ISSN 0542-5492 Fourth Session - Thirty-First Legislature of the Legislative Assembly of Manitoba STANDING COMMITTEE ON LAW AMENDMENTS 29 Elizabeth 11 Published under the authority of The Honourable Harry E. Graham Speaker TUESDAY, 3 JUNE, 1980, 10:00 a.m. Printed by W. T.AA-ichyna, o-s Printer, Prtwirtca of Manitoba

MANITOBA LEGISLATIVE ASSEMBL V Thirty - First Legislature Members, Constituencies and Political Affiliation Name ADAM, A. R. (Pete) ANDERSON,Bob BANMAN, Hon. Robert (Bob) BARROW, Tom BLAKE, David BOSTROM, Harvey BOYCE, J. R. (Bud) BROWN, Arnold CHERNIA.CK, Q.C., Saul CORRIN, Brian COSENS, Hon. Keith A. COWAN,Jay CRAIK, Hon. Donald W. DESJARDINS, Laurent L. DOERN, Russell DOMINO, Len DOWNEY, Hon. Jim DRIEDGER, Albert EINARSON, Henry J. ENNS, Hon. Harry J. EVANS, Leonard S. FERGUSON, James R. FILMON, Gary FOX, Peter GALBRAITH, Jim GOURLAY,Hon.Doug GRAHAM, Hon. Harry E.

GREEN, Q.C., Sidney HANUSCHAK, Ben HYDE, Lloyd G. JENKINS, William JOHNSTON, Hon. J. Frank JORGENSON, Hon. Warner H. KOVNATS, Abe LYON, Hon. Sterling R. MacMASTER, Hon. Ken MALINOWSKI, Donald McBRYDE, Ronald McGILL, Hon. Edward McGREGOR, Morris McKENZIE, J. Wally MERCIER, Q.C., Hon. Gerald W. J. MILLER, Saul A. MINAKER, Hon. George ORCHARD, Hon. Donald PARASIUK, Wilson PAWLEY, Q.C., Howard PRICI;, Hon. Norma RANSOM, Hon. Brian SCHROEDER, Vie SHERMAN, Hon. L. R. (Bud) STEEN, Warren URUSKI, Billie USKIW, Samuel WALDINO, D. James WESTIURY, June WILSON, Robert G. Constituency Ste.

Rose Springfield La Verendrye Flin Flon Minnedosa Rupertsland Winnipeg Centre Rhineland St. Johns Wellington Gimli Churchill Aiel St. Boniface Elmwood St. Matthews Arthur Emerson Rock Lake Lakeside Brandon East Gladstone River Heights Kildonan Dauphin Swan River Birtle-Russell lnkster Burrows Portage la Prairie Logan Sturgeon Creek Morris Radisson Charleswood Thompson Point Douglas The Pas Brandon West Vir den Roblin Osborne Seven Oaks St. James Pembina Transcona Selkirk Assiniboia Souris-Killarney Rossmere Fort Garry Crescentwood St. George Lac du Bonnet St.

Vital Fort Rouge Wolseley Party NDP PC PC NDP PC NDP NDP PC NDP NDP PC NDP PC NDP NDP PC PC PC PC PC NDP PC PC NDP PC PC PC lnd NDP PC NDP PC PC PC PC PC NDP NDP PC PC PC PC NDP PC PC NDP NDP PC PC NDP PC PC NDP NDP NDP Lib PC

LEGISLATIVE ASSEMBLY OF MANITOBA THE STANDING COMMITTEE ON LAW AMENDMENTS Tuesday, 3 June, 1980 Time - 10:00 a.m. CHAIRMAN - Mr. J. Wally McKenzie (Roblin) MR. CHAIRMAN: I wonder if the committee will come to order. Today we will e dealing with Bill No. 2, Bill No. 3, Bill No. 14, Bill No. 18 , Bill No. 20, Bill No. 21, Bill No. 28, Bill No. 35, and Bill No. 43, and there are others as well. On my list, I have Professor A. R. Kear, Mr. George Forest, Mr. Waiter Hlady, and Mrs. Gilberte Proteau who want to speak on Bill No. 2. I have Mr. Abe Arnold who wants to speak on No. 3; Mr. b. H.

Olson wants to speak on Bill No. 14, Mr. Arnold wants to speak on Bill No. 14, Mr. Edward Upset wants to speak on Bill 14. Bill No. 18 , I have Mr. John T. W. Wiens; Bill No. 20, I have Mr . Abe Arnold; Bill No. 21, Mr . Abe Arnold; Bill No. 28, Mr. Abe Arnold, Bill No. 35, Mr. Abe Arnold; Bill No. 43, Alice Steinbart, and a Family Law Submission from the Manitoba Bar Association. Are there any other citizens here this morning that wish to make presentations to any one of these bills? Would you please come to the microphone and put your names into the record please? Your name, Sir? MR. DUNCAN: Mr.

Chairman, the name is Duncan, in connection with Bill 14,

An Act to Amend the Law Society of Manitoba. MR. CHAIRMAN: Thank you, Mr . Duncan. Any others? Then with the permission of the committee, we will proceed on Bill No. 2,

An Act Respecting the Operation of

Section 23 of The Manitoba Act in regard to the Statutes, and I call on Professor A. R. Kear. BILL NO. 2 -

AN ACT RESPECTING THE OPERATION OF

SECTION 23 OF THE MANITOBA ACT IN REGARD TO STATUTES MR. A. R. KEAR: Good morning, Mr. Chairman, and members of the committee. I could just as easily present my remarks en fran9ais si vous voulez but I would think this would be more . . A MEMBER: Oui, s'il vous plait. MR. KEAR: . . . certainement. 11 est dans notre pays deux langues officielles depuis 18 48. Since 18 48, there has been two languages in Canada that had been recognized by government, by the Legislat ur e of the Parliament of Canada and additionally by the British Parliament.

This Legislation in 18 48 revoked British legislation in 1840 abolishing the use of the French language in the province of Cana da . When Ma nitoba entered Confederation in 1870, there was

section 23, which I'm sure you are familiar with, which sets forth, in 1 almost parallel language, the terms set forth in

Section 133 of The British North America Act. The import of

Section 23 of The Manitoba Act was to place the two languages, English and French, on exactly the same footing as in the parliament of Canada and as in the Legislature of the province of Quebe c. That is to say that membe rs of the Legislature of Manitoba, the Parliament of Canada, and the Legislature of Quebec, could use either English or French in debates, the records and written proceedings of these three Legislatures were to be pu blished in both English and French, and both languages could be used in the Canadian courts, in the Quebec courts, and in the Manitoba courts.

Now, to emphasize the constitutional nature of the two languages in Canada, The Manitoba Act of 1870 was specifically ratified and confirmed as being constitutional by the British Parliament in 18 71. In other words, the British Parliament enacted The British North America Act in 18 67, making both langua ges legal, consti tutiona l and equ al; the legislation creating the province of Ma nitoba, adopted by the Parliament of Canada in 18 70, did exactly the same thing, and in 18 71, the British Parliament ratified the quality of the two languages in the province of Manitoba.

Now, the question that we really have to ask ourselves is, what kind of society do we want in Canada? And I'm speaking not only of the province of Manitoba, I'm speaking of Canada at large. We could have a Constitution, or we could operate illegally, as Manitoba has operated illegally since 1890. And thanks to the Supreme Court of Canada the two languages are once again constitutional, not only in the province of Quebec, but also in the province of Manitoba. So to make it clear, we have two languages constitutionall y guar anteed in Canada .

Three governments are constitutionally biling ual , the government of Canada, the government of Quebec, both by

Section 13 3 of The British North America Act, and the government of Manitoba by

Section 23 of The Manitoba Act. From the viewpoint of practical politics, we have to ask a larger question, and we have to move beyond the law, the written law, and that is why I'd like to ask you these questions. How should a permanent, linguistic majority treat a permanent lingui stic minority? Let me repeat the question, because it's not an easy question, and the answers are not easy either. Ho w should a permanent, lingui stic majority treat a permanent linguistic minority?

One of the democratic rules of the game is that the majority rules, the minority has rights, and until the next election the majority party remains in office, with the minority party having the opportunity of forming the government at the next election. This rule is well known to all of you here, and I don't need to elaborate. This is the way in which the legislature of the province of Manitoba operates, and every other legislature in Canada. But when we come to langua ges we're in a different situation. A language minority can never

Tuesday, 3 June, 1980 become a language majority. The English language minority of Quebec, for example, has progressively become smaller rather than larger. The English language minority of Quebec, therefore, can never become the majority language and therefore impose its kind of legislation on the province of Quebec. Well, in Ma nitoba, when Ma nitoba entered Confederation in 18 70, the two languages groups were just about equal in terms of numbers, and later the balance went in the direction of t he English language majority. And you know what happened in 18 90, and that doesn't need any repeating.

So the question then is, how should a permanent ling uistic majority treat a permanent ling uistic minority? And I would say this is the central and key issue in Canadian politics today. Now, there are several ways in which legislation and parliaments can react. One way is what I have described on another occasion as black letter law, and black letter law means that a lawyer is given instructions to draw up the piece of legislation and he drafts the legislation to confirm precisely, in precise legal terms, to the requirements of the law, and then he does not draft the legislation with any other than precision.

Or, the other way in which legislation can be drafted with respect to languages, is in a broad spirit of trying to promote a society in which the linguistic majority and the linguistic minority can live in peace. And the way this can be done is to look at the kind of legislation that has been adopted by the parliam ent of Canada in 19 69, in The Official Languages Act; by the legislation that has been adopted in the province of New Brunswick, similar to The Official Languages Act adopted by Parliament in Ottawa. Now, what would be the consequences of legislation adopted in the way I am suggesting?

The consequences would be that in terms of Manitoba's law, Franco -M anitobans, or French speaking Manitobans, would be made equal to Engli sh speaking Manitobans. More precisely, they would become ful l-time citizens like Eng lish speaking Manitobans, because French speaking citizens of Ma nitoba have always paid taxes, like Eng lish speaking Manitobans, and since they have always paid taxes and since they are equally citizens, they should also get governmental services in their own language. And this is especiall y true since the Supreme Court decision on December 13 , 1979.

Well, instead of listening to me, I think you might like to listen to a gentleman that's a little better kno wn to you , and I would refer to John A. MacDonald. John A. MacDonald spoke these words in 18 65, during the Confederation debates. Now, to put this in context, the Confederation debates of 18 65 took place after the Quebec conference of 18 64. The Quebec conference of 18 64 set forth the general principles and the practical institutions by which we now govern ourselves. These principles have not changed; these institutions have not changed.

And the Quebec resolutions were debated at length in the Legislature of the province of Canada in 1865. And this is what John A. MacDonald said on that occasion: I have very gr eat ple asure in answering the question put to me by my honourable friend from the county of Quebec. I may state that the meaning of one of the two resolutions adopted by the Quebec Conference is this, that the rights of 2 the French Canadian members as to the status of their language in the federal Legislature, shall be precisely the same as they are now in the present Legislature of the province of Canada in every possible respect.

I have still further pleasure in stating that the moment thi s was mentioned in the Queb ec Conference, the members of the deputation from the lower provinces, meaning the Maritime provinces, the members of the deputation from the lower provinces unanimously stated that it was right and just and without one dissention voice, gave there adhesion to the reasonableness of the proposition that the status of the French language as regards the procedure in Parliament, the printing of measures, and everything of that kind, should be precisely as it is in this Legislature of the province of Canada.

And at this point, the honourable members of the province of Canada's Legislature responded, hear, hear. Later, Macdonald said this: I desire to say that I agree with my honourable friend, that as it stands now, the majority governs. And here is where we want to get at the question of the majority and the minority. I desire to say that I agree with my honorable friend, that as it stands just now, the majority governs, but in order to cure this, it was agreed at the Quebec Conference to embody this provision in The British North American Imperial Act. Again, hear, hear.

This was pro posed by the Canadian governm ent for fear an accident might arise subs equ ently and it was assented to by the deputation from each province that the use of the French language would form one of the principles upon which the Confederation should be established and that its use as at present should be guaranteed by The Imperial British North America Act, 18 67. These are the words of John A. Macdonald. What about the leader of the French-speaking Canadians during the same debate? And I am referring now to George Etienne Cartier. And what did he say?

Now when we were uni ted together, if union were attained, we would form a political nationality with which neither the national origin nor the religion of any individual would interfere. lt was lamented by some that we had this diversity of races and hopes were expressed that this distinctive feature would cease. The idea of unity of races was utopian. lt was impossible. He's using race in the same sense that we use the language group. Distinctions of this kind would always exist. Dissimilarity, in fact, appeared to be the order of the physical world and of the moral world as well as in the political world.

