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Document No. 117
March 25, 1969

CONSTITUTIONAL CONFERENCE
SUB-COMMITTEE ON
OFFICIAL LANGUAGES

You will find attached a copy
of an exchange of correspondence
concerning the Federal Bill on
Official Languages between the
Premier of Alberta and the Prime
Minister of Canada as well as
between mr. Justice J.T. Thorson
and the Right Honourable P.E.
Trudeau, together with a copy of
an open letter by Mr. Eugene
Forsey published in the Globe and
Mail. This documentation is being
distributed for the convenience of
the members of the Sub-Committee.

CONFÉRENCE CONSTITUTIONNELLE
SOUS-COMITÉ DES
LANGUES OFFICIELLES

Vous trouverez joints à cette
note copie de la correspondance (en
anglais) au sujet du projet de loi
fédéral sur les langues officielles
entre le premier ministre de l’Alberta
et le premier ministre du Canada
ainsi qu’entre M. le juge J.T.
Thorson et le très honorable P.E.
Trudeau. Copie d’une lettre ouverte
de M. Eugene Forsey, publiée dans le
Globe and Mail, est également jointe
à cette note. Cette documentation
pourrait être utile aux membres du
Sous-comité.

OL/Sec/DI/10

CONSTITUTIONAL CONFERENCES

CORRESPONDENCE ON THE FEDERAL BILL ON
OFFICIAL LANGUAGES
Page

1) Letter from the Honourable E.C. Manning, 1
Premier of Alberta, dated October 29,
1968.

2) Reply of the Right Honourable P.E. 4
Trudeau, dated November 12, 1968.

3) Letter from the Honourable J.T. Thorson, 5
dated November 12, 1968.

4) Reply from the Right Honourable P.E. 12
Trudeau, dated November 22, 1968.

5) Open letter to the Toronto Globe & Mail 14
from Mr. Eugene Forsey, published February
8, 1969.

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ALBERTA
OFFICIE OF THE PREMIER

Edmonton 6,
Alberta
October 29th, 1968.

Right Honorable Pierre Elliott Trudeau,
Prime Minister of Canada,
Ottawa, Ontario.

My dear Prime Minister:

I have for acknowledgment your letter of October
17th, with which you forwarded a copy fo Bill C-120, An Act
respecting the status of the official languages of Canada.
My colleagues and I have given careful consideration to this
important Bill and we feel we should advise you of our very
serious concern with respect to its major provisions and the
consequences we anticipate, if they are implemented.

As you indicated in your letter, the Bill follows
closely the recommendations of the Royal Commission on
Bilingualism and Biculturalism, with which we expressed
certain disagreements at the Federal-Provincial Conference
on Constitutional Matters in Ottawa on February 5th of this
year.

Four aspets of the recommendations and the proposed
Bill, which are the basis of our concern and to which we take
the strongest exception, are as follows:

(1) The Bill represents what correctly can be described as
a legalistic approach to bilingualism in Canada. I wish
to emphasize that we fully support the development of
bilingualism because of the practical value of the
maximum number of Canadians being fluent in the two
universal languages, which are the mother tongues of the
vast majority of our citizens. We are convinced that
this objective can be attained to a far greater degree
through co-operative efforts at all levels of government
to encourage bilingualism because of its intrinsic value
and the pleasure and satisfaction which accrues from
being able to converse, fluently, in both English and
French. To attempt to bring about bilingualism by the
legalistic approach of giving official status to both
languages by a statutory enactment will not produce the
desired result but will, inevitably, build up resentments
which will have a serious divisive effect at the very
time when all should be striving to create an environment
that will strengthen national unity.

(2) The statutory recognition of French as an official national
language will quickly lead to bilingualism becoming a
requirement for promotion in the Public Service and the
Armed Forces of Canada. This, in effect, means that the
Canadian Public Service will be turned over, primarily,
to the French-Canadian minority, most of whom are bilingual,
while the vast majority of Canadians, whose mother tongue
is the present national working language of Canada, will
be required to become knowledgeable in French before they
are eligible to play any meaningful role in the Public
Service or Armed Forces of their country. In the case of

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some six million Canadians, whose mother tongue is neither
English nor French, this means they must become trilingual
before they can have an equal opportunity with French-
Canadian citizens. This can only be regarded as gross
discrimination agaisnt the rights of the majority of
Canadians in order to accede to the demands of a minority
group. The understandable public reaction to such
discrimination will be divisive and damaging to Canadian
unity.

