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Date: 1975-05-26
By: Barbara Reed
Citation: Memorandum from Barbara Reed to Mr. Robertson (26 May 1975).
Other formats: Click here to view the original document (PDF).

cc: Mr. Carter
Mr. Gravelle

CONFIDENTIAL

May 26th, 1975.

MEMORANDUM FOR MR. ROBERTSON

Re: Patriation and Bill of Rights Provisions

You asked some time ago for comments as to whether
a proposal to incorporate the Bill of Rights provisions as
they were agreed upon at Victoria into the Constitution
(including the language provisions) might help meet Mr.
Bourassa’s position with respect to “guarantees”.

Such a proposal might be worth exploring with
Mr. Bourassa although, for reasons which follow, I think
a modified version of that proposal might be more workable.

The only legal difficulty I would foresee for
Bourassa in accepting the proposal the Prime Minister sug-
gested is that the constitutional language guarantees which
would thereby be incorporated into the Constitution would
probably annul one and perhaps two sections of Bill 22.

Article 15 of the Victoria Charter provides:

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 the governments of the Provinces
of Ontario, Quebec, New Brunswick,
Prince Edward Island and Newfound-
land.

Section 10 of Bill 22 provides:

The public administration must
use the official language to communi~
Cate with the other governments of
Canada and, within the province of
Québec, with moral persons.

Every person may address the
public administration in French or
English, as he may choose.

Although an argument might be made that these two
sections do not conflict, because the Victoria Charter
talks about individuals while Bill 22 talks about
governments and corporations, I think that the Victoria
Charter provisions, being constitutional guarantees,
would be given a very broad and generous interpretation
by a court and be said to override section 10 of Bill
22.

The other possible conflict is that between
Article 13 of the Victoria Charter and section 2 of Bill
22. Article 13 of the Charter provides that the statutes
of the Province of Quebec shall be authoritative. Section
2 of Bill 22 provides that:

Where any discrepancy cannot
be satisfactorily resolved by the
ordinary rules of interpretation,
the French text of the statutes of
Québec prevails over the English
text.

Here again there is a possibility that the Charter pro-
visions would annul the provisions of Bill 22.

There would appear to be no other explicit conflict
between Bill 22 and the Victoria Charter language guarantees.
The question remains whether Bourassa would feel obligated
to reject the Victoria Charter language guarantees because
of the changed climate in Quebec since 1971, and because of
his own policy of giving priority to the French language.

My feeling is that he would not see a conflict
between his policy objectives for Quebec and agreeing to
the Victoria Charter language guarantees. Apart from the
sections mentioned above the Victoria Charter language
guarantees do not put any additional obligations on Quebec;
they merely restate the requirement Quebec is already
required to observe by virtue of section 133 of the B.N.A.
Act. The Charter in the main places additional constitu-
tional obligations on other provinces and the federal
government. Bourassa might therefore consider it somewhat
of a coup to be able to have most of Bill 22 continue
to operate in Quebec while at the same time having the
Victoria Charter language guarantees constitutionally
entrenched in other parts of the country.

The greatest obstacle to implementing the
Prime Minister’s suggestion would probably be obtaining
the co-operation of the other provinces. Since the
enacting of Bill 22 some provinces may not be as willing
to co-operate as they were in 1971. They may not be
willing to agree to implement the Charter language guar-
antees.

Some of the language provisions of the Charter
have been incorporated into the law by provinces. New
Brunswick, for example, has provided for the use of French
in its legislature and in the courts. It has provided
in its Official Language Act for the publication of statutes,
journals and records of the legislature in French and for
the provision of government services in both languages,
although these sections have not yet been proclaimed in force.
Ontario and P.E.I. have both provided that either French or
English may be used in the legislative assemblies. Other
language provisions of the Charter would however require the
active co-operation of some provinces in order to be imple-
mented. The sections of the Charter which I have in mind
are Articles 11, 13, l4 and 15. (A copy of the political and
language rights provisions of the Charter is attached.)

