December 17, 1982
Dear Prime Minister:
I believe that the time has come to express to you very clearly our position here in Quebec City with regard to a constitutional situation that is in essence the result of your actions, especially since the recent opinion of the Supreme Court has just contributed a conclusion that is so far the most logical and at the same time the most unacceptable.
Thus, as the Court has told us, Quebec does not possess, and has never pos-sessed, a right of veto, by convention or otherwise, that would protect it from constitutional amendments made without its consent and affecting its rights, powers and jurisdictions.
This statement, which at least has the merit of clarity, denies a right whose existence had never been doubted and that had always been considered essential to defend the identity of Quebecers, who are the cornerstone of the North American Francophone community. If the representatives of Lower Canada in 1865 had realized that their agreement to the proposed Confederation would result in removing all protection against constitutional amendments imposed by others, there is no doubt that such agreement would never have been given. In September 1981, the same Supreme Court confirmed that Quebec had no legal protection against unilateral actions designed to modify the powers of its National Assembly without its consent and despite its strongest objections. Now, fourteen months later, have also learned that they have never had any protection based on convention. In other words, since 1867 Quebecers have been living under the illusion that they had an insurance policy; today, after the violation of certain of their most vital collective rights, they find that in fact they have never been protected.
This not only denies a past during which we relied on an illusion that has now vanished, but promises an even more perilous future. Now stripped of their illusions, Quebecers must learn to live at the mercy of the governments of English Canada. On November 5, 1981, following decisions made behind our back, we saw what this situation might mean for the constitutional future of Quebec.
If the Supreme Court wishes to give its legal blessing to this agreement reached under cover of night and signed just over a year ago between the Anglophone governments of Canada and your government, so be it. But I am obliged to inform you that the Canada Bill is nonetheless basically illegitimate and therefore absolutely unacceptable to Quebec and its government and, I am sure, to the very great majority of Quebecers. It will therefore be impossible for any government worthy of the name in Quebec to accept such a drastic and unilateral reduction of the powers of our National Assembly and to have imposed on it an amending formula that provides it with no real protection for the future.
The National Assembly already stated, in December 1981, the conditions under which this British constitutional statute might become acceptable. First, the Constitution Act must recognize not only the equality of the founding peoples but also the distinctiveness of Quebec society. Second, to ensure the vitality of that society, the amending formula of the Constitution of Canada must provide Quebec with a general right of veto or a right to opt out together with full financial compensation in all cases (a specific right of veto, or a "qualified" right of veto, to use the term employed by the federal Minister of Justice). Last, any Canadian Charter of Rights must not in any way alter the legislative juris-diction of the National Assembly, particularly as regards the language of instruction and mobility rights. (A true copy of the resolution of the National Assembly is attached.)
In view of the opinion issued by the Supreme Court, all these conditions are more relevant than ever. But in the present situation, two of them have become more urgent: Quebec's (general or specific) right of veto, and the language of instruction.
On April 26, 1982, you said the following: "If Mr. Lévesque were to say tomorrow, let us work together and try to obtain for Quebec the right of veto provided at Victoria, I would give him my hand and I would say, very well, let us do that together." And on December 8, your Minister of Justice said that he was again ready to co-operate with Quebec to attempt to obtain for it a general or specific right of veto.
I would therefore ask you, as evidence of good faith and your apparent wish to grant Quebec its rightful place in Canada, to table a resolution to amend the Constitution as soon as possible and have it passed by both federal Houses, as provided by the Canada Bill.
Pursuant to the conditions indicated by the National Assembly, such a reso-lution would provide the Government of Quebec with either a general right of veto or a specific right of veto, that is, a right to opt out combined with full compensation in all cases. In addition, such a resolution would exempt Quebec from the application of Section 23 of the Canada Bill regarding the right of instruction in the minority language, thus entrenching Quebec's exclusive jurisdiction with respect to the language of education.
Since no constitutional amendment can be passed without the agreement of the federal government, you will understand that early tabling and passage of such a resolution in Ottawa constitute a necessity for Quebec and its government. I therefore trust that, as you hinted, you will be prepared to prove to the Quebec community that you can once again act to promote its rights and interests, even after injuring them to an extent that your predecessors would never have dared contemplate.
Your response, which we wish to receive as soon as possible, will certainly influence the outcome of the constitutional issue, at least with respect to Quebec.
Encl. c.c.: Provincial Premiers
James Ross HURLEY, Amending Canada’s Constitution, Ottawa, Supply and Services,