention would be enforced as a rule of law by the courts. The main lines of argument against this case are:
It may therefore be fairly safely assumed that if the question somehow came before a Canadian court, it would uphold the legal validity of the U.K. legislation effecting patriation. The court might very well, however, make a pronouncement, not necessary for the decision, that the patriation process was in violation of established conventions and therefore in one sense was "unconstitutional" even though legally valid.
Obviously, the foregoing suggests that while unilateral action can legally be accomplished, it involves the risk of prolonged dispute through the courts and the possibility of adverse judicial comment that could undermine the political legitimacy, though not the legal validity, of the patriation package. This points up the desirability of achieving agreement with the provinces on a patriation package.
[The Kirby memorandum demonstrates that Ottawa was paying close attention to public opinion on con-stitutional matters and was anxious to ensure public support for its actions. This concern went far-beyond reading opinion polls. As the next excerpt shows, Ottawa considered in detail alternative advertising and propaganda strategies to push public opinion in the direction it wanted. It weighed the choice of "hard sell" versus "soft sell" with no apparent concerns except for what would work and what criticism its activities might generate.]
5. STRATEGIC CONSIDERATIONS VIS-A-VIS THE PUBLIC
To secure a maximum of public understanding and support, action to be taken after the First Ministers' Conference should appear to be a natural consequence of what has happened at that conference, not an abrupt change of direction nor a new start.
This places an admittedly heavy burden on the Prime Minister. It suggests that, while he strives for agreement, he must also shape and lead the deliberations toward action. In other words, the public should expect implemen-tation at the end of the conference.
This underlines the importance of the Prime Minister's closing speech which, in addition to making clear the outcome of the negotiations, should pave the way for the implementation phase.
Should the Prime Minister give a press conference after the FMC, both in his statement and in his answers to questions he may wish to continue to point the way toward implementation, stressing the future rather than the past.
Consideration should also be given to a major address to the nation on television and radio. The historic consequence of constitutional renewal is justification enough. The timing of such an address could be crucial. A possible date would be just before the House meets to debate the Resolution. (i.e., Sunday, September 28).
V. CONTINUING INFORMATION PROGRAM CONSTITUTIONAL RENEWAL
The purpose of this section is to facilitate discussion on the alternatives for providing the public with addi-tional information on the constitutional renewal process, following the First Ministers' Conference.
It should be noted at the outset that federal govern-ment advertising and information initiatives to date have aroused considerable public interest in the issues being discussed, and have created a demand for more specific information. Thus it is essential to continue the process of communication to maintain the mo-mentum and the climate for acceptance of change.
This section is designed to help Ministers decide:
The fundamental question to be addressed concerns the legitimacy of spending taxpayers' dollars to promote what will be deemed by many to be a politically partisan position. Ministers may want to note that selling federal constitutional proposals is quite different from the Quebec referendum campaign, when all federal parties basically supported the government's position and hence did not object strongly to federal advertising.
Moreover, Ministers should recognize the impor-tant distinction between the use of advertising as a negotiating tactic and its use as a tool to sell the government's programs or policies over the head of the Opposition. During the summer, government advertising played a significant tactical role in two ways. First, it helped to keep the issue of constitutional reform before the public at a time when there was no other means for doing so since Parliament was not sit-ting. Second, it helped to persuade the provinces that the federal government was not bluffing; that it really did intend to take action this fall - unilaterally if necessary; and that to achieve this goal it was prepared to treat this round of constitutional negotiations more like a street-fight than a diplomatic negotiation.
But once the government has decided what action it intends to take, and Parliament has been reconvened to debate that proposed action, the role of advertising changes. At that point, public funds are being used to sell the governing party's position, yet such funds are not made available to Opposition parties. Thus, the Opposition has no effective way to respond, in contrast to the provinces which can (and did during the summer) respond by running their own advertising programs. Under these circumstances, Ministers need to decide if advertising is politically legitimate.
Moreover, even if a decision is made to proceed with advertising, there are several advertising strategies which are possible.
Keeping in mind that the shape and extent of future communications initiatives will be determined by the outcome of the FMC and the general strategy adopted by Cabinet to advance constitutional renewal, three alternatives are outlined below, along with an analysis of the advantages and disadvantages of each.
(Please note that the three alternatives are not mutually exclusive. This document assumes that Alternative C, the standard information and public relations activities, such as public speeches, news con-ferences, news releases, and distribution of publica-tions, will proceed regardless of what decisions are taken concerning advertising. Either of the first two alternatives will reinforce and complement these traditional information techniques).
A. Advertising - Hard Sell
B. Advertising - Soft Sell
C. Traditional Information and PR Practice
This alternative would involve the Prime Minister, Ministers and MPs making public speeches, holding news conferences, issuing news releases, distribution of published material.
Attached, as Annex 2, for the information of Min-isters, are scripts for two television advertisements.
One is an example of the "soft sell" approach used in Phase I of the constitutional advertising campaign. The other, which is more aggressive, was prepared for Phase II.
[The conclusion of the Kirby memorandum re-viewed Ottawa's situation immediately prior to, the September 1980 First Ministers' Conference. It accurately forecast that the conference probably would not lead to agreement, and underlined its recommendation of unilateral action by Ottawa should that failure occur. It concluded with the oft-quoted qualification that the fight would be rough, and rounded out this long presentation of options and proposals with a tag from Machiavelli, whose students the authors of the paper no doubt considered themselves to be.]
The summer of CCMC negotiations has created cir-cumstances in which there is now. a possibility of reaching agreement on a package of constitutional amendments. This possibility has developed largely because of the three key elements of the federal negotiating strategy:
Within the confines of maintaining these three key strategic principles, the challenge of the FMC will be to try to move the provinces toward an agreement recognizing that:
The probability of an agreement is not high. Unilateral action is therefore a distinct possibility. In the event unilateral action becomes necessary, Minister should understand that the fight in Parliament and the country will be very, very rough. For as Machiavelli said: "It should be borne in mind that there is nothing more difficult to arrange, more doubtful of success; and more dangerous to carry through than initiating changes in a state's constitution."
* Text in bracket is from David Milne
Source: David MILNE, The Canadian Constitution, Toronto, James Lorimer & Company, 1982, pp. 219-237