Since it might be unrealistic to expect provinces
to undertake these obligations, an alternative approach might
be to propose to Bourassa that some of the language guarantees
agreed on at Victoria be constitutionally entrenched (i.e.,
only those within the control of the federal government to
implement). Thus Articles 10, 12, 13 (except for the last
phrase), 16, 17, 18 and 19 of the Charter could be included
without a commitment from provinces. Modified versions
of Articles 11, 14 and 15 could also be included. The
modifications would be structured to ensure that those
sections only impose obligations on the federal government
while leaving the possibility that they could be agreed
to and adopted by provinces if they wished.

Barbara Reed

Attach:

cc: Mr. Carter
Mr. Gravelle

APPENDIX B

Canadian Constitutional Charter

Constitutional Conference. Victoria. June 14-16. 1971

PART I–POLITICAL RIGHTS

Art. 1. It is hereby recognized and declared that in
Canada every person has the following fundamental
freedoms:

freedom of thought, conscience and religion.
freedom of opinion and expression, and
freedom of peaceful assembly and of association:

and all laws shall be construed and applied so as not to
abrogate or abridge any such freedom.

Art. 2. No law of the Parliament of Canada or the Legisla-
tures of the Provinces shall abrogate or abridge any of the
fundamental freedoms herein recognized and declared.
Art. 3. Nothing in this Part shall be construed as prevent-
ing such limitations on the exercise of the fundamental
freedoms as are reasonably justifiable in a democratic
society in the interests of public safety. order. health or
morals. of national security, or of the rights and freedoms
of others, whether imposed by the Parliament of Canada
or the Legislature of a Province. within the limits of their
respective legislative powers, or by the construction or
application of any law.

Art. 4. The principles of universal suffrage and free demo-
cratic elections to the House of Commons and to the
Legislative Assembly of each Province are hereby pro-
claimed to be fundamental principles of the Constitution.
Art, 5. No citizen shall, by reason of race, ethnic or nation-
al origin, colour, religion or sex, be denied the right to
vote in an election of members to the House of Commons
or the Legislative Assembly of a Province, or be disquali-
fied from membership therein.

Art. 6. Every House of Commons shall continue for five
years from the day of the return of the writs for choosing
the House and no longer subject to being sooner dissolved
by the Governor General, except that in time of real or
apprehended war, invasion or insurrection, a House of
Commons may be continued by the Parliament of Canada
if the continuation is not opposed by the votes of more
than one-third of the members of the House.

Art. 7. Every Provincial Legislative Assembly shall con-
tinue for five years from the day ofthe return of the writs
for the choosing of the Legislative Assembly, and no
longer, subject to being sooner dissolved by the Lieuten-
ant-Governor, except that when the Government of
Canada declares that a state of real or apprehended war,
invasion or insurrection exists, a Provincial Legislative
Assembly may be continued if the continuation is not
opposed by the votes of more than one-third of the mem-
bers of the Legislative Assembly.

Art. 8. There shall be a session of the Parliament of
Canada and of the Legislature of each Province at least
once in every year, so that twelve months shall not inter-
vene between the last sitting of the Parliament or Legisla-
ture in one session and its first sitting in the next session.

Art. 9. Nothing in this Part shall be deemed to confer any
legislative power on the Parliament of Canada or the
Legislature of any Province.

PART lI—LANGUAGE RIGHTS

Art. 10. English and French are the official languages of
Canada having the status and protection set forth in this
Part.

Art. 11. A person has the right to use English and French
in the debates of the Parliament of Canada and of the
Legislatures of Ontario, Quebec, Nova Scotia, New Bruns-
wick, Manitoba, Prince Edward lsland and Newfound-
land.

Art. 12. 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. 13. 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; the English and French versions of the statutes
of the Provinces of Quebec, New Brunswick and New-
foundland shall be authoritative.

Art. 14. A person has the righfto 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 documents 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 other provinces.

Art. 15. 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. 16. A Provincial Legislative Assembly may, by resolu-
tion, declare that any part of Articles 13, 14, and 15 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 resolu-
tion; and any right conferred under this Article may be
abrogated or diminished only in accordance with the
procedure prescribed in Article 50.

Art. 17. 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 agen-
cies of the Government 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. 18 In addition to the rights provided by this Part, the
Parliament of Canada and the Legislatures of the Prov-
inces may, within their respective legislative jurisdictions,
provide for more extensive use of English and French.

Art. 19 Nothing in this Part shall be construed as derogat-
ing 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 lan-
guage that is not English or French.