Introduction to Language of Laws and Parliamentary Debates
This section outlines the constitutional and legislative provisions which impose requirements for the adoption of laws and govern the language of debates and parliamentary proceedings. Other than the fact that bilingual laws offer better access to legislation for both the Francophone and Anglophone population, the symbolic value of bilingual laws is important: It signals to its speakers that their language is sufficiently important for the state to use in its most rigorous standards, laws, and regulations. The right to use one’s own language during parliamentary debates and the obligation to make proposed legislation available in both official languages allow the equitable participation of the representatives of the linguistic minority in the debates.
This section is divided into three parts: Constitutional requirements, federal legislation, and the provinces and territories. The sections deal with the language of laws, but the mentioned laws, wherever they require or allow the adoption of legislation in both languages, permit also the use of one or the other language in proposed legislation, parliamentary debates, and the legislative assemblies.
There are many disparate constitutional texts that have been adopted across different points in Canada’s history, which created the obligation to legislate in both French and in English. These texts apply to different jurisdictions.
Section 133 of the Constitution Act (1867) requires the Federal Parliament, as well as the legislature of Québec to print and publish their laws in French and English, a fact which the Supreme Court of Canada has interpreted as including the obligation to adopt them in French and English (Blaikie v. Québec, no. 1, 1979). This duty also extends to the regulations of the government (Blaikie v. Québec, no. 1, 1979), but it does not encompass the regulations of municipalities, schools, or organizations who do not need government approval (Blaikie v. Québec, no. 2, 1981) [SCC]. The commitment to legislate in the two official languages cannot be modified by Québec without at least the consent of that province and the federal government (Blaikie v. Québec, no. 1., 1979; article 43b of the Constitution Act, 1982). The same section permits the use of French or English in the debates and federal parliamentary bills and the Legislative Assembly of Québec. Section 17(1) of the Canadian Charter of Rights and Freedoms allows the use of French or English in the debates and bills of Parliament.
Section 18(1) of the Canadian Charter of Rights and Freedoms takes up the requirement of bilingual federal laws and specifies that each version of these laws has an equal value. Section 18(1) cannot be modified without the unanimous consent of all Canadian provinces and of the federal government (Section 41c of the Constitution Act, 1982). Because the wording of section 133 of the Constitution Act (1867) was taken up in the text of section 18(1) of the Canadian Charter of Rights and Freedoms, it can be reasonably affirmed that the rule of the equal value of any two proposed versions in section 18(1) for federal laws also extends to the laws of Québec.
Section 23 of the Manitoba Act of 1870, which is part of the Canadian Constitution by way of section 5 of the Constitution Act (1871), requires the Manitoba Legislature to have the same obligation as Québec’s: Manitoba has to adopt and publish its laws in French and English. This obligation cannot be modified anymore by Manitoba without the approval of that province and of the Federal government (Forest v. Manitoba, 1979, [SCC]; section 43b of the Constitution Act of 1982). The failure to comply with this obligation by Manitoba for close to 100 years led the Supreme Court of Canada to pronounce the total annulment of all of Manitoba’s laws that had been only adopted in English since 1891. However, because this meant that Manitoba would not have a legal existence anymore, and that would be against the rule of law, the Supreme Court suspended its decree on the annulment of Manitoba’s laws for as long as the province required to translate and re-adopt its laws (Reference re Manitoba Language Rights 1985) [SCC]. Because the text of section 23 of the Manitoba Act takes up that of section 133 of the Constitution Act of 1867 and it was taken up in the text of section 18(1) of the Canadian Charter, it can be reasonably assumed that the rule of equal value of both versions stated in section 18(1) for the federal laws also extends to Manitoba.
The requirement of official language bilingualism extends to the government’s decrees that create laws and to documents incorporated in these laws and regulations, whether they are produced by Manitoba, by another government or by a company or by a private organization, “...unless it cannot be demonstrated that its incorporation without translation is founded on legitimate grounds” (Reference re Manitoba Language Rights, 1992, summary decision) [SCC]. In the same ruling, the Supreme Court specified that legitimate grounds would be in reference to the laws of another province or country for the purposes of inter-governmental cooperation, international regulations, or technical standards (such as ISO or ICANN) adopted by private organizations.
Section 18(2) of the Canadian Charter of Rights and Freedoms dictates the same requirement to New Brunswick: the province must adopt its laws in French and in English, each version having the same legal value. The requirement extends to regulations, but also to municipal by-laws (Charlebois v. the city of Moncton, 2001). Section 18(2) cannot be modified without the consent of the province and of the federal government (Section 43(b) of the Constitution Act of 1982). Section 17(2) of the Charter permits the use of either French or English in the Legislative Assembly.