(3) The proposal in the Bill, to give official status to the
French language in areas other than the Parliament of
Canada and the Province of Quebec, may rightly be regarded
as an extension of the language provisions presently
embodied in Section 133 of the British North America Act.
For this reason, the constitutionality of the proposed
Official Languages Act is open to serious question in
that Parliament is proposing to exercise an assumed
authority to alter a fundamental right entrenched in the
constitutionm without the concurrence of the Provinces.
I am aware of the arguments advanced against this conclusion
but submit that there is a definite area of constitutional
uncertainty in the assumption that Parliament has authority
to legislate in this field in this manner, without the
concurrence of all of the Provinces.

The seriousness of disregarding any reasonable doubt,
where constitutional powers are involved, extends beyond
the specific subject of the particular enactment. This
aspect, we therefore submit, must be resolved before
Parliament attempts to enact such a statute.

(4) A further concern is the economic aspect inherent in
implementing the provisions of the proposed Bill. It is
unnecessary expenditures, that a procedure should be
initiated which will require substantially increased
expenditures to duplicate statutes, regulations, rules,
etc., in two languages and provide federal facilities
to serve the public in both language when, in the
majority of cases, this is totally unnecessary and will
serve no meaningful purpose, other than enabling the
Government to affirm that it is giving comparable
official status to both English and French. Furthermore,
the action proposed will lead, inevitably, to insistent
demands for the extension of comparable bilingual services
and facilities in other jurisdictions, and in agencies of
the private sector, engaged in similar fields of work,
as in the bilingual public services such as air and rail
transportation, radio, television, etc.

For these and other reasons, which I have not herein
enumerated, it is our firm conviction that the Official Languages
Bill should not be proceeded with until this matter has been
thoroughly discussed at the forthcoming Constitutional Conference
in December.

May I reiterate that we are not voicing these concerns
with any desire to be obstructive or to impede in any way the
objective of developing a nation in which all citizens will feel
at home in any part of Canada, as far as their own language and
culture is concerned. We are motivated only by our desire that
this country may be spared the divisive consequences of a
discriminatory and unrealistic legalistic approach to the
pertinent issues involved.

We are faced today with an obvious need to develop
a Canadianism in which citizens of all races, creeds and cultural
backgrounds, can feel and share a justifiable pride. This, we
submit, requires the abandonment of hyphenated Canadianism, which
perpetuates the emphasis of ethnic origin and so-called linguistic
rights.

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Canadians, moving freely throughout Canada,
must find their satisfaction as citizens in the fact they
are Canadians rather than in an identity with a particular
ethnic group of geographic region.

Yours very truly,

Ernest C. Manning

Premier.

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Ottawa
November 12, 1968.

CONFIDENTIAL

My dear Premier:

I wish to acknowledge receipt of your letter
of October 29 concerning Bill C-120, an Act respecting
the status of the official languages of Canada.

While I fully respect the views which you
have expressed in your letter concerning this very
important question you will, I am sure, appreciate
that I cannot share them. The linguistic policy which
this Bill is designed to implement constitutes as you
know, a vital aspect of the mandate which was recently
entrusted to my government by the people of Canada.
Furthermore, I remain firmly convinced of the soundness
of this course of action for the future of our country.
My government is accordingly intending to proceed with
the consideration of this legislation by Parliament.

However, in the light of your concern and
given the importance which attaches to our proceeding
in this regard with the fullest understanding and co-
operation possible on the part of all levels of Govern-
ment in Canada, I am prepared to agree with your suggestion
that consideration of this Bill by the House of Commons
should not be concluded until an opportunity for further
discussions with the provinces of this whole language
question has been provided at the Constitutional Conference
in December. In the meantime, I must reaffirm that the
federal government has no doubt as to the constitutionality
of the legislation which it is proposing in Bill C-120.

