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How Canadians Govern Themselves

by Eugene A. ForseyGet the PDF
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2

2

A Federal State


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A federal state is one that brings together a number of different political communities with a common government for common purposes, and separate “state” or “provincial” or “cantonal” governments for the particular purposes of each community. The United States of America, Canada, Australia and Switzerland are all federal states. Federalism combines unity with diversity. It provides, as Sir John A. Macdonald, Canada’s first Prime Minister, said,
“A general government and legislature for general purposes with local governments and legislatures for local purposes.”

The word “confederation” is sometimes used to mean a league of independent states, like the United States from 1776 to 1789. But for our Fathers of Confederation© Library of Parliament, the term emphatically did not mean that. French-speaking and English-speaking alike, they said plainly and repeatedly that they were founding “a new nation”, “a new political nationality”, “a powerful nation, to take its place among the nations of the world”, “a single great power”.

Fathers of confederation© Library of Parliament
The Fathers of Confederation, Quebec Conference, 1864
They were very insistent on maintaining the identity, the special culture and the special institutions of each of the federating provinces or colonies. Predominantly French-speaking and Roman Catholic, Canada East (Quebec) wanted to be free of the horrendous threat that an English-speaking and mainly Protestant majority would erode or destroy its rights to its language, its French-type civil law, and its distinctively religious system of education. Overwhelmingly English-speaking and mainly Protestant, Canada West (Ontario) was still smarting from the fact that Canada East members in the legislature of the united Province of Canada had thrust upon it a system of Roman Catholic separate schools which most of the Canada West members had voted against. Canada West wanted to be free of what some of its leaders called “French domination.” For their part, Nova Scotia and New Brunswick had no intention of being annexed or absorbed by the Province of Canada, of which they knew almost nothing and whose political instability and incessant “French–English” strife they distrusted.

On the other hand, all felt the necessity of union for protection against the threat of American invasion or American economic strangulation (for nearly half of the year, the Province of Canada was cut off from Britain, its main source of manufactured goods, except through American ports) and for economic growth and development. So the Fathers of Confederation were equally insistent on a real federation, a real “Union,” as they repeatedly called it, not a league of states or of sovereign or semi-independent provinces.

The Fathers of Confederation© Library of Parliament were faced with the task of bringing together small, sparsely populated communities scattered over immense distances. Not only were these communities separated by natural barriers that might well have seemed insurmountable, but they were also divided by deep divergences of economic interest, language, religion, law and education. Communications were poor and mainly with the world outside British North America.

To all these problems, they could find only one answer: federalism.

The provinces dared not remain separate, nor could they merge. They could (and did) form a federation, with a strong central government and Parliament, but also with an ample measure of autonomy and self-government for each of the federating communities.


2.1

Our Constitution

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The British North America Act, 1867, was the instrument that brought the federation, the new nation, into existence. It was an Act of the British Parliament. But, except for two small points, it was simply the statutory form of resolutions drawn up by delegates from what is now Canada. Not a single representative of the British government was present at the conferences that drew up those resolutions, or took the remotest part in them.

The two small points on which our Constitution is not entirely homemade are, first, the legal title of our country, “Dominion,” and, second, the provisions for breaking a deadlock between the Senate and the House of Commons.

The Fathers of Confederation© Library of Parliament wanted to call the country “the Kingdom of Canada.” The British government was afraid of offending the Americans so it insisted on the Fathers finding another title. They did, from Psalm 72: “He shall have dominion also from sea to sea, and from the river unto the ends of the earth.” It seemed to fit the new nation like the paper on the wall. They explained to Queen Victoria that it was “intended to give dignity” to the Union, and “as a tribute to the monarchical principle, which they earnestly desire to uphold.”

To meet a deadlock between the Senate and the House of Commons, the Fathers had made no provision. The British government insisted that they produce something. So they did: sections 26 to 28 of the Act, which have been used only once, in 1990.

That the federation resolutions were brought into effect by an Act of the British Parliament was the Fathers’ deliberate choice. They could have chosen to follow the American example, and done so without violent revolution.

