Linguistic History of Canada
Advent of Language Rights and Laws
A Change in the Course of Language Rights (1963–1969)
Although indigenous peoples had a foothold in North America prior to Europeans, it was the Anglophones and Francophones who gave birth to the Canada we know today. By the 1960s, the two major linguistic communities had still not managed to find common ground, but it had become obvious that it would be in Canada's best interest to acknowledge its linguistic minorities, and that it would take more than occasional concessions to allow all its citizens to live in harmony. The country was ripe for a profound change, as were many others in the world. During the 1960s, in fact, numerous countries witnessed substantial political change on the topic of the protection of languages. Many old British and French colonies became sovereign states and, simultaneously, minority groups were eager to improve their lot and accede to a more desirable and more equitable status. Canada too navigated its way toward national liberation, and toward the acquisition and advancement of language rights. The 1960s also marked a growing involvement by the state in the lives of citizens across the globe. Language would prove no exception.
The coming to power of Prime Minister Lester B. Pearson (from 1963 to 1968) signaled a certain will to change on the part of the Canadian government. Wishing to preserve national unity, Pearson devoted particular attention to bilingualism, establishing a royal commission charged with examining the state of bilingualism and biculturalism in Canada. This was also the era of the rise of the sovereigntist movement in Quebec; of the arrival on the federal political scene of Pierre Elliott Trudeau, who favoured individual rights; and of the passage of the Official Languages Act (1969), which would usher in the era of language laws in Canada, with the federal law followed by another on multiculturalism.
At the same time, in certain provinces, particularly in Ontario and New Brunswick, francophone minorities were demanding substantial, and not merely cosmetic, change. For its part, Quebec was going through an effervescent period known as the Quiet Revolution, a cathartic time characterized notably by the advent of a more modern state, socioeconomic action, the affirmation of a Quebec identity, and linguistic awareness. The courts would later intervene in certain recalcitrant provinces in order to have minority rights respected. The advent of language rights and laws was at hand.
Formed in 1962, The Royal Commission on Government Organization, the so-called "Glassco Commission," dealt with the question of bilingualism in governmental organization. That year the Glassco Commission tabled a report on the management of the public service. The following year the Canadian government authorized the Civil Service Commission to establish a language training centre. The annual cost was estimated at $900,000, but in 1970 the Language Training Centre had an available budget of $9 million. It was estimated that it would take 20 to 25 years of external recruitment to fulfill the bilingual needs of the public service.
Three months after his election (April 1963), Canadian Prime Minister Lester B. Pearson created a royal commission of inquiry mandated to examine the question of bilingualism and biculturalism in Canada. In a letter to all the provincial premiers in May 1963, Mr. Pearson wrote
In a speech I gave on December 17, 1962 in the House of Commons on the difficulties and advantages presented in our country by the duality of language and culture established by Confederation, I proposed that a vast inquiry be held on bilingualism and biculturalism in consultation with the provincial governments. This proposal was greeted very favourably in Parliament and also, I think, in the country.
The idea for such a commission had been proposed the year before by journalist André Laurendeau, who was very worried about the increasingly strident secessionist voices in Quebec and the indifference of English Canada. Mr. Pearson called upon Laurendeau to head the Royal Commission on Bilingualism and Biculturalism. As with many Canadian commissions, a co-chairman of English Canadian language and culture was called in: journalist Davidson Dunton (1912-1987). The Laurendeau-Dunton Commission became better known in English as the B & B Commission (for bilingualism and biculturalism) and in French as the familiar Commission BB. As stated in the mission of the Royal Commission of Inquiry on Bilingualism and Biculturalism, much was at stake:
Inquire into and report upon the existing state of bilingualism and biculturalism in Canada and to recommend what steps should be taken to develop the Canadian Confederation on the basis of an equal partnership between the two founding races, taking into account the contribution made by the other ethnic groups to the cultural enrichment of Canada and the measures that should be taken to safeguard that contribution.
Laurendeau and Dunton first arranged to meet with all the provincial premiers to collect their opinions on the question. Next, they held regional meetings that further highlighted Canadians' profound ignorance of the problems the Commission was attempting to resolve. More than 400 briefs of every description were presented to the Commission, whose work no doubt went a long way to making Canadians aware of the importance of preserving and promoting not only cultural and linguistic duality, but diversity as well. Between 1964 and 1967, the Commission ordered at least 165 studies, 24 of which were published. This intense scientific activity yielded a better understanding of Canada's linguistic realities. Based on demographic, social, educational, economic, and legal data linked to language and minority communities, the government had the information it needed to pinpoint certain deficiencies and act accordingly. One could say that the Laurendeau-Dunton Commission left an important legacy of research. Following two years of work and meetings across the country, commissioners were unequivocal about the dangers facing the country:
Everything that we have seen and heard has convinced us that Canada is going through the most critical period in its history since Confederation. We believe that there is a crisis [...]. We do not know whether this crisis will be long or short. However, we are convinced that it exists. The danger signs are numerous and serious.
According to the commissioners, if this crisis were allowed to continue and to intensify, it could eventually lead to the destruction of Canada; however, if it were overcome, the crisis would contribute to the emergence of a more vibrant and richer Canada. The members of the Commission were not oblivious to the difficulties frequently encountered in countries where multiple cultures and languages coexisted, but solutions ensuring a viable social peace were nonetheless possible. One of them involved establishing an equitable policy for the country's major linguistic communities.
Developing a Language Policy
The preliminary report, tabled in 1965, recommended making federal institutions more bilingual. The report also recommended establishing bilingual work units as well as the creation of bilingual districts. As early as 1966, bilingualism became a badge of honour in the National Capital Region. In tandem with the B & B Commission, Parliament Hill was busy discussing and debating fundamentally Canadian symbols, such as the national anthem and the flag. On April 6, 1966, Prime Minister Pearson officially announced in the House of Commons a policy on bilingualism in the civil service:
The government hopes and expects that, within a reasonable time, a situation shall prevail within the civil service whereby
a) It shall be common practise that oral or written communications within the civil service are made in the official language of the author's choosing [...].
b) Communications with the public shall, as a matter of course, be made in official language of the client.
The report of the B & B Commission was published in 1967 in four volumes (six in 1969), the most important one dealing with the official languages (BOOK 1), education (BOOK 2), the world of work (BOOK 3), and the federal capital (BOOK 4). In their final report of 1969, the commissioners recognized the importance of biculturalism in the Canadian context:
A culture expresses a community of experience and attitudes, and flourishes only if the individual lives with others who participate in this community. This means that a culture will be fully expressed only within the society that embodies it; elsewhere it will live, certainly, but a restricted life, in keeping with the number of its members and the vigour of the institutions it possesses. Whence the capital importance of the notion of two distinct societies [...].
The Report of the Laurendeau-Dunton Commission recommended that English Canada agree to negotiations to reconfigure the Canadian constitutional system so that the country's Francophones feel more at home. The FIRST BOOK dealt with the question of the status of the two official languages. In it, the authors made a series of recommendations, including the amendment of Section 133 of the Constitution Act of 1867, which would begin as follows: "English and French are the two official languages of Canada." The commissioners also recommended that New Brunswick and Ontario recognize English and French as official languages for their province s; they made the same recommendation to the other provinces for cases where one linguistic minority, English or French, came to constitute 10% of the population. The Commission recommended the creation of bilingual districts within the provinces themselves, in regions where one linguistic group, French or English, attained a 10% threshold. The 13th recommendation of the first book called for the creation of the position of Commissioner of Official Languages in provinces declaring themselves bilingual.
