The government of Prince Edward Island began relaxing its restrictive French-language policy after losing a number of legal battles. On January 13, 2000, the Supreme Court of Canada handed down a landmark judgment directing the provincial government to open a French-language school in the community of Summerside. In April 1999, the government had adopted a language law, the French Language Services Act (the French version, the Loi sur les services en français, has no legal status), which has not yet been fully implemented. Sections 1, 2 (b) and (d), 3, 4, 7 (a),(e),(f), and (h), 9, 10, and 14 to 19 came into force on April 1, 2000.
The Language of Legislation
English is the only language used at the Legislative Assembly in Charlottetown, and legislation is written and enacted solely in English. At present, even the French version of the French Language Services Act is not a legal text; only the English version has force of law. However, once the French Language Services Act does come into force, statutes will be tabled, amended, enacted and published in both languages (section 5):
Section 5
Enactments
1) The enactments of the Legislative Assembly and Executive Council shall be tabled, amended, enacted and published in both English and French, after the coming into force of this Act.
Authority
2) The English text and the French text of any enactment published pursuant to subsection (1) are equally authoritative.
Amended enactments
3) Where an enactment is amended after the coming-into-force of this Act
a) the Legislative Assembly shall ensure that the entirety of the statute being amended is published in both English and French; and
b) Executive Council shall ensure that the entirety of the regulation being amended is published in both English and French.
The Language of Justice
In the courts, civil proceedings have always taken place in English, but since 1988 it is has been possible to be tried in French in the criminal courts. For many years, and so far unsuccessfully, the francophone population has been demanding the appointment of a bilingual judge so that trials can be conducted in French without resorting to the services of French-speaking judges from New Brunswick. It should be noted that Prince Edward Island complies with the provisions of the Canadian Criminal Code and offers criminal law services in French.
Prince Edward Island's French Language Services Act includes, in this regard, provisions (sections 12 and 13 ) concerning the administration of justice. Sections 11, 12, and 13 provide for the use of French in the administration of justice. Section 11 entitles all parties to use French in any pleading or process before the Provincial Court or the Supreme Court. Section 12 stipulates that all written decisions of the courts must be made public in both English and French where all or part of the proceedings have taken place in both languages, or where all or part of the pleadings or other documents have been written in both languages.
Section 12
Decisions
1) Subject to subsection (2), every written decision of the Provincial Court and the Supreme Court shall be released simultaneously in English and French where
a) the proceedings before the Court have taken place, in whole or in part, in both languages; or
b) pleadings or other documents have been written, in whole or in part, in both languages.
Translation
2) Where it is clearly stated on a written decision of the Provincial Court or the Supreme Court issued pursuant to subsection (1) that a translation will be provided by the Court upon request, the Court may issue the decision in either English or French.
Unilingual decisions
3) Legal decisions rendered in English only or in French only pursuant to subsection (2) are equally authoritative.
Section 13 obliges the courts to ensure that anyone may be heard in English or French, according to his or her choice, and to provide simultaneous interpretation services from English to French or from French to English when requested by any person in any court proceeding.
Section 13
Duties of Courts
The Provincial Court and the Supreme Court shall
a) ensure that any person be heard in English or French, according to that person's choice; and
b) provide simultaneous interpretation services from English to French or from French to English where requested by any party in any proceeding before the Court.
The aim of this statute is to ensure that Acadians can receive services in French from the beginning to the end of the judicial process.
The Marriage Act of 1988 stipulates that it is prohibited to celebrate a marriage where one or both of the parties do not understand the language in which the ceremony is to be performed, unless an interpreter is present to clarify the meaning of the ceremony to the parties:
Article 9
Interpreter Required where [...]
(2) No registered member of the clergy or judge of the Supreme Court shall solemnize a marriage where one or both of the parties do not understand the language in which the marriage ceremony is to be performed unless an interpreter is present to interpret and explain clearly to such parties the meaning of the ceremony.