Sir John A. Macdonald, in the Confederation debates, made that perfectly clear. He said:
“...If the people of British North America after full deliberation had stated that...it was for their interest, for the advantage of British North America to sever the tie [with Britain],...I am sure that Her Majesty and the Imperial Parliament would have sanctioned that severance.”
But:
“Not a single suggestion was made, that it could...be for the interest of the colonies...that there should be a severance of our connection....There was a unanimous feeling of willingness to run all the hazards of war [with the United States]...rather than lose the connection....”

Hence, the only way to bring the federation into being was through a British Act.

That Act, the British North America Act, 1867 (now renamed the Constitution Act, 1867), contained no provisions for its own amendment, except a limited power for the provinces to amend their own constitutions. All other amendments had to be made by a fresh Act of the British Parliament.

At the end of the First World War, Canada signed the peace treaties as a distinct power, and became a founding member of the League of Nations and the International Labour Organization. In 1926, the Imperial Conference recognized Canada, Australia, New Zealand, South Africa, the Irish Free State and Newfoundland as “autonomous communities, in no way subordinate to the United Kingdom in any aspect of their domestic or external affairs.” Canada had come of age.

This gave rise to a feeling that we should be able to amend our Constitution ourselves, without even the most formal intervention by the British Parliament. True, that Parliament usually passed any amendment we asked for. But more and more Canadians felt this was not good enough. The whole process should take place here. The Constitution should be “patriated” — brought home.

Attempts to bring this about began in 1927. Until 1981, they failed, not because of any British reluctance to make the change, but because the federal and provincial governments could not agree on a generally acceptable method of amendment. Finally, after more than half a century of federal-provincial conferences and negotiations, the Senate and the House of Commons, with the approval of nine provincial governments, passed the necessary Joint Address asking for the final British Act. This placed the whole process of amendment in Canada, and removed the last vestige of the British Parliament’s power over our country.

The Constitution Act, 1982, came into force on April 17, 1982© Library of Parliament
The Constitution Act, 1982, came into force on April 17, 1982.
The Constitution Act, 1867, remains the basic element of our written Constitution. But the written Constitution, the strict law of the Constitution, even with the latest addition, the Constitution Act, 1982© Library of Parliament, is only part of our whole working Constitution, the set of arrangements by which we govern ourselves. It is the skeleton; it is not the whole body.

Responsible government, the national cabinet, the bureaucracy, political parties: all these are basic features of our system of government. But the written Constitution does not contain one word about any of them (except for that phrase in the preamble to the Act of 1867 about “a Constitution similar in principle to that of the United Kingdom”). The flesh, the muscles, the sinews, the nerves of our Constitution have been added by legislation (for example, federal and provincial elections acts, the Parliament of Canada Act, the legislative assembly acts, the public service acts); by custom (the prime minister, the cabinet, responsible government, political parties, federal-provincial conferences); by judgements of the courts (interpreting what the Constitution Acts of 1867 and 1982 and their amendments mean); and by agreements between the national and provincial governments.

If the written Constitution is silent on all these things, which are the living reality of our Constitution, what does it say? If it leaves out so much, what does it put in?

Before we answer that question, we must understand that our written Constitution, unlike the American, is not a single document. It is a collection of 25 primary documents outlined in the Constitution Act, 1982© Library of Parliament.