Yours sincerely,

Original signed by
P.E. TRUDEAU

The Honourable E.C. Manning
Premier of Alberta,
Government Buildings,
Edmonton, Alberta.

-5-

JOSEPH T. THORSON, P.C., Q.C.
Royal Trust Building
116 Albert Street
Ottawa 4, Canada

Telephone 236-4341
Area Code 613

November 12, 1968

The Right Honourable Pierre E. Trudeau,
Prime Minister of Canada,
Centre Block,
Parliament Buildings,
Ottawa.

re: Official Languages Act

Dear Prime Minister,

I take the liberty of writing to you regarding
the above.

I have carefully considered the provisions of
the proposed Official Languages Act, which received first
reading on October 17, 1968, and am of the opinion that
its enactment would be beyond the legislative competence
of Parliament and that, if it is enacted, it will be invalid.

The opinion is based on one or both of two
reasons. It will be recalled that power to amend the
Constitution of Canada was vested in Parliament by the
British North America Act (No. 2) Act, 1949. The circumstances
under which this Act came to be enacted were unusual.
Section 92(1) of the British North America Act gave the
provincial legislatures power to amend their respective
provincial constitutions. But there was not a parallel
provision for the Parliament of Canada. Accordingly, the
Government decided to obtain an amendment of section 91 of
the British North America Act, which would give Parliament
the power to amend the Constitution of Canada. The request
to the Parliament of the United Kingdom to enact the necessary
amendment was made without consulting the provinces.

While the amendment obtained pursuant to this
request conferred upon Parliament the power to amend the
Constitution of Canada, it specified several important
exceptions to its jurisdiction to do so, one of which related
to “the use of the English or French language”. Section
91(1), as amended, was made to read as follows:

“1. The amendment from time to time of the
Constitution of Canada, except as regards
matters coming within the classes of subjects
by this Act assigned exclusively to the Legis-
latures of the provinces, or as regards rights
or privileges by this or any other Constitutional
Act granted or secured to the Legislature or
the Government of a province, or to any class
of persons with respect to schools or as regards
the use of the English or the French language
or as regards the requirements that there shall
be a session of the Parliament at least once
each year, and that no House of Commons shall
continue for more than five years from the day
of the return of the Writs for choosing the
House, provided, however, that a House of Commons
may in time of real or apprended war, invasion
or insurrection be continued by the Parliament
of Canada if such continuance is not opposed by
the votes of more than one-third of the members
of such House.”

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It is significant that in the new section of 91(1)
the power to legislate “as regards the use of the English
or the French” is expressly excluded from the
jurisdiction conferred by the section.

It is clear, beyond dispute, that the proposed
Official Languages Act would be legislation “as regards the
use of the English or the French language”, within the meaning
of the exception referred to.

It may also be fairly stated that the Act is
intended as a measure for the advancement of the concept of
a dual French and English Canadian nationality. If this
purpose were realized there would be a basic change in the
character of Canada.

Moreover, as will appear more fully later, the
enactment of the Act would be an attempt to extend the status
and use of the French language beyond the ambit of the limits
prescribed by section 133 of the British North America Act,
one of the essential conditions of Confederation, and,
consequently, an attempt to amend the Constitution of Canada.

A strong argument may, therefore, be made that
the proposed Official Languages Act is a proposed Act for
the amendment of the Constitution of Canada, within the
meaning of section 91(1) of the British North America Act,
and that, since it is legislation “as regards the use of the
English or the French language”, also within the meaning of
the said section, the power to enact it is expressly excluded
from the jurisdiction conferred on Parliament by the section
and that, if it is enacted in the face of the prohibition of
the section, it will be invalid.

There is a further reason for challenging the
validity of the proposed Act. It represents an attempt,
inter alia, to give the French language the status of an
official language of Canada in areas where it does not now
have such a status and to compel its use in cases in which
its use is not now required. Its provisions for carrying this
attempt into effect are, therefore, in conflict with the
limitations relating to the status and use of the French
language prescribed by section 133 of the British North America
Act and repugnant to them. That section defines in clear and
explicit terms the exact status of the French and English
languages in Canada and clearly specifies the cases in which
both languages must be used. It provides as follows:

“133. Either the English or the French
Language may be used by any Person in the
Debates of the Houses of Parliament of
Canada and of the Houses of the Legislature
of Quebec; and both those languages shall
be used in the respective Records and
Journals of those Houses; and either of
those Languages may be used by any Person
or in any Pleading or Process in or issuing
from any Court of Canada established under
this Act, and in and from all or any of the
Courts of Quebec.