But with regard to the objection based on this fact, to the fact that a great nation could not be formed because lower Canada was in great part French and Catholic and Upper Canada was British and Protestant, and the lower Protestants were mixed, it was futile and worthless in extreme. Look, for instance, at the United Kingdom, inhabi ted as it were by three great races. He's referring to the English, the Scots, the Welsh, and the Irish.

Had the diversity of races impeded the glory, the progress, the wealth, of England, of the glories of the Senate, the field and the ocean, of the successes of trade and commerce, how much was contributed by the combined talents, energy and courage of the three races together. In our own federation we should have Catholic and Protestant,

Tuesday, 3 June, 1980 English, French, Irish and Scotch, and each by his efforts and his success would increase the prosperity and glory of the new confederacy. He viewed the diversity of races in British North America in this way. We were of different races, not for the purpose of warring against each other, but in order to compete and emulate for the general welfare. We could not do away with the distinctions of race. We could not legislate for the disappearance of the French Canadians from American soil.

The British and French Canadians alike could appreciate and understand their position relative to each other. They were placed, like great families, beside each other, and their contact provide d a health y spirit of emulation. lt was a benefit rather than otherwise that we had a diversity of races. Of course, the difficulty would, he said, would be to deal fairly by the minority. And it's curious when you hear these words, that Cartier and Ma cdonald equally addressed themselves to the question of majority language and minority language rights.

Well, after 1867, there was a series of decisions taken in the Parliament of Canada and all of these were unanim ous, that both Englis h and French languages would be placed on an equal basis in the government and Parliament of Canada and in the functioning of the Parliament of Canada. When Louis Riel organ ized the provisional government in 1869 there was a convention elected by the English and French speaking parishes in the Red River Valley. The result of this convention was the Manitoba Bill of Rights. Under

Article 16 of Manitoba's Bill of Rights adopted in 18 69,

Article 16 provided that both languages would be used in the Legislature and in the courts of Manitoba.

Article 16 became

Section 23 of The Manitoba Act in 18 70. What happened on December 13 th, 19 79? The Supreme Court of Canada announced its decision on two pieces of legislation. lt announc ed its decision on Quebec's Charter of the French language and it also pronounced on The English Language Act adopted by the Manitoba Legislature in 18 90. The Supreme Court of Canada, by unanimous decision, set aside the 1890 Manitoba Act and set aside those parts of the Charter of the French language that infringed on the English language minority rights in the province of Quebec.

So what the Supreme Court of Canada did by unanimous decision was say that in Quebec, as in Ma nitoba, the two langua ges are equal, cons titutional can be used in the courts and Legislature. I would submit to you, gentlemen, that perhaps the most important question facing Canada today is the matter of languages in Canada. And I say this as a person who has lived and studied in the province of Quebec. I say this as a person who has lived and studied at the University of Lavalle in Quebec City and I say this as a person teaching at the University of Manitoba.

Languages are the key to social peace and quiet in this country and I think that this Legislature of the province of Ma ni toba has now the historic opportunity of doing something in a positive way, and I would suggest adopting what I would regard as appropria te kind of legislation. Two things are therefore important. First of all, that we follow the Canadian Constitution, and secondly, by doing so, we can best promote go od relations between 3 Englis h-speaking Canadians and French-speaking Canadians.

What is needed in Manitoba, I believe, is legislation, not the kind of legislation that you have in front of you, but legislation similar to The Official Languages Act adopted by Parliament in 19 69, similar legislation adopted by New Brunswick, and if you adopt the legislation that I am suggesting, there would be these advantages. First of all, both languages would be placed on an equal footing in the province of Manitoba. And if you want a model for this, look at The Official Languages Act that Parliament adopted in 1969.

Secondly, this would begin the transformation of the Public Service in Manitoba where necessary. And I say, where necessary, because not even Francophones want everybody in Manitoba to speak French. That is of course, unrealistic. I can't speak for Francophones, I'm an Anglophone myself, but I can function in both langua ges. But I think the important thing is to get at the provincial Public Service. Thirdl y, this would appl y also to Crown corporations. In other words, the Crown corporations would provide services in French to French-speaking citizens of Manitoba.

Fourthly, what is needed is an official languages commissioner. The present piece of legislation you have in front of you does not provide for an official langua ges commissioner and the purp ose of an official languages commissioner are set out in The Canadian Act of 1969, and the purpose of this would be that the official languages commissioner would become an officer of the Legislature, same as your Auditor General, and the official langua ges commissioner would be responsible for implementing the legislation.

The function and role of the official languages commissioner and the legislation would be to protect the language rights of the minority. Fifthly, what could be done is to establish an advisory com mit tee on langua ges. An advisory committee of languages that would assist a Minister of the government to implement the right policies in the Public Service. And, sixth, the worst thing you could do is simply to adopt a present piece of legislation, include an item in the budget and say that's the end of it. The difficulty with a budgetary item is that it's at the whim of the government.

A budgetary item can either be too easily reduced or abolished according to the whim of public opinion. I would suggest then, gentlemen, that what you really want to do to promote social peace in Canada and perhaps provide a model to other provinces, is to adopt the kind of legislation that Parliament adopted in Ottawa in 1969 and the province of New Brunswick adopted the same year. I would be willing to answer any questions. MR. CHAIRMAN: Thank you, Professor. Any questions for Professor Kear? We thank you very much for your presentation, sir. Thank you. I call Mr. Georges Forest.

By the way, before we proceed, are there any citizens here from outside the Winnipeg area who would like to make a presentation today? None. Proceed, Mr. Forest.

Tuesday, 3 June, 1980 MR. GEORGES FOREST: Mr. Chairman, I was just won de ring whether you were, in order for the members here present to better follow my discourse, distribute the copies or is it a matter of distributing later? MR. CHAIRMAN: The Clerk will look after that. MR. FOREST: Amongst these, I also have brought from Quebec, one of these little stickers for every member of the committee. I would like to draw your attention in referring to this, and I will come to it later.

Because of the time schedule, I only finished printing or mimeographing or photocopying these copies early this morning, after midn ight, and I collated them at 6:00 o'clock. The copies are still fresh; don't rub them too much. My photocopier isn't of the best quality. And that's it. There are also a few errors as you can imagine with my own personal lack of constant use of French in Manitoba, my French education having only started at Grade 7, I still make some errors. I made a monumental error in Quebec during the de bate on the referen dum que stion speaking in the constituency of Laprairie.

The main speaker was Michel Gratton, representing one of the constituencies near Ottawa in the Quebec National Assembly. In talking about our seven children I made the mistake of saying nos sept zenfants instead of nos sept enfants. Mr. Gr atton unde rstood sept zenfants as being sixteen children, therefore when he took the stand he said, ladies and gentleman, Mr. Forest comes to us with two distinct messages from Manitoba. One is that we can amend the constitution without destroying it, and sec ond ly, he has a message for you mesdame s.

With his sixteen children, he wants this to be the last time you say Non, merci. Monsieur le president, mesdames et messieurs les deputes. Ce n'est pas la premiere fois que je me presente devant un comite parlementaire comme le v6tre pour ajouter au debat sur un projet de loi. Je suis venu en 1960 avec une delegation de plus de 800 citoyens de la ville de Saint-Boniface d'alors, pour dire notre inquietude face a la formation d'un nouveau palier de gouvernment dit Gouvernement metropolitai n.

On voyait da ns cette forme d'in gerence un pas certain vers !'a malgamation et avec cela un certain danger pour la survivance de la communaute historique de Saint-Boniface. Puis, je suis venu encore en 19 71, cette fois pour continuer ma lutte a rebours, en protestant devant la machine bur eaucrat ique qui ineluctablement enfirouapait les politiciens municipaux dans son rouage. Et puis comme nous le constatons tous, d'un coup de plume, la belle ville de Saint-Boniface n'est plus.

Elle fut alors rempla cee pas un format communautaire de citoyens sans une administration propre a eux et sans contr61e sur leur avenir. C' est du rant les annees 50 que le maire de Winnipeg d'alors Stephen Juba disait: Donnez moi le contr61e de Saint-Boniface et j'en ferai un Petit Paris. That translated in English: Give me control of St. Bon iface and I will make of it a Little Paris. Ce Steve Juba a joue un role de premier plan dans le mouvement de centralisation. 11 est celui qui m'a le plus pousse a poser des gestes contre les forces de centralisatiipn et d'assimilation. 4 Ma lutte a reussi.

Le franc;:ais est redevenu une langue officielle au Manitoba. Je demeure toujours ferme da ns ma conviction que seul un statut particulier peut assurer a notre communaute de Saint-Boniface sa survivance comme entite vivante et progressive. 11 taut eviter que l'on fasse du district de Saint-Boniface un lieu de culture commercialise qui serait voue a devenir le qu artier franc;:ais de Winnipeg. D'ici a ce que le franc;:ais soit restaure comph'ltement dans la province, ce statut particulier est de prime importance. Monsieur le president, je suis dans l'em barras.

Je veux parler la langue de ma mere, un droit legitime que j'ai dans ces lieux. Mais si je continue, je sais que je ne parle qu'a quelques personnes et aux murs qui comme certains n'ont pas d'oreilles pour ecouter. Alors, pour ne pas perdre votre temps et le mien, je capitule devant l' int ransigeance de mon gouvernement et je parlerai ma deuxieme langue. Je n'a i pas d'o bjection a parler l' anglais, ma deuxieme langue officielle. Ce fut la langue de presque toute mon educa tion. C'e st dans cette langue que j'ai appris le terme British fair play.

C'est par mo n educ ation et en coudo yant mes compatriotes de langue anglaise que j'ai developpe le caractere de perseverence. C'est en anglais que j'ai connu et surtout depuis les quatre dernieres annees, meme si c'e st de fac;:on superficielle, le systeme juridique du droit commun. J'ai aussi confiance qu'il est necessaire dans la communication, d'avoir l' anglais et le franc;:ais pour celui qui ne veut pas se borner a un territoire limite. 11 ne taut pas avoir un handicap personnel, comme celui qui se borne a ne vouloir parler que l' anglais ou que le franc;:ais au Canada.

On est handicape dans nos communic ations comme citoyens canadiens si l'on ne parle pas les deux langues officielles de notre province et de notre pays. Je m' excuse devant ceux et celles qui comme vous, Monsieur Desjardins, seraient en mesure de tirer profit de mes remarques en franc;:ais. Toutefois, meme si la majeure

partie de ma presentation se fera en anglais, la langue commune du Manitoba, je reviendrai de temps a autre afin de me prevaloir de mon droit et de respecter le principe meme qui fut etabli en 18 70 par la

section 23 de I' Acte du Ma nitoba que voici: "L'us age de la langue franc;:aise ou de la langue anglaise sera facultatif dans les debats des chambres de la Legislature; mais dans la redaction des archives, des proces­ verbaux et journaux respectifs de ces chamb res; I' usage de ces deux langues sera obligatoire." Mr. Chairman, Mr . McKenzie, I note from the records of the Manitoba Legislature that you were the last one to speak on Second Reading of Bill No. 2. Like the 10 other speakers before you, you evidently did your best to show support for the proposed legislation.

I shall come back to that later in my presentation. In 19 61, in this very Legislature, I appeared before the Law Amend ments Comm itte e leading a delegation of more than 800 citizens of St. Boniface. We were protesting at the time the advent of metropolitan government which we saw as a prelude to total amalgamation. In 197 1, I, again, appeared here before the Law Amendments Committee to express opposition to the City of Winnipeg Act

Tuesday, 3 June, 1980 creating Unicity, the amalgamation of all 13 cities and municipalities. On today's occasion, I appear before you to add my remarks to the debate on the proposed Bill No. 2 which stems from a traffic ticket issued in English only in violation of the City of Winnipeg Act of 19 71,

Section 80, Subsection 3, which reads as follows: All notices, bills or statements sent or demands made to any of the res idents of St. Bon iface community in connection with the delivery of any service or the payment of a tax shall be written in English and in French. On my two previous visits here, I was crusading for the preservation of one of Canada's two great cultures. I often wondered, what has happened to the rights secured by Louis Riel in his provisional gov ernment 's lis t of righ ts entrenched in the Manitoba Act.

