Document Information

Date: 1982-02-04
By: Michael Kirby, Barry Strayer
Citation: Memorandum [Telex] from Michael Kirby to Reeves Haggan (4 February 1982).
Other formats: Click here to view the original document (PDF).
Note: This document is discussed in an article that has been recently submitted to a peer-review journal.

NO                   Their # 261592

DATE               FEBRUARY 4/82

PRECEDENCE FLASH

SECURITY      SECRET

FROM              MICHAEL J.L. KIRBY

OTTAWA

TO                   MR. REEVES HAGGAN

CANADIAN HIGH COMMISSION

LONDON, ENGLAND

INFO               PLEASE DELIVER BY 8:00a.m. – FEBRUARY 5^th

THE FOLLOWING IS THE TEXT OF A LETTER TASSE WROTE TO ME TODAY:

I WAS A MEMBER OF A TEAM OF CANADIAN OFFICIALS WHO MET IN LONDON ON SEPTEMBER 26, 1980 WITH THE FIRST PARLIAMENTARY COUNSEL, SIR HENRY ROWE.

THE FOLLOWING IS AN EXTRACT OF A MEMORANDUM PREPARED BY BARRY STRAYER ON OCTOBER 3, 1980 FOLLOWING OUR MEETING WITH SIR HENRY: “ON THE QUESTION OF HAVING THE CANADA ACT ENACTED IN BOTH ENGLISH AND FRENCH, SIR HENRY FORESAW DIFFICULTIES WITH THE MAIN BODY OF THE ACT, CONTAINING THE ENACTING CLAUSE BEING IN BOTH LANGUAGES. THE POINT APPEARED TO BE THAT PARLIAMENT (OR MORE PRECISELY, THE CLERKS OF THE TWO HOUSES OF PARLIAMENT) MIGHT WELL OBJECT TO THE ACTUAL ENACTMENT BEING DONE IN FRENCH. HE HAD NO PROBLEM WITH THE CONSTITUTION ACT BEING IN BOTH LANGUAGES BECAUSE IT IS IN A SCHEDULE AND WOULD NOT REQUIRE A SEPARATE ENACTING CLAUSE. AFTER MUCH DISCUSSION IN WHICH WE EMPHASIZED THE IMPORTANCE OF BOTH LANGUAGES BEING TREATED EQUALLY, IT WAS AGREED THAT THE BODY OF THE CANADA ACT, (i.e. THE TITLE, PREAMBLE] ENACTING CLAUSE AND SECTION 1-7 OF THEIR REPLACEMENTS) WOULD BE IN ENGLISH, WITH A FRENCH VERSION IN A SCHEDULE A. THE FRENCH VERSION WOULD BE GIVEN EQUAL AUTHORITATIVE VALUE IN CANADA. WHAT HAD BEEN SCHEDULE A (THE CONSTITUTION ACT) WOULD BECOME SCHEDULE B, WOULD REMAIN BILINGUAL AND WITH IT ITS OWN SECTION PROVIDING FOR THE EQUAL AUTHORITY OF BOTH LANGUAGES.”

THIS IS ESSENTIALLY WHAT WAS DONE IN THE CANADA ACT AND SCHEDULE A OF THE ACT CONTAINS THE FRENCH VERSION OF THE MAIN ACT AND THE CONSTITUTION ACT 1982 IS TO BE FOUND IN SCHEDULE B.

OUR FILES INDICATE THAT AT THE TIME OF THE FULTON-FAVREAU FORMULA, IN 1965, THE BRITISH WERE PREPARED TO ENACT THE LAW IN ENGLISH WITH A SCHEDULE CONTAINING THE WHOLE OF THE SAME ACT IN FRENCH.

I SHOULD POINT OUT THAT IT IS NOT UNPRECEDENTED FOR THE BRITISH PARLIAMENT TO PROVIDE FOR AN ANNEX IN THE FRENCH LANGUAGE. IN 1961, THE BRITISH PARLIAMENT PASSED AN·ACT TITLED; THE CARRIAGE BY AIR ACT 1961, TO GIVE EFFECT TO THE WARSHAW CONVENTION ON INTERNATIONAL CARRIAGE BY AIR. THE PROVISIONS OF THE CONVENTION ITSELF ARE SET OUT IN A SCHEDULE I TO THE ACT AND ARE GIVEN THE FORCE OF LAW IN THE U.K. PART I OF THE SCHEDULE SETS OUT THE TEXT IN ENGLISH AND PART II, SETS IT OUT IN FRENCH. THE ACT PROVIDES THAT IF THERE IS ANY INCONSISTENCY BETWEENT HE TEXT IN ENGLISH AND THE TEXT IN FRENCH! THE TEXT IN FRENCH SHALL PREVAIL.

IT IS TO BE NOTED THAT THE FRENCH TEXT ATTACHED TO THE CARRIAGE BY AIR ACT 1961, IS THE FRENCH VERSION OF THE ENGLISH TEXT OF THE ANNEX TO THE ACT, AND NOT THE FRENCH VERSION OF THE TEXT ITSELF, AS IS THE CASE WITH THE CANADA ACT. I DON’T BELIEVE THAT ANYTHING CAN BE DRAWN FROM THAT. IT SHOULD RATHER BE EMPHASIZED THAT IN THE CASE OF THE CARRIAGE BY AIR ACT 1961, THE PROVISIONS OF THE FRENCH TEXT ARE GIVEN FULL FORCE OF THE LAW IN THE U.K. TO THE EXTENT THAT IN THE CASE OF INCONSISTENCY BETWEEN THE FRENCH AND ENGLISH TEXT, THE FRENCH TEXT SHALL PREVAIL. IN THE CASE OF THE CANADA ACT, THE ACT SPECIFICALLY PROVIDES THAT THE FRENCH TEXT SET OUT IN THE ANNEX WOULD BE GIVEN EQUAL AUTHORITATIVE VALUE IN CANADA ONLY, THIS MEANING THAT INSOFAR AS THE U.K. ITSELF IS CONCERNED THE ENGLISH VERSION WOULD PREVAIL IF ANY INCONSISTENCY WERE TO BE FOUND BETWEEN THE ENGLISH VERSION AND THE FRENCH VERSION.

END OF TASSE LETTER.

THE CONTENTS OF THIS LETTER MAY BE USEFUL IN YOUR MEETING WITH THE LORD PRIVY SEAL ON FEB. 5.

PLEASE TELEPHONE ME AT HOME AT ^[7:30] 8:00a.m. MY TIME TO REPORT ON YOUR MEETING SO THAT I CAN REPORT TO THE PRIME MINISTER AT 9:30a.m.