The core of the collection is still the Act of 1867. This, with the amendments added to it down to the end of 1981, did 12 things.
  • First, it created the federation, the provinces, the territories, the national Parliament, the provincial legislatures and some provincial cabinets.
  • Second, it gave the national Parliament power to create new provinces out of the territories, and also the power to change provincial boundaries with the consent of the provinces concerned.
  • Third, it set out the power of Parliament and of the provincial legislatures.
  • Fourth, it vested the formal executive power in the Queen, and created the Queen’s Privy Council for Canada (the legal basis for the federal cabinet).
  • Fifth, it gave Parliament power to set up a Supreme Court of Canada (which it did, in 1875).
  • Sixth, it guaranteed certain limited rights equally to the English and French languages in the federal Parliament and courts and in the legislatures and courts of Quebec and Manitoba.
  • Seventh, it guaranteed separate schools for the Protestant and Roman Catholic minorities in Quebec and Ontario. It also guaranteed separate schools in any other province where they existed by law in 1867, or were set up by any provincial law after 1867. There were special provisions for Manitoba (created in 1870), which proved ineffective; more limited guarantees for Alberta and Saskatchewan (created in 1905); and for Newfoundland (which came into Confederation in 1949), a guarantee of separate schools for a variety of Christian denominations. (Constitutional amendments have since changed the school systems in Quebec and in Newfoundland and Labrador, as the Province of Newfoundland is now officially known.)
  • Eighth, it guaranteed Quebec’s distinctive civil law.
  • Ninth, it gave Parliament power to assume the jurisdiction over property and civil rights, or any part of such jurisdiction, in other provinces, provided the provincial legislatures consented. This power has never been used.
  • Tenth, it prohibited provincial tariffs.
  • Eleventh, it gave the provincial legislatures the power to amend the provincial constitutions, except as regards the office of lieutenant-governor.
  • Twelfth, it gave the national government (the Governor-in-Council: that is, the federal cabinet) certain controls over the provinces: appointment, instruction and dismissal of lieutenant-governors (two have been dismissed); disallowance of provincial acts within one year after their passing (112 have been disallowed — the last in 1943 — from every province except Prince Edward Island and Newfoundland and Labrador); power of lieutenant-governors to send provincial bills to Ottawa unassented to (in which case they do not go into effect unless the central executive assents within one year; of 70 such bills, the last in 1961, from every province but Newfoundland and Labrador, only 14 have gone into effect).
These are the main things the written Constitution did as it stood at the end of 1981. They provided the legal framework within which we could, and did, adapt, adjust, manoeuvre, innovate, compromise, and arrange, by what Prime Minister Sir Robert Borden called “the exercise of the commonplace quality of common sense.”

The final British Act of 1982, the Canada Act, provided for the termination of the British Parliament’s power over Canada and for the “patriation” of our Constitution. Under the terms of the Canada Act, the Constitution Act, 1982, was proclaimed in Canada and “patriation” was achieved.

Under the Constitution Act, 1982, the British North America Act, 1867, and its various amendments (1871, 1886, 1907, 1915, 1930, 1940, 1946, 1949, 1951, 1952, 1960, 1964, 1965, 1974, 1975) became the Constitution Acts, 1867 to 1975.

There is a widespread impression that the Constitution Act, 1982© Library of Parliament, gave us a “new” Constitution. It did not. In fact, that Act itself says that “the Constitution of Canada includes” 14 acts of the Parliament of the United Kingdom, seven acts of the Parliament of Canada, and four United Kingdom orders-in-council (giving Canada the original Northwest Territories and the Arctic Islands, and admitting British Columbia and Prince Edward Island to Confederation). Several of the acts got new names; two, the old British North America Act, 1867 (now the Constitution Act, 1867), and the Manitoba Act, 1870, suffered a few minor deletions. The part of the United Kingdom Statute of Westminster, 1931, that is included had minor amendments.

The rest, apart from changes of name, are untouched. What we have now is not a new Constitution but the old one with a very few small deletions and four immensely important additions; in an old English slang phrase, the old Constitution with knobs on.


2.2

What are the big changes that the Constitution Act, 1982, made in our Constitution?

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First, it established four legal formulas or processes for amending the Constitution. Until 1982, there had never been any legal amending formula (except for a narrowly limited power given to the national Parliament in 1949, a power now superseded).

The first formula covers amendments dealing with the office of the Queen, the Governor General, the lieutenant-governors, the right of a province to at least as many seats in the House of Commons as it had in the Senate in 1982, the use of the English and French languages (except amendments applying only to a single province), the composition of the Supreme Court of Canada and amendments to the amending formulas themselves.

Amendments of these kinds must be passed by the Senate and the House of Commons (or by the Commons alone, if the Senate has not approved the proposal within 180 days after the Commons has done so), and by the legislature of every province. This gives every single province a veto.