The SECOND BOOK of the Commission on Bilingualism and Biculturalism dealt with the question of education. One of the recommendations was to recognize the right of Canadian parents to have their children schooled in the official language of their choice, subject only to the demographic viability of the minority. The massive document was divided into three parts. The first was aimed specifically at the linguistic minority, Francophone or Anglophone, in each of the provinces. The second dealt with the teaching of a second language, in this case, French or English, while the third part examined the image that schools projected of the other cultural group, particularly in their teaching of the history of Canada. There seemed to be two different versions of history—in French-language textbooks, the commissioners noted that history accorded a dominant role to New France, while the British Conquest was described as a catastrophe, whereas in English-language textbooks, history seemed to begin during the years preceding the Conquest, which was presented not as an end, but as the beginning of British North America. Other recommendations addressed the historical basis for federal support of instruction in the official language of the minority.
Certain recommendations of BOOK THREE (The Work World) aimed at fostering linguistic balance within the federal public service. According to the Commission, 21.5% of federal public servants were Francophones in 1965. Measures had to be taken to encourage greater Francophone representation at all levels of the federal government.
In BOOK FOUR, the commissioners made recommendations concerning bilingualism in the federal capital. The goal was to make the national capital (Ottawa) perfectly bilingual. When it came out, some Canadians thought that the B and B Commission was ahead of its time.
At first, the B and B Commission was perceived as a Quebec affair, and official languages as something of interest only to minorities. Official bilingual policy incited opposition in certain regions of the country, notably in the West; Canadians of Ukrainian and German extraction, or of other non-Anglophone or non-francophone origins, wanted to know why the federal government accorded less importance to their culture than to the culture of the far less numerous francophone minorities in western Canada. Meanwhile, the resignation in 1968 of Prime Minister Lester B. Pearson and the arrival of his successor Pierre Elliott Trudeau took some of the hard edges off the work of the biculturalism commission. In the early 1970s, Trudeau announced in the House of Commons that his government would adopt a "policy of multiculturalism within a bilingual framework." In order to secure the acceptance of official bilingualism, the Trudeau government also thought it wise to adopt those recommendations of the Laurendeau-Dunton Commission aimed at preserving the contributions of other "ethnic" groups (with the exclusion of the aboriginal peoples) to the cultural enrichment of Canada.
These recommendations called for the adoption of a policy of multiculturalism within a bilingual framework. This change marked a change in language policy and gave birth in 1971 to the policy of multiculturalism. On October 8, 1971, the Canadian government announced its policy of multiculturalism—without multilingualism—whose four objectives were stated as follows:
1) The government of Canada will support all of Canada's cultures and will seek to assist, resources permitting, the development of those cultural groups which have demonstrated a desire and effort to continue to develop a capacity to grow and contribute to Canada, as well as a clear need for assistance
2) The government will assist members of all cultural groups to overcome cultural barriers to full participation in Canadian society.
3) The government will promote creative encounters and interchange among all Canadian cultural groups in the interest of national unity.
4) The government will continue to assist immigrants to acquire at least one of Canada's official languages in order to become full participants in Canadian society.
However, it was clear to the commissioners that linguistic duality would materialize in Canada only if the Anglophone majority accepted its fundamental principles and actively embraced them, as minorities were unable to impose it. In proposing concrete measures, the Laurendeau-Dunton Commission marked a turning point in Canadian history. Since the publication of the B and B Commission's report, Canada has earnestly taken up bilingualism, thanks in large part to the work of the Commission. One of the most important measures put forward by the Commission was for a federal law on official languages.
Federal Legislation on the Official Languages (1969 and 1988)
In response to the numerous recommendations of the Laurendeau-Dunton Commission, the House of Commons passed the Official Languages Act in 1969. This act conferred co-official status on English and French, but only for bodies and institutions under federal jurisdiction. This was the first true language legislation passed by the federal Parliament. As Canada is a federation, the act had to respect the Canadian Constitution by not intruding on areas of jurisdiction belonging to the provinces. Briefly stated, the act could not dictate provincial language policies. In 1988, the Official Languages Act of 1969 would be repealed with the passage of a new Official Languages Act under then Prime Minister Brian Mulroney (1984-1993). The federal legislation grants personal rights to all Canadian citizens to communicate in the language of their choice with the federal government and to have their children educated in a minority language. It does not provide collective rights as defined by certain laws, for example in New Brunswick and in Quebec. The passage of the Official Languages Act, at last, put an end to the era of symbolic bilingualism (stamps, bank notes, etc.) and mere translation of laws and certain administrative documents.
Official Languages Act of 1969
The big innovation of the Official Languages Act was the introduction of official bilingualism in the federal government of Canada. For the first time in the history of Canada, at the instigation of Pierre Elliot Trudeau (1968-1979), a federal law defined the language rights of citizens in their relations with Parliament, the federal government, and federal institutions, and also defined the duties of these institutions toward citizens as far as language was concerned. This was a radical change in Canada's language situation.
Section 2 of the Official Languages Act of 1969 read as follows: ''The English and French languages are the official languages of Canada for all purposes of the Parliament and government of Canada, and possess and enjoy quality of status and equal rights and privileges as to their use in all the institutions of the Parliament and government of Canada.''
The act also stated (sec. 8) that "in construing an enactment, both its versions in the official languages are equally authentic." In the area of justice, the act supplemented the provisions of section 133 of the Constitution Act of 1867 in prescribing that federal court decisions be rendered in both languages (sec. 5) and interpretation services be available in the courts. However, where the Official Languages Act was truly innovative was in section 9, which required that ministries, departments, and other federal government bodies such as Crown corporations guarantee that the "members of the public can obtain available services from and communicate with them in both official languages." In reality, the act bound not only Parliament and the courts, but also the entire federal government.
From 1867 to 1969, most regulations and orders were drafted only in English, usually by the Governor in Council. These acts were then usually printed and published in the Canada Gazette in the two official languages. Prior to the Blaikie rulings (1979 and 1981), it was believed that the Constitution did not require the bilingual passage of "delegated legislation." Starting in 1969, the Official Languages Act required that rules, ordinances, orders, regulations, and proclamations whose publication was required in accordance with an act of the Parliament of Canada be drafted and published in the two official languages.
Sections 12 to 15 of the Official Languages Act dealt with the creation and management of "bilingual districts" in cases where less than 10% of the population spoke one of the official languages as a mother tongue (sec. 13). Sections 19 to 34 dealt with the role of the Official Languages Commissioner, whose duty was to ensure compliance with the act and investigate complaints from the general public. As for bilingual districts, they never materialized. There was an n attempt early on to have all of Quebec declared a "bilingual district," but when it met with indignation and protests in the province, the federal government thought it prudent to back down. The idea was then dropped.
The national policy of two official languages proved difficult to apply and had little impact on the daily lives of Canadians. It did have the advantage of guaranteeing services in French to minorities outside Quebec, forcing a certain number of federal civil servants to learn French. But the results were never very conclusive. For that matter, all official languages commissioners named by the federal government took turns denouncing the slowness in respecting the act, if not the outright refusal to do so. It is no surprise that the need was felt to pass a new law in 1988.
Official Languages Act of 1988
In 1988 at the instigation of Brian Mulroney (1984-1993), the Canadian Parliament passed a new official languages act, which led to the repeal of the Official Languages Act of 1969. With the 1988 act, the federal government of Canada made great strides in matters of language policy, emerging as a major player in this field in Canada and the principal defender of the language rights of Francophone minorities—except in Quebec, where it was the Anglophones who obtained the right to federal protection as a minority group.
The Official Languages Act of 1988 contains 111 sections that, of course, repeat the contents of the 1969 act, but develop the notion of institutional bilingualism further. Under the new section 2, the act has a three-fold purpose:
a) Ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, in particular with respect to their use in parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions;
b) Support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within Canadian society; and
c) Set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.
PARTS I AND II (sections 4 to 13) deal with mandatory bilingualism (the two official languages) in Parliament as well as in all legal proceedings and documents made by a federal institution; exempt are the ordinances and laws of the Northwest Territories (which today includes Nunavut) and of Yukon, and documents relative to the governance of an Indian band (sec. 7.3). Sections 4 to 13 of the Official Languages Act state:
Section 4: Official languages of Parliament
1) English and French are the official languages of Parliament, and everyone has the right to use either of those languages in any debates and other proceedings of Parliament.
