Document Information

Date: 1975-07-17
By: Barbara Reed
Citation: Memorandum from Barbara Reed to Mr. Robertson (17 July 1975).
Other formats: Click here to view the original document (PDF).

Copies to: Mr. Carter
Mr. Gravelle
Mr. Hurley

CONFIDENTIAL

July 17, 1975.

MEMORANDUM FOR MR. ROBERTSON

Re: The Second Approach:
The Language Options

I am attaching for your consideration another
option which is a slight variation on those prepared by Jim
Hurley.

1. I wonder if, at least as a first step, we should
propose a version based on the Victoria Charter which assumes
no commitment from the provinces, at the same time, leaving
it open for provinces to adopt language obligations if they
wish. I assume the language option (if it is pursued as
a viable alternative) will be shown first to Mr. Bourassa,
therefore I am inclined to think he should be shown a version
which commits only the federal government to action. Then
as the second round of discussions progressed with the other
provinces, the language obligations could be modified to
apply to those provinces that were still agreeable (for
example, New Brunswick). That is, I would be inclined to
favour Jim’s fourth option. It might be counter-productive
to give Mr. Bourassa a version based on the assumption
the other provinces still agree to undertake the obligations
therein before we are certain they do agree.

2. With respect to Article 10 of the Victoria
Charter:

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.

I am inclined to think that we should include this
article in the draft. I think we should proceed on the assump-
tion that we want to present a version most likely to be
eventually acceptable to all provinces and that article perhaps
makes the whole package more saleable in the West.

The paragraph has no operative effect. It is
an interpretation section. It has the advantages of having
been agreed to at Victoria. It provides some window-dressing
for the west, while at the same time requiring no commitment
from anyone. On the other hand it is a rather awkward section.
It doesn’t fit too well in the overall scheme of the language
sections and seems superfluous.

3. Another point I would raise is whether we would
want to add to Jim’s 4th option the obligation, undertaken
by the federa government at Victoria, to publish provincial
statutes in French (or English), if a province does not
(Article 13 of the Victoria Charter). You might also want
to consider whether the federal government would want to
undertake the obligation to provide interpreters in provin-
cial and federal courts. (Article 14 of the Victoria
Charter provided that when necessary, persons would be
entitled to the services of an interpreter before the courts
but it did not state which level of government would pay
for this service in provincial courts. I assume it was the
provincial governments.) These are both “language guarantees”
that the federal government could provide without acquiescence
from provincial governments since they involve only an expendi-
ture of money.

A factor to consider in this regard is that the
Victoria language guarantees were a restatement and expansion
of those guarantees already existing under section 133 of
the B.N.A. Act. Thus sections 1, 2, 3, and most of 4 (of
Jim’s option 4) do not add anything to the guarantees already
existing under 133. Sections 6 and 8 create the possibility
for the extension of language guarantees but do not create
new ones.

The only sections which add language guarantees
are 5 and 7, and 7 does so in a somewhat oblique way.

Art. 5 An individual has the
right to the use of the official
language of his choice in communica-
tions between him and the head or
central office of every department
and agency of the Government of
Canada.

Art. 7 A person has the right
to the use of the official language
of his choice in communications
between him and every principle
office of the departments and agencies
of the Government of Canada that
are located in an area where a sub-
stantial 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 con-
stitutes a substantial proportion
of the population for the purposes
of this Article.

Therefore you may wish to consider whether adding
an obligation to publish provincial statutes or to provide
interpreters should be added in order to make the package more
substantial.

4. Since the language guarantees we are now suggesting
are partly a redraft of section 133 of the B.N.A. Act, but not
a complete redraft (I am assuming that Quebec will not, in
the light of Bill 22, want to undertake additional language
obligations, or even have the 133 obligations to which that
province is subject restated) I think we would probably need
to add a clause to the first article of the draft so that
51 we ensure that we do not wipe out the 133 obligations to which
Quebec is presently subject. Such a clause might be along
the following lines:

but no provision in this part
shall derogate from any right,
privilege, or obligation existing
under any other provision of
the Constitution.

Barbara Reed

Attach.

P.S. After preparing the above I received your note of
July 17th.

July 17th, 1975.

LANGUAGE RIGHTS

Art. 1 English and French are the official languages of
Canada having the status and protection set forth in this
Part but no provision in this Part shall derogate from any
right, privilege or obligation existing under any other
provision of the Constitution.

Art. 2 A person has the right to use English am French
in the debates of the Parliament of Canada.

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 and any courts established by
the Parliament of Canada, 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 the 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.

Art. 7 A Provincial Legislative Assembly may, by resolu-
tion, declare that any part of Articles 4, 5 and 6 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
principle office of the departments and agencies 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 popula-
tion for the purposes of this Article.

Art. 9 In addition to the rights provided by this Part,
the Parliament of Canada may, within its legislative juris-
diction, provide for more extensive use of English and French.

Art. 10 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.