The Canadian Charter of Rights and Freedoms.© Library of Parliament
The Charter guarantees four fundamental freedoms and six basic rights.
The second formula is the general amending formula. It includes amendments concerning the withdrawal of any rights, powers or privileges of provincial governments or legislatures; the proportionate representation of the provinces in the House of Commons; the powers of the Senate and the method of selecting senators; the number of senators for each province, and their residence qualifications; the constitutional position of the Supreme Court of Canada (except its composition, which comes under the first formula); the extension of existing provinces into the territories; the creation of new provinces; and, generally, the Canadian Charter of Rights and Freedoms© Library of Parliament (which is dealt with later).

Such amendments must be passed by the Senate and the House of Commons (or, again, the Commons alone if the Senate delays more than 180 days), and by the legislatures of two-thirds of the provinces with at least half the total population of all the provinces (that is, the total population of Canada excluding the territories). This means that any four provinces taken together (for example, the four Atlantic provinces, or the four Western) could veto any such amendments. So could Ontario and Quebec taken together. The seven provinces needed to pass any amendment would have to include at least one of the two largest provinces of Quebec or Ontario.

Any province can, by resolution of its legislature, opt out of any amendment passed under this formula that takes away any of its powers, rights or privileges; and if the amendment it opts out of transfers power over education or other cultural matters to the national Parliament, Parliament must pay the province “reasonable compensation.”

The third formula covers amendments dealing with matters that apply only to one province, or to several but not all provinces. Such amendments must be passed by the Senate and the House of Commons (or the Commons alone, if the Senate delays more than 180 days), and by the legislature or legislatures of the particular province or provinces to which it applies. Such amendments include any changes in provincial boundaries, or changes relating to the use of the English or French language in a particular province, or provinces.

The fourth formula covers changes in the executive government of Canada or in the Senate and House of Commons (other than those covered by the first two formulas). These amendments can be made by an ordinary Act of the Parliament of Canada.

The second big change made by the Constitution Act, 1982, is that the first three amending formulas “entrench” certain parts of the written Constitution: that is, place them beyond the power of Parliament or any provincial legislature to touch.

For example, the monarchy cannot now be touched except with the unanimous consent of the provinces. Nor can the governor generalship, nor the lieutenant-governorships, nor the composition of the Supreme Court of Canada, nor the right of a province to at least as many members of the Commons as it had senators in 1982, nor the amending formulas themselves. On all of these, any single province can impose a veto. Matters coming under the second formula can be changed only with the consent of seven provinces with at least half the population of the 10.

The guarantees for the English and French languages in New Brunswick, Quebec and Manitoba cannot be changed except with the consent of the provincial legislatures concerned and of the Senate and House of Commons (or the Commons alone, under the 180-day provision). The guarantees for denominational schools in Newfoundland and Labrador could not have been changed except with the consent of its legislature.

The amending process under the first three formulas can be initiated by the Senate, or the House of Commons, or a provincial legislature. The ordinary Act of Parliament required by the fourth formula can, of course, be initiated by either house.

Third, the Constitution Act, 1982, sets out the Canadian Charter of Rights and Freedoms© Library of Parliament that neither Parliament nor any provincial legislature acting alone can change. Any such changes come under the second formula (or, where they apply only to one or more, but not all, provinces, the third formula).


Emily Murphy© NCC/CCN
In this bronze sculpture on Parliament Hill, Emily Murphy, one of the "Famous Five" who fought for women's legal status as persons, invites us to celebrate women's equality, now enshrined in the Charter.
2.3

The rights and freedoms guaranteed by the Charter are:

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  1. Democratic rights (for example, the right of every citizen to vote for the House of Commons and the provincial legislative assembly, and the right to elections at least every five years, though in time of real or apprehended war, invasion or insurrection, the life of a federal or provincial legislature may be prolonged by a two-thirds vote of the Commons or legislative assembly).
  2. Fundamental freedoms (conscience, religion, thought, expression, peaceful assembly, association).
  3. Mobility rights (to enter, remain in, or leave Canada, and to move into, and earn a living in, any province subject to certain limitations, notably to provide for “affirmative action” programs for the socially or economically disadvantaged).
  4. Legal rights (a long list, including such things as the right to a fair, reasonably prompt, public trial by an impartial court).
  5. Equality rights© NCC/CCN (no discrimination on grounds of race, national or ethnic origin, religion, sex, age, or mental or physical disability; again, with provision for “affirmative action” programs).
  6. Official language rights.
  7. Minority-language education rights in certain circumstances.
The equality rights came into force on April 17, 1985, three years after the time of patriation of our Constitution. (This gave time for revision of the multitude of federal, provincial and territorial laws that may have required amendment or repeal.)