2) Facilities shall be made available for the simultaneous interpretation of the debates and other proceedings of Parliament from one official language into the other.
3) Everything reported in official reports of debates or other proceedings of Parliament shall be reported in the official language in which it was said and a translation thereof into the other official language shall be included therewith.
Section 5: Journals and other records
The journals and other records of Parliament shall be made and kept, and shall be printed and published, in both official languages.
Section 6: Acts of Parliament
All Acts of Parliament shall be enacted, printed and published in both official languages.
Section 7: Legislative instruments
1) Any instrument made in the execution of a legislative power conferred by or under an Act of Parliament that is made by, or with the approval of, the Governor in Council or one or more ministers of the Crown, is required by or pursuant to an Act of Parliament to be published in the Canada Gazette, or is of a public and general nature shall be made in both official languages and, if printed and published, shall be printed and published in both official languages.
Instruments under prerogative or other executive power
2) All instruments made in the exercise of a prerogative or other executive power that are of a public and general nature shall be made in both official languages and, if printed and published, shall be printed and published in both official languages.
3) Subsection 1) does not apply to the following texts, by reason only that the ordinance, by-law, law or other instrument is of a public and general nature:
a) an ordinance of the Northwest Territories or a law made by the Legislature of Yukon or the Legislature for Nunavut, or any instrument made under any such ordinance or law, or
b) a by-law, law or other instrument of an Indian band, band council or other body established to perform a governmental function in relation to an Indian band or other group of aboriginal people.
Section 8: Documents in Parliament
Any document made by or under the authority of a federal institution that is tabled in the Senate or the House of Commons by the Government of Canada shall be tabled in both official languages.
Section 9: Rules, etc., governing practice and procedure
All rules, orders and regulations governing the practice or procedure in any proceedings before a federal court shall be made, printed and published in both official languages.
Section 10: International treaties
1) The Government of Canada shall take all possible measures to ensure that any treaty or convention between Canada and one or more other states is authenticated in both official languages.
2) The Government of Canada has the duty to ensure that the following classes of agreements between Canada and one or more provinces are made in both official languages and that both versions are equally authoritative:
a) Agreements that require the authorization of Parliament or the Governor in Council to be effective;
b) Agreements entered into with one or more provinces where English and French are declared to be the official languages of any of those provinces or where any of those provinces requests that the agreement be made in English and French; and
c) Agreements entered into with two or more provinces where the governments of those provinces do not use the same official language.
3) The Governor in Council may make regulations prescribing the circumstances in which any class, specified in the regulations, of agreements that are made between Canada and one or more other states or between Canada and one or more provinces must be made and made available in both official languages at the time of signing or publication or, on request, must be translated.
Section 11: Notices, advertisements and other matters that are published
1) A notice, advertisement or other matter that is required or authorized by or pursuant to an Act of Parliament to be published by or under the authority of a federal institution primarily for the information of members of the public shall, wherever possible, be printed in one of the official languages in at least one publication in general circulation within each region where the matter applies that appears wholly or mainly in that language and in the other official language in at least one publication in general circulation within each region where the matter applies that appears wholly or mainly in that other language; and where there is no publication in general circulation within a region where the matter applies that appears wholly or mainly in English or no such publication that appears wholly or mainly in French, be printed in both official languages in at least one publication in general circulation within that region.
2) Where a notice, advertisement or other matter is printed in one or more publications pursuant to subsection 1), it shall be given equal prominence in each official language.
Section 12: Instruments directed to the public
All instruments directed to or intended for the notice of the public, purporting to be made or issued by or under the authority of a federal institution, shall be made or issued in both official languages.
Section 13: Both versions simultaneous and equally authoritative
Any journal, record, Act of Parliament, instrument, document, rule, order, regulation, treaty, convention, agreement, notice, advertisement or other matter referred to in this Part that is made, enacted, printed, published or tabled in both official languages shall be made, enacted, printed, published or tabled simultaneously in both languages, and both language versions are equally authoritative.
Bilingualism also extends to international treaties and to any convention between Canada and another state. In addition, all texts printed, published, or tabled by a federal institution must appear simultaneously in both official languages, since both versions are equally authoritative.
PART III (sec. 14 to 20) of the Official Languages Act deals with the administration of justice. The act not only makes federal courts bilingual, but requires them to ensure that all members of the public be heard in the language of their choice and to offer, if need be, simultaneous interpretation services from one official language into another. Section 16 of the Official Languages Act of 1988 goes further than the act of 1969 because it requires judges to understand English or French without the help of an interpreter. However, judges of the Supreme Court of Canada and those of the Tax Court of Canada are required to be bilingual, even though the defendants may use the language of their choice.
Section 14: Official languages of federal courts
English and French are the official languages of the federal courts, and either of those languages may be used by any person, or in any pleading in or process issuing from, any federal court.
Section 15: Hearing of witnesses in official language of choice
1) Every federal court has, in any proceedings before it, the duty to ensure that any person giving evidence before it may be heard in the official language of his choice, and that in being so heard the person will not be placed at a disadvantage by not being heard in the other official language.
Duty to provide simultaneous interpretation
2) Every federal court has, in any proceedings conducted before it, the duty to ensure that, at the request of any party of the proceedings, facilities are made available for the simultaneous interpretation of the proceedings, including the evidence given and taken, from one official language into the other.
Federal court may provide simultaneous interpretation
3) A federal court may, in any proceedings conducted before it, cause facilities to be made available for the simultaneous interpretation of the proceedings, including evidence given and taken, from one official language into the other where it considers the proceedings to be of general public interest or importance or where it otherwise considers it desirable to do so for members of the public in attendance at the proceedings.
Section 16: Duty to ensure understanding without an interpreter
1) Every federal court, other than the Supreme Court of Canada, has the duty to ensure that
a) if English is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand English without the assistance of an interpreter;
b) if French is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand French without the assistance of an interpreter; and
c) if both English and French are the languages chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand both languages without the assistance of an interpreter .
2) For greater certainty, subsection (1) applies to a federal court only in relation to its adjudicative functions.
3) No federal court, other than the Federal Court of Appeal, the Federal Court or the Tax Court of Canada, is required to comply with subsection 1) until five years after that subsection comes into force.
PART IV (sec. 21 to 33) of the Official Languages Act of 1988 breaks new ground with section 21, which specifies that the public has the right to communicate with federal institutions and to obtain services from them in either official language. This requirement applies to all federal offices, whether in the National Capital Region or elsewhere, including foreign offices, if there is "significant demand" for one of the official languages. The active offer of bilingual services includes oral as well as written language services.
Section 21: Rights relating to language of communication
Any member of the public in Canada has the right to communicate with and to receive available services from federal institutions in accordance with this Part.
Section 22: Where communications and services must be in both official languages
Every federal institution has the duty to ensure that any member of the public can communicate with and obtain available services from its head or central office in either official language, and has the same duty with respect to any of its other offices or facilities within the National Capital Region; or in Canada or elsewhere, where there is significant demand for communications with and services from that office or facility in that language.
The government defines what constitutes significant demand by passing a regulation to this effect.
PART V of the Official Languages Act deals with the language of work in the federal government. Under section 34, English and French are the languages of work in federal institutions. Thus employees have the right to use either official language.
Section 34: Rights relating to language of work
English and French are the languages of work in all federal institutions, and officers and employees of all federal institutions have the right to use either official language in accordance with this Part.
However, this right is subject to certain restrictions; in particular, the work environment must be conducive to the actual use of both official languages (sec. 35). If employees are to function in both languages of work, there must be a demand for bilingual services. The government publishes the names of those regions designated bilingual and can, by regulation, add or delete any region. This part of the Working Languages Act has actually never been a success.
In PART VI, of the act, section 39 also specifies that the federal government will ensure that Canadians—Anglophones as well as Francophones—have equal opportunity to obtain employment and advancement in federal institutions.
