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Date: 1975-07-16
By: J.R. Hurley
Citation: Memorandum from J.R. Hurley to Mr. R.G. Robertson (16 July 1975).
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CONFIDENTIAL

July 16th, 1975

MEMORANDUM FOR MR. R.G. ROBERTSON

c.c. Mr. Carter
Mr. Gravelle
Mrs. Reed

The Second Approach:
The Language Options

1. The Language Option

At our last meeting, we discussed the Prime Minister’s
interest in a second approach based on the language rights
contained in the Victoria Charter. Two approaches may be
taken. If the Prime Minister’s proposal were considered to
be an “ou … ou” proposition, one would have to substitute
the language rights for Article 3 of the July 11th proposed
Proclamation and rewrite the preamble, dropping the words
“and the cultures based on them” and “and full development”
from the second paragraph, and section (c) from the fourth
paragraph. If the Prime Minister‘s proposal were considered
to be an “et … et” proposition, one would merely add the
language rights to the July llth proposed Proclamation. I
am inclined to the latter interpretation because:

(a) if one were to drop the guiding principle contained
in Article 3, there would be nothing new for Mr.
Bourassa and he would not gain the “garanties
culturelles” of which he has spoken; and

(b) the second approach does not conflict with or
contradict Article 3, but rather it complements
the guiding principle and introduces it in more
logical fashion.

2. Four Options

Four options based upon the Victoria Charter
language rights are appended. They should be read in conjunc-
tion with the July 11th proposed Proclamation and should be
inserted, conceptually, into the Proclamation after Article 2
(the Supreme Court) and before Article 3 (guiding principle).
Article 3 would become the last Article of the language
rights Part.

(a) The first option

The first option is Part II of the Victoria
Charter as agreed upon by the eleven First Ministers
in 1971.

Advantage: Since the eleven First Ministers
accepted Part II at Victoria, it might be reasonable
to assume that they would still be willing to adopt
it now.

Disadvantage: Quebec has, in the intervening
period, adopted the Official Language Act. The
last clause of the fourth Article of the Language
Rights Part, “… the English and French versions
of the statutes of the Provinces of Quebec, New
Brunswick and Newfoundland shall be authoritative”,
would contradict the official language legislation
of Quebec and it would appear likely that Mr.
Bourassa would reject it.

(b) The second option

The second option is Part II of the Victoria
Charter with the last clause of the fourth Article
removed to meet the objection to the first option.

Advantage: This would meet the probable objection
of Quebec. Furthermore, it is by no means certain
whether the new First Minister of Newfoundland
would accept with such alacrity the far-reaching
implications of such a provision as his predecessor.

Disadvantage: New Brunswick has made enormous
strides towards the object of completely bilingual
jurisprudence and would probably wish this provision
to remain. The alternative might be to retain the
provision without reference to Quebec (and Newfound-
land?), but this might appear invidious and be
interpreted as a constitutional confirmation of the
loss of former acquired rights by the anglophone
population of Quebec.

(c) The third option

The third option is Part II of the Victoria Charter,
less the last clause of the fourth Article (second
option) and less the last Article: “Nothing in
this Part shall be construed as derogating from or
diminishing any legal or customary right or privilege
acquired or enjoyed either before or after the
coming into force of this Part with respect to any
language that is not English or French”.

Advantage: The Prime Minister has indicated a
desire not to get involved in the languages and
cultures of other groups at this time. Furthermore,
it is by no means clear whether the First Ministers
carefully studied the practical consequences of
this provision when they adopted it at Victoria.
Does it mean that private Chinese language schools
in Vancouver will become constitutionally entrenched?
This provision smacks of the Laurier-Greenway
compromise which led to sixteen different languages
of instruction in Manitoba schools by 1916, at
which time all languages other than English were
abolished as languages of instruction.

Disadvantage: Removing this Article might be
construed as a rejection of the policy of multi-
culturalism and might prove politically embarrassing
to several governments. An alternative, if some
reference had to be made to other languages, might
be to reformulate the Article to remove or restrict
the extraordinary breadth of the present provision
(“any legal or customary right or privilege acquired
or enjoyed either before or after…”). If any
reference is deemed inadvisable or potentially
dangerous, the First Ministers may have to make
their decision and bear the consequences.

(d) The fourth option

The fourth option involves a radical revision of
the Victoria Charter language rights in which all
Specific references to particular provinces have
been dropped, although the permissive Article which
would allow any province to declare itself bilingual
in whole or in part by a constitutional resolution
has been retained, and the last Article respecting
languages other than French or English has also
been dropped.

Advantage: Political conditions have changed since
1971. The Prime Minister has indicated that
nothing should be proposed that would involve
extensive negotiation. The First Minister of
British Columbia might be more favourably disposed
towards certain provisions than his predecessor,
the First Minister of Newfoundland less so.
Mr. Bourassa will be concerned about the interpre-
tation of certain provisions in the wake of Bill
22. Restricting explicit provisions to the federal
government might shorten the negotiation period.
Under other provisions of the patriated constitution,
anglophones in Quebec would be assured of the right
to participate in the Assembly in English and to
have court proceedings conducted in English.

Disadvantage: By restricting language rights to
the federal domain, one would lose the broader
recognition of French in other provinces, although
this recognition is largely moral rather than
practical since languge rights in education are
not specified. Nonetheless, it would be a
significant moral advance to recognize the right
of legislators to debate in English or French in
the legislatures of Ontario, Quebec, Nova Scotia,
New Brunswick Prince Edward Island and Newfound-
land, even if simultaneous translation renders
this impractical; having all provincial statutes
available in both languages would also be a
significant moral advance; the provision of an
interpreter before the courts is a practical
measure, although as it now stands the provision
could be interpreted as entitling any person of
any language to an interpreter; provision for
communications between an individual and the
central offices of every department or agency of
the governments of Ontario, Quebec, New Brunswick,
Prince Edward Island and Newfoundland in the official
language of his choice could have significant
results. It would be unfortunate to lose these
provisions.