We have now gotten an answer to that question and my presence today is to speak on the urgent need to restore those rights, shamefully violated in 18 90. I am embarrassed as a Manitoba citizen in these, the great halls of government, though I have a consti tutiona l right to speak French in this Legislature, my use of that language is officially considered as being a privilege, perhaps, just a courtesy. By re-reading the text of

Section 23 of the Manitoba Act, 1870, you will note that the French language is an entrenched constitutional right and not a privilege. Here is the text of

Section 23. Either the English or the French language may be used by any persons in the debates of the Houses of the Legislature and both those languages shall be used in the respective records and journals of those Houses. To exercise my right to speak French in this Leg isla tur e without the benefit of simulta neous translation is like being given the privilege of house arrest, of being shackled in the exercise of one's constitutional rights. Freedom of speech is a fundamental right.

Tied to my constitutional right, my freedom of speech is impaired when it is evident that most people within hearing di stance cannot understand what I am saying in French for lack of simultaneous translation. I make no mistake, Mr. Chairman, when I state that the Legislative Act of 18 90 was an ignominous Act. The recent Supreme Court decision declared that law to be unconstitutional, null and void. To follow through on the December 13 , 1979, Supreme Court decision, Manitoba must restore the full effect of

Section 23 which I have read to you earlier. Further, I believe that it is the responsibility of all members of the Legislature, not just the members of the government in power, to see that the law of the land is respected and upheld. The court case which resulted in the Supreme Court decision was a case against an unjust law of the last century. I pointed this out to our Premier in a letter of last January 4th.

I spoke to the Honourable Sterling Lyon in these terms: I have always firmly belie ved and I still firmly believe that my court case was not against my government but rather against a law which, as it is now ruled, was illegally passed in the last century by the government of that day. I have been apolitical since 19 68 when a Canadian statesman, well known to everyone, spoke of A Just Society. I felt that I could make a contribution 5 outside of political ranks towards obtaining justice in our society.

I have enjoyed that public stance because I am certain that it has made the difficult venture that I have been on during the past four years, much less horrendous. I wrote to Premier Edward Schreyer on March 27, 19 77, as a concerned citizen. I said this in my letter. (See Appendix 2) "La justice au Manitoba doit etre retablie avant qu'il y ait discussion sur une nouvelle constitution." I must regrettably say that I got no response to my letter, not even an acknowledgement. What I was saying to Mr. Sch reyer was: Justice must be restored in Manitoba before there is discussion on a new Canadian Constitution.

Chief Justice Fre edman's historic ruling in the Manitoba Court of Appeal April 25, 19 79, which was confirmed or upheld by the Supreme Court on December 13 th, was an answer to a long litany of prayers and just in time. Where would Manitoba be in the constitutional debate if the 18 90 law had not gone unchallenged? Constitutional language justice has been restored by the Supreme Court. However, there is a situation bordering on contempt by the legal advisors of the government of Manitoba. In a recent pub lication of the Manitob a Law Journal, Volume 10, No. 3, in an

article entitled, Validity of Manitoba laws after Forest; What is to be Done, Professor Joseph Eliot Magnet, Member of the Faculty of Law, University of Ottawa, wrote on Page 25 1. (see Appendix 3) In any ev ent, it strains credulity to pretend that

Section 23 of the Manitoba Act is merely procedural. The

section originated in the negotiations and compromise between Canada's two great peoples. lt was meant to protect both of them. Certainly it was meant to protect Franco­ Ma nitobans.

Section 23 is not a matter of constitutional procedu re; it is a matter of constitutional right. lt is strange to think deliberate violation of that right is immune from judicial review. Lorsque le Manitoba est entre en confederation en 18 70, son territoir e compr enait un plus haut pourcentage de parlant francais que de parlant anglais. Dans leur livre His tory of Ma nitoba, Messieurs D. Gunn et C. Tuttle en page 467 parlent du recensement demands le 16 juill et 18 70, le lendemain de l' union.

La population du Manitoba comprenait 11 ,963 habitants, comme suit: Blancs 1, 565, Ind igenes 558, Metis francais 5, 15 7, Anglais 4,083. Voici le scenario tel que decrit par l'h istorien G.F.G. Stanley dans sa conference a la Societe historique de Saint-Boniface le 17 janvier 19 70. A cette epoque, dit-il, la conference etait devenue fait accompli au Canada et on essayait d'amener la Riviere-Rouge et les Territoires du Nord-Ouest au sein de l'un ion federale. Le mouv ement expansionniste vers l' ouest etait inspire par !'O ntario et recevait un plus grand appui dans cette province qu'a u Quebec.

C'e taient les Ontariens qui se dirigeaient vers la Riviere-Rouge afin de pousser a l'a nnexion canadienne. Les consequences en sont bien connues. Le caractere agressif de la minorite canadienne, ses sentiments de superiorite de la popu latio n locale, le manque de discretion des arpenteurs envoyes a la Riviere-Rouge par le Canada, l' apathie des dirigeants de la Compagnie de la Baie d'H udson; la reunion de tous ces elements

Tuesday, 3 June, 1980 avait produit un sentiment general de malaise a la colonie. Louis ·Riel n'etait pas responsable de ce malaise, mais il en faisait partie. 11 partageait les sympathies et les apprehensions, les angoisses et les aspirations de son peuple. Son education, son eloquence, tant en franc;:ais qu'e n anglais, son dynamisme, la tradition laissee par son pare - l'homme qui avait mene la population locale dans son opposition au contr ole du commerce de la fourrure par la Compagnie de la Baie d'H udson - tout le designait comme chef en depit de sa jeu nesse.

Presque inevitablement, il devint le porte-parole de tous les inarticules de la Riviere-Rouge. Comme John Brown, il avait entendu l'appel. Assiste par l'abbe J.N. Ritchot, cure de Saint­ Norbert, Riel organisa les Metis franc;:ais, interdit l' entree dans la colonie du Lieutenant-Gouverneur designe par le gouvernment federal, l' honorable William McDougall. 11 se saisit du Fort Garry, le principal poste fortifie de la colonie; il convoqua une assemblee des habitants et s'occupa a realiser l'uni te de pensee entre les colons franc;:ais et anglais. En ceci il echoua.

Toutefois, il se rendit maitre de la colonie Riviere-Rouge, defit une tentative canadienne de saisir le pouv oir, etablit un gou vernment provisoire et s'assura l'appui du journal local. Louis Riel accomplit tout cela en moins de trois mois, alors qu'il n'avait que vingt-cinq ans. 11 avait montre un ensemble d'energie entreprenante, d'a stuce et de sincerite qui est souvent la marque de la grandeur. La li ste des droits compr enait la claus e qui garantissait le systeme scolaire confesionnel. Dans l'acte du Manitoba cette clause fut interpretee par la

section 22. Cette

section fut violee avec la

section 23 en 18 90. C'est la

section 23 qui nous preoccupe aujourd'hui. Aga in, qu oting from a recent Ma nitoba Law Journal, Volume 10, by Joseph Eliot Magnet, he said, When Manitoba joined Confederation in 18 70, her territor y contained more French than Engl ish­ speak ing sett lers. The French Me tis and the Confederation negotiations had a principal concern - the survival, post-confedera tion, of their commun ity. As everyone was aware, union with Canada implied massive immigration into Manitoba, principally from Ontario, that raised the spectre of assimilation.

Sir Francis Hincks made this point expressly in the Canadian Parliament while debating the Manitoba bill: lt was perfectly clear, said he, that when the difficulties were settled and the Queen's authority established, that a vast emigration would be pouring into the country (Ma nitoba), from the four provinces, but principally, there was no doubt, from Ontario, and the original inhabitants would thus be placed in a hopeless minority . . . In March 1870, the Riel provisional government sent three dele gates to Ottawa to negotiate association between the Red River settlement and Canada.

The delegates carried with them a Bill of Rights, forming the major part of their mandate. That Bill of Rights contained provisions designed to ensure the survival of Frenc h. Note this one: Clause 17 provided that the Lieutenant-Governor be familiar with both English and French. Clause 18 provided that the judges of the Supreme Court speak both English and French.

Clause 16 dealt expressly with the language of government, and it's 6 read as follows: That both the English and French languages be common in the Legislature and in the courts, and that all public documents, as well as the Acts of the Legislature, be publis hed in both languages. Cla use 16 was regarded as a fund amenta l constitutional guarantee for Franco- Manitobans. lt assured them full participation in the machinery of government without the necessity of assimilation. Clause 16 , without substantive modification, became

Section 23 of The Manitoba Act, by which Act the Red River Settlement joined Confederation.

Section 23 provides, and we've already read that. Rev. Norbert Ritchot, one of the three Red River delegates to the Ottawa negotiations, remarked on

Section 23 in his journal: 23. This clause is in conformity with

Article 16 or our instructions ... . The Manitoba Act was retroactively confirmed by the Imperial Parliament in 18 71. lt therefore forms part of fundamental Canadian constitutional law, beyond the powers of the Manitoba Legislature or the Federal Parliament to abridge. Imm igration from Ontario proceeded rapidly, as expected, after Manitoba joined the union. Franco­ Manito bans qui ckly became a min ority. Engl ish settlements, however, was territorially separate from French . The two cultures were concentrated in different districts.

Territorial separation prevented assimilation and preserved the cultural duality of the province. In this condition French flourished. Provincial legislation encouraged it. Provision was made for bilingual mu nicipal not ices. Si milar leg islation stipu lated for bilingua l proclamations, electoral forms, and voters notices. Mixed juries in criminal trials were an affirmed right. In some districts, mixed juries were allowed by legislation in civil cases. There were certain difficulties, however. In 18 74, Mr. W. F.

Luxton, who was committed to abolishing separate schools, was elected to the Ma nitoba Legislature. Resolutions so provided were introduced in the Ass em bly. Some modif ica tion to the educational system was made in 18 76. In 18 79, an attempt was made to limit the official use of French. Despite these disturbances, the French community remained secure, without public criticism from the Engl ish and without public complaint from the French. This relatively easy state of affairs came to an abrupt end in 18 85, with the supression of the Metis rebellion and the hanging of Louis Riel.

Racial and religious feelings became supercharged. Intensity of feeling reached a peak when the Mercier government in Quebec passed The Jesuits Estate Act of 1888. That Act dealt with compensation moneys payable to the Jesuit Order for the loss of their Quebec estates. The Act provided that the Pope should allocate the money in respect of certain disputed claims. While the affair inflamed feelings in Ontario and Quebec, Dalton McCarthy, a Conservative MP, carried it to Manitoba.

The issue, he said, gave the politicians something to live for; we have the power to save this country from fratricidal strife, the power to make this a British country, in fact as well as in name. McCarthy stirred up sufficient animosity as to make Ma ni toba res pond . In 18 90, provincia l legislation abolished the then prevailing system of dual sectarian schools. The system was replaced by

Tuesday, 3 June, 1980 a single system of non-sectarian schools paid for by public funds. All Manitobans had to contribute to that supporting tax base. Sectarian separate schools, French Catholic schools, lost all provincial financial support. At the same time, Manitoba unilaterally cut down the constitutional guarantee in

Section 23 of The Ma nitoba Act, by providing The Official Language Act, which we all know about. At any rate, it's now defunct. The Schools Act was challenged immediately. In city of Winnipeg versus Barrett. the Acts were held constitutionally valid. In Brophy versus the Attorney­ General of Manitoba, the Privy Council explained that while intra vires, the Act did not affect rights of the Roman Catholic minority in such sense as to entitle them to apply to the Governor General in Council, to make remedial laws under provision of

Section 22 of The Manitoba Act. Application to the Governor General in Council was made. The Dominion government asked the Ma nitoba government to restore Catholic educational rights. Manitoba refused. Dominion remedial legislation was prepared. Before it could be passed, the Bowell government was defeated. Laurier came to power in 18 96. In 18 97, his government reached a compr om ise with the Gr eenway govern ment in manitoba on the school question.

Because the cont roversy centered on The Education Act, and because a comprom ise ultimately was reached, no attack was made against The Official Language Act until 1909. In that year. the St. Boniface County Court ruled The Language Act unconstitutional. The judgement was ignored. lt was not even reported. I have added this note in Mr. Magnet's report: There was another case, Mr. Chairman, which was only brought to light in May of 1979. The case was heard in 18 92. In 1892, Judge Prudhomme ruled the 1890 Act unconstitutional in a ruling rendered in the Cou nty Cour t of LaVerend rye in Sain te-An ne, Manitoba.

The case was entitled, Pelland vs. Hebert. In early May of 1979, a certain Guy Babineau, researching on bilingua lism in Canada, sent me photocopies of material found in the library of the Que bec Legislatur e. These consis ted of: Le Manitoba of 9th of March 18 92; L'Evenement of 15 th of March 18 92; L'Eiecteur of the 16th of March 18 92. The Prudhomme Judgement of February or early March 18 92, as reported in full in Le Manitoba, reads like his later judgement on the Bertrand vs. Dureault case heard in St. Boniface.

