Document Information

Date: 1975-07-17
By: R.G. Robertson
Citation: Memorandum from R.G. Robertson to the Prime Minister (17 July 1975).
Other formats: Click here to view the original document (PDF).

CONFIDENTIAL

July 17, 1975.

MEMORANDUM FOR THE PRIME MINISTER

Since our Conversation on July 8, we have done a good deal of work in the FPRO and with Justice on possible formulations for the “constitutional guarantees“ in which Mr. Bourassa is so interested. when we spoke, you made the following points:

A. You would like to see the relationship between”the three dangers to Quebec” and the substance of the guarantees made a bit clearer and you thought the whole thing could be made to read more freely and easily. I think we have managed a fair degree of improvement on both these points.

B. You thought “regional disparities” should be fitted in with some indication of equality of importance with the language issue. After working on some precise and specific way of indicating “equality”, we came to the conclusion that the best solution was simply to have the statement about the question follow the statement on language and to do it in a phrasing that is parallel.

C. You would like to see the guarantees based on language rather than culture, partly in order to make it possible to drop out the reference to indigenous cultures and to “third groups”. After a good deal of consideration, we came to the conclusion that the best solution is to relate the guarantees to both language and culture and simply to drop the paragraphs on the indigenous and “third groups”.

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The result of our further work on this, taking into account the above points that you made, is reflected in Appendix 1. I think it is a good deal better than the version I sent you with my memorandum of June 16. Indeed, I think we are at the point where it might be worthwhile having a French version of this text prepared.

“An alternative approach”

The other point you made on July 8 was that you would like to see how a formulation could be devised that would have its source in or take into account the language guarantees in the Victoria Charter.

One way of achieving a formulation along the lines you have in mind would be by using the text in Appendix 1 and then inserting a new operative paragraph after Article 3 as it now stands. For this new Article, there would be several options:

(a) The exact text of the “language rights” in the Victoria Charter. (This text is set forth in Appendix 2.)

The problem about this is that the concluding words of Article 4 (which have been put in brackets) would conflict with Bill 22. I think it is certain that Mr. Bourassa could not now accept the Article as it stands.

(b) The “Victoria rights” less the final words of Article 4

The disadvantages of deletion are pretty obvious and the change would become a focus of attention. I know from my conversation with Mr. Hatfield that he would find particular difficulty with this.

(c) Option (b) with an “opting-in” feature

One could drop the final words of Article 4 and substitute for them something such as: “the English and French versions of the statutes of a province shall be authoritative in any province which so declares”. New Brunswick has so declared and Mr. Hatfield might find this acceptable. (He would probably continue to be unhappy about the difference in validity between the English and French versions under Bill 22.)

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(d) A version that is based on Victoria but limited to entrenching the rights at the federal level while having a provision for provincial “opting-in”.

You expressed interest in this on July 8 and a version along these lines is set forth in Appendix 3. There is a good deal of attraction in this as it would avoid the alternative embarrassments that are presented by the above options. It could of course be attacked as a “retreat” from Victoria since it would lose the broader recognition of French that the Victoria statement provided with respect to some provinces other than Quebec. On the other hand, the people most likely to attack this “retreat” might well be those who would be most likely to object to the kind of specific references there were to Quebec in the Victoria statement. This formulation would bring some comfort to Mr. Hatfield with its clear and specific statement that “English and French are the official languages of Canada” and with the degree of entrenchment that the two language rights would be afforded at the federal level.

The version in Appendix 3 could have an “opting-in” provision added for Article 3 to produce the effect of option (C) (above) with respect to provincial statutes. This could be accomplished by adding “Article 3” to the general “opting-in” provision — Article 6

Mrs. Reed suggests that in any of these “alternative approach” versions it would be wise to add a saving clause at the end of Article 1. Her argument is:

“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 we ensure that we do not wipe out the 133 obligations to which

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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.”

The next stage

It seems to me that we are probably at the point where it would be possible to have another discussion with Mr. Bourassa on the basis of whatever formulation of “constitutional guarantees” seems to you to be the best. Presumably such a consultation could be held without putting the text to the Cabinet in advance since the discussion would still be a part of the exploratory process and would be without commitment. The questions I think are: what formulation do you prefer and how should the next phase of consultation be handled?

CONFIDENTIAL

July 17, 1975.

Whereas it is fitting that it should be possible to amend the constitution of Canada in all respects by action of the appropriate instrumentalities of government in Canada acting separately or in concert as may best suit the matter in question;

And whereas changes in the constitution, interpretation of its provisions or action by the federal Parliament or government should not endanger the continuation and full development of the French language in Canada and the culture based thereon and it is desirable that the two official languages and the cultures based on them should be equally assured of preservation and full development in Canada;

And whereas it is desirable that the Parliament and Government of Canada and the Legislatures and governments of the provinces act effectively to promote equality of opportunity and an acceptable level of public services among the different regions of Canada;

Therefore it is desirable to establish:

(a) a method for the amendment in Canada of those parts of the constitution of general interest and concern which cannot now be amended in Canada in which the consent will be required of the Legislatures of provinces representative of both the official language groups of Canada as well as the Legislatures of provinces in all of the geographical regions of Canada;

(b) means by which provinces can participate in the selection of persons to be appointed to the Supreme Court of Canada; and

(c) principles to guide the Parliament of Canada in the exercise of powers allotted to it under the constitution of Canada and to guide the Government of Canada in the exercise of powers conferred upon it by the constitution of Canada and by laws enacted by the Parliament of Canada;

Now therefore I…… do proclaim as follows:

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1, … (the method of amendment
— Part IX of Victoria less paras 53, 54, 55)

2. … (appointments to the Supreme Court
— Part IV of Victoria)

3. The Parliament of Canada, in the exercise of powers allotted to it under the constitution of Canada, and the government of Canada in the exercise of powers conferred upon it by the constitution of Canada and by laws enacted by the Parliament of Canada shall be guided by, among other considerations for the welfare and advantage of the people of Canada, the knowledge that a fundamental purpose underlying the federation of Canada is to ensure the preservation and the full development of the two official languages of Canada and the cultures based on them.

4. The Parliament and Government of Canada and the Legislatures and governments of the provinces are committed to:

(a) the promotion of equality of opportunity and well being for all individuals in Canada;

(b) the assurance, as nearly as possible, that essential public services of reasonable quality are available to all individuals in Canada; and

(c) the promotion of economic development to reduce disparities in the social and economic opportunities for all individuals in Canada wherever they may live,

but this commitment shall not have the effect of altering the distribution of powers and shall not compel the Parliament of Canada or Legislatures of the provinces to exercise their legislative powers.

CONFIDENTIAL

“Victoria rights” option

July 17, 1975.

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 Legislatures 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 Government 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 Newfoundland shall be authoritative.)

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 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 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 resolution, 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 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. 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 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.

CONFIDENTIAL

“Federal rights” option

July 17, 1975.

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.

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 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.

Art. 5 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. 6 A Provincial Legislative Assembly may, by resolution, declare that any part of Articles 4 and 5 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. 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 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. 8 In addition to the rights provided by this Part, the Parliament of Canada may, within its legislative jurisdiction, provide for more extensive use of English and French.