3. Recommendation

One should strive for inclusion of the third
option in the Proclamation. In the event that it is not
possible to secure agreement on the removal of the provi-
sion for languages other than French and English, one
could fall back on option two.

J.R. Hurley

SECOND OPTION

LANGUAGE RIGHTS

Art. 1 English and French are the official languages
of Canada having the status and protection set forth in
this Part.

Art. 2 A person has the right to use English and French
in’the debates of the Parliament of Canada and of the Legis-
latures of Ontario, Quebec, Nova Scotia, New Brunswick,
Manitoba, Prince Edward Island and Newfoundland.

Art. 3 The statutes and the records and journals of the
Parliament of Canada shall be printed and published in English
and French; and both versions of such statutes shall be
authoritative.

Art. 4 The statutes of each Province shall be printed
and published in English and French, and where the Govern:
ment of a Province prints and publishes its statutes in one
only of the official languages, the Government of Canada shall
print and publish them in the other official language

Art. 5 A person has the right to use English and French
in giving evidence before, or in any pleading or process in
the Supreme Court of Canada, any courts established by the
Parliament of Canada or any court of the Provinces of Quebec,
New Brunswick and Newfoundland, and to require that all docu-
ments and judgments issuing from such courts be in English or
French, and when necessary a person is entitled to the services
of an interpreter before the courts of the other Provinces.

Art. 6 An individual has the right to the use of the
official language of his choice in communications between
him and the head or central office of every department and
agency of the Government of Canada and of the Governments
of the Provinces of Ontario, Quebec, New Brunswick, Prince
Edward Island and Newfoundland.

Art. 7 A Provincial Legislative Assembly may, by resolu-
tion, declare that any part of Articles 4, 5 and 6 that do
not expressly apply to that Province shall apply to the
Legislative Assembly, and to any of the provincial courts and
offices of the provincial departments and agencies according
to the terms of the resolution, and thereafter such parts
shall apply to the Legislative Assembly, courts and offices
specified according to the terms of the resolution; and any
right conferred under this Article may be abrogated or
diminished only in accordance with the procedure prescribed
in Article 50.

Art. 8 A person has the right to the use of the official
language of his choice in communications between him and every
principal office of the departments and agencies of the Govern-
ment of Canada that are located in an area where a substantial
proportion of the population has the official language of his
choice as its mother tongue, but the Parliament of Canada may
define the limits of such areas and what constitutes a substantial
proportion of the population for the purposes of this Article.

Art. 9 In addition to the rights provided by this Part,
the Parliament of Canada and the Legislatures of the Provinces
may, within their respective legislative jurisdictions,
provide for more extensive use of English and French.

Art. 10 Nothing in this Part shall be construed as dero-
gating from or diminishing any legal or customary right or
privilege acquired or enjoyed either before or after the
coming into force of this Part with respect to any language
that is not English or French.

THIRD OPTION

LANGUAGE RIGHTS

Art. 1 English and French are the official languages
of Canada having the status and protection set forth in
this Part.

Art. 2 A person has the right to use English and French
in the debates of the Parliament of Canada and of the Legis-
latures of Ontario, Quebec, Nova Scotia, New Brunswick,
Manitoba, Prince Edward Island and Newfoundland.

Art. 3 The statutes and the records and journals of the
Parliament of Canada shall be printed and published in English
and French; and both versions of such statutes shall be
authoritative.

Art. 4 The statutes of each Province shall be printed
and published in English and French, and where the Governg
ment of a Province prints and publishes its statutes in one
only of the official languages, the Government of Canada shall
print and publish them in the other official language.

Art. 5 A person has the right to use English and French
in giving evidence before, or in any pleading or process in
the Supreme Court of Canada, any courts established by the
Parliament of Canada or any court of the Provinces of Quebec,
New Brunswick and Newfoundland, and to require that all docu-
ments and judgments issuing from such courts be in English or
French, and when necessary a person is entitled to the services
of an interpreter before the courts of the other Provinces.

Art. 6 An individual has the right to the use of the
official language of his choice in communications between
him and the head or central office of every department and
agency of the Government of Canada and of the Governments
of the Provinces of Ontario, Quebec, New Brunswick, Prince
Edward Island and Newfoundland.

Art. 7 A Provincial Legislative Assembly may, by resolu-
tion, declare that any part of Artigles 4, 5 and 6 that do
not expressly apply to that Province shall apply to the
Legislative Assembly, and to any of the provincial courts and
offices of the provincial departments and agencies according
to the terms of the resolution, and thereafter such parts
shall apply to the Legislative Assembly, courts and offices
specified according to the terms of the resolution; and any
right conferred under this Article may be abrogated or
diminished only in accordance with the procedure prescribed
in Article 50.

Art. 8 A person has the right to the use of the official
language of his choice in communications between him and every
principal office of the departments and agencies of the Govern-
ment of Canada that are located in an area where a substantial
proportion of the population has the official language of his
choice as its mother tongue, but the Parliament of Canada may
define the limits of such areas and what constitutes a substantial
proportion of the population for the purposes of this Article.

Art. 9 In addition to the rights provided by this Part,
the Parliament of Canada and the Legislatures of the Provinces
may, within their respective legislative jurisdictions,
provide for more extensive use of English and French.