The Acts of the Parliament of Canada and
of the Legislature of Quebec shall be printed
and published in both those Languages.”

Thus it is only in the debates in Parliament
and the Legislature of Quebec and in the Federal Courts
and in the Courts of Quebec that the French and English
languages stand on the footing of equality with one another
and it is only in the cases specified in the section that
both languages must be used.

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The fact, as a matter of constitutional law,
is that, except as provided in section 133, the French
language is not an official language of Canada anywhere
in Canada and does not have any special status anywhere
in Canada. Indeed, apart from section 133, it does not
have any greater status than that of any of the languages
spoken in Canada by persons of origins other than English
or French.

It is also established constitutional fact
that section 133 of the British North America Act
represents one of the essential conditions on which the
provinces of Canada, Nova Scotia and New Brunswick united
to form the Confederation of Canada in 1867 and on which
other provinces joined the union. This fact was expressly
recognized by the Government in its White Paper on the
Amendment of the Constitution of Canada, published by it
in February of 1965 – vide page 35. Section 133 is one
of the fundamentals on which Confederation rests.

That being so, Canada and its provinces have
a constitutional right to the continued maintenance of
section 133 in its present form as long as it continues
in force. Its limiting effect cannot be altered otherwise
than by an appropriate amendment of the British North
America Act and such an amendment cannot be made by any
authority other than the Parliament of the United Kingdom.
The Parliament of Canada cannot lawfully extend the limits
prescribed by section 133 or enact any legislation that is
at variance with its provisions. If the attempt to do so
implied in the proposed Official Languages Act is carried
into effect the Act will be in conflict with section 133
and a breach of an essential condition of Confederation.

The Government realized that if the limitation
on the status and use of the French language prescribed by
section 133 were to be removed it would be necessary to
obtain an appropriate amendment of the British North America
Act and that before a request for such an amendment was made
to the Parliament of the United Kingdom the approval of the
provinces should be obtained.

To that end the Government took certain steps.
In the belief, as you expressed it in an address to the
Canadian Bar Association at Quebec in September of 1967,
that it was desirable to have a constitutional bill of
rights, which would include broader rights with respect to
the two official languages than the existing ones, the
Government prepared a Canadian Charter of Human Rights in
January of 1968. In this Charter, which was published under
your authority, when you were MInister of Justice, there
was included a proposal that certain asserted linguistic
rights should be incorporated into a constitutional bill of
rights. Under the heading LINGUISTIC RIGHTS to the limitations
prescribed by section 133 of the British North America Act
were expressly recognized. It was also considered that in
matters of education the existing guarantees of separate or
denominational schools did not include any guarantee of
the rights to use eiether French or English as a medium of
instruction. It was, therefore, submitted that the existing
language guarantees be extended to institutions of government
other than those specified by section 133 and to education,
as had been recommended by the Royal Commission on Bilingualism
and Biculturalism in the first volume of its Report. And it
was suggested that these extended guarantees would prove
effective if they were incorporated into a constitutional bill
of rights.

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The linguistic rights proposed in the Charter
fell into two categories, as set out on page 27 of the
Charter, as follows:

“(a) Communication with governmental institutions –
guaranteeing the right of the individual to deal
with agencies of government in either official
language. It would be necessaru to decide whether
this should apply to all agencies – legislative,
executive, and judicial – and to all governments –
federal, provincial and municipal.

(b) Education – guaranteeing the right of the
individual to education in institutions using
as a medium of instruction the official language
of his choice.”

Prime Minister Pearson called a federal-provincial
Conference for the purpose of considering the proposed
Canadian Charter of Human Rights and the linguistic rights
proposal included in it. This Conference, styled the Cons-
titutional Conference, 1968, met at Ottawa on February
5 – 7, 1968.