PART VII of the Official Languages Act, which deals with the promotion of English and French by the federal government, met with much controversy. Under section 43, the Governor in Council may take such action as he or she considers necessary to promote the bilingual character of Canada; for example, encourage provincial governments, municipalities, the business community, employer groups, or labour organizations to use both official languages.
In Quebec in particular, this was seen as a means for the federal government to bilingualize municipalities, businesses, and other Quebec organizations, but these apprehensions proved unfounded.
PART IX (sec. 49 to 75) of the Official Languages Act specifies the Official Languages Commissioners for Canada, who must take the necessary steps to ensure recognition of the status of each of the official languages. Commissioners must also ensure compliance with the spirit and intent of the act in the administration and advancement of English and French in Canada. The Official Languages Commissioner conducts inquiries, investigates complaints, gives opinions, submits an annual report, and makes recommendations to the government.
The other sections of the Official Languages Act concern changes to the Canadian Criminal Code (sec. 94 to 96) in matters of language, the use of languages in the Northwest Territories Act (sec. 97) and the Yukon Act (sec. 98), the Access to Information Act (sec. 99 to 101), the Personal Information Protection Act (sec. 102), the Statutory Instruments Act (sec. 103), as well as various transitional provisions (sec. 105 to 111).
The Official Languages Act of 1988 certainly represents a vast improvement over the 1969 act. On a theoretical level, it is an exemplary act and a very egalitarian one, since it deals with language duality and with the language rights of citizens. However, most of the clauses dealing with services offered remained inoperative for three years, seeing as the regulations provided for in the act were passed only on December 16, 1991. Moreover, despite many attempts to do so, the federal government has never been able to demand bilingualism from Supreme Court justices. For proponents of bilingualism among judges, it is a question of respect for the two official language communities in the country, because to the extent that bilingualism is an important value in Canada, the highest court in the country must reflect it. For opponents, this obligation would favor linguistic abilities to the detriment of legal and judicial knowledge.
Official Languages Regulations
The Official Languages Act (1988) provided that "significant demand" for services in either of the two official languages at a federal office would be defined by regulation. The Official Languages Regulations thus supplement certain key provisions of the 1988 act, notably those dealing with three aspects:
a)Federal offices where there is "significant demand" for both languages
b)Offices whose vocation justifies services in both languages
c)Services offered to travelers under agreements with third parties
The regulations take into account the size of the Francophone or Anglophone minority of the region, and differentiate between two entities: large urban areas of at least 100,000 inhabitants (a total of 24 in Canada), called Census Metropolitan Areas (CMAs); and towns and rural areas called Census Subdivisions (CSDs). In a CMA with a minority that numbers at least 5,000, that is to say, 14 of the 24 large urban areas—Halifax, Saint John, Quebec City, Sherbrooke, Montreal, Sudbury, Toronto, Hamilton, St. Catharine's-Niagara, Windsor, Winnipeg, Calgary, Edmonton, and Vancouver—federal offices must, in principle, offer their services in English and French.
However, if a federal institution has several offices in the CMA offering the same services, it must provide them in both official languages at a proportion of offices at least equal to the proportion of the minority population in the CMA. These services usually include the following institutions: Post Office, Employment Centre, Income Security, Income Tax, Canadian Heritage, and Public Service Commission.
The Census Subdivisions (CSDs) correspond to municipalities, smaller cities and towns, and rural areas with one or more federal institutions. Part of the complex regulations stipulate that services must be bilingual if a CSD includes 500 people representing at least 5% of the population. If the minority is 30% or more of the local population, all offices must be bilingual.
The Official Languages Regulations also define what is meant by a "significant demand" in one or the other official languages. This expression, used often in the act, means that "demand in the language of the minority is at least 5% of the overall demand over a year."
According to the Official Languages Regulations, under these demographic rules, 94% of the minority population of an official language of Canada would receive services in that language. This minority population is found in 25 large urban areas (including Ottawa-Hull) and 441 other localities.
The regulations also guarantee the traveling public the right to receive a range of federal services in both official languages in certain airports, train stations, and ferry terminals.
It is generally acknowledged that Canada was one of the first countries to make laws to protect and promote its official languages. Canadians, in particular, New Brunswickers and Quebecers, are noted for their expertise in language management, and have served as an example for over three decades to an ever-increasing number of nations seeking to enact or having enacted measures to promote linguistic harmony. A number of nations both bilingual and unilingual have shown interest in Canada's language management know-how, whether with regard to bilingual service delivery, basic rights, or protective measures for minority communities.
Language Policy of the Federal Territories
The Northwest Territories, the Yukon, and Nunavut are territories whose powers are conferred by acts of Parliament. If, in some respects, the territories can be likened to provinces, they do not officially possess this status and in principle enjoy no "sovereignty" from a legal point of view, since they are considered institutions of the Canadian Parliament. In practice, nothing prevents territories from following the example of the provinces and of the Canadian Parliament in making language laws. However, certain acts of Parliament apply in principle to the Yukon, Nunavut, and the Northwest Territories. Thus, the Official Languages Act passed in 1969 by federal Parliament could apply to them provided the territorial Commissioner used his discretionary power to recognize the federal legislation.
The pressures brought to bear by the federal government under subsection 31.1 of the Constitution Act of 1982 and certain sections of the Official Languages Act of Canada managed to force the territorial governments to give up some of their prerogatives. In fact, the Constitution Act of 1982 stipulates under subsection 32.1 that the Canadian Charter of Rights applies not only "to the Parliament and government of Canada," but also to all matters relating to Parliament, "including those matters relating to the Yukon Territory and Northwest Territories." As sections 16 to 20—on the use of French and English in Parliament, in the courts, and in government services—of the Charter of Rights and Freedoms apply to the territories, local governments were obliged to become bilingual. Furthermore, certain sections in the Official Languages Act of 1988 compel territorial governments to adopt a certain form of official bilingualism.
The Northwest Territories
Section 110 of the Northwest Territories Act, which dealt with legislative and judicial bilingualism, was abolished in 1892 in the Northwest Territories. Following the passage of the Official Languages Act (1969, then 1988), the territorial government had to make certain adjustments. It was only in 1985 that the territorial Legislature introduced a bill that became the Official Languages Act of the Northwest Territories, which came into force in 1990.
Under section 9 of this language law, "French and English are the official languages of the Territories." The two languages enjoy equal status, rights, and privileges as to their use in institutions of the Legislative Assembly and of the territorial government. Furthermore, seven aboriginal languages are recognized as "official aboriginal languages of the Territories" (sec. 5): Saulteux, Cree, Dogrib, Loucheux, North Slavey, South Slavey, and Inuktitut. Sections 6 and 7 of the act concern the use of an aboriginal language in the Assembly. In 1990, the territorial Assembly passed the Act to Amend the Official Languages Act; section 5 was repealed and replaced by the following: "Chipewyan, Cree, Dogrib, English, French, Gwich'in, Inuktitut, and Slavey are the Official Languages of the Territories."
With regard to the languages of the courts, section 13 of the Official Languages Act of the Northwest Territories specifies that any person may use English or French. However, as with most English provinces, this right is limited to criminal proceedings and does not include the right to be directly understood by the judge without the assistance of an interpreter.
As for the language of government services, section 15 of the Official Languages Act of the Northwest Territories acknowledges that the public has the right to use English or French:
Communication by public with head, central or other offices
Any member of the public in the Northwest Territories has the right to communicate with, and to receive available services from, any head or central office of a government institution in English or French, and has the same right with respect to any other office of that institution where
a) There is a significant demand for communications with and services from the office in that language; or
b) It is reasonable, given the nature of the office, that communications with and services from it be available in both English and French.
