Backgrounder

PROPOSED LEGISLATIVE INSTRUMENTS RE-ENACTMENT ACT

The language of legislative instruments under the Constitution

Section 133 of the Constitution Act, 1867 explicitly requires that the Acts of the Parliament of Canada and of the Legislature of Quebec be printed and published in English and French. The Parliament of Canada has always complied with this constitutional obligation with respect to its statutes.

In 1979, the Supreme Court of Canada, in Attorney General of Quebec v. Blaikie et al, [1979] 2 S.C.R. 1016 (Blaikie No. 1), held that the requirement to print and publish the "Acts" of the legislature in English and French necessarily presupposes their enactment in both official languages.

In 1981, in Attorney General of Quebec v. Blaikie et al, [1981] 1 S.C.R. 312 (Blaikie No. 2), the Supreme Court of Canada elaborated on its earlier decision by holding that legislative instruments that are made by or require the approval of the government, a minister or group of ministers are subject to the requirements of section 133.

As a result, the Constitution of Canada, as interpreted by the Supreme Court of Canada since 1979, requires that legislative instruments, such as regulations and orders-in-council of a legislative nature, be "made", printed and published in both official languages. A legislative instrument is made in both official languages when both versions are signed by the competent regulatory authority prior to its printing and publishing.

Why is this Bill necessary?

From 1867 to 1969, most regulations and orders-in-council were made only in one language, usually by the Governor in Council. These instruments were then generally printed and published in the Canada Gazette in both official languages. Prior to Blaikie No. 1 and Blaikie No. 2, the Constitution was believed not to require bilingual enactment of delegated legislation.

Beginning in 1969, the Official Languages Act has required that all rules, orders, regulations, by-laws and proclamations that are required to be published by or under the authority of an Act of Parliament must be made and published in both official languages.

In addition, regulations that are part of the 1978 Consolidation of Regulations of Canada comply with the language requirements of the Constitution because the Consolidation itself was made in full compliance with these requirements.

Finally, the constitutional requirements that the Supreme Court of Canada held to exist in 1979 were specifically included, in clear and unambiguous terms, in the 1988 Official Languages Act.

These legislative measures have ensured that federal legislative instruments comply with the language requirements of the Constitution.

However, despite these measures, the Standing Joint Committee for the Scrutiny of Regulations, in its Third Report, expressed concern that some uncertainty remained about the constitutional validity of some federal regulations that had originally been made in only one official language.

What does the Bill do?

The proposed Legislative Instruments Re-enactment Act re-enacts, or provides for the re-enactment of, certain legislative instruments that were originally enacted in only one official language, in order to resolve any uncertainty with respect to their legal validity.

Under the Bill, legislative instruments that were enacted in one official language only but published in both official languages are automatically and retroactively re-enacted in both languages. The Bill also confers regulation-making powers on the Governor-in-Council to retroactively re-enact, in both official languages, legislative instruments that were enacted in one official language and published in that language only or not published at all.

The proposed Bill provides an efficient and cost effective way to address any remaining uncertainty while, at the same time, demonstrating the Government's ongoing commitment to the rule of law, respect for the Charter and the importance of linguistic duality in Canada.

-30-

Department of Justice Canada
March 5, 2002