December 1, 1981
My dear Premier:
This is in reply to your letter of November 25, 1981, transmitting the order of the executive council of the Quebec government which expressed the formal opposition of that government to the constitutional resolution now before the House of Commons, and which I acknowledged receiving on November 27. Your opposition is based on Quebec's alleged right of veto over patriation and amendments to the Constitution of Canada.
The alleged right of veto by Quebec with respect to patriation and amendment of the Constitution of Canada is, in my view, not substantiated either by law or by constitutional convention in light of the judgment (sic) of the Supreme Court of Canada rendered on September 28, 1981, in what is commonly known as the Patriation Reference.
On the question of whether the consent of the provinces is legally required for the adoption of a resolution by the two Houses of Parliament requesting the adoption by the United Kingdom of an amendment to the Constitution of Canada, the court stated unequivocally that "the law knows nothing of any requirement of provincial consent, either to a resolution of the federal Houses or as a condition of the exercise of the United Kingdom legislative power."
With respect to the question of a constitutional convention requiring provin-cial consent to seeking and obtaining constitutional amendments by the United Kingdom, while the Court did find that a convention existed in the nature of "a substantial measure of provincial consent," I would suggest that a close examination of the reasons for judgment (sic) discloses no suggestion that any one province, including Quebec, possesses a right of veto over such a constitutional amendment.
Indeed, in reaching the conclusion that the existing conventional rule was one of "a substantial measure of provincial consent," the Court was expressly reject-ing the argument of the unanimity principle advanced by all provinces except New Brunswick, Ontario and Saskatchewan. In doing so, the Court spoke in terms of a particular number of provinces whose consent was required without any reference to a need to consider other factors such as the size or character of the provinces in question. Consequently, in my view, the decision of the Supreme Court provides no basis for the assertion by your government that Quebec possesses a veto with respect to the present resolution.
What, then, can we say about the amending formula contained in the resolu-tion and of which you spoke in the third and fourth paragraphs of your letter of November 25? In this regard, let me be clear about one thing: the Government of Canada had advocated the adoption of regional vetoes, at least since I became Prime Minister. Let me briefly recite the history underlying this assertion.
First, the Victoria Charter amending formula of 1971, which the federal gov-ernment supported, would have provided regional vetoes, including a veto for Quebec.
Second, on April 19, 1975, when I wrote to all the premiers suggesting that we should take early action to patriate the Constitution, the amending formula I proposed was the one contained in the Victoria Charter of 1971. On October 14, 1976, Premier Lougheed informed me that, while the Victoria formula was acceptable to eight provinces, his government and that of Premier Bennett no longer accepted it.
Third, on January 19, 1977, I wrote to you and to the other premiers noting that the Victoria formula had been agreed to by all eleven governments in 1971 and by eight in 1976. Given this high degree of consensus, I proposed that we should make one more try to patriate the Constitution and I suggested that we adopt the Victoria formula, which, I repeat, gave Quebec a veto.
Fourth, when the first ministers met at the constitutional conference in October 1978, my government still supported the Victoria formula. However, to gain greater provincial support for an amending procedure, we were willing to consider the "Toronto consensus" which emerged in 1978. That formula provided that constitutional amendments would require the consent of Parliament and seven provinces representing at least 85 percent of the population. Because of the 85 percent population requirement, this "Toronto consensus" formula would have in practice provided a veto for Quebec.
Fifth, the draft constitutional resolution presented by the Government of Canada to Parliament in October 1980 would also have provided for a veto for Quebec.
Sixth, the formal resolution presented by my government to Parliament in February 1981, following more than three months of study in the Joint Committee of the Senate and House of Commons, carried forward this proposal.
Seventh - and finally - when I met with you and the other premiers on November 2nd last, I was still arguing for the Victoria formula, which provided a veto to Quebec.
This review of the Canadian government's position over a period of thirteen years makes it abundantly clear that the consistent desire of the Government of Canada to protect the interests of Quebec cannot be challenged. Sadly, the history of that period also shows that the successive governments of Quebec refused in every case to support the packages of constitutional proposals put forward by the Government of Canada, and which, in every case, included a Quebec veto in the amending formula.
Let us now examine the manner in which the "provincial equality" principle for an amending formula developed.
