Overview

Date of entry into Confederation: September 1, 1905
Capital: Edmonton
Population: 2.9 million (2001)
Official language: English
Majority group: English (81.8%)
Minority groups: French (2%), other languages (16%)
Political system: Province within the Canadian federation since 1905
Constitutional language provisions: Sections 14, 16–23, 55, and 57 of the 1982 Constitution
Language laws: Languages Act (1988), School Act (1995)

Flag of Alberta

The rights granted to Alberta's official-language minority have largely ensued from judgments issued by the provincial Court of Appeal and the Supreme Court of Canada. As such, the province could be said to adhere to a non-interventionist language policy. For example, few government services are available to francophones due to the scarcity of bilingual civil servants, both at the federal and the provincial level. Nor is there any language policy in the area of health care and social services, and given the rarity of bilingual employees in general, it may be said that French-language services are, to all intents and purposes, non-existent. We will look here at the Legislature, the courts, and education.

The Language of the Legislature

In a ruling handed down in October 1990 in the Paquette case, the Supreme Court of Canada addressed the issue of which languages are authorized to be used in the Alberta Legislature. According to the Court, section 110 of the North-West Territories Act (adopted in 1877) was still in force at the time Alberta became a Canadian province in 1905, and therefore had never been formally repealed.

Section 110

Either the English or the French language may be used by any person in debates of the Legislative Assembly of the territories, and in the proceedings before the courts; and both those languages shall be used in the records and journals of the said Assembly; and the ordinances of the said Assembly shall be printed in both languages; provided, however, that after the next general election of the Legislative Assembly, such Assembly may by ordinance or otherwise, regulate its proceedings, and the manner of recording and publishing the same; and the regulations so made shall be embodied in a proclamation which shall be forthwith made and published by the Lieutenant-Governor in conformity with the law, and thereafter shall have full force and effect.

Thus, all legislation adopted since 1905 was declared invalid because it had been drafted solely in English, whereas section 110 of the North-West Territories Act stipulated that all provincial statutes written in English were required to be drafted in French as well. However in the Court's opinion, the Legislative Assembly of Alberta was entitled to proclaim an ordinary Act of Legislature—written in both languages—that would repeal the restrictions imposed by section 110 and validate all existing laws, even though they had been enacted and published in English only. Existing legislation could remain in force temporarily to allow it to be translated, re-enacted, printed, and published in French. It should be recalled that the province's French-speaking population had been granted these rights in 1877, only to have them illegally withdrawn.

Immediately after the Supreme Court judgment, the Alberta government tabled Bill 60 in order to fill the legal void created by the land's highest tribunal. Assented to on July 5, 1988, the Languages Act decrees that English is the de facto official language of Alberta legislation (section 3): "All Acts and regulations may be enacted, printed and published in English." While allowing French to be used, the Legislative Assembly may decide, by resolution, to enact and print its laws in English only (section 5). Members of the Legislative Assembly wishing to use another language during Question Period must first obtain permission to do so.

Section 2

Validation of Acts and other matters

1) All Acts, Ordinances and regulations enacted before July 6, 1988 are declared valid notwithstanding that they were enacted, printed and published in English only.

2) All

(a) actions, proceedings, transactions or other matters taken, done or arising by or under an Act, Ordinance or regulation validated under subsection (1) are declared not to be invalid,

(b) rights, obligations, duties, powers and other effects created, limited, revoked or otherwise dealt with by or under an Act, Ordinance or regulation validated under subsection (1) are declared not to have been invalidly created, limited, revoked or otherwise dealt with, and

(c) matters or things, in addition to those referred to in clauses (a) and (b), done by, in, in reliance on or under an Act, Ordinance or regulation validated under subsection (1) are declared not to have been invalidly done, solely by reason of the fact that the Act, Ordinance or regulation was enacted, printed and published in English only.

Section 3

Language of Acts and regulations

All Acts and regulations may be enacted, printed and published in English.