While the proposed Charter was submitted to the
Conference for the approval of the provincial premiers who
had been called to it, there is no doubt that the basic
purpose of the Conference was to obtain the approval by the
provincial premiers of the linguistic rights proposal included
in the Charter. If this had been obtained it would have
resulted in a request by Parliament to the Parliament of the
United Kingdom for amendments of sections 133 and 93 of the
British North America Act, which would have made the French
language an official language of Canada throughout Canada
and in the legislatures and courts of the provinces and a
compulsory medium of public instruction in the educational
systems of the provinces, in accordance with the recommenda-
tions of the B and B Commission in the first volume of its
Report.

At the Conference, Prime Minister Pearson pleaded
with the provincial premiers for a consensus in favor of
approving the the linguistic rights referred to in the proposed
Charter so that the necessary amendments to the British
North America Act might be made by the Parliament of the
United Kingdom on the request of the Parliament of Canada,
according to the procedure followed in the past, without
waiting for an agreement on a formula for amending the
Constitution.

The attempt to entrench the proposed linguistic
rights in the Constitution failed. The provincial premiers
were not favorably disposed towards the submission that the
proposed Canadian Charter of Human Rights should be incor-
prated in the Constitution and they did not agree on the
consensus for which Prime Minister Pearson had pleaded. On
the contrary, there was such strong opposition to the pro-
posal that linguistic rights referred to in the proposed
Charter should be entrenched in the Constitution that the
proposal had to be abandoned. For example, Premier Manning
of Alberta stated that Alberta would veto any entrenchment
of linguistic rights in the Constitution. And Premier Robarts
of Ontario, who had set out, in his opening statement to the
Conference, the steps that Ontario would take towards imple-
menting several of the recommendations of the B and B Commis-
sion, made it clear, at a press conference called by him after
the first sitting of the Conference, that his government would
not declare Ontario officially bilingual, notwithstanding the

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recommendation of the B and B Commission, and also that he
would resist the federal proposal that linguistic rights should
be entrenched in the Constitution. And Premier Johnson of
Quebec made a strong plan for leaving language rights in the
hands of the provinces.

The proposed Official Languages Act is an attempt
to have Parliament take unilateral action, without the
approval of the provincial legislatures and without any
attempt to obtain an amendment of the Constitution, to over-
come the limitations prescribed by section 133 and to give
partial effect to the linguistic rights proposal which the
provincial premiers had rejected at the Constitutional Con-
ference, 1968.

Section 2 of the proposed Act, which declares
that the English and French languages are the official lan-
guages of Canada for all purposes of the Parliament and
Government of Canada, and possess and enjoy equality of status
and equal rights and privileges as to their use in all the
institutions of the Parliament and Government of Canada, is
an attempt to make French an official language of Canada and
make it equal in status to English in areas where it is not
now an official language and does not now have such a status.

Moreover, the proposed Act calls for the compul-
sory use of French as well as English in many cases in which,
under the existing Constitution, the use of French is not
obligatory. For example, section 3 requires the promulgation
in both French and English of all instruments in writing
directed to or intended for the notice of the public, purpor-
ting to be made or issued by or under the authority of the
Parliament or Government of Canada or any judicial, quasi-
judicial or administrative body or Crown corporation esta-
blished by or pursuant to an Act of the Parliament of Canada.
And, according to section 4, all rules, orders, regulations,
by-laws and proclamations that are required by or under the
authority of any Act of the Parliament of Canada to be
published in the Canada Gazette must be made or issued in
both French and English and must be published in both languages.
And, subject to certain qualifications, which will present
difficulties of defination or application, section 5 prescribes
that all final decisions, orders and judgments, including any
reasons given therefor, issued by an judicial or quasi-judicial
body established by or pursuant to an Act of the Parliament of
Canada, and all rules, orders and regulations governing the
practice or procedure in any proceedings before such body must
be issued or made in both French and English. Thus, subject
to the qualifications referred to, the reasons for judgment
of such judicial bodies as the Supreme Court of Canada, the
Exchequer Court of Canada, the Tax Appeal Board, the Tariff
Board and other federal bodies must be issued in both French
and English. And, by section 7, certain notices, advertisement
or other matter required to be printed in a publication for
the information primarily of members of the public resident in
the proposed National Capital Region or a federal bilingual
district established under the Act must, wherever possible, be
printed in both French and English publications.