The Supreme Court has decided that the constitutional requirement of the adoption of bilingual laws does not extend to the provinces of Saskatchewan and Alberta, which were created in 1905 through a federal law. The Order of Her Majesty in Council admitting Rupert’s Land and the North-Western Territory in the Union, 1870, which was adopted almost at the same time as the Manitoba Act of 1870, did not provide any explicit guarantee for the adoption of bilingual laws, contrary to the Manitoba Act. The Saskatchewan Act of 1905, and the Alberta Act of 1905, also did not contain explicit linguistic clauses. According to the Supreme Court, this meant that negotiations between the Métis and the Canadian government knew how to guarantee and protect linguistic rights and their omission, in the Order in Council of 1870, or in the laws that created those provinces, was therefore intended (Caron v. Alberta, 2015) [SCC].
The other provinces and territories do not have the explicit constitutional obligation to pass their laws in the two official languages. It is necessary, therefore, to consult the laws of each jurisdiction to understand the situation.
Part I of the Official Languages Act of Canada only contains section 4, which guarantees the usage of both French and English in Parliament, while also requiring the simultaneous translation of proceedings, while ensuring that all official reports are bilingual.
Part II of the Official Languages Act of Canada governs the language of “Legislative Act and Others." Section 5 requires keeping archives, reports, and parliamentary minutes bilingual. Section 6 requires bilingual laws. Section 7 obliges bilingualism of enforcement texts and executive orders of public and general nature, to the exclusion of Territorial orders and actions taken by Aboriginal organizations. Section 8 extends the bilingual requirement to documents originating from a federal institution which has been deposited with the Senate or the House of Commons. Section 9 targets the procedural regulations and practices of federal courts. Section 10 concerns international and sometimes provincial treaties. Section 11 targets government notices and announcements that are published in primarily French or English, or in bilingual format in a widespread publication within a region. Section 12 deals with acts “that are addressed to the public and are supposed to originate from a federal institution.” Lastly, section 13 requires the bilingualism of each publication as well as the equal value of each.
Provincial and Territorial Laws
Alberta was created in the same way as Saskatchewan: The Alberta Act (1905). What we have already said about Saskatchewan also applies to Alberta, including the conclusions arrived at from R. v. Mercure. Alberta adopted a Language Act in 1988. This law is similar in content to that of Saskatchewan, except for the possibility of adopting bilingual versions of laws. In fact, section 3 mentions that “ laws and regulations can be enacted, published, and printed in English.” There is no possibility of legislating in French. Section 5 permits the use of French or English in the debates and organizes the dissemination of bills.
No law. The laws of this province are adopted in English only.
The constitutional section explains the obligation by Manitoba to adopt its laws in the two languages. Section 29(1), Part V, of the Statutes and Regulations Act of Manitoba, specifies that copies which reproduce the bilingual version of the original and codified texts are “proof of their content” under certain conditions, including that of respecting the format for their online generation. The rest of Part V indicates the presumptions of validity. Part II of the aforementioned law provides for the adoption of laws; Part III specifies the original version of regulations and Part IV deals with the permanent codification of laws.
Sections 6 through 8 of the Official Languages Act permits the use of French or English in bills and organize the carrying out of the law.
Sections 9 through 15 of the Official Languages Act of New Brunswick specify the constitutional obligations of section 18(2) of the Canadian Charter of Rights and Freedoms. Bills are simultaneously deposited, adopted, and published in the two official languages, each version having the same legal weight. Section 12 specifies the laws to be “co-drafted” in the two languages (and not only written in one language and translated into the other). Section 13 extends to “rules, decrees, orders-in-council, and proclamations where the publication” is required. Section 14 targets the “notices, announcements, and other documents of official nature." Finally, section 15 targets the “notices, briefs, and documents” for which a law requires their publication by the province.
Newfoundland and Labrador
No legislative measures.
The Northwest Territories are excluded from the scope of the Official Languages Act of Canada (Section 3(1), the definition of “federal institution”). The NWT have adopted a language ordinance in 1988, which later became the Official Languages Act of the Northwest Territories. Although it proclaims French, English, and the 9 Aboriginal languages as official languages, section 7(1) of the Official Languages Act of NWT enacts that the laws are printed and published in the two languages, each version having legal weight. The rest of section 7 stipulates the modalities governing the translation of laws into other official languages. Section 6 permits the use of one of the official languages in the debates.