However, since this right applies only if there is a "significant demand," the right pertaining to the hiring of bilingual public servants in the Territories is somewhat diluted. Section 8 specifies that all official documents must be promulgated in both official languages:
Instruments directed to public
Subject to this Act, all instruments in writing directed to or intended for the notice of the public, purporting to be made or issued by or under the authority of the Legislature of Government of the Northwest Territories or any judicial, quasi-judicial or administrative body or Crown corporation established by or under an Act, shall be promulgated in English and French and in such other Official Languages as may be prescribed by regulation.
On June 28, 1984, an agreement was reached between Canada and the Northwest Territories; section 6 contained the following provision:
Canada agrees to bear all costs, on an ongoing basis from year to year, associated with the provision of services to the public in French and the costs involved with the implementation of French as an official language pursuant to the NWT Official Languages Act.
A Forum on French in the Northwest Territories held in March 1999 showed that there were still obvious deficiencies in French-language services, and that the situation was getting worse every year. The territorial government and the Official Languages Commissioner explained the absence of French services by invoking their "weak demand."
In the education sector, the Northwest Territories must abide by section 23.2 of the Charter of Rights and Freedoms, but the right to French instruction is granted only "where numbers warrant." There is only one completely French elementary school of roughly thirty students; in three other schools, some classes are given in French. The Northwest Territories Education Act (1988) also contained provisions directed at aboriginal peoples. It was stipulated that the language used in aboriginal school boards must be the one used by the majority of its members. Local authorities also have the power to determine the language of instruction for kindergarten and for the first two years of elementary school. For subsequent years, the education minister for the Territories may decide on the language of instruction in the schools. However, in quite a few territorial schools, the language of instruction remains Inuktitut until the secondary level.
In the fall of 2001, the Government of the Northwest Territories established a parliamentary committee charged with submitting recommendations on the revision of the territorial law on official languages. This 1984 act contained provisions stating it has to be reviewed every ten years. However, actual enforcement of the act poses numerous problems:
- No regulations have been adopted under the act; certain "guidelines" were set out in 1997, but these did not respect the act, and in fact, diminished its reach.
- The territorial government has no wish to enforce the act fully or to improve services to Francophones.
- French services not only suffer obvious deficiencies, but their quality worsens every year.
- On an observation day (February 11, 1999) dubbed "Operation Polaroid," the firm of Nadeau, Beaulieu and Associates discovered that 75% of goods or services were not available in French.
- The territorial government admits that these deficiencies can be traced to a lack of financial resources, but since 1985, the federal government has assumed all costs relating to French, amounting to some $30 million; although the Ministry of Canadian Heritage contributes annually to the territorial government, often an unspent portion of the funds is returned.
- To justify the absence of French services, the territorial government pleads "weak demand" for them.
- The rights of Francophones of the Northwest Territories are only respected because of a 1992 lawsuit.
In March 2002, the Official Languages Commissioner for Canada appeared before the committee and proposed improvements to the existing language system on the legal, regulatory, and administrative fronts. She also asked the federal government to work closely with the territorial government to establish a "new scheme of official languages governance." At some point, we should see a revised act, true to the Charter of Rights and Freedoms and more attuned to the needs of the territory's Francophone community.
The Yukon government passed its Languages Act in 1988, but implementation was only slated for December 31, 1992. Subsection 1 of section 1 of the act declares in principle that French and English are the official languages of the Territory, but this may be interpreted somewhat ambiguously. Many legal experts still puzzle over the status of French in the Yukon: it could literally be believed that neither French nor English has an official character in Yukon, only that it uses the official languages of Canada:
1) The Yukon accepts that English and French are the official languages of Canada and also accepts that measures set out in this Act constitute important steps towards implementation of the equality of status of English and French in the Yukon.
2) The Yukon wishes to extend the recognition of French and the provision of services in French to the Yukon.
3) The Yukon recognizes the significance of aboriginal languages in the Yukon and wishes to take appropriate measures to preserve, develop, and enhance those languages in the Yukon.
Section 3 specifies that "everyone has the right to use English, French, or a Yukon Aboriginal language in any debates and other proceedings of the Legislative Assembly." In all ordinances and regulations of the Legislature, both English and French are equally authoritative.
With regard to the courts, section 5 of the Languages Act states that any person has the right to use English or French. However, this right is limited to criminal proceedings and does not include the right to be understood; judges and juries are not required to know the language of the defendant. Persons appearing in court cannot avail themselves of interpretation services unless it is obvious that the proceedings would not be effective without them. As in all of Western Canada, bilingualism in legal matters is limited, often amounting to little more than the presence of an interpreter.
As for the language of government services, section 6 of the act recognizes that the public has the right to use English or French, but that right is applicable only if "there is a significant demand for communications with and services from that office in both English and French":
1) Any member of the public in the Yukon has the right to communicate with, and to receive available services from, any head or central office of the Legislative Assembly or of the Government of the Yukon in English or French, and has the same with respect to any other office of any such institution if
a) There is a significant demand for communications with and services from that office in both English and French; or
b) Due to the nature of the office, it is reasonable that communications with and services from that office be in both English and French.
2) The Commissioner in Executive Council may make regulations prescribing circumstances in which for the purposes of subsection 1) significant demand shall be deemed to exist or in which the nature of the office is such that it is reasonable that communications with and services from that office be in English and French.
In any case, there were only 890 Francophones in the Yukon in 2001, and almost no bilingual public servants. Nevertheless, the Yukon government has undertaken a program that will progressively establish services in French in federal offices, law courts, and hospitals. The Languages Act also mentions "the provision of services of the Government of the Yukon in one or more of the aboriginal languages of the Yukon."
In the area of education, section 23.2 of the Charter of Rights and Freedoms is applicable insofar as "numbers warrant." The Yukon has only one French-language elementary school with roughly forty students: École Émilie-Tremblay. Only about 5% of children have access to French schools. A new school regulation was passed in 1991 allowing Franco-Yukonnais to manage their own school system. The first French-language school board in the Yukon began operations in December 1995. Its five members committed themselves to fighting against assimilation, to "re-Frenchifying" students, and to informing eligible parents of their right to French instruction for their children.
At the time of its creation in April 1999, Nunavut was subject to the laws of the Northwest Territories which applied by default. From a legal point of view, Nunavut was, therefore, subject to the provisions of the Canadian Constitution, the Nunavut Act passed on June 10, 1993, by the Federal Parliament, and the Official Languages Act, 1988, a law inherited from Northwest Territories.
The Nunavut Act came into force in 1993, when it was thought that most questions involving transition could be resolved by a general provision calling for the transfer of the laws of the Northwest Territories to the new territory of Nunavut. Provisions were made under section 23.1 of the Nunavut Act (subsection n) for the territorial Legislature to make laws in all areas, including "the preservation, use and promotion of the Inuktitut language, to the extent that the laws do not diminish the legal status of, or any rights in respect of, the English and French languages":
(1) Subject to any other Act of Parliament, the Legislature may make laws in relation to the following class of subjects: [...]
m) Education in and for Nunavut, subject to the condition that any law respecting education must provide that:
i) a majority of ratepayers of any part of Nunavut, by whatever name called, may establish such schools in that part as they think fit, and make the necessary assessment and collection of rates for those schools, and,
ii) the minority of the ratepayers in that part of Nunavut, whether Protestant or Roman Catholic, may establish separate schools in that part and, if they do so, they are liable only to assessments of such rates as they impose on themselves in respect to those separate schools;
n) the preservation, use and promotion of the Inuktitut language, to the extent that the laws do not diminish the legal status of, or any rights in respect of, the English and French languages;
Section 29 of the Nunavut Act stated that as of April 1, 1999, all laws in force in the Northwest Territories would apply to Nunavut. Section 38 on official languages specified that if Nunavut wished to amend the Official Languages Act of the Northwest Territories, it first needed to obtain the concurrence of Parliament, unless it wished to increase the rights and privileges mentioned therein:
Official languages ordinance
1) Except in respect of any provision that the Commissioner in Council of the Northwest Territories was empowered, by section 43.2 of the Northwest Territories Act, to enact without the concurrence of Parliament, the ordinance of the Northwest Territories entitled the Official Languages Act and continued in force in Nunavut by section 29 may not be amended, repealed or otherwise rendered inoperable by the Legislature without the concurrence of Parliament by way of a resolution.