At a meeting of the Continuing Committee of Ministers on the Constitution in Toronto in December 1978, the Government of Alberta, reflecting views that had been formally advanced by that province in October 1976, argued that each province should have an equal voice in any amending formula and that there should not be a veto for any one province. It was decided at the meeting that this idea should be pursued.
Accordingly, during the winter of 1979, Alberta developed a new amending for-mula proposal based on this principle. This proposal, with a successive series of refinements, became the Vancouver consensus advocated by several provinces, including Quebec, at the constitutional conference in September 1980. This Vancouver consensus - without a veto for Quebec - was also proposed by the Conservative Party in a motion put to the House of Commons on October 22, 1980, by Mr. Joe Clark.
Finally, the Vancouver formula was contained in the "Premiers' Accord" of April 1981. As you well know, that accord - signed by yourself - included an amending procedure which did not give Quebec a veto. It was that formu-la which you again advocated during the November 2, 3, 4, and 5 meetings and which finally found its way into the agreement signed by the Government of Canada and nine provinces on November 5, 1981.
It is therefore clear that, from September 11, 1980, to November 5, 1981, you subscribed to the view first put forward by Alberta in 1976 - a view which forms the basic premise of the amending formula now in the resolution before Parliament - namely that each province should have an equal voice in any amending formula and that no single province should have a veto.
Ontario and New Brunswick were not parties to the accord of April 1981 but, in the interests of reaching "a substantial measure of provincial consent" at the November 1981 First Ministers' Conference, they agreed to support the prin-ciple already accepted by your government in the Premiers' Accord. The government of Canada then concurred in this view on November 5, though as I have explained above, we would have preferred a proposal that provided a veto for all regions, including the province of Quebec.
In brief, from 1971 to November 5, 1981, all the governments I led advocated an amending formula which provided for a veto for Quebec. We only abandoned this principle after your government did.
The only element of the amending formula contained in the Premiers' Accord which is not reflected completely in the resolution now before Parliament is the financial compensation provision. It is instructive to review the evolution of this idea in various amending formula proposals.
During discussions in the summer of 1980, your government advanced the principle that a province should not be penalized financially if it opted out of a constitutional amendment which transferred provincial powers to Parliament. But it was the general view of the other governments that financial compen-sation was a matter that should be addressed on the merits of each case as the need arose and that there should be no rigid constitutional obligation in this regard.
You will recall that on September 11, 1980, during the First Ministers' Conference on the Constitution, your government distributed a document entitled "Proposal for a common stand of the Provinces" - subsequently referred to as the "Château consensus." Although that proposal provided for the Alberta amending formu-la "with provision for financial arrangements between governments,’ the legal drafts attached to it to assist in understanding the proposal did not contain a provision to give constitutional effect to the notion of "financial arrangements." Provisions respecting financial arrangements did not appear in any agreed text until the Premiers' Accord was published in April of this year, at which time they appeared in the form of a constitutional obligation.
On November 5, 1981, you maintained that your agreement to the constitutional amending formula now in the resolution before Parliament was depen-dent upon including provisions respecting financial compensation. In response, I have repeatedly expressed my willingness to discuss this matter with you, yet you have refused to do so.
Nevertheless, despite your persistent refusal, the Government of Canada, with the agreement of the other nine provinces, modified the amending formula agreed upon on November 5 to provide for financial compensation to a province which opts out of an amendment related to education or other cultural matters. This was obviously designed to protect matters of special concern to the people of Quebec.
In summary, then, it is clear that your government dropped any claim for a Quebec veto in any amending formula as early as September 1980. 'True, this abandonment of principle was linked to "financial arrangements;" but then, it was not so much the principle of a veto as the assurance of compensation that was at stake.
Nevertheless, if you are no longer certain that the Alberta proposal, which you supported for over a year, meets your needs, it will be open to you after patri-ation to propose to the other provinces and to the Government of Canada that the amending formula itself be changed.
This, then, my dear Premier, is my understanding of the constitutional law and history respecting the claim for a provincial veto. Whether we are talking of patriation or of the amending formula, it is hard to understand how - by Order in Council or otherwise - you can maintain that a Quebec veto exists by law or custom.
[Signed P. E. Trudeau]
Source: James Ross HURLEY, Amending Canada’s Constitution, Ottawa, Supply and Services, 1996, 297p.