December 2, 1981
Dear Prime Minister:
I was very sorry but not surprised to read your letter of December 1, 1981, in which you explicitly deny Quebec a right of veto that generations of Quebecers have always regarded as a minimum degree of protection under the present system and that they have exercised on many occasions. The fact that this letter was signed by a Quebecer says a great deal about the loss of roots for which the present federal system is responsible.
I do not intend to respond, point by point, to the many inaccuracies in your letter. I will merely point out that in its decision of September 28, 1981, the Supreme Court expressly reserved its opinion concerning the "degree of consent" required from the provinces. Although it did not explicitly recognize Quebec's right of veto, the Supreme Court did not dismiss it: it simply did not express a view on this point.
I also wish to note a glaring contradiction between your present attitude and the historical process described in your letter. You provide a long list of the various proposals you have made since you became Prime Minister regarding the amending formula; and you state that it was not possible to adopt any of them, since "the successive governments of Quebec refused in every case to support the packages of constitutional proposals put forward by the Government of Canada." Could you then explain to me why the situation is any different today? If Quebec was able to block your previous formulas, why could it not block your present formula, especially since, in addition to contradicting what Quebecers understood to be your referendum promises, it threatens the rights and powers of Quebec as no other formula has ever done?
Since you are unwilling to respect a right that has always been respected since the beginning of Confederation, we have no choice but to have that right recognized by the Courts. The Government of Quebec has therefore decided to refer the matter to its Court of Appeal and to take the legislative action required for it to be referred thereafter to the Supreme Court of Canada. A copy of the Order adopted for this purpose is attached.
I would therefore ask you to suspend your project until a final decision on this matter is issued, as you agreed to do when the more general issue of the con-sent required from the provinces was referred to the Supreme Court early this year. Failure to agree to this request would be equivalent to preventing Quebec from exercising its rights at the proper time.
James Ross HURLEY, Amending Canada’s Constitution, Ottawa, Supply and Services,