Additional rights and services
2) Nothing in subsection 1) shall be construed as preventing the Commissioner or the Legislature from granting rights in respect of, or providing services in, English and French or any of the languages of the aboriginal peoples of Canada, in addition to the rights and services provided for in the ordinance referred to in that subsection, whether by amending that ordinance, without the concurrence of Parliament, or by any other means.
The language law inherited from the Northwest Territories gave official status to English, French, and seven Aboriginal languages. Furthermore, under section 9, "French and English are the official languages of the Territories." The two languages enjoy equal status, rights, and privileges as to their use in institutions of the Legislative Assembly and of the territorial government. Furthermore, seven aboriginal languages are equally recognized as "official aboriginal languages of the Territories" (sec. 5): Saulteux, Cree, Dogrib, Loucheux, North Slavey, South Slavey, and Inuktitut. Sections 6 and 7 concern the use of an Aboriginal language in the Assembly. In 1990, the territorial Assembly passed an Act to Amend the Official Languages Act; section 5 was repealed and replaced by the following: "Chipewyan, Cree, Dogrib, English, French, Gwich'in, Inuktitut, and Slavey are the Official Languages of the Territories."
Yet all of the languages mentioned above are considered official languages of Nunavut. This is why the Government of Nunavut wishes to repeal this act and pass a new one that would uphold and promote Inuktitut and Inuinnagtun. However, the act should not abolish or lessen the recognized rights of Anglophones and Francophones, but will add new ones to any language group. It would also have to be simultaneously revised by the Legislature of the Northwest Territories and approved by the Parliament of Canada.
According to section 38 (already quoted above) of the Nunavut Act, the Nunavut government cannot amend or repeal the Northwest Territories Official Languages Act without the consent of the Parliament of the Northwest Territories:
Except in respect of any provision that the Commissioner in Council of the Northwest Territories was empowered, by section 43.2 of the Northwest Territories Act, to enact without the concurrence of Parliament, the ordinance of the Northwest Territories entitled the Official Languages Act and continued in force in Nunavut by section 29 may not be amended, repealed or otherwise rendered inoperable by the Legislature without the concurrence of Parliament by way of a resolution.
The government's final language policy is still being formulated. A commission began studying the question as early as 1998. Numerous briefs were submitted, but because positions were often contradictory, no decision was made. In March 1998, the Nunavut Implementation Commission held a conference in Iqaluit on language policy. Chief Commissioner John Amagoalik made the following remarks in the introduction to the Conference report:
Policies regarding the day-to-day use of language in the governance of Nunavut, including such matters as; language use in the workplace, government communication practices, language use in service and program delivery, language use and instruction in schools, official regulation of language use in the private sector, and a range of other language issues must all be integrated into a language policy that is linguistically sensible, socially progressive, and fiscally responsible. [Original text provided by the Office of the Languages Commissioner of Nunavut]
The Legislative Assembly of Nunavut planned to re-examine this language legislation in 2001 and make changes that would more adequately reflect the situation, reality, and needs of Nunavut. Part of the Annual Report of the Commissioner of Official Languages of October 2000 reads as follows:
Included among these is the goal that Inuktitut become the working language of the Government of Nunavut by 2020, and another that Nunavut become, a fully functional bilingual society, in Inuktitut and English, respectful and committed to the needs and rights of French speakers, with a growing abilityto participate in French.
Following the Canada-Nunavut General Agreement on the Promotion of French and Inuktitut, which took two years to finalize, the Government of Canada agreed to commit $2.9 million to the Government of Nunavut to provide services in French and $2.2 million for programs aimed at strengthening Inuktitut. The agreement was renewed by the Minister of Canadian Heritage and the Nunavut Minister of Culture, Languages, Elders, and Youth on October 9, 2002.
But that was not enough. In March 2007, the Government of Nunavut filed two bills to impose the use of Inuktitut in public places such as restaurants, schools or offices. The Minister of Culture, Language, Elders, and Youth, Louis Tapardjuk, presented the two bills with these words:
This legislation highlights the unique nature of Nunavut in Canada, a territory where the mother tongue of the linguistic majority is the Inuit language and the language that Nunavummiut prefers. This legislation confirms the desire and right of the Inuit to use their language in all spheres of life. At the same time, the proposed legislation seeks to recognize a status of full equality for the three official languages of Nunavut, the Inuit, English and French languages.
The first bill (Official Languages Act) dealt with official languages that made English, French, and Inuktitut the official languages of the territory. The act was passed on June 11, 2009, upon ratification by the Senate of Canada. The new Act imposes official language requirements on territorial institutions, including the Legislative Assembly, the Government of Nunavut, the Nunavut Court of Justice and other judicial, quasi-judicial and public bodies in Nunavut. If the communications and services of a municipality are the subjects of a significant request in an official language, they must comply with requirements concerning that language.
Section 3 reads as follows with respect to official languages:
1) Official Languages
The Inuit language, French and English are the official languages of Nunavut.
The official languages of Nunavut shall, to the extent and in the manner provided for in this Act, have equal status, rights and privileges as to their use in territorial institutions.
In its application to the Inuinnaqtun, this Act shall be interpreted and implemented taking into account the need to give priority to the revitalization of the Inuinnaqtun; and to improve the accessibility of the services referred to in sections 8 to 12 in communities where the Inuinnaqtun is indigenous.
Not only are Inuit, French, and English official languages in Nunavut, but the Minister of Languages is given the responsibility to promote official languages, as well as the full recognition and full enjoyment of linguistic rights, as well as the oversight of official languages activities and compliance by government institutions. The Act also updates the appointment process for the Languages Commissioner, its role, and functions in enforcement, how it can receive applications and the inquiry process. There are provisions for interim and special language commissioners. The Minister and the Languages Commissioner shall each submit an annual report to the Legislative Assembly. In addition, the legislation and its implementation will be the subject of a comprehensive five-year review by the Legislative Assembly.
The second Bill (Inuit Language Protection Act) is devoted to the protection of the Inuit language and its mandatory use on signage and in the area of certain services (including tourism and retailers) in order to ensure that the use of the three languages remains on an equal footing. According to section 3 of the bill, signage, public signs and commercial advertising must be written in Inuktitut in addition to any other language used. Some essential services will also need to be available in Inuktitut, such as rescue or rescue services or services, health intake or distribution services, medical and pharmaceutical services, basic household services (electricity, fuel, water, Telecommunications), accommodation or hospitality services, including catering, hotel, and accommodation services.
The new legislation also provides the Languages Commissioner with new tools to investigate and obtain the necessary cooperation to ensure compliance with the law by public and private sector organizations that previously had no Inuit language obligations. An appeal to the Nunavut Court of Justice is also scheduled. The Inuit Language Protection Act and the Official Languages Act must be thoroughly reviewed by the Legislative Assembly every five years. The law was assented to on 18 September 2008.
These two new laws are part of a package and respond to a situation described as "inequity" by the Government of Nunavut. Before these two statutes, there was no clear statutory provision confirming the linguistic rights of the Inuit, and there were individuals who denied the existence of these rights. In addition, the Inuit (or Inuktitut) language is at risk in Canada. The most recent data from the Canadian Census show that only 64% of Inuit in Nunavut speak Inuktitut most often at home.