Both of these rulings were unkno wn to Judge Armand Dureault in 1976 when he gave his historical decision. In 1976 - I'm going back to Mr. Magnet - in 1976, the same St. Boniface County Court again ruled The Langua ge Act un constitutional. That judgement also was ignored. The Attorney-General of Manitoba stated, The Crown does not accept the ruling of the cour t with respect to the constitutionality of The Official Languages Act. Mr. Justice Monnin of the Manitoba Court of Appeal thought that was arrogant. He said, A more arrogant abuse of authority I have yet to encounter.

Now the Supreme Court of Canada unanimously have ruled The Language Act constitutionally defected. The three incidents, 18 92, 19 09, 19 76 are blatant examples of near criminal action on the part of the Manitoba authorities of those dates. Standing out as 7 a beacon of justice in Canadian history is the Quebec experience of protecting, even spoiling its English speaking mi nor ity. If the Canadian experience which started in 1867 by The B.N.A.

Act and continued in 18 70 by The Manitoba Act had been allo wed to go on uni mpeded as was unfortunately the case of 18 90, it is safe to believe that the Saskatchewan and Al berta provinces entering Confederation as they did in 1905, would have done so within entrenched school and language rights as was the case for Manitoba. Even now, there is substantial argument in favour of the recognition by the two latter named provinces to make French an official language.

Let me draw to your attention as a sound argument, the federal government's amendment to The Northw est Territory Act in 18 77 gi ving the same constitutional gu arantees to the French langua ge in tho se territories, which included the Yukon and the areas now constituting Saskatchewan and Alberta.

Nothing has been done since then to repeal that law. lt is with this broad knowledge of our Canadian history that I have long ago set my aim on a distant ob jective where prin cipally th rough education, Canadian citizens from coast to coast will not only speak Canada's official languages but will preferably speak a third, a fourth or a fifth. I am presently on a self-imposed period of reflection. Also, I have to attend to busine ss which has suffered because of my government's legislated injustice.

I hope to finalize plans for a final assault on the difficult escarpment on top of which I am certain to find in generations to come, the Canadian identity which has eluded us in the past. There is an element of justice in my vision inasmuch as we can hope to improv e relations between people by promoting better commun ications. I am certain that we could have peace in our country and in the world if we could speak to a person with a man's tongue, listen with his ears, see with his eyes, feel with his heart when we speak his language.

Monsieur le president, je me reserve que quelques mots sur le sujet specifique qui est celui du projet de loi devant nous. Tout ce que j'ai de bon a dire de ce projet de ce Projet de loi no 2, c'e st qu'il est redige dans les deux langues officielles du Manitoba comme il se doit de l'etre. Mais a quoi bon un projet de loi bilingue lors qu'i l n' est pas pratique voir meme logique de parler franc;:ais au palais legislatif du Manitoba?

Le depute de langue franc;:aise qui voudrait se prevaloir de son droit de parler franc;:ais l'en est empeche par l'o bstination du gouvernment qui lui refuse de comprendre le vrai sens de !'article 23. Mr. Chairman, I must regretfully say that Bill No. 2 has only one good point and that is, of it being drafted in Manitoba's two official languages. When I first saw the bill and its contents, I asked myself this question: Why should it be necessary to pass a law in order to apply a previous one? The only answer I can find is, One acts this way when one desires to limit the effect of the said previous law.

Ladies and gentlemen of this commit tee and through you of rhe Legislature of Manitoba, I would like you to feel the sense of responsibility that is now yours to avoid the pitfalls of 18 90. Yes, I am prepared to predict that the passage of Bill 2 as it is

Tuesday, 3 June, 1980 now worded, limiting as it does by

interpretation where there is conflict, the official status of one language or another, may render the bill subject to judicial review and possibly have it suffer the same lot as did the iniquitous law of 1890. You should find no comfort in Bill 82, passed in the Quebec National Assembly last December, stating that the French text would be the only official text when there is conflict. Either the languages are equal or they are not. There is no way that one can interpret one language to be more equal than the other. Mr.

Chairman, allow me once more to return to the legal opinion published in the Manitoba Law Journal under the authorship of Joseph Eliot Magnet. At page 255, the learned man had this to say: How far ought the Supreme Court of Canad a go in Manitoba's case? The answer depends on several factors: The nature of the rights denied; the weighing of public and private interests; the posture assumed by the Manitoba government.

Some would add another consideration: That the Supr eme Court of Canada is not constitutionally entrenched, as is the Supreme Court of the United States, but owes its existence rather to an ordina ry federal statute of 1875. lt is said accordingly that the court has less justification to assume an activist stance. In my view, that argument rings hollow. We are dealing with nothing less than legislative subversion of the constitution. If the fear be that the Legislature will subv ert the cour t for trying to protect the constitution, that is a risk I would be prepared to assume.

In any event, there is no need for a court to possess a constitutional review jurisdiction if it is unable or unwilling to carry out that function. The nature of the right Manitoba has denied is very specific.

Section 23 provided for the mandatory use of French in legislative records and journals, and publi shing of legislative Acts. Manitoba proscribed this.

Section 23 also provides for the permissive use of French in court proceedings. Manitoba proscribed this too. What prejudice has been caused by Manitoba's ninety-year denial of these rights? lt seems to me that there are three forms of prejudice suffered. First, Franco-Manitobans have suffered certain social disabilities. They have been kept out of the legal profession. They can not plead in the courts in French. They can not file documents in French. They can not have access to Manitob a legislation in French. This is the stock in trade of the lawyer; his mouth, his pen, his statutes.

If Franco-Manitobans were to have full participation in the legal profession, they had to assimilate. They still do. Secondly, Franco -M anitobans have suffered certain legal disabilities. They were guaranteed a bilingual court system. They did not get it. Criminally accused were tr ied in Englis h . Civil trials were conduc ted in English. This will continue. Third, Franco-Manitobans have suffered certain political disabilities. Records of debates were available only in English. So was legislation. Full participation in the political process required a certain facility in English or assimilation.

But this will change, at least in part. Now he was writing at this time early in January, I presume. The Manitoba Attorney-General's Department has said that it is go ing to tr ansla te cu rrent provincial statutes, private Acts, municipal Acts and legislative 8 records and journals. Counsel for the Legislature say the process will take years to complete. What interests are involved, said Mr. Magnet. 1 think it is clear that Manitoba's 60,000 French­ speaking inhabitants have an important interest in having these disabilities removed. In certain ways, their status has been attacked.

Secondly, in a country predicated on cultural and linguistic duality, such as Canada, there is a public interest of the highest importance in protecting the constitutional gu arantees of Engli sh and French mino rities wherever found . Our common destiny together depends on this basic understanding. If temporary majorities are allowed to use their power to subvert the constitution and attempt to exterminate or disable the other group, then no one anywhere in Canada has any linguistic or cultural security.

Either we are committed to protect our basic constitutional unde rstandin gs, or we must li ve in fear of majoritarian aggression. Our country cannot survive in this latter way. Finally, there must be the sober realization that Manitoba's personal resources are very much limi ted . There are very few bilingual judges or lawyers, and no French-unilingual ones. A cadre of French-speaking judges and lawyers can not be produced overnight. The constitution can not command the impossible. What pos tur e has the Ma nitoba go vernment assumed?

Its record is not flattering. lt authored the ill egal legislation of 18 90. lt refused to obey a declaration of unconstitutionality in 18 92, 1909. lt refused to respond to a decla ration of unconstitutionality in 19 76. lt was arrogant. lt said it did not accept the ruling of the court; it abused its authority. Even now, there is no indi cation that Manitoba intends to comply with the letter or spirit of

Section 23. lt appears willing to take the easiest step only - translating of statutes, records, and journals. The Supreme Court ought to go very far indeed. Manitoba's time has run out. Procedurally, the court's jurisdiction could be engaged in various ways, said Mr. Magnet. Two examples lie close at hand. A public spirited citizen could bring a class action on behalf of all prejudiced Franc o-Mani tobans asking for certain forms of mand atory relief.

Or, in a defence based on constitutional defect, to an information under a provincial statute, such as a parking ticket or other traffic offence, the court could invite amicus curiae briefs from interested parties on the question of relief. An appropriate first step, remedially, would be for the imposition on the Manitoba Attorney-General, as a party defendant, to come forward with a plan that prom ises within realistic time limi ts to compl y prospectively with the specific req uir ements of

Section 23. That means a plan must be devised to move towards a bilingual court structure as well as a translation program. In the in terim, a court translation system could be provided. Alternatively, a travelling French-speaking circuit court or courts could be formed to conduct civil and criminal trials in French on request. Secondly, the Attorney-General should have the duty to prepare a realistic plan that will comp ensate Franco-Manitobans for the past exclusion from the legal profes sion. Third, the Attorney-General should have the duty to bring forward disabilities from the legal government action.

Tuesday, 3 June, 1980 If the Ma nitoba go vernment is di latory or ·ecalcitrant, said Mr. Magnet, the court itself on ·equest could fashion constitutional relief or the case �ould be sent back to the first instance for this >urpose. The nature of relief is a matter for pleading md proof, but certain examples come readily to nind. The establishment of a program of legal ;tudies leading to degree in Law, could be ordered �stablished in the French language. Canada has that �apacity. The University of Ottawa has such a >rogram currently in advanced startup stages. So loes McGill.

The University of Moncton shortly will Jraduate its first French-speaking common law class. 3ome students in the Ottawa French program are =ranco-Manitobans. They view Ottawa's program as heir first hope ever to enter the legal profession Nhile maintaining their cultur al and lingui stic 1eritage. If the Manitob a Legislature refuses to ippropriate funds to implement the order, said Mr. 1.1agnet, Manitoba lands could be encum bered or ;old.

Constitutional relief by imposition of affirmative luties on government chaffs against the hitherto <n own limits of Canadian constitutionalism. 1t :hallenges to the utmost the theorist of Canadian JOvernment. So be it. The alternatives are decidedly mapp ealing. Ma nitoba's statutes can not be nval ida ted. Nor can the Canadian constitution >ecome a toothless mouthing of platitudes, without my bite and incapable of affording protection. A fair easonable and just, if novel, solution lies close to he hand that dares to grasp it. Mr.

Chairman, on the 29th of April last, in a letter o the Attorney-General, the Honour able Gerald 1.1ercier, I wrote requesting the translated text of that Yhich had been uttered in the House in the French angua ge. I have not as yet received the said ranslated text. Also, I pointed out to the Honourable !l,ttorney-General that he would be wise to go >eyond the Attorney-General's department for advice m how to apply

Section 23 of The Manitoba Act. I >ointed out that because of the slowness in putting nto application the said

Section 23, his legal counsel ire still on the defensive and risk being perceived as >eing political counsellors. My exact words were: 'Puis-je vous recommander d'aller a l'exterieur du lepartement du procureur general pour vos conseils ;ur !'a pplic ation de !'

article 23 de I' Acte du ll'lanitoba. A en juger par la lenteur de la mise en ipplication dudit

article 23, vos cons eilleur s uridiques sont encore sur la defensive et l'on risque le les percevoir comme des conseillers politiques." I was somewhat appalled by the answer received ·ecently. Perhaps I am not sufficiently politically >riented. Perhaps I don't realize that everything a >olitician says has got to be politics, but I was li smayed at being told that, so it is the case, the \ttorney-General's Department are political advisors. could understand how the government could even or political gains resist my court case up to and ncluding the Supreme Court of Canada. However, 1ow that

Section 23 of The Manitoba Act is law and he only

interpretation to it can be either clearly mderstood or referred back to the Supreme Court or clarification. The Attorney-General's Department ncluding the Minister should avoid, like the plague, nterpreting constitutional rights for political ends. 9 This is why, Mr. Chairman, that this question must be one of cons cienc e and jus tic e inv olving all members sitting in the Legislature and outside of politi cal partisan ship. Mr . Chairman, I am still confident that our Premier can take on the role of Kingmaker in the upcoming debates on Canada's renewed constitution.

If attitudes do not change and if there is no sincere accommodation made for Canada's two official langu ages across the land, there can only be difficult times ahead. Manitoba has a mandate, a role to play at this all­ important crossroad. I would urge you to impress upon our Premier to bring to the conference table in Ottawa next Monday, a definite timetable restoring this province in all aspects of go vernment dep artments, cour t offices, etc., the bilingua l character which was intended to be in 18 70. In 1874, Louis Riel is quoted as having said all we want is the application of The Manitoba Act.

