Translating the Constitution Act, 1867: A Legal-Historical Perspective
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Twenty-seven years after the adoption of the Constitution Act, 1982, the Constitution of Canada is still not officially bilingual in its entirety. A new translation of the unilingual English texts was presented to the federal government by the Minister of Justice nearly twenty years ago, in 1990. These new French versions are the fruits of the labour of the French Constitutional Drafting Committee, which had been entrusted by the Minister with the translation of the texts listed in the Schedule to the Constitution Act, 1982 which are official in English only. These versions were never formally adopted. Among these new translations is that of the founding text of the Canadian federation, the Constitution Act, 1867. A look at this translation shows that the Committee chose to depart from the textual tradition represented by the previous French versions of this text. Indeed, the Committee largely privileged the drafting of a text with a modern, clear, and concise style over faithfulness to the previous translations or even to the source text. This translation choice has important consequences. The text produced by the Committee is open to two criticisms which a greater respect for the prior versions could have avoided. First, the new French text cannot claim the historical legitimacy of the English text, given their all-too-dissimilar origins. Its adoption through a constitutional amendment will not grant it the requisite legitimacy, as the nature of such an amendment is generally misunderstood by lawyers, let alone the ordinary citizen. In addition, the new text is, in many instances, anachronistic, as a result both of the purism and the modernism of the Committee. This desire to erase the “mistakes” of our ancestors, to “refrancize” the language of the era, leads to the drafting of a text which is entirely divorced from its original context, a text which cannot be a true reflection of the historical source text. This necessarily results in a lack of historical accuracy in the new translation. These two problems might have been avoided by giving greater weight to the translations of the past. In the current circumstances, the unreflecting adoption of the new text would have unfortunate effects for the understanding of our constitutional law and its history.