According to section 23 of the Education Act, 2008, the curriculum provides bilingual instruction and the language of instruction must be Inuit (Inuktitut or Inuinnaqtun), English or French. Anglophones will continue to attend English schools and Francophones French (elementary) schools; Inuit will attend schools where instruction will be either in English, Inuktitut, or Inuinnaqtun (with mandatory English as a second language), as appropriate. Many Inuit believe that ancestral languages are not sufficiently taught in schools. In addition, because they are inundated with English music and television, many young Inuit eventually lose their language and culture. Many of them even turn their backs on the world of their ancestors. Anglophones will continue to go to English schools, Francophones to French (primary) schools, and Inuit, as appropriate, to schools where either English or Inuktitut, or Inuinnaqtun (with compulsory English as a second language). Many Inuit believe that ancestral languages are not taught enough in schools. In addition, by listening to music and television in English, many young Inuit people lose their language and culture. Moreover, many young people turn their backs on the world of their ancestors.
Section 24 of the Education Act states that there may be more than one language of instruction in a school district and more than one language of instruction in a school. Section 26 allows the Minister to introduce another language into teaching. In principle, it is Inuktitut or Inuinnaqtun if the language of instruction is English or French, it is English if the language of instruction is Inuktitut or Inuinnaqtun.
The Association des Francophones du Nunavut has shown that it is difficult to obtain services and impossible to attend school in French, even though more than 10% of the Iqaluit population is Francophone. The situation is not likely to improve in the near future. On the other hand, the Kativik School Board (in Nunavik in northern Quebec) has already published nearly 200 school textbooks in Inuktitut, English, and French.
3. Constitution Act of 1982 and Charter of Rights and Freedoms
In 1982, Canada adopted an additional piece of constitutional legislation: the 1882 Constitution Act. This act did not replace the constitutional texts then in use, including the Constitution Act of 1867, but rather added to them. This new constitution entrenched the Charter of Rights and Freedoms, and the circumstances under which it was adopted have been perceived by some as somewhat murky. The Constitution was approved by the nine majority-Anglophone provinces and by the federal government, but without the consent of Quebec, the only predominantly Francophone province. And yet, compared to the constitutional text of 1867, the Constitution Act of 1982 was highly innovative in linguistic matters. For instance, it provided a procedure for modifying language legislation depending on whether the change related to a provision affecting some provinces only, all provinces, or the federal government.
Constitution Act of 1982 and Charter of Rights and Freedoms
In 1982, Canada adopted an additional piece of constitutional legislation: the 1882 Constitution Act. This act did not replace the constitutional texts than in use, including the Constitution Act of 1867, but rather added to them. This new constitution entrenched the Charter of Rights and Freedoms, and the circumstances under which it was adopted have been perceived by some as somewhat murky. The Constitution was approved by the nine majority-Anglophone provinces and by the federal government, but without the consent of Quebec, the only predominantly Francophone province. And yet, compared to the constitutional text of 1867, the Constitution Act of 1982 was highly innovative in linguistic matters. For instance, it provided a procedure for modifying language legislation depending on whether the change related to a provision affecting some provinces only, all provinces, or the federal government.
Bilingualism of Federal Institutions
In matters of language, most of the constitutional provisions concern only the bilingualism of federal institutions and those of New Brunswick, with the exception of Section 14 (courts) and Section 23 (minority language education rights). Section 14 reads as follows:
A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.
Sections 16 to 22 constitutionalize the provisions of the Official Languages Act of 1969 concerning the languages of the Federal Parliament, federal courts, and services offered by the central government; such is also the case for the Official Languages of New Brunswick Act of 1969:
1) English and French are the official languages of Canada and have equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.
3) Nothing in this Charter limits the Authority of Parliament or a legislature to advance the equality of status or use of English and French.
1) Has the right to use English or French in any debates or other proceedings of Parliament.
2) Everyone has the right to use English or French in any debate and other proceedings of the legislature of New Brunswick.
1) The Statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.
2) The Statutes, records and journals of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.
1) Either English or French may be used by any person in, or in any pleading in or process issuing from any court established by Parliament.
2) Either English or French may be used by any person in, or in any pleading in or process issuing from any court of New Brunswick.
1) Any member of the public of Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where
a) There is significant demand for communications with and services from that office in such language; or
b) Due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.
2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.
Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada.
Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.
In 1993, a constitutional amendment was passed by insertion of section 16.1 regarding New Brunswick:
1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.
2) The role of the legislature and the government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection 1) is affirmed.
The Constitution enshrines the concept of the legal equality of languages in Parliament and in the federal government, but not for the country as a whole. Strictly speaking, Canada is not an officially bilingual country. It is a bilingual federal state, for, aside from the provisions relative to New Brunswick, the Constitution Act of 1982 deals only with areas under federal jurisdiction. Provinces, municipalities, and private bodies are not subject to institutional bilingualism. The federal government cannot invoke the Constitution to interfere in provincial language policies without the consent of the province. This was the case for New Brunswick, the only constitutionally bilingual province.
The sections cited deal only with the federal government, aside from the additional subsections that apply solely to New Brunswick, added at the request of that province. So obviously, the Constitution's language provisions bind only the Government of Canada, not the provincial governments (with the exception of New Brunswick).
Right to Instruction in Minority Language
Section 23 of the Charter of Rights and Freedoms, which is entrenched in the Constitution Act of 1982, deals with instruction in the language of the official minority language. Unlike above, the constitutional clause applies to all Canadian provinces without exception.
Section 23 thus obliges all Canadian provinces to provide schooling in English or French to any and all Canadian citizens wishing to have their children taught at the primary or secondary levels in the language in which the parents received their instruction:
1) Citizens of Canada:
a) whose first language learned and still understood is that of the English or French linguistic minority of the province in which they reside, or
b) Who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,
have the right to have their children receive primary and secondary school instruction in that language in that province.
2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary language instruction in the same language.
3) The right of Citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English and French linguistic minority population of a province
a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and
b) Includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.
Under subsection 23.1-a of the Charter of Rights and Freedoms, three criteria must be met to be eligible for minority-language schooling at the provincial level, i.e. in French in the English-speaking provinces and in English in Quebec:
1) One of the parents must be a Canadian citizen.
2) One of the parents must have French or English as his or her first language (i.e., that language must be the first language understood and still understood) or must have been schooled in that language at the primary level.
3) One must belong to the Anglophone or Francophone minority of the province of residence.
According to section 23, it is clear that the right to instruction in the minority language is granted to the parents rather than to the children. Moreover, the Charter does not require the children's mother tongue to be the principal language of their primary and secondary studies. In all Canadian provinces, only the official language minority has the constitutional right to attend schools of its own linguistic group. One must be a member of the Francophone minority of an English province to attend a French school or, in Quebec, a member of the Anglophone minority. Finally, no minority is compelled to attend the school of its own linguistic group.
Situation in Quebec
The constitutional right to receive instruction in the minority language of the province of residence is the same for all Canadian citizens, except in Quebec. In fact, section 59.2 of the Canadian Charter specifies that subsection 23.1-a relating to the mother tongue of the parents is applicable in Quebec only with the authorization of the National Assembly or of the Government of Quebec. But Quebec has never adopted a resolution in this matter, which means that only subsection 23.1-b applies to it. In other words, to have the right to English instruction in Quebec, one of the parents must have received English instruction at the primary level anywhere in Canada; it is not enough, therefore, to be a native speaker of English. Everywhere else in Canada, the mother tongue of one of the parents constitutes, in theory, a sufficient criterion for access to the minority institution on condition that this language be "still understood," which is not always obvious in the case of Francophone parents outside Quebec.
In accordance with the Canadian Charter, a Canadian Anglophone from Quebec who has not studied in an English school, even with the right to do so, can reap no benefits from subsection 23.1a, which does not apply in Quebec, and loses the right to have his or her children instructed in an English school. However, under sections 73 and 76 of the Charter of the French Language of Quebec, a child recognized as admissible to primary instruction in English is assumed to have received primary instruction in English, even if this was not the case. In this way, unlike Francophones living outside Quebec who lose their constitutional right, school children eligible for English instruction who choose to study in French do not lose their rights, either for themselves or their siblings, or for their descendants. The situation is the same for Francophones in Ontario and New Brunswick.