Under existing Constitution the use of French as well
as English was not compulsory in any of the cases referred to
in sections 3,4,5 and 7 of the proposed Act. Thus it is
clear that the area of the field in which the use of French is
to be made compulsary by the proposed Act is very much larger
than that in which its use is made obligatory by section 133.

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Sections 9,10 and 11 of the proposed Act provide
other examples of the attempt to compel the use of French in
cases where its use is not now required.

And the provisions relating to the establishment of
federal bilingual districts give a further illustration of
the attempts to make French an official language in areas
where it does not now have such a status.

The consideration to which I have referred support
the opinion that, since the proposed Act represents an attempt
to amend the Constitution of Canada, to the extent that it
relates to the Parliament and Government of Canada, and since,
if it is enacted, it would clearly be legislation “as regards
the use of the English or French language”, the power to
pass the Act is expressly excluded from the jurisdiction of
Parliament by section 91(1) of the British North America Act,
as amended by the British North America (No. 2) Act, 1949, and
furthermore, that the provisions of the proposed Act are in
conflict with section 133 and that, if it is enacted, it will
be a breach of an essential condition of Confederation and
constitutionally invalid.

Under the circumstances, and in view of the importance
of the proposed Act and its effect on the character of Canada
and the life of Canadians, it is respectfully urged that before
it is allowed to go into effect the Government should refer it
to the Supreme Court of Canada for an adjudication of whether
it is within the legislative competence of Parliament or not.

It is, therefore, suggested that section 41 of the
proposed Act be amended to provide for its coming into effect
on proclamation so that the reference to the Supreme Court of
Canada may be made and its adjudication obtained.

I bring to your attention the fact that countless
thousands of Canadians of various ethnic origins, English as
well as neither English nor French, are profoundly disturbed
over the attempts to impose a dual French and English nationality
on the people of Canada that are being pressed with such intensity.
It is essential, in the national interest, that the question
whether the proposed Official Languages Act is valid should be
free from doubt and that it should be determined by the highest
judicial authority whether it is within the legislative competence
of Parliament or not.

It may be difficult for an individual or an association
to find a way of bringing the question of validity before the
Supreme Court of Canada for its adjudication, but I suggest
that the Government should not, in fairness, hide behind this
difficulty. Nor should it fear the outcome of the suggested
reference. If the decision of the Court should be in favor of
the validity of the proposed Act it could be put into effect
immediately. But, if the decision should be adverse then, if
the objectives of the proposed Act are to be attained, Parliament
would have to request the Parliament of the United Kingdom to
enact the necessary amendment of the Constitution. The approval
of the provinces would have to be obtained before such a step
was taken.

Section 55 of the Supreme Court Act, R.S.C. 1952,
Chap. 259, provides, inter alia, that important questions of
law or fact touching the constitutionality or interpretation
of any Dominion or provincial legislation may be referred by
the Governor in Council to the Supreme Court of Canada for hearing
and consideration.

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There is an interesting precedent of a reference
of a proposed Act to the Supreme Court of Canada. In 1939,
the Hon. C.H. Cahan proposed a Bill, No. 9, for the amendment
of the Supreme Court Act which had for its purpose the abolition
of appeals to the Judicial Committee of the Privy Council. On
the last second reading of the Bill, the Right Honourable Ernest
Lapointe, the Minister of Justice, stated that he would refer
the Bill to the Supreme Court of Canada for the purpose of
ascertaining the jurisdiction and power of Parliament to
enact the proposed legislation and, on April 21, 1939, he
tabled a copy of the Order in Council referring the Bill to
the Supreme Court of Canada.

In view of the fact that the proposed Official
Languages Act would, if enacted, make a great change in the
character of Canada it is urged that the Government should
in this case follow a course similar to that which was followed
in 1939.