Nothing more, but equally nothing less. Since the lawyers of tomorrow in Manitoba would be well advised to be bilin gu al and thus avoid the continued emba rrassment of translation, and since all students in Manitoba should not be denied the opportunity of studying law and practising it in this province, French should be taught from kinder garten up and that teaching in French should have the same treatment as the teaching in English, Manitoba's other official language. Finally, Mr.

Chairman, ladies and gentlemen, I would like to share with you a prayer which I have recited for many years and to which I attribute my sense of justice for all in these difficult times. The Prayer of St. Francis which you will find at Appendix 4. Lord, make me an instrument of Your peace. Where there is hatred, let me sow love. Where there is injury, pardon.

Where there is doubt, faith, Where there is despair, hope, Where there is darkness, light, and where there is sadness, joy. 0 Divine Master, grant that I may not so much seek to be consoled, as to console; To be understood, as to understand; To be loved, as to love; For it is in giving that we receive - lt is in pardoning that we are pardoned; And it is in dying that we are born to eternal life. The last four years have been quite demanding on both my time and financial resources. I had hoped that with the Supreme Court's decision, Manitoba's unfortunate past history would be quickly corrected. I was wrong.

That does not appear to be coming about. Bill No. 2 is but window dressing. lt is

an Act of a government that is afraid to provide leadership. Bill No. 2 may onl y be political pos turing in preparation for the next provincial elections. Monsieur le president, mesdames, messieurs, je n'ai pas perdu tout espoir car j'a i grandement confianc e que le pir e du probleme est resolu. Neanmoins, il nous taut beaucoup plus de bonne volonte de la part de notre gouvernment que ce qui est pen;:u jusqu'a date. C'est dans l'espoir renouvele que j'ai de voir debaucher au Manitoba, un nouvel

Tuesday, 3 June, 1980 esprit de comprehension et de justice que je vous laisse a vos deliberations. Que Dieu veille sur vous. May God inspire you, Mr. Chairman, ladies and gentlemen. MR. CHAIRMAN: Merci, sir. Any questions? Mr. Doern. You are prepared to answer questions, Mr. Forest? MR. FOREST: I am, yes, definitely. MR. RUSSELL DOERN (Eimwood): Mr. Chairman, I wanted to first of all congratulate Mr. Forest for his excellent brief. I think it's one of the best I've ever heard before a Legislative Commi ttee ; well researched, interesting and provocative in part.

I just wanted to ask a few questions concerning the brief and your democratic crusade. I believe it's correct that you were, I think, supported financially to an extent by the federal government in terms of court costs, is that so in terms of this resear ch? MR. FOREST: Yes, my lawyers costs were supported. My own personal expenses have not been. MR. DOERN: On Page 15, you mention at the bottom, that Mr. Luxton in 18 74 was committed to abolishing separate schools and was elected to the Legislature and so on. I just wanted a clarification. You talk about abolishing separate schools.

I assume you meant funding for separate schools. MR. FOREST: At that stage I am quoting Mr. Magnet, it isn't my own. I am not fully aware of the presence or purpose of Mr. Luxton in the Manitoba Legislature. MR. DOERN: You also talked in your brief on Page 20 as being committed to multilingu alism as opposed to bilingualism. I just wonder if you could explain that. One would assume that you would be in favour of bilingualism. MR. FOREST: Official bilingualism. But by and large for all Canadians to know more than two languages because the proximity of other countries is now so close.

I am told that in Europe people effectively speak more than two languages or more than one because of them being so close together. Such is the case because of transportation. I'm sure that I'm not pred icting the Min ister of the Department of Labour's prerogative when I suggest that perhaps within this generation, the work week may be only four days and can you imagine someone leaving by plane for South America, jumping over to Africa, into Europe and back to work the next Monday morning? That's all possible. Therefore, the best tools to have when you 'r e trav elling are languages.

Not only that, just recently a professor in Japan indicated that - and this will be a comfort for members of the legal profession - he indicated that those people who work their minds the most are less lik ely to become sen ile and he does point out lawyers as being the people who are less likely to become senile. I think that it is high time - (I nterjection)- . . . 10 MR. DOERN: experience. Mr. Chairman, that is not my MR.

FOREST: lt is high time I believe that we delve into the development of the human mind and I'm sure that restricting either to one or two languages, when there are other people that have gr eat advantages in maintaining their language including Ukrainia ns and German, two great gr oups in Manitoba. MR. DOERN: So you see multiculturalism and multilingualism as being . . . MR. FOREST: One culture.

My object is to see in Canada in generations to come, if we could only be there, the Canadian culture, which will be from the two main strains of our people and to which all other groups would have added their contribution. To think less is to perpetuate a Balkanization country, where perhaps in Ontario they would say that in Toronto, Italian and English will be the two official languages, what else would be in Manitoba and Saskatchewan and Alberta? That is not the case. I think it's got to be along the lines of the two official languages and contributions from the others.

The English that you and I are now speaking is not what you will be hearing commonly in five generations from now. The vocabulary will have changed so much. Even today - and this bit of information was given to me by a professor just three weeks ago in Montreal - since 1066 with the invasion of the Normans into England, no less than 8,000 words in the English vocabulary come from France. Why should there be such a struggle between the two?

I think that we are made to work alongside one another and I think if it were possible to steal this word 'concord' from the English and French aircraft industry, this is what we have to aim at, is working together in concord in order to arrive at what I say, and I place this future of tomorrow, the identity on a plateau which will take no less than two or three generations to reach. it's going to be difficult but we must aim at that. Not to aim at it is to continue our political or our individual inadequacies and we are possibly at that stage.

We're so afraid of our own capabilities that we tend to build a fence around it. MR. DOERN: Mr. Chairman, you also talked on Page 24 about temporary majorities and majoritarian aggression and it would seem that in a sense that you do not trust the public will or the elected representatives of the people. I assume that what you are saying is that you want linguistic rights entrenched in the constitution, that's what you see as your ... MR. FOREST: No doubt, no doubt but I already consider that the rights are entrenched in Manitoba's Constitution and as I mentioned in 19 77 in my letter to Mr.

Schreyer, I was hoping then that justice would be brought back to Manitoba before we discussed constitutional changes, so be it. I am certain that Manitoba's contribution from the position we now have, should be paramount. lt is the key I think to the resolution of the Canadian difficulties right now. I think it is incumbent on this Legislature and it is incumbent on our Premier to take that position. I can see on the 10th or if not on the 9th of this month,

Tuesday, 3 Ju ne, 1980 l'emoi, the resounding feeling of relief across Canada if the Premier of Manitoba were to lay on the table, a plan, a program, pointing out what Manitoba is going to do to wipe out for all times those discomfitures that have been created as a result of the 1890 law. There is no other solution. To think otherwise is to allow a person to go imp aired, crutches, des cataplasmes, bandaids and other solutions are not adequate. MR. DOERN: Well, Mr. Chairman, I think that Mr. Forest is now hoping or dreaming out loud . . . MR. FOREST: Oh yes. The future belongs to dreamers. MR. DOERN: And although you say in one

section of your brief, you hope that this is the role that the Premier may take, you also say that the bill is simply window dressing and

an act of government that's afraid to provide leadership. So if we want to talk about actions as opposed to future actions, you're saying that Bill No. 2 really is a drop in the bucket and really is not a major step forward in the direction that you want to go. MR. FOREST: I think it was just a matter of a day or so after the ruling, and I blew my top.

I called The Tribune when I saw in the page publ ished weekly, I think on Mondays, the pictures of seven or eight people stating, 'Do you think that French should be an official language in Manitoba?' I got onto the line and I possibly bit a part of Donna Harvey's ears off when I told her. I said, that's ir resp onsible journalism. French is an official langua ge in Manitoba. Why open up the debate to the public? This is my contention, that the government could go about its duties to implement

Section 23 without fanfare, without legislation and just put it in law. If there are questions let's refer to the legal society, let's refer to the Supreme Court, but there is no need to pass a law in order to make sure of that

Section 23. There's a time factor but you don't have to legislate the time factor. I'd be prepared to wait another 20 years to see the things go on. But as I mentioned , and I think you all feel conscious I hope, that when Mr. Desjardins has the constitutional right to speak French, which he is quite capable of doing, that he should not be understood. Are you laughing at him? What's happening? Has he got a right or a privilege just to go on record as pointing out that he speaks two languages?

Until everyone in this House in future years would be members that have been raised and can speak two languages, such as is the case in the National Assembly of Quebec, there is only one individual that I am told that insists on speaking English in Quebec and that's Mr. Shaw and he does it just to maintain that the English will stay there. But he understands French like everybody else and every body else understands Mr . Shaw when he speaks English. Manitoba would be in the same forum, on seraient dans le meme plateau, we would be on the same state of circumstances if 1890 had not occurred.

I'm suggesting that we start now, preferably through the educational system. We have to learn mathematics. That reminds me of a little anecdote that you may have heard. Mr. Trudeau was speaking in B.C. and 11 he said to a classroom of children, Are you having French shoved down your throat They said, Yes, a big resounding yes. Later on he came back and he says, are you having mathematics shoved down your throat and the yes was much louder. MR. DOERN: I think this concept, I've heard it expressed for the first time by my colleague for St.

Boniface about the right to be understood but I must say that certainly must be, although it is one that I think we can understand and appreciate, I don't know if that's a right. I think, again, that is a hope or a dream as opposed to something that is just around the corner. I think we'r e pr ob ably looking at something less optimistic, namely, the right to speak, the right to be understood may be a considerable distance away. MR. FOREST: Why are you speaking to me, Mr. Doern? Are you speaking for me to understand you or are you speaking to the microphone? MR. DOERN: I'll think about that. MR.

FOREST: No, I'm not supposed to question, I'm sorry. This is the point. What is the use of my being here speaking, what is the use of recognizing the officialdom of French in Manitoba if it is a privilege or a second baggage that one's carrying along with him? Either it's going to be recognized ... there are two institutions and I've developed this theory over the years, the past four years, two institutions in a man's life that are important and that is the Legislature and the courts.

To be able to make laws in one's language can respect that man's official position, and if some day he should have to plead in court for his very life, should he have to do it in a strange langua ge or not in his own comfortable language, that of his mother. This is where, I think, the concept of the two official langua ges were anchored in these two institutions mainly. 18 70 didn't say, well, the Department of Agriculture would have to be bilingual or Health or otherwise. They didn't have welfare in those days. MR. DOERN: Thank you, Mr. Chairman. MR. CHAIRMAN: Mrs. Westbury. MRS.

JUNE WESTBURY (Fort Rouge): Thank you, Mr. Chairperson. Through you to Monsieur Forest. I also want to congratulate you on the excellence of the presentation. I enjoyed it very much, both in French and English. Having it printed in front of me, I was able to follow the French as well. On Page 21, you said in both French and English that Bill 2 has only one good point and that is of being drafted in Manitoba's two official languages. What, in your opinion, sir, is the very least that should have been presented to this Legislature to comply with the Supreme Court decision? MR. FOREST: As part of my answer to Mr.

Doern, the very least would be to go ahead and do it without saying anything because public debate, I can understand, can create controversy. Even my having risked using certain images and certain opinions in this is dangerous. You know, it's risque. What I think

Tuesday, 3 June, 1980 is the m1mmum is a timetable. If the government were to say, yes, at the next session we will have simultaneous translation. So what? The mechanism isn't that expensive and it's going to create jobs. lt will, above all, create that image that Manitoba is recognizing the official status of its two official languages. People from Quebec or elsewhere could be listening in the gallery to what is being said by our hono ur able mem bers speak ing in English. Students in emergent schools could benefit from the use of the good langua ge that is used in the Legislature. MRS. WESTBURY: Mr.

Chairman, to Mr. Forest again. Do you feel that in passing Bill No. 2 that we're likely to encourage a complacency in ou rselves which will make us feel as though we have complied with the provisions without in fact - I also said in my remarks in the Legislature that I thought there should have been a timetable presented or words to that effect - do you feel that this is likely to make us feel com pla cent and tha t we have, in fact , complied with the requirements when, in fact, it really means very little to ordinary Manitobans. MR. FOREST: The publication of statutes in both official languages, Mr.