Section 5

Language in the Assembly

1) Members of the Assembly may use English and French in the Assembly.

2) The Standing Orders and the records and journals of the Assembly, within the meaning of section 110 of The North-West Territories Act (Canada) as it applied to Alberta, made before July 6, 1988 are declared valid notwithstanding that they were made, printed and published in English only.

3) The Standing Orders and records and journals of the Assembly may be made, printed and published in English.

4) The Assembly may, by resolution, direct that all or part of the Standing Orders or the records and journals of the Assembly shall be made, printed and published in English or French or both.

According to the Standing Orders of the Legislative Assembly, a member must give the Speaker two hours' notice in order to be able to express him/herself in French (to allow for the provision of interpreting services). Moreover, section 7 stipulates that section 110 of the North-West Territories Act " does not apply to Alberta with respect to matters within the legislative authority of Alberta." Thus, the Languages Act of 1988 is a selective and fairly restrictive piece of legislation, intended first and foremost to ensure compliance with the judgment of the Supreme Court of Canada.

The Language of the Courts

In the Paquette case of 1988, the Alberta Court of Appeal found in its judgment that an accused had the right to use either French or English in criminal courts, which are under federal jurisdiction. But it was the judgment handed down by the Supreme Court of Canada in October 1990 that had the greatest repercussions on Alberta's language policy. According to the country's ultimate judicial authority, the residents of this province were entitled, under section 110 of the North-West Territories Act, to express themselves in French in civil proceedings, but this did not include the right to be understood in that language. Parties brought before the courts could not avail themselves of the services of an interpreter unless it was clear that the trial could not be conducted fairly without such assistance; neither could they demand that the proceedings be conducted in their mother tongue. However, judicial authorities, including judges, may choose to use either French or English, because the language rights in question may be exercised by lawyers, witnesses, judges, and issuers of pleadings and processes, but not by the parties who are brought to trial or addressed by the court.

Section 4 of the Languages Act specifies that people may use French or English when communicating orally in proceedings before criminal courts:

Section 4

Language in the courts

1) Any person may use English or French in oral communication in proceedings before the following courts:

a) the Court of Appeal of Alberta;

b) the Provincial Court of Alberta;

c) the Court of Queen's Bench of Alberta;

d) the Surrogate Court of Alberta.

2) The Lieutenant Governor in Council may make regulations for the purpose of carrying this section into effect, or for any matters not fully or sufficiently provided for in this section or in the rules of those courts already in force.

Since 1990, the francophone minority has had the right to apply for a French trial in the criminal courts; prior to that, even the guarantees under Part XVII of Canada's Criminal Code were not taken into account. As concerns civil proceedings, the Supreme Court of Canada recognized that francophones have the right to address the court in French, but not to be understood. Neither does the legislation entitle citizens to demand that a judgment be handed down in an official language that is also their mother tongue. However, courtroom staff must be able to record statements in the language chosen by the party subject to trial. The Alberta government delivers certain bilingual services, although it is not legally required to do so. Since 1996, the government has appointed a number of bilingual judges.

Educational Rights

Alberta had the notable privilege of being the first province to gain in a ruling by the Supreme Court of Canada on the validity of its school legislation. Earlier, in 1987, the provincial Court of Appeal had conceded that the instruction offered to the French-speaking minority should be comparable in quality to that provided in the language of the majority. However, the Supreme Court ruled that the educational rights granted by section 23 of the Canadian Charter were limited by what could be reasonably achieved in economic terms, stating that this cost ceiling was justified by the very claim of minority status. The Court of Appeal decided to reaffirm the declaratory nature of constitutional education rights, but simultaneously refused to condemn the Alberta government, which it could have done by declaring invalid, for example, certain legislative provisions. The Court thus preferred to trust in the government's good faith, once education rights were theoretically established and recognized.