Government Services
The provincial government provides services in English throughout the Island, and, since 1987, services in French have been available at a one-stop, multiservice office in the évangéline region. However, no French-language services are provided in the health and social services sector, except for a few bilingual positions in Charlottetown and Summerside. Many P.E.I. francophones still complain about the poor quality of government services, particularly when they must make telephone calls or speak with government officials. There is no legislation or policy guaranteeing French-language services at the municipal level, but the communities of Abrams Village and Wellington provide services in French.
However, the Canada–Prince Edward Island General Agreement on the Promotion of Official Languages, signed in March 2000, aims to assist the Prince Edward Island government in implementing its French Language Services Act. The purpose of this Act, which is not yet in force, is to specify the extent of French-language services to be provided by government institutions and contribute to the vitality of the province's Acadian and francophone communities. The French Language Services Act is also intended to help Acadians obtain the services they need for their personal, social, community, and economic development, while enabling the French-speaking population to communicate with federal and provincial government authorities in their mother tongue, as section 6 will stipulate once it has been fully proclaimed:
Section 6
Right to communicate in French
Every member of the public has the right to communicate in French with, and to receive in French services of a comparable quality to those services offered in English from, any government institution of the Government of Prince Edward Island where, in the opinion of the Departmental Minister responsible for the services, two or more of the following conditions exist:
a) there is a demand for communications with and services from that office in French;
b) miscommunication may compromise the health, safety or security of members of the public; or
c) because the office serves an Acadian and Francophone population, it is reasonable that communications with and services from that office be available in French.
Section 9 stipulates that traffic signage be in both English and French or that pictographs be used. Section 10 stipulates that the name of a community indicated on all signs be determined with regard to the name used by its residents, the existence of an Acadian and francophone community, and its historical place name.
The government of Prince Edward Island has drafted a document entitled "French Services Policy." The purpose of this policy is to continue to improve French services provided by the Government of Prince Edward Island while contributing to the development and enhancement of the Acadian and francophone community. Its objectives are to promote and continue to improve the French services provided; promote the use of French-language information mediums to communicate with the Acadian community; foster and promote dialogue and mutual understanding between the government of Prince Edward Island, the Acadian and the francophone community, and the anglophone community; foster the participation of the Acadian and francophone community on various provincial government boards, commissions, and agencies that have a direct impact on the Acadian and francophone community; promote a collaborative approach among federal and provincial government departments and agencies as well as the Acadian and francophone community in order to ensure that bilingual resources are used effectively; and encourage the use of bilingual resources in order to exploit the potential for new opportunities with economic partners.
Education
In the education sector, the francophones of P.E.I. have had access to French school programs since 1980 under amendments made to the School Act. In 1986, the provincial government referred the matter of schooling to its Court of Appeal, claiming that the number of francophone children was not sufficient to warrant the establishment of French-language schools. In 1988, the Court of Appeal of Prince Edward Island ruled that the School Act 's "where numbers warrant" provisions were incompatible with section 23 of the Charter of Rights and Freedoms, and that even though the Act had been adopted before the Charter of Rights and Freedoms came into force, this did not justify the lack of action in this regard. However, the Court did not go so far as to invalidate the School Act. Finally, in 1988, the government amended the School Act to bring it into line with the requirements of the Canadian Charter.
Sections 47 and 48 of the School Act (adopted in 1974 and amended in 1977, 1980, 1987, 1988, and 1992) do reflect the provisions of section 23 of the Charter, but restrict access to French schooling based on the infamous "where numbers warrant" provision. The Minister of Education can use his/her discretionary powers to decree that a minimum of 25 students (spread over three consecutive years) is needed to open a French classroom:
Part VI
FRENCH LANGUAGE INSTRUCTION
Article 47
Definitions
1) In this Part
Charter
a) "Charter" means the Canadian Charter of Rights and Freedoms set out in the Constitution Act, 1982;
French language instruction
b) "French language instruction" means a school program in which the language of instruction is French, but does not include the French Immersion program;
Where numbers warant
c) "where numbers warrant" has the meaning prescribed by the regulations.