Chairman, is the very last portion of

Section 23. I have on occasion and particularly for that time when I sat with Mr. Mercier on the 18 th of Janu ary to discuss, I broke down

Section 23 into four parts. The first part has to do with speaking in the House; the second

part is the translation or having the documents in both official languages. I might stop on that point; I'll come back to it rather. The third point is the courts, and the last point is the pub lication of documents from the Legislature. On that second point, and I think it is important, in the French text of

Section 23, besides records and journals there is the use of proces- verbaux, which means minutes. My contention is that Hansard or the Debates and Proceedings is the minutes of what is going on in the House. There is nothing in

Section 23 that says official minutes. Un journal could be the Free Press, the Tribune. Un journal is a journal, something done journally, every jour, a record. And how many times I've heard or read in your records, stating from the record, Mr. Chairman or Monsieur le president. Mr. Desjardins said this in 19 62, you know. Is it a record or is it not? The French text says, obligatoire which is compulsory. The English version says, must. I find the word must is not as strong as compulsory. This is what I am saying. MR. CHAIRMAN: Mr. Mercier. HON. GERALD W.J. MERCIER (Osbor'le): Mr.

Forest, you are aware, are you not, that both the federal government through parliament, and as you refer to in your brief, the Quebec government, both those jurisdictions have statutes which deal with an attempt to est ablish rules for conflicts in

interpretation of statutes which are done in both languages? MR. FOREST: Mr. Chairman, I have been made aware of the fact that there does exist even in this Legislature in Manitoba an

Interpretation Act. 12 MR. MERCIER: M'huh. MR. FOREST: All right. Let's resort to amend The

Interpretation Act. Let's not create a bill which will interpret only because of the French. I think if there is any room for legislation to interpret legislation, it will be under The

Interpretation Act. But I don't believe that outside of what is now known as The Official Languages Act of Canada, 19 69, that both English or French in all government legislation in Ottawa have absolute equal status. I think they do. They have absolute equal status, and if there is any question between one or the other, it's up to the Supreme Court to iron it out. MR. MERCIER: Mr.

Forest, are you aware that subsequent to the decision to the Supreme Court of Canada, the Manitoba government announced the appropria tion of some 500,000 to develop and establish a numb er of positions with respect to translators and contracting out with private firms for translators, and as a result of the lack of expertise in the Manitoba government, which I am sure you will understand, the resources of the federal government have been used through the Federal Bureau of Translation to advertise, screen applicants, carry out tests in Ottawa, Montreal and Toronto for the filling of those positions.

Are you aware that that has been going on for the past few months? MR. FOREST: Yes, Mr. Chairman. Mr. Chairman, through you; Mr. Mercier, I am fully aware. As a matter of fact, I have in my rough notes a question that I wanted to put to the commi ttee and possibly officially to the Attorney-General 's department or whic hever depa rtment is respo nsible for the translating duties. What has happened since then? Has anyone asked, what is being translated?

And in order to show my concern, are the four particular Acts that revolve around my own court case, The City of Winnipeg Act, The County Court Act, The Cour t of Queen's Bench Act, The Sum mary Convictions Act, are those being translated? Are those priorities? Will they be done in 1982? This is the point. MR. MERCIER: Mr. Chairman, I ask a further question. Mr.

Forest, are you aware that a number of bills presented to the Leg islatur e th rough the assistance of three translators on loan from the government of Quebec have been introduced in both languages, those being such Act as The Law Fees Act; The Loan Act; The Education Administration Act, which has been introduced in English but I can tell you has been translated; The In terim Appropriation Act; The Powers of Attorney Act; The Suitor's Mo ney Act; The Sanato rium Board of Manitoba Act; and as well, The Public Schools Act has been translated, just completed by the Quebec jurists before they had to return to Quebec last week.

Are you aware that those Acts, as well as the bill before us, of course, The Power of Attorney Act, that this work has been under way for the past . . . MR. FOREST: Oh, I am fully aware of that, Mr. Chairman. If you were to t�ll me that you have 16 caretakers in the Hou se, I wouldn't be much concerned. If you should need 40 caretakers in the House, it's still a government problem and you have

Tuesday, 3 June, 1980 to resolve it. But let's not say that there is such a monumental objective now for the next five years, that we'll do this first, and then perhaps go on to something else. After the sandbags to stop the flood there is the cleaning up, and I think we should be at the cleaning up stage at this moment, rather than trying to prevent perhaps the flow of good intentions that can come from

Section 23 from really pouring out. I think this is where the attention should be given . lt should be given to, as quickly as possible, even if it should take generations, but at least set the machinery in process to wipe out the dire effects of 18 90. MR. MERCIER: Mr. Forest, are you aware that a senior legal translator, who is presently the chief reviser for the Supreme Court of Canada will be on loan to the province, possibly for two years, to supervise and train the translators we are about to hire and help us organize the legal

section of the Translation Services Branch, and in addition, to set up a group of experienced, free-lance translators? Are you aware of that? MR. FOREST: I was not aware, Mr. Chairman. I was not aware of that and I think it's great news. I am tempted at times to take a sabbatical leave from bu sine ss and go into law and possibly into translation because there is a lot of work to be done, and I think that it's got to be concentred. But by the same time and the same token, I don't intend to be back and debate or to make a presentation on the Educational Act's amendment that you are doing.

But I am serious when I suggest that if we are to resolve the problem once and for all for the future, you better consider French as being a cou rse subject. Not to do so, I think, is to put off . . . MR. MERCIER: Mr. Forest, are you aware that a number of documents totalling some 85,000 words have already been translated through the services of free-lance translators under contract? MR. FOREST: Those are details, as I mentioned to you, if the caretakers use Bane Dust Remover or any kind of dust oil for the work they have to do, I'm not concerned, providing the work is being done.

I think this is just a procedural process that you are going through in the translation. I'm not tha t much concerned. But what I'd like to see is what's being done for today and tomorrow? MR. MERCIER: Mr.

Forest, are you aware that the government has announced that we will be providing translation service for all court documents where necessary without cost to the litigants and that we will fund all interpretative services required to permit witnesses or counsel to speak in either official language, and have also indicated we are prepared to establish a simultaneous translation service in the Court of Appeal, and in addition consider and investigate the possibility of establishing one trial cour t where ther e would be a simu ltaneous translation service available. MR.

FOREST: If that is official policy, I welcome it, because if there is go ing to be simu ltaneous translation in the Superior Court of Manitoba being 13 the Court of Appeal , I think you are setting a precedent for having that same service in the Legislature. No t that a precedent need be set, because I think it's a matter of common sense. Fortunately, my education was mainly in English and I think I can understand the English word, but should we have to split hairs and say, well, it can mean this or it can mean that. Either the French language is an official language in Manitoba and the Legislature, or it isn't.

You can not say one is more official than the other. You can not say that one is more equal than the other. I may be a little banal or maybe too common in my examples, but this is the best that I can provide you at this moment. I say to you, Mr. Mercier, through Mr. Chairman, that whatever is being done is great but is it preparing that type of climate which will require lawyers to start their studies in the University of Manitoba possibly in 19 85 in both official languages?

I would say that we can not deny the right to anyone in Manitoba in school, to be available in the Faculty of Law, which means that by 1985 students now in Grade 7, should be taking intensive courses in Immersion to be ready to enter the university. Was it not some 10 or 15 years ago that French was a prerequisite subject to enter university? it's been wiped out. MR. CHAIRMAN: Mr. Mercier. MR. MERCIER: Thank you, Mr. Chairman. MR. CHAIRMAN: Mr. Jenkins. MR. WILLIAM JENKINS (Logan): Thank you, Mr. Chairman. Mr.

Forest, is it your opinion that this bill is unne cessary sinc e you have stated that the government could intr od uce all that you are requiring, by showing a willingn ess to implement

Section 23 of the original Manitoba Act? In other words, the government of the day, regardless of what political party may be in power, if they follow the original

Section 23 of The Manitoba Act, as you say on page 14, that either English or the French language may be used by any person in debates of the Legislature. The Act further states that both languages shall be used, not maybe but shall be used, as the respective records and journals of the House - and that would include Hansard - and the right to be understood I think, is implicit within the original sect ion. In other words, if what was abolished out of the Act in 18 90, has now been reinstated by the Supreme Court of Canada as being the legal

interpretation of The Manitoba Act, then is it necessary for the Act that we see before us today? MR. FOREST: No, this is what I'm saying. Mr. Chairman, this Act seems to limit the application of

Section 23 and particularly limiting it in the

interpretation portion of that. I don't see the need for it. Maybe I'm wrong and I am often wrong, but my understanding of

Section 23 is that it is law. lt is a constitutional situation for legislation in Manitoba and in their court system and if there is question as to how to interpret it, one need not pass a law to do it. One just has to possibl y consult. There are authorities. I had the most pleasing opportunity of meeting on the 19th of February last, the great Frank

Tuesday, 3 June, 1980 Scott, who had written on Ma ni toba's Offi cia l Languages Act in 1949. He's 80 years of age now. Also another Scott, whom I met at the University of McGill, Stephen Scott, who was quoted by Jule s Deschenes, on his constitutional opinion . Mr. Stephen Scott just told me a few weeks ago when I was in Quebec, that he is preparing an opinion on the validity of the laws in Manitoba. I have already received this one here from the Manitoba Law Journal, from the Professor of the University of Ottawa, but there are minds in Canada that are prepared to contribute to the proper

interpretation of this

Section 23. MR. JENKINS: Then I have just one further question, Mr. Chairman, through you to Mr. Forest. In your opinion, and I'm asking for your opinion not the legal opinion but your opinion, that the present Act is a restriction of

Section 23 of the original Act. lt doesn't go as far. MR. FOREST: I would say, Mr. Chairman, that it is. MR. JENKINS: Thank you. MR. CHA IRMAN: Any further que stions? Mr . Brown. MR. ARNOLD BROWN (R hi neland): We have different communities in Manitoba, some of them are German-speaking communities, who are teaching two languages in their school system at the present time but they are English and German. We have the same situation with the Ukrainian community. Mr.

Forest is recommending that French be compuls ory or that it be a course su bject This could pose quite a bit of difficulty for these areas who already are teaching two languages. I wonder if Mr. Forest has given that particular problem any thought and what his comments are on that. MR. FOREST: I am, and of course perhaps my looking at it is too cavaliere or too easy, but I very readily go back to the thinking and the writings of Dr. Wilder Penfield, Canada's most promin ent neurologist, who in his study of the mind indicated that by and large 99.99 percent of all students could learn five languages.

He then goes on to quote his own family experience with his five children and he said, when the children spoke with us in the house they spoke English. When they spoke with the governess, they spoke German and in school they spoke French. They weren't learning languages. They were commu nic ating and that, I think, is an important aspect. I tie that thought with the one that I have now penned, of being able to speak with a person's language, you are looking with his eyes, listening with his ears, and feeling with his heart.

I can more readily express that truth when I suggest that anyone who wants to sell something, if I were to have a prominent membership or clientele in my insurance office of people - if I were, let's say, in Ste. Anne's or Steinbach - no doubt that I would have to have someone in my office that speaks German and I myself, like my good friend Alphonse Fournier, could speak German like a Dutch uncle. 14 MR. CHAIRMAN: Mr. Brown? Any further questions? Thank you for your presentation, Mr. Forest MR. FOREST: Thank you. Merci, Larry. MR. CHAIRMAN: Mr. Hlady, were you intending to speak on this bill? Your name is next.

MR. HLADY: No, not on this bill. MR. CHAIRMAN: Thank you. I call Mrs. Gil berte Proteau. MRS . GI LBERTE PROTEAU: Mr . Chairman, gentlemen. The ladies are all gone? After the lengthy presentation of Mr. Forest and Mr. Kear and the historical background, ours will be short and to the point. You have copies, I think, of the English brief. I shall read it in French and I shall comment in English while I'm reading in French. MR. CHAIRMAN: Proceed.

MME PROTEAU: Lorsque la Cour supreme du Canada rendait public son jugement le 13 decembre dernier, il va sans dire que beaucoup de Franco­ Manitobains etaient tres heureux de voir retablir leurs droits. Le gouvernement manitobain s'etait empresse par la suite a mettre sur pied le strict necessaire pour respecter une clause de la

section 23 de I'Acte du Manitoba, soit la traduction des lois. La S.F.M. avait a ce moment-la, c'etait le 24 janvier 19 80, declare qu'elle etait heureuse des premieres dispositions du gouvernement, mais qu'elle esperait en voir d'autres. Nous devons dire que nous sommes beaucoup moins heureux aujourd'hui. Que contient ce Bill 2 devant nous ? Les dispositions de ce Bill sont evidemment requises pour assurer l'ordre dans le domaine juridique. Nous le reconnaissons, et comme citoyens de cette province, nous sommes les premiers a vouloir voir respecter tant l' esprit que la lettre des lois, ayant souffert 90 ans d' injustices dil a un manque de respect de la

section 23 de 1970. La Confederation n'a pris que 20 ans pour demontrer qu'on voulait limiter le fait francais au Quebec seulement. lt was in 18 90 that the Bill was passed in Ma nitoba restricting the use of French in Ma ni toba and effectively limited it to Quebec. Only 20 years after Confederation, 23 years after Confederation and 20 years after the Act of Manitoba that already our rights were infringed upon. Vous, ayant le pouvoir de legislation, pouv ez maintenant rendre justice, mais il faudra certainement amender radicalement le Bill 2.