Alberta School Act

Section 5

1) If an individual has rights under section 23 of the Canadian Charter of Rights and Freedoms to have the individual's children receive school instruction in French, the individual's children are entitled to receive that instruction in accordance with those rights wherever in the Province those rights apply.

2) The Lieutenant Governor in Council may make regulations

a) respecting the education generally of students whose parents are Francophones;

b) respecting co-ordinating councils;

c) notwithstanding any other provision of this Act, respecting any matter required to give effect to subsection (1).

3) A student who is enrolled in a school operated by a Regional authority is entitled to receive school instruction in French.

4) A Regional authority shall provide to each student enrolled in a school operated by it an education program consistent with the requirements of this Act and the regulations.

In the area of education, Alberta applies the "where numbers warrant" principle, which explains why there are only four French-language elementary schools in the province (two in Edmonton, one in Calgary, and one in Rivière-la-Paix). It was not until the 1992–1993 school year that a French-language school board was established, even though the Charter of Rights and Freedoms implicitly attributes this right to francophone communities. The Alberta School Act was deemed invalid by the courts in 1990, and had to be amended in that year and again in 1992. The Supreme Court acknowledged that the rights of Alberta's francophone minority had been violated, and that it should be given the power to manage its schools. The Minister of Learning authorized the creation of five regions in which French-language schools could be opened, but left it up to the local school boards—all of them English—to decide whether to do so. Consequently, francophones were forced to fight for each and every one of their schools.

In 1990 and 1992, Alberta proclaimed new school legislation that complied with the requirements of the Charter of Rights and Freedoms and the judgments of the Supreme Court of Canada. The new School Act of 1992 made provision for the creation of francophone school boards (in Edmonton, St. Paul, and Rivière-la-Paix), but neglected to provide them with taxation authority. In these circumstances, it is not surprising that the Desjarlais Report, published en 1989, pointed out that only a small proportion of the students who were eligible to receive instruction in French under section 23 of the Charter of Rights and Freedoms had actually chosen to do so (less than 10%). In the Mahé case, the Supreme Court of Canada found that the School Act did not satisfy the requirements of section 23 of the Charter with regard to French-language education rights, since management and control of French-language schools in the Edmonton area had not been accorded to f rancophone parents. On January 19, 1994, the School Amendment Act provided for a system of school governance for franco-Albertans, which has been operational since September 1994.

Today, thanks to the Alberta School Act of 1995, which grants francophones the right to manage their schools, the number of students in the province's 15 French schools has risen to 2,300 (however, many of them are anglophones enrolled in French immersion programs). It should also be pointed out that at least 6,600 Albertan children are the offspring of couples in which the spouses have different mother tongues (French and English), and the retention rate of French is only 8.7% in these families. In November 2001, the School Act was amended, and Bill 16 officially created five francophone school boards, three of which offer both public and Catholic programs. The other two boards are located in southern Alberta; one is public and the other, Catholic. The Act enshrined the transfer of école Sainte-Marguerite-Bourgeoys from the Calgary Catholic Separate School District to the Southern Alberta Francophone Authority, the Catholic school board.

At the university level, Faculté Saint-Jean of the University of Alberta is the only French-language postsecondary establishment west of Winnipeg. Faculté Saint-Jean offers university-degree programs, and its mission is to provide, through teaching and research, a quality education in the French language. It also offers an outreach program that has helped it create roots in the franco-Albertan community. In 1996, the Faculté saw its enrolment jump 22%, thanks to a highly effective public relations campaign. Furthermore, thanks to the support of Heritage Canada's capital funding program, the Faculté was able to complete major renovation and expansion work.

Alberta's language policy appears relatively restrictive with regard to its francophone minority, insofar as the province is loath to do more than grant limited rights, and only when forced to do so by a court ruling. In addition, some courts have merely proclaimed the language rights of franco-Albertans while conferring on the province the ultimate responsibility of putting them into practice, with the result that it lags behind in the area of official-language minority rights.