No legislative measures. Some laws have been translated as a courtesy but they do not carry legal weight and there is no legal obligation to do so.
Nunavut is excluded from the scope of the Official Languages Act of Canada (section 3(1), the definition of “federal institution”). Nunavut has three official languages: French, English, and Inuit. Nunavut adopted an Official Languages Act in 2008. In light of section 5(1) of the Official Languages Act, the laws are adopted, printed, and published in French and in English. The rest of section 5 provides for the modalities governing the translation and adoption of laws in Inuit. Section 4 authorizes the use of one of the official languages in parliamentary proceedings and organizes their publication and dissemination.
Section 3 of the French Language Services Act of Ontario permits the use of French or English in parliamentary bills. Section 4, since January 1st, 1991, makes mandatory the adoption and publication of Ontarian laws of public nature in French and in English. Section 4 provides for the translation of a collection of “laws of public and general nature” of Ontario that were still in effect on December 31st, 1990, for their presentation and adoption by the Legislative Assembly. This being achieved, the updated version of the revised laws of Ontario includes both French and English versions. Section 4(3) imposes to the Attorney General the obligation to translate in French “the regulations which he deems appropriate,” in order to recommend their adoption by the competent authority. Contrary to the constitutional requirements, the Ontario regulations are not all translated; however, those that carry official weight. In spite of the fact that the law remains silent in regards to the rule of equal value, it can be reasonably argued that it applies to the two versions of laws and regulations of Ontario.
Prince Edward Island
No legislative measures. Some laws have been translated as a courtesy but they do not carry legal weight and there is no legal obligation to do so.
Sections 7 and 8 of the Canadian Charter of the French Language of Québec governs the language of laws. Section 7 is ambiguous because it begins with “French is the language of legislation and of justice in Québec” but under the condition that “bills are printed, published, adopted, and sanctioned in French and English, and the laws are printed and published in the two languages.”
Paragraph 2 extends the requirement to every document to which section 133 applies. Paragraph 3 states the rule of equal value of the two versions. Section 8 specifies that if there is a divergence between the French and English versions of a document to which section 133 does not apply “the French text, in the case of divergence, shall prevail.” Section 133 of the Constitution Act of 1867, furthermore, permits the use of French or of English during the Assembly debates.
Originally, Saskatchewan was part of the Northwest Territories (NWT) as is explained in the Constitution section and the History section. Section 110 of the Northwest Territories Act (1877) obliged the Territorial Assembly to adopt bilingual territorial statutes. However, that measure was not respected by the Territorial Assembly since 1891, but without being formally rescinded.
Saskatchewan was created from a portion of the NWT in 1905, by a federal law: The Saskatchewan Act (1905). Section 16 of this law specifies that the statutes in force in the Territories before 1905 should remain applicable in the new province. In R v. Mercure (1988), the Supreme Court of Canada concluded that section 110 was always in force and that the failure of the Legislative Assembly of the province to comply with this requirement rendered all the laws of Saskatchewan void. However, unlike with Manitoba, the Court deemed the requirement for bilingual laws in Saskatchewan had not been integrated into the Canadian Constitution, and that it could, therefore, be modified or repealed by the province—provided that it be done through a bilingual law.
The Languages Act of Saskatchewan was adopted in the summer of 1988. Section 3 established the presumption of the validity of laws adopted only in English before 1988. Section 4 provides for the adoption of laws in English only, or in English and French for a few others. Section 5 permits the presentation and re-adoption of laws already adopted in English only. Section 6 provides for the future adoption of some new laws in the two languages. Sections 8 and 9 deal with the current and future regulations. Section 10 lays down the rule of the equal value of the two versions wherever applicable. Finally, let us highlight that section 13 which declares that section 110 of the Northwest Territories Act shall not apply to the province of Saskatchewan for matters that are part of its own jurisdiction. Thus some laws have been translated and adopted or readopted in the two languages, each version having equal legal weight. But, this is not an obligation.
Finally, section 12 permits the use of French or of English during the debate and organizes the publication of the proceedings.
Yukon is excluded from the scope of the Official Languages Act of Canada (Section 3(1), the definition of “federal institution”). Yukon does have a language law. Section 4 of the Languages Act reproduces section 18(1) of the Canadian Charter of Rights and Freedoms, each version having the same value. Section 3 permits the use of French, English, or an Aboriginal language in the debates and parliamentary bills.