We recognized that perhaps Bill 2 is necessary to put order in the house, it's a sort of kitchen type of thing. Ho wever, we are in di sagreement with particularly

section 2, paragraphe (a), qui assure que le francais sera presque toujours le cousin pauvre par rappor t a l' autr e langue officielle. Nous demandons alors a ce comite de considerer le modele federal pour assurer que la langue francaise soit reconnue en principe et en fait au meme point d'egalite que la langue anglaise. La section (8) du

chapitre 0-2 des Langues Officielles est inclue en annexe. Une telle disposition assurerait que dans

Tuesday, 3 June, 1980 !'interpretation d'un texte legislatif, les versions des deux langues officielles feraient pareillement autorite. Nous demandons en plus au gouvernement d'a u moins utiliser ses ressources pour faire en sorte que les deux versions de loi soient presentees en meme temps, et ce le plus souvent possible. Si le Bill 2, qui s'intitule,

Loi sur !'application de I'

article 23 de I' Acte du Ma nitoba aux textes legislatifs, demeure la seule disposition en terme des lois que prendra le gouv ernmen t act uel pour appliquer le Jugement de la Cour supreme, a ce moment-la, il serait preferable de ne rien faire, car alors les injus tices que nos gr and-pa rents ont connues en 1890 et encore en 1916 , les prejuges qu'o nt dO subir nos parents, les luttes que nous avons menees depuis 20 ans pour nos ecoles franc;:aises, le trajet penible de M. Forest lui-meme pour amener son cas en Cour supreme, alors, dis-je tous ces efforts furent pour rien.

Effectivement, si ce Bill est le seul developpe suite au Jugement du 13 decembre dernier, nous indiquons immediatement au gouvernment qu'il n'est pas serieux lorsqu'il parle d'unite canadienne, et qu'il est intellectuellement malhonnete vis-a-vis sa collectivite francophone. We have very serious fears with this bill, not that we don't see the necessity of it if you think legally it's a necessary step. However, we are worried that it might be, if it is the last Act that's going to pass through the Legislature, it's certainly going to be a very sad thing indeed.

We have lived under these types of things for 90 years. We would like to get out of it without trouble now. I feel very tired emotionally; 90 years of fatigue that I carry on in my heart and in my soul because my forefathers, since 18 90, have had to be battling this and here we are again this morning battling again. lt is somelhihg that you do not know, I am sure, as persons. You do not know that feeling. The origi nal meaning of

Section 23 of The Manitoba Act of 1870, seems to have been diluted, if not lost over the years. The Franc o-Ma nitoba n community alone is in a position to remember this original meaning because we are the only ones to fully realize what we have lost over the years, due to the illegal abolition of this section. We therefore wish to use this occasion to indicate to the government that the SFM, in colla boration with other Francophone organizations, is willing to co-operate with the government to develop a content for an Official Languages Act of Manitoba.

This Act should be adapted to our realities of today as well as to the realities of the province as a whole. We would see in this Act measures which, while assuring the services requested and needed by the Franco-Manitoban collectivity, we would also ensure to the non­ Francophone population of Manitoba who so desires, the means required to become bilingual or at least to increase its knowledge of French. Would that not be a positive gesture towards a real Canadian union?

We end by indicating to the government our great disappointment due to the fact that it refused to consider any of our requests in relation to The Schools Act, which was presented to the Legislative Assembly a few days ago. How much longer must we wait before the spirit of Lord Durham be finally buried? MR. CHAIRMAN: Merci. Any questions? Mr. Doern. 15 MR. DOERN: Mr. Chairman, to Madame Proteau.

I wonder if she could just briefly ind icate - she expresses disappointment to suggestions made to amend The Public Schools Act - I just wonder if she could indi cate briefly what those recommendations were since that bill is now before the Legislature. MRS. PROTEAU: One of the recommendations was a definition of l'ecole franc;:aise. There were others as well.

But the important thing is since we are not here to discuss the Schools Act, the important thing to remember here is that the SFM and a lot of other organizations, in collab oration with the SFM, includin g the Manitoba Teachers Society, which represents all of the teachers in Manitoba, have for something like two years, prepared for a long time and at length and in great detail, the type of changes that would have been necessary in the Schools Act to favour the development of French education in Manitoba and not one single thing of any of our recommendations is included in the Act presently before Parliament. lt is rather distressing to us to find that and so we come here this morning to tell you of a couple of changes we would like to see in this Bill, that would make both French and English official from top to bottom and we wonder if it will receive the same forget fulne ss tha t the other recommendations of the School Act received a few months back.

We are worried about that sort of thing. MR. CHAIRMAN: Mr. Doern, I hope you will stay with Bill No. 2. We'll be dealing with the Education Act later on in this committee but today we are to try and confine our remarks to Bill No. 2, if you would please. MR. DOERN: Mr. Chairman, I point out that this is mentioned in the brief. That's the only reason I raised it. it's the last paragraph. I want to ask a more general question, namely, whether it is not true that the Society lost ground in the Franco-Manitoban community and in Manitoba at large by its position on supporting a 'yes' vote in the Quebec Referendum.

I wonder whether the speaker feels that any ground has been lost, or whether this really did not harm the Society? MR. DESJARDINS: Mr. Chairman, I would like to speak on a point of order. MR. CHAIRMAN: The Honourable Member for St. Boniface. MR. DESJARDINS: Mr. Chairman, this question is not related to the presentation or the Bill in front of us. I have mixed feeling in bringing this point up. I think that as long as we don't start a precedent, the question asked at this time should be on clarification of what has been presented to us. I would like to see the explanation but if you do, I thin k that Mr s.

Proteau should be given ample time to explain the position of the Societe Franco-Manitobaine. MR. CHAIRMAN: To the honourable member and the members of the committee, I'm at the mercy of

Tuesday, 3 June, 1980 the committee and I'm prepared to consider anything that the committee wishes to deal with. MR. DESJARDINS: As long as its not a precedent and as long as its understood that Mrs. Proteau will get all the chance to explain her position if that position is asked, because the Societe is not on trial here today. MR. CH AIRMAN: The Ho nourable . Attorney- General, on a point of order. MR. MERCIER: Mr. Chairman, on the same point of order.

While the response would no doubt be very interesting and something we might like to hear, I think we sometimes vary in this comm ittee very widely and I would suggest that we try to stay as close as possible to the Bill before us and I would agree, for the Member of St. Boniface, that the question is really out of order. MR. CHAIRMAN: Mr. Doern, proceed. MR. DOERN: Perhaps I could rephrase it, Mr.

Chairman, and ask Madame Proteau whether she feels that her organization's stand on the Quebec referendum will help further the position of the Franco-Manitobans in Manitoba, and I might ask her in that regard why she took what appears to have been a detrimental stand, whether she felt that was the only way that she could conv ey her diss atisfaction with the government's actions in Manitoba or with their introduction of Bill No. 2. MR. CHAIRMAN: I'll have to rule the question out of order, Mr. Doern. Mrs. Westbury. MRS. WESTBURY: Thank you, Mr. Chairperson, through you to Madame Proteau.

On Page 2 in the third paragraph you say, if Bill 2 is to be the only enactment by the government to apply the Supreme Court's judgement then it would be preferable to do nothing. Was this a statement for the sake of emphasis or would you seriously wish that this Bill would be defeated or withdrawn. MRS. PROTEAU: No. I'm not a lawyer and I don't know exactly, I'm not a legal expert.

We have consulted and we've been told that bills like this are usually necessary to put things in order in a House, to clarify some things that might, if they are left unsaid, sometime s in the futur e they lead to misconceptions and to - well they have to be dealt with one way or the other. So that's why I said it seems to be sort of a kitchen cleaning type of Bill and so the Bill in itself is not necessarily a bad thing and we not think that we don't want to see the Bill only we're worried about the paragraph 2.

Okay, two things here, we're worried about that paragraph 2 and the other thing that we're worried about is that if this Bill is going to be the only one that ever deals with the constitutionality and the type of things that we would require for French Manitoba, then that really worries us. The paragraph 2 says

Interpretation where conflict that whole

Section 2 there. The provision in the official language in which the Bill for the Act was printed when copies thereof were first distributed to the members of the assembly prevails over the corresponding provision in the other official language and so if we presume that many of the bills would be presented in English only then in case of conflict it is only the English bill that stands. If you understand what I mean.

Whereas we are proposing something in the way of what is here covered by the Official Languages Act in

Section 8 (?) both of the versions in official languages are equally authentic so that in the case of conflict (?) conflict because in most cases I suppose, at least at the federal level the bill is represented in both languages but in the

Section 8 here it doesn't have to be taken as is but it is clear that both versions in both languages are equally authentic all the time and this is not the case here with Bill No. 2, paragraph 2. Is that clear enough? MRS. WESTBURY: Yes, I understand. Thank you. MR. CHAIRMAN: Mr. Pawley. MR. PAWLEY: Madame Proteau, if I could just - first dealing with the final paragraph on page 1 of your brief SFM objects particularly to

chapter 2, paragraph A which guarantees the French language shall almost always remain a poor cousin in relation to the other official language. I'd just like to read to you an amend ment that we are considering presenting to the committee to obtain your reaction to it. That

Section 2 of Bill No. 2, the one that you made reference to be struck out and the following

section be substituted therefor. Where the meaning of a provision of

an Act in one official language conflicts with, is repugnant to or is inconsistent with the meaning of the corresponding provision of the Act in the other official language, the provision in the English language prevails over the corresponding provision in the French language unless the Act provides that provisions of the Act in the French language prevail over the corresponding provision in the English language. Do you see the similar type of problem in respect to the amendment as to the

section that you have raised objection to? MRS. PROTEAU: You used so many words there. MR. PAWLEY: lt may be unfair for me to just 16 throw this at you. MRS. PROTEAU: Yes, I would have to see the text and we have to think about it a bit, I don't know if it really resolves the problem. However, we'd certainly be willing to work with you and with lawyers in order to be able to make a good amendment to this Act. MR. PAWLEY: First in regard to the - do you share the opinion that was presented by Mr.

Forest that in striking down the old 18 90 Act and now br inging in this legislation that inde ed we are restricting, it is restrictive legislation rather than providing legislation within the spirit of the 18 70 legislation. MRS. PROTEAU: Well Bill No. 2 is certainly very narrow and although as I said I'm not the legal expert here, we'd have to think about that. But Bill No. 2 is certainly very narrow and it certainly does

Tuesday, 3 June, 1980 not expand the law, if anything it does restrict it and this is one of our fears. If we had the assurance that Bill No. 2 would be fol lowed by another Bill, of another nature, which would expand on the law and touch more on the spirit of it, talking about services, talking about schools for example, if only in the present School Act at this point there was something there that would tell us that the government is moving in the way of protecting, legally, our rights within the schools, then we probably wouldn't have those fears.

But as it is now, this is the only thing we see and we just want to make it very clear to you that to us this is restrictive and to us this if fearful. MR. PAWLEV: One final qu estion Ma dame Proteau. In regard to public services and I believe reference was made in your brief to that. Public services within the civil service in Manitoba, what areas do you feel are most deficient presently, that are not dealt with within the provisions of the Bill before us? MRS. PROTEAU: I don't understand your question. MR.

PAWLEV: The povisions in the public service, such as agricultural reps. etc. what particular services do you find are most deficient at the present time, insofar as the francophone com muni ty is concerned in obtaining services from the provincial government. MRS. PROTEAU: Well, they are all deficient because there's no French service anywhere.

But the areas wher e we would like to see services implemented more quickly than elsewhere would be the areas of health and welfare and recreation because recreation touches our young population and that's where it's im portant and health and welfare of course touches the people who are sick, who are unable to cope, who are poor and who are older and amongst the older generation there are many of them, it is surprising, who have a hard time coping in English. MR. CHAIRMAN: Are there any further questions? Thank you Madame, merci. MRS. PROTEAU: beaucoup. Thank you very much, merci MR. CHAIRMAN: I call Mr. Hl ady.

