Constitution Act, 1982 - Introduction

    Section 55 of the Constitution Act, 1982 provides that "a French version of the portions of the Constitution of Canada referred to in the schedule [to that Act] shall be prepared by the Minister of Justice of Canada as expeditiously as possible". The French Constitutional Drafting Committee was set up in 1984 with a mandate to assist the Minister in that task. The Committee has since met more than fifty times or an average of ten times a year.

   The Committee's task of preparing, in accurate and true French, a draft official French version of the various constitutional enactments has been a complex one, largely because of the nature, number and, in some cases, the length of the documents involved. There have been a great many constitutional enactments in the years since Confederation, and most of these are closely interrelated. The Committee has endeavoured to ensure the greatest possible consistency in the documents without changing the substance of the laws contained in them. Each word or expression had to be considered not only in its immediate context but also with respect to constitutional law in its entirety. These considerations prompted the Committee to make certain modifications to its interim report*, which it had drafted before its review of the enactments was complete.

   Guided by the requirement for both legal accuracy and good style, the Committee performed extensive documentary research in substantive law, jurisprudence and legal theory, as well as on a variety of technical subjects.

   Because of the meticulous nature of its work, the Committee adopted a rigorous methodology.

Methodology

    The Committee took the same approach as with its interim report, working from drafts prepared and annotated by the jurilinguist. The Committee's first task was essentially to make the preliminary decisions that led to the preparation of a provisional French version of the enactments.

*Entitled First report of the French Constitutional Drafting Committee responsible for providing the Minister of Justice with a draft official French version of certain constitutional Acts, and tabled in Parliament by the Minister of Justice on December 17, 1986.

   The jurilinguist then examined the provisional version and made a number of further observations, such as observations regarding the effect that the introduction of a different word or expression would have within a particular document or on other documents reviewed by the Committee.

   In the final stage, the Committee reviewed the observations made by the jurilinguist and the comments of Department of Justice officials, among others, and prepared the final version of the enactments.

Terms of reference

   In the Committee's opinion, the French version of the Constitution of Canada should, to the greatest possible extent, reflect Canadian constitutional law at all stages of its development, from Confederation to the present.

   With this principle in mind, the Committee concluded that a restrictive interpretation of section 55 of the Constitution Act, 1982 would be inappropriate, and it decided to draft a French version of all of the documents, both British and Canadian, contained in the schedule to the Act, whether or not they are still in force.

   The Committee also felt that it was within its mandate to redraft the French versions of the Canadian enactments contained in the schedule to that Act, despite the fact that these documents already have official French versions. The Committee could thus ensure that the language used in those versions would be consistent with the language it used in formulating the first draft official French version of the British enactments.

   Thus Part I of this report contains a draft official French version of all thirty documents set out in the schedule to the Constitution Act, 1982, in accordance with the order used in that schedule.

   During its preparation of the French version of the documents set out in the schedule to the Constitution Act, 1982, the Committee discovered that many of the documents contained in that schedule contain passages that are linked, to varying degrees, with other documents not specifically mentioned in that schedule. The Committee felt that, were it to exclude these other documents from its review, the French version of Canada's constitutional law, both past and present, would remain less complete than the English version, and there would be inconsistencies between the draft official French versions of the documents that it had prepared and the French versions of these other documents, which were, for the most part, literal translations of the English.

   In light of these factors, the Committee concluded that nothing in section 55 of the Constitution Act, 1982 prevented it from extending its review to a certain number of additional documents that were not contained in the schedule to the Act.

   The result is Part II of the report, comprising eight supplementary enactments. For example, the British North America Act, 1916 was included in the interests of making the French version of Canada's constitutional law as complete as possible, and the Rupert's Land Act, 1868 was included because it is a critical link between section 146 of the British North America Act, 1867 and the Rupert's Land and North-Western Territory Order of 1870.

   In the course of its work, the Committee also found that some of its decisions pertaining to the grammar, terminology or style used in certain passages in Part I, and consequently in Part II, necessitated changes, for the sake of consistency, to portions of certain current constitutional enactments. For example, the enactments contained in Part I had to be given titles that were correct in French yet different from the titles set out in column III of the schedule to the 1982 Act. Once the titles of the enactments given in Part I were changed, however, the titles no longer matched those shown in column I of that schedule. Consequently, the Committee had to propose changing the titles in column I so that they would match those of the enactments in Part I.

   In the above example and in other cases where changes made by the Committee had similar types of repercussions, the Committee once again felt that there was nothing in section 55 of the Constitution Act, 1982 to prevent it from ensuring consistency between the texts set out in the schedule to the Act for which it had prepared a French version, and other, current, constitutional enactments.

   Part III of the report, therefore, outlines minor changes that should be brought to the Constitution Act, 1982 and to subsequent constitutional enactments. For example, the Committee proposes to replace the word "exportation" with the word "expédition" in the French version of the new subsection 92A(2) of the 1867 Act, as enacted by section 50 of the 1982 Act, in order to ensure consistency with the terminology used in section 123 of the British North America Act, 1867, which is contained in Part I of the report. Another example is the Committee's proposed reformulation of subsection 17(2) of the Terms of Union of Newfoundland with Canada, which was added in 1987 by proclamation, in order to be consistent with its own French version of that enactment.

Language and style

   The Committee carried out its mandate in accordance with the principle, stated in its interim report, that legislative documents - and especially constitutional enactments - are unacceptable unless they render the same concepts in both official languages in a manner that is natural in each, and such that each version is self-contained. Neither version must be contorted to imitate the language, syntax or sentence structure of the other.

Conclusion

    The Committee sincerely hopes that this report, which is the culmination of five years of research and consultation by committee members in addition to their many other professional responsibilities, will be deemed a valuable contribution to Canadian constitutional law, and that the proposals contained in the report will meet with acceptance.

   Section 55 of the Constitution Act, 1982, which assigns the Minister of Justice of Canada the task of preparing a French version of certain constitutional enactments, along with the schedule to which section 55 refers, are given below.