In view of the importance of the subject matter of
this letter I shall send copies of it to the press and to
persons who are interested in it.

Yours respectfully,

J.T. Thorson

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PRIME MINISTER’S REPLY TO THE
HONOURABLE J.T. THORSON’S LETTER OF NOVEMBER 12

Ottawa
November 22, 1968.

The Hon. Joseph T. Thorson, P.C., Q.C.,
Royal Trust Building
116 Albert Street,
Ottawa 4.

Dear Mr. Thorson:

I am indebted to you for the trouble you have
taken to spell out as you see it the case that can be made
against Bill C-120.

As I understand your letter, the two points that
you make against the Bill can be stated as follows:

1. The Bill represents an attempt to amend the Constitution
of Canada as regards the use of the English and French
languages so that it falls within one of the stated
exceptions to the legislative jurisdiction of Parliament
under Head I of section 91 of the British North America
Act; and

2. section 133 of the British North America Act limits the
status and use of the French language in Canada so that
any attempt, whether by Parliament or by the Legislatures,
to extend the use of that language by legislation is
repugnant to that provision and therefore ultra vires.

Dealing with the first point, let me say that
Bill C-120 in no way purports to amend the Constitution of
Canada or to affect or modify any legal right or obligation
contained in the Constitution relating to either the English
or the French language. Section 133 is the only provision of
the B.N.A. Act that deals with the subject of language and it
will be observed that this provision is in part mandatory and
in part permissive. The part that is permissive allows any
person to use either the English or French language in the
Houses of the Parliament of Canada, the Houses of the legislature
of Quebec and in the Federal and Quebec courts. The part that
is mandatory requires the use of both languages in the Records
and Journals of the Houses of the Parliament of Canada and the
Quebec Legislature and the printing and publication of the
Acts of Parliament and of the Legislature of Quebec in both
languages.

The enactment of Bill C-120 into law will in no
wise affect or modify the permission conferred or the obliga-
tions imposed by sections 133 of the B.N.A. Act so that every-
one in Canada will continue to enjoy precisely the same rights
and privileges in respect of both languages under section 133
as they previously enjoyed before its enactment. The Consti-
tution of Canada as regards the use of the English or the
French language will, therefore, remain the same.

Your second point as I understand it is that since the
B.N.A. Act deals expressly with the use of the English and
French languages in certain instances or respects, it must
therefore be interpreted as having the negative effecr of
limiting the use of these languages in other instances or
respects.

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In regard to this argument, it must be first noted
that both languages stand in completely parallel position
in section 133 of the B.N.A. Act so that any implied limitation
respecting the use of the French language must necessarily
arise as well in respect of the use of the English language.

Apart, however, from the parallel position of the
two languages in section 133, it is quite impossible to find
any implied limitation whatever in the language of section 133
(although the provision itself should in the judgment of the
present Government be broadened), so that the proper conclusion
must necessarily be that both Parliament and Legislatures,
acting within their respective jurisdictions, are competent
to legislate so as to deal with language as a means of communica-
tion, be the language English, French or any other language
for that matter so long as the legislation does not conflict
with the principles contained in section 133. For example,
most provincial legislatures have provided for some use of
both French and English in their schools. Several provinces
other than Quebec (the only province referred to in section 133)
have authorized the use of both languages in their legislatures.
The federal government has for some time been extending the use
of both languages in the Public Service and in government
documents. Bill C-120 represents the present government’s
attempt to make further provision by legislation for the use
of both languages in relation to federal institutions and
agencies and it follows, of course, that the provinces are
competent to do likewise within their proper jurisdiction
subject, of course, in the case of the Province of Quebec,
to the overriding provisions of section 133.

Finally, may I express the hope that the current
efforts undertaken by Parliament and a number of provincial
legislatures to extend the use of Canada’s two official languages
within their respective jurisdictions not be confused with the
Government’s intention to pursue a constitutional Bill of
Rights. The Government, as you know, hopes to secure a
substantial consensus on the desirability of a constitutional
bill; one that will operate to extend the provisions of section
133 for the benefit of all Canadians. The two endeavours,
while complementary in nature, are quite distinct.

Yours sincerely,

P.E. Trudeau