Are ther e anymore presentations for Bill No. 2? I therefore call Mr. Hlady, Bj!L,N &.--3-,:the PQwers of the Attorney Act. ······-·····-�·-·····--··-···· MR. HLADV: presentation. Dr. Sybil Shack will gi ve the MR. CHAIRMAN: Dr. Shack. MR. DESJARDINS: Excuse me, Mr. Chairman, I see Mr. Arnold and you have him on Bill No. 2, is that a mistake. MR. CHAIRMAN: There's been, for the benefit of the members of the committee, several changes, Mr. Arnold apparently can't be here and Mr. Hlady is taking his place on some of these presentations. 17 MR. DESJARDINS: Well there are doubles there in the back, Mr.

Arnold's double is in the back there. MR. CHAIRMAN: Well these are the instructions that I got earlier. DR. SVBIL SHACK: Mr. Chairman and members of the comm ittee, we supp ort in principle this Act, providing for a continuing power of attorney but we have some reservations and we feel that the Act is not complete in the sense that it doesn't provide adequa te protection for those people who are supposed to be the beneficiaries of it. First we su ppor t the prin ciple because of the need for continuing power of attorney as we age and Mr.

Forest, to the contrary notwithstanding, no matter how much we use our brains during the course of our lifetime, we can't prevent hardening of the arteries or strokes or various other things that render some of us either senile or incompetent in other ways, as we age. More people are living on, more people are elderly in our society. Second reason, of course, for supporting the principle is protection for the do nor of the power of attorney against exploitation if he or she should lose competence.

Usually power of attorney is given to somebody who is trusted, very often a member of the family and that power really becomes valuable when the person who gi ves it, when the donor loses his own competence to make certain personal and financial decisions. A third reason for supporting the principle of the Bill is that in fact it legalizes the situation that often now exists. In many cases, people who are mentally incom petent gave powers of attorney to close members of the family and these continue in spite of the law that says that they lapse with the incompetence of the donor.

We do believe, however, that the Act should go further in order first, to protect the do nor agains t exploitation by the attorney. lt would be very easy for an attorney whose only interest may conflict with the interests of the donor as the donor reaches the stage of incompetence, to exploit that power. At the moment, in the Act there is nothing to say, there is nothing to protect the donor against that kind of exploitation.

Secondly, to protect the attorney against pressure from rapacious relatives or other people who might have an interest in the estate of the donor after his death and, therefore, may act against or speak against the attorney and unduly influence the donor. Third, to protect people who have a rightful claim on the future estate of the donor, against the power of the attorney. Therefore, we believe that certain restrictions and certain provisions should be built into the Act that would protect both the donor and the donee in the matter of a continuing power of attorney.

Our recommendations follow rather closely the recommendations of the Law Reform Commission and its report. Those appear on Pages 10 following in the report on Special Enduring Powers of Attorney of the Manitoba Law Reform Commission. I'm very briefly going to outline the recommendations that our association has to make. First, we recommend that the continuing power of attorney be filed with the Registrar of the Surrogate Court or somewhere else where it is accessible, where people who are affected by the continuing

Tuesday, 3 June, 1980 power of the attorney know about it and have access to it. Secondly, we recommend that there be an annual accounting by the person who holds the power of attorney, particularly if the donor wishes to have such an accounting. We suggest that the donor have the right or have the responsibility to include in the continuing power of attorney, the requirement of an annual accounting on the part of the attorney or the person holding the power.

A third recommendation is, tha t once the continuing power of attorney has been given, there be no waiver by the donor of provisions such as filing or accounting. lt would be very easy, again, for an attorney who doesn't wish to file or who does not wish to account, to influence a donor who trusts him or her and therefore we recommend strongly that that waiver not be permitted. On the other hand, there should also be provisions for the removal of power of a power of attorney if there seems to be abuse of that power.

We suggest that the attorney himself should have the right to go to a court or to the Public Trustee and ask for a hearing which would allow for the abdication of his power and the power, of course, should also lapse with the death of the attorney. Other interested parties, members of the family, people who might benefit from the estate or again, the Public Trustee, if there is any indication of abuse of the powers on the part of the attorney, should also have the right to apply for removal of the power to the court or through the Public Trustee.

The Public Trus tee having access to the annual accounting, should also have the power to make application to the court for the revocation of a continuing power of attorney. I think that sums up pretty well the stand of the Manitoba Association for Rights and Liberties on this proposed Act. As you've noticed, Mr. Chairman, the purpose of our presentation is to make sure that the rights are protected, both of the donor and of the donee, of a continuing sustaining powers of attorney, i.e., one that continues after the donor has lost his mental competence to handle his own affairs. MR.

CHAIRMAN: We thank you, Doctor. By the way, may 1 remind you and Mr. Arnold that the copies of your letter have now been circulated to the committees, so we understand which bills that you would present. DR. SHACK: Sorry. MR. CHAIRMAN: Are there any questions for Dr. Shack? Thank you kindly for your presentation. DR. SHACK: Thank you. BILL NO. 14 - THE LAW SOCIETY ACT MR. CHAIRMAN: I call Bill No. 14. Mr. Olson. Then, is it Mr. Hl ady? Do you want to speak on Bill 14? -(In terjec tion)- No, apparently not. Mr . Duncan. Do you have a brief or a copy of your brief, Mr. Duncan? MR. JACK DUNCAN: No, I don't, Mr.

Chairman. MR. CH AIRMAN: represent, sir? Carry on. Tell us who you MR. DUNCAN: My name is Jack Duncan. I practise law in Morden and I am president of the Law Society of Manitoba and have been president of the Law Society of Manitoba for the last four days. 18 MR. CHAIRMAN: Congratulations. MR. DUNCAN: Thank you, Mr. Chairman. lt was anticipated that Mr. Schulman, the past president of the society would make this presentation to you, but I am here today in his stead as he was called to court and was req uired to be in court this morning. With me this morning is Mr.

Farwell, who is the deputy secretary of the Law Society and I had earlier past presidents of the society and other officers of the society who were summoned away and could not remain with me. With your permission, Mr. Chairman, I would like to make a brief opening statement on the bill which is before the committee, Bill No. 14. In doing so, I will try not to cover ground that is already well known to the commit tee except to the degree necessary for background purposes. There are three points to which I would like to draw your attention.

Firstly, this bill is the culminiation of a study of a large representative special committee of the Law Society of Mani toba which was un der the chairmanship of the Honourable Mr. Justice Matas of the Manitoba Court of Appeal. I was privileged to be a member of tha t comm ittee. The commit tee comprised members of the legal profession from a broad spectrum of practice, young, middle-aged and older members, barristers and solicitors, from city practice and from country j:!ractice.

The report was discussed and deba ted within the society in the benchers' meetings and in meetings well advertised at which the general membership of the society had an oppo rtun ity to partici pate and, in fact, did participate. Secondly, the objective of the bill is to promote and maintain reasonable standards of practice. lt is educational, not disciplinary in nature. I use the word standards because, of course, although there are fused opinions in that all lawyers are called as barristers and admitted as solicitors, the realities of the work of office and the different types of work make it different.

This is reflected in the composition of the commit tee, its mem bers and those who worked on the bill. This composition, Mr. Chairman, represents lawyers from various aspects of practice, lay benchers and persons who are not elected benchers. Thirdly, there is a need for the concept, wherein this bill can come into law, so that the Law Society can deal with the problem of competence. I'm not too sure that I agree with Mr. Forest when he says, lawyers, because they exercise their brains, do not become senile. That is perhaps one of the problems that this bill could deal with. Mr.

Chairman, it is the very carefully considered opinion of the Law Society that there is a need for such a committee and a need for this bill. There is a very great majority of lawyers who agree to this need, and as I have said, that is why I am here.

Tuesday, 3 June, 1980 The Law Society has drafted rules to implement the provisions of the bill, ru les to esta blish procedu re. The Law Society has es tablis hed a proposed committee, a standards committee, to deal with the legislation when the legislation comes in and it is proposed that this committee will be of help to lawyers who are in country points, who may have had a restricted practice, who may becoming older, and it will provide for legal educational courses. There are complaints against them. The committee will be composed of laymen, as well as lawyers.

Now, if there are any questions that I might answer, I will try to do so. MR. CHAIRMAN: Any questions to Mr. Duncan? Mr. Hanuschak. MR. BEN HANUSCHAK (Burrows): As I recall the debate on second reading of the bill, I think one of the concerns expressed by some of the members of the House was the matter of establishing standards or criteria for competence which becomes a very subjective type of thing. lt's not quite as simple as criteria for the construction of a suitable piece of furniture or the building of a house or whatever. Ha ve you any comment to offer on that, Mr. Duncan?

How will you esta blish criteria for competence of a lawyer on the basis of which you would make a decision as to whether or not he is entitled to practise law or continue to practise in law? MR. DUNCAN: In answer to that, Mr. Chairman, I would say that it certainly is a subjective decision as almost any decision entails a certain amount of subjectivity.

I would say that we are trying to do our best to get around that by having the committee composed of lawyers from big city practices who may specialize in a certain type of work; lawyers from country practice who may not be so specialized and lay people to lay benchers who will, I hope, bring some balance to perhaps the subjectivity of the lawyers.

The bill does not provide for a definition of competency. lt's very difficult to establish a definition for competency but it is, I suppose, a test by which other lawyers would look at a lawyer and determine whether or not he is capable or is performing the service to which lawyers in general would think that he should. MR. HANUSCHAK: Is it likely that the competence of the benchers will be used as a sort of a standard? MR. DUNCAN: I would thin k that could be a danger, if I put it that way. But the fact is that the benchers are comprised of lawyers from all walks of life and all types of practice.

For instance, there are 30 elected benchers in Manitoba, 20 of whom come from the central judicial district, that's mainly the city of Winnipeg, and 10 who come from the rest of the province. So that I think that we will get a balance of subjectivity in the standards' committee. MR. HANUSCHAK: I am somewhat relievJI to hear that because I was afraid that if the com petence of the benchers would be used as a standard, then there migh t be a tendency on the part of the 19 members, if you are a society, to elect the least competent as benchers just to be on the safe side. MR.

DUNCAN: That would be a good reason for a competency committee. MR. CHAIRMAN: Mr. Hanuschak. Mr. Pawley. MR. PAWLEY: Mr. Duncan, you are probabl y aware of the debate which took place on second reading pertaining to innocent third parties that have suffered as a result of the incompetence of a member of the Society, and then discovering that the Society, based upon I suggest, technical reasons - some members of the Society might disagree with that but I suggest technical reasons - refusing compensation.

Has the Law Society, in the passage of any bill such as this, any plans to ensure that no client, the victim of incompetence of a member of the Society, will go without reimbursement because of not issues based upon merit but simply technical defenses of delay in reporting, will be protected? Has the Law Society presently any plans if this bill is passed? MR. DUNCAN: Presently, the Law Society has a policy of insurance which is a liability policy of insurance. lt's a liability policy and that disctinction must be made clear from a no-fault policy. I can say to Mr.

Pawley that there is presently considerable discussion as to the type of coverage that the Law Society should look at, rather than strict liabili ty policy, perhaps some type of no-fault policy for the public. MR. PAWLEY: Mr. Duncan, in this particular case, there is the Law Society liability policy covering the lawyer in question. The defence raised is not one that would be cured by the issuance of a no-fault policy or some other form of liability policy.

The defence is one that is raised due to a delay in reporting by the lawyer, and yet the Society licensed the lawyer, permitted him to continue practice, and now the most innocent third party is denied any compensation based upon a technical defence that has been erected both by the liabi lity insurance company and by the Society. MR. DUNCAN: I appreciate the problem and we may be thinking of the same case, Mr. Chairman, the case which arose when the Law Society's policy was transferred from one carrier to another and a lawyer did not notify the insurance company of a claim. That's the problem.

That's something that I think every honest lawyer in the province would like to see rectified and I am sure that in the years ahead we will try and do that. I have just come back from a meeting of the Law Society of Saskatchewan wherein the same problem has arisen in Saskatchewan. I have discussed this with the present Law Society of Alberta. I think that, as responsible members of the public and of a profession, that we will do our best in the future to look into the type of problem that did occur. And I can only say to you that, as an incoming president, that is one of my major concerns. MR.

PAWLEY: Another item I would like to raise, and I feel it's relevant to the bill, is some expression

Tuesday, 3 June, 1980 of concern that we receive, as legislators, from time to time from constituents abou t their filing of com plaints to the Law Society involving incompetence of a member of the Society and little action being undertaken, outside of a letter being written to the lawyer complained about and a response being forwarded then to the complaining client. Do you see a board being set up that will ensure that there will be much more than that done with t