The official language rights make English and French the official languages of Canada for all the institutions of the government and Parliament of Canada and of the New Brunswick government and legislature. Everyone has the right to use either language in Parliament and the New Brunswick legislature. The acts of Parliament and the New Brunswick legislature, and the records and journals of both bodies, must be in both languages. Either language may be used in any pleading or process in the federal and New Brunswick courts. Any member of the public has the right to communicate with the government and Parliament of Canada, and the government and legislature of New Brunswick, and to receive available services, in either language where there is “a sufficient demand” for the use of English or French or where the nature of the office makes it reasonable.

The minority-language education rights are twofold.
  1. In every province, citizens of Canada with any child who has received or is receiving primary or secondary schooling in English or French have the right to have all their children receive their schooling in the same language, in minority-language educational facilities provided out of public funds, where the number of children “so warrants.” Also, citizens who have received their own primary schooling in Canada in English or French, and reside in a province where that language is the language of the English or French linguistic minority, have the right to have their children get their primary and secondary schooling in the language concerned, where numbers warrant.
  2. In every province except Quebec, citizens whose mother tongue is that of the English or French linguistic minority have the right to have their children get their primary and secondary schooling in the language concerned, where numbers so warrant. This right will be extended to Quebec only if the legislature or government of Quebec consents.
Anyone whose rights and freedoms under the Charter have been infringed or denied can apply to a court of competent jurisdiction “to obtain such remedy as the court considers appropriate and just.” If the court decides that any evidence was obtained in a manner that infringed or denied rights and freedoms guaranteed under the Charter, it must exclude such evidence “if it is established that...the admission of it...would bring the administration of justice into disrepute.”

The Charter (except for the language provisions for New Brunswick, which can be amended by joint action of Parliament and the provincial legislature) can be amended only with the consent of seven provinces with at least half the total population of the 10.

The Charter is careful to say that the guarantees it gives to certain rights and freedoms are not to “be construed as denying the existence of any other rights or freedoms that exist in Canada.” It declares also that nothing in it “abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.” These are, and remain, entrenched.

Before the Charter was added, our written Constitution entrenched certain rights of the English and French languages, the Quebec civil law, certain rights to denominational schools and free trade among the provinces. Apart from these, Parliament and the provincial legislatures could pass any laws they saw fit, provided they did not jump the fence into each other’s gardens. As long as Parliament did not try to legislate on subjects that belonged to provincial legislatures, and provincial legislatures did not try to legislate on subjects that belonged to Parliament, Parliament and the legislatures were “sovereign” within their respective fields. There were no legal limits on what they could do (though of course provincial laws could be disallowed by the federal cabinet within one year). The only ground on which the courts could declare either a federal or a provincial law unconstitutional (that is, null and void) was that it intruded into the jurisdictional territory of the other order of government (or, of course, had violated one of the four entrenched rights).

The Charter has radically changed the situation. Parliament and the legislatures are, of course, still not allowed to jump the fence into each other’s gardens. But both federal and provincial laws can now be challenged, and thrown out by the courts, on the grounds that they violate the Charter. This is something with which the Americans, with their Bill of Rights entrenched in their Constitution, have been familiar for over 200 years. For us, it was almost completely new.

Plainly, this enormously widens the jurisdiction of the courts. Before the Charter, Parliament and the provincial legislatures, “within the limits of subject and area” prescribed by the Constitution Act, 1867, enjoyed “authority as plenary and as ample as the Imperial Parliament in the plenitude of its power possessed and could bestow.” In other words, within those limits, they could do anything. They were sovereign. The Charter ends that. It imposes new limits.

Section 1 of the Charter itself provides some leeway for Parliament and the legislatures. It says that the rights the Charter guarantees are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The courts decide the meaning of “reasonable,” “limits,” “demonstrably justified” and “a free and democratic society.” Their decisions have restricted how Parliament and the legislatures may use the powers they had before the Charter came into effect, and the jurisprudence is still evolving.