Francophones Living outside Quebec
Canadian citizens living outside Quebec have the constitutional right to have their children instructed in a French school if they learned French as a first language and still understand it; if they no longer understand it, they lose that right for their children in accordance with subsection 23.1a, unless they were educated in French, in which case subsection 23.1-b still applies.
In practice, children with the right to French instruction in English provinces must attend a French primary school at the primary level or have a child who has or is being schooled in that language in Canada (in a private school, for example) if they wish to pass down their constitutional right to the next generation. Most of the time, parents who send their children to English primary schools are unaware that this decision will weigh heavily upon all of their descendants. Indeed, if the children do not study in French in primary school, they will not obtain, in accordance with subsection 23.1b, the right to have their own children instructed in this language.
Other Linguistic Provisions
Sections 55 to 57 deal with the English and French versions of the Constitution Act of 1982:
A French version of the portions of the Constitution of Canada referred to in the schedule shall be prepared by the Minister of Justice of Canada as expeditiously as possible and, when any portion thereof sufficient to warrant action being taken has been so prepared, it shall be put forward for enactment by proclamation issued by the Governor General under the Great Seal of Canada pursuant to the procedure then applicable to an amendment of the same provisions of the Constitution of Canada.
Where any portion of the constitution of Canada has been or is enacted in English and French or where a French version of any portion of the Constitution is enacted pursuant to section 55, the English and French versions of that portion of the Constitution are equally authoritative.
The English and French versions of this Act are equally authoritative.
It should be mentioned that there is no official French version of the Constitution Act of 1867, which was passed at the time in English by London. Thus, to pass a French version, it would be necessary to amend the Constitution in order to insert it.
For Francophones outside Quebec, the Official Languages Act allowed them to claim rights long denied. The federal legislation also gave them new weapons to obtain and promote language rights in their province. Since the adoption of this important federal law, Francophone minorities have managed to obtain justice in the courts. They have won in many, if not most, cases. For some Francophone minorities, federal legislation (and section 23 of the Charter of Rights) is often the only law that can defend them against the negative and assimilative attitude of their provincial government.
Moreover, this policy has eliminated the injustices and iniquities against Francophones. It certainly cost Canadian taxpayers millions. According to a study by the Fraser Institute released in 2012, the provision of bilingual public services costs Canadian taxpayers approximately $ 2.4 billion a year, or $ 85 per citizen. At the same time, however, this policy has helped to prevent the break-up of the country and to maintain a climate of social peace that would be the envy of many other countries. It is also for this reason that Canada has gained an enviable reputation throughout the world for advancing the interests of its linguistic minorities. Despite some inevitable failures, Canada's bilingualism policy is often cited as an example in many countries.
Desired linguistic equality has not been fully realized. This right to the "language of one's choice" is difficult to achieve everywhere, since, as numbers do not always justify it, active offerings in French (or in English in certain regions of Quebec) are often deficient, if not non-existent. It is easier to extend this right to symbols (eg, bilingual signage for federal buildings, currency, postage stamps) and to real services to the public. There are currently 55 bilingual sovereign States around the world. With the exception of Belgium, none of the 54 other States has successfully implemented an equality bilingualism between languages. The reason is obvious: it is difficult to grant equal rights to numerically unequal groups.
In Canada, the conception of language rights is to promote a symmetrical view of official languages; this vision assumes that Francophones and Anglophones are considered equal groups. On the one hand, there are "French-speaking Canadians, concentrated in Quebec but present in the rest of Canada", on the other hand, "English-speaking Canadians, concentrated in the rest of the country but also present in Quebec". As a result, Canada would have two majorities within which minorities are identified that need to be protected. The application of this principle consists in taking measures to protect only the francophone minorities in the English provinces and the Anglophone minority in Quebec. This concept of the two equal majorities makes it possible to better accept bilingualism in the nine Anglophone provinces. Such a language policy is based on the premise that Quebec's Francophones form a majority that does not need protection and that Anglophones constitute a minority that must be protected. But it is not English that is threatened in Canada, but French, including Quebec. From a legal point of view, according to the interpretation of the Supreme Court of Canada, there are no "Canadian" linguistic minorities, but only "provincial" linguistic minorities over which the federal government exercises very little jurisdiction If not through the Canadian Constitution.
Broad-Based Language Policy in the Provinces: New Brunswick, Ontario, and Quebec
Provincial autonomy being what it is, the various language policies of the provinces may seem like an ill-coordinated jumble. Canadian provinces are distinct legal entities whose policies may differ from each other’s. It’s as if there were one federal language policy (including federal territories) and ten provincial language policies.
Nevertheless, although the language policies adopted in Canada by different governments are distinct and autonomous, they are still subject to certain provisions of the Canadian Constitution. Not only must the federal government and the provincial governments submit to the Canadian Constitution, but so must citizens and public and private concerns. This means that in language matters all provinces must submit to the provisions of the Constitution Act of 1982 with regard to school rights, that is to say, section 23. Furthermore, certain clauses concern only the federal government, while others deal only with the New Brunswick government (at its request).
Among the ten Canadian provinces, one can distinguish three different approaches:
1.Broad-based language policies dealing in principle with all aspects of society: legislation, justice, public services, education, etc.
2.Sector-based language policies dealing with education or law, for example
3.Non-interventionist policies whereby a Canadian province merely complies with constitutional constraints or decisions of the courts
A policy is considered broad-based when it concerns the principal spheres of social life. Moreover, this policy must be supported by interventionist measures, generally laws or regulations. In short, such a policy requires that a government anticipate difficulties and plan its interventions. Only three provinces fulfill these criteria: New Brunswick, Ontario, and Quebec.
Ontario and Quebec are officially unilingual, but this in no way prevents these provinces from granting extensive rights to their linguistic minority in almost all major walks of life. In fact, some sectors are officially bilingual, such as the legislature, the courts, government services or education. This is all to the credit of the provinces, but in practice, the rights of the linguistic minority are no more widespread in one (Ontario) than in the other (Quebec). Roughly speaking, one might say that the linguistic minorities of these three provinces enjoy relatively similar rights. Of course, there are differences, but the similarities are striking.
Sector-Based Language Policy in the Provinces: Prince Edward Island, Nova Scotia and Manitoba
Provinces that have developed sector-based languages policies generally focus on a single aspect of the language in question, or no more than two or three. More specifically, this approach consists of adopting relatively detailed legislative measures in one, two, or three sectors as they relate to the use of minority languages. Education appears to be a popular sector in this regard, but certain policies address other areas such as legislation, justice, or government services.
As a rule, the provinces that adopt this approach have regulated problems as they have arisen, particularly in the wake of court rulings. Three provinces stand out in this regard: Manitoba, Nova Scotia and Prince Edward Island.
Linguistic Policies of Non-Intervention: Alberta, British Columbia, Saskatchewan, and Newfoundland
A policy of non-intervention consists of adopting a laissez-faire approach, ignoring any problems that arise and allowing language situations to work themselves out according to the forces at play. Such policies are deliberate, planned choices that generally work to the benefit of the dominant or official language.
In principle, a non-interventionist policy is unwritten and unofficial, although the government can decide to state its intent, further its actions through administrative means, or even enact regulations, Orders in Council, or vague constitutional or legislative provisions. However, a non-interventionist government refrains from acting as arbitrator and is careful not to adopt specific legislative provisions. The principles of freedom of choice, tolerance, and the acceptance of differences are often invoked to justify such policies.
In practice, the term "non-interventionist policy" can be misleading, because a state or province may practice both intervention and non-intervention simultaneously, for example, by taking no action with regard to the official language but protecting minority languages, or, conversely, by promoting the official language while making no provision for minority languages.
In the Canadian context, non-interventionist policies generally consist of abiding by constitutional obligations and court rulings or orders. Instead of imposing a ban, as has been done in the past, a province merely has to grant the rights recognized by the Canadian Constitution or enforced by the court, generally a Court of Appeal or the Supreme Court of Canada. Technically, this amounts to non-intervention on the part of the province.