French language instruction
2) Where numbers warrant, French language instruction shall be provided in accordance with the regulations to children of citizens of Canada who have the right under section 23 of the Charter to have their children receive primary and secondary school instruction in French in the province.
Facilities
3) Where numbers warrant, French language instruction provide pursuant to subsection (2) shall be provided in French language educational facilities in accordance with the regulations.
Program development and delivery
4) Citizens of Canada who
a) are residents of the province; and
b) have the right under section 23 of the Charter to have their children receive primary and secondary school instruction in French in the province,
have the right to participate in French language instruction program development and delivery. 1988, c. 61, s. 6.
Article 48
Regulations
The Lieutenant Governor in Council may make regulations with respect to French language instruction and, in particular,
a) prescribing the method for determining those who are entitled to receive French language instruction in the province;
b) establishing procedures for determining the demand for French language instruction in the province;
c) providing for the admission of students to French language instruction;
d) providing for the method for determining the location of French language educational facilities;
e) establishing rules respecting the meaning and application of the term "where the numbers warrant";
f) providing for the manner in which persons who have the right to do so may participate in French language program development and delivery;
g) providing for the administration of French language instruction in the province;
h) providing for the conveyance of students to schools providing French language instruction;
i) prescribing the terms and conditions upon which the regional school boards participate in and contribute to French language instruction;
j) with respect to French language educational facilities. 1988, c. 61, s. 6.
In 1996, Fédération des parents de l'Île-du-Prince-Édouard (a provincial parents' federation) demanded the creation of a French-language school in Summerside for the 181 francophone children living there (127 elementary and 54 secondary students). At the time, these children were obliged to travel 30 kilometres to école évangéline in Abrams Village in order to receive instruction in French. According to the Minister of Education, the school transportation system was adequate, given that numerous English-speaking students had to travel the same distance to get to their schools, but the Federation decided to bring its case before the province's Supreme Court. Furthermore, the Conseil scolaire francophone (the province's French-language school board) had recommended that French-language instruction be provided in Summerside in accessible educational facilities. In the end, the Supreme Court ruled in favour of the parents.
Despite this, on the occasion of the opening of the Legislature in February 1996, the Lieutenant-Governor of Prince Edward Island had declared, on the government's behalf, "My government will see to the application of a new policy on French-language services. In addition to improving the services provided to French-speaking Islanders, this policy will be an expression of our support for Canada's two official languages and of faith in our country." Fortunately the judges, and not the government, had the last word on the matter!
In the wake of the judgment issued by the Supreme Court of Canada on January 13, 2000, the provincial government opened a French school for the francophone children of Summerside. The Supreme Court even went so far as to clarify the meaning of the expression "where numbers warrant" by making reference to a specific number, that is, between 49 and 155, a group considered large enough to have its own school. The judgment stipulated that French-speaking students in the Summerside area were entitled to a publicly funded school in their community, even though they already had access to a French school, which was larger but located a few dozen kilometres from their place of residence. The judges criticized the Minister for having applied the same standards to both the francophone minority and the anglophone majority, in particular concerning the maximum authorized travel time. In the Supreme Court's opinion, travel considerations had to be applied differently for francophones, because long travel times could discourage them from attending French schools and have "an impact on the assimilation of minority-language children." The Court also ordered the provincial government to reimburse the appellants (francophone parents) for the full amount of the legal fees they had incurred in this case since 1994.
At present, Prince Edward Island has two French schools (elementary and secondary), 26 schools offering French immersion programs, and one school/community centre.
Until recently, the province of Prince Edward Island offered no legal recognition of French of any kind, aside from minimal measures imposed by the courts to ensure compliance with section 23 of the Charter of Rights and Freedoms. However, the government appears to have taken concrete steps to improve the situation of P.E.I. francophones as concerns the delivery of educational services. The next step is to enact the French Language Services Act in full. Once this is done, the province may rest assured that, like New Brunswick, it is effectively meeting its obligations toward its francophone population and has even exceeded constitutional requirements in promoting a policy that genuinely protects the official language rights of its minority.