The fundamental, legal and equality rights in the Charter are also subject to a “notwithstanding” clause. This allows Parliament or a provincial legislature to pass a law violating any of these rights (except the equality right that prohibits discrimination based on sex) simply by inserting in such law a declaration that it shall operate notwithstanding the fact that it is contrary to this or that provision of the Charter. Any such law can last only five years, but it can be re-enacted for further periods of five years. Any such legislation must apply equally to men and women. The notwithstanding clause allows a partial restoration of the sovereignty of Parliament and the provincial legislatures, but has seldom been used because of the political consequences.

The fourth big change made by the Constitution Act, 1982, gives the provinces wide powers over their natural resources. Each province is now able to control the export, to any other part of Canada, of the primary production from its mines, oil wells, gas wells, forests and electric power plants, provided it does not discriminate against other parts of Canada in prices or supplies. But the national Parliament is still able to legislate on these matters, and if provincial and federal laws conflict, the federal will prevail. The provinces are also able to levy indirect taxes on their mines, oil wells, gas wells, forests and electric power plants and primary production from these sources. But such taxes must be the same for products exported to other parts of Canada and products not so exported.

These four big changes, especially the amending formulas and the Charter, are immensely important. But they leave the main structure of government, and almost the whole of the division of powers between the national Parliament and the provincial legislatures, just what they were before.

Incidentally, they leave the provincial legislatures their power to confiscate the property of any individual or corporation and give it to someone else, with not a penny of compensation to the original owner. In two cases, Ontario and Nova Scotia did just that, and the Ontario Court of Appeal ruled: “The prohibition ‘Thou shalt not steal’ has no legal force upon the sovereign body. And there would be no necessity for compensation to be given.” The Charter does not change this. The only security against it is the federal power of disallowance (exercised in the Nova Scotia case) and the fact that today very few legislatures would dare to try it, save in most extraordinary circumstances: the members who voted for it would be too much afraid of being defeated in the next election.

The Constitution Act, 1982, makes other changes and one of these looks very significant. The British North America Act, 1867 gave the national Parliament exclusive authority over “Indians, and lands reserved for the Indians,” and the courts have ruled that “Indians” includes the Inuit. Until 1982, that was all the Constitution said about Canada’s indigenous peoples. The Constitution now has three provisions on the subject.

Delivery of health services
Delivery of health services is the responsibility of provincial and territorial governments, except in the case of those groups that fall under federal jurisdiction, such as aboriginal peoples, the Canadian forces and veterans.
First, it says that the Charter’s guarantee of certain rights and freedoms “shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada,” including rights or freedoms recognized by the Royal Proclamation of 1763, and any rights or freedoms acquired by way of land claims settlement.

Second, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed,” and the aboriginal peoples are defined as including the Indian, Inuit and Métis peoples.

Third, in 1983, the amending formula was used for the first time to add to the aboriginal and treaty rights of Canada’s indigenous peoples, rights or freedoms that already existed by way of land claims agreements or that might be so acquired, and to guarantee all the rights equally to men and women. The amendment also provided that there would be no amendments to the constitutional provisions relating to Indians and Indian reserves, or the aboriginal rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms, without discussions at a conference of first ministers with representatives of Canada’s indigenous peoples. The amendment came into force on June 21, 1984.

The Constitution Act, 1982, also contains a section on equalization and regional disparities. This proclaims: (1) that the national government and Parliament and the provincial governments and legislatures “are committed to promoting equal opportunities for the well-being of Canadians, furthering economic development to reduce disparities in opportunities, and providing essential public services of reasonable quality to all Canadians”; and (2) that the government and Parliament of Canada “are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.”

The 1982 Act also provides that the guarantees for the English and French languages do not abrogate or derogate from any legal or customary right or privilege enjoyed by any other language, and that the Charter shall be interpreted “in a manner consistent with the preservation and enhancement of the multicultural heritage of Canada.”

Finally, the Act provides for English and French versions of the whole written Constitution, from the Act of 1867 to the Act of 1982, and makes both versions equally authoritative.


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