In honor of the International Day of Francophonie, JURIST’s Chief Correspondent for Canada, Mélanie Cantin conducted an interview with Professor François Larocque, a professor at the University of Ottawa’s Faculty of Law in the French common law program, where she is a second-year student. Professor Larocque also holds the position within the university of Research Chair in the Francophone World — the top research chair in Canada on language rights and the development of the standards that govern them through strategic interventions. This interview is also available in the original French here.
Mélanie Cantin: Professor Larocque, thank you very much for being here with us. Can you start by telling us a bit about who you are, your areas of expertise, and the kind of work you do in the area of the francophonie in Canada?
François Larocque: With pleasure and good morning, thank you for the invitation. My name is François Larocque, and I am a full professor at the common law section of the University of Ottawa, and more specifically, I teach in the French common law program. So. it’s a unique program in the world, as you may know, we and Moncton teach common law in French, and that’s about it.
And in addition to my work as a professor, I am a researcher in language law, and I hold the Chaire de recherche sur la francophonie canadienne en droit et enjeux linguistiques, which means when I’m not in the classroom teaching classes, I do research on the issue of language rights, which is a very important aspect of Canadian law, and it is the branch of law that protects all the social and public conditions of the French language and the English language, that is, Canada’s two official languages, in the country’s institutions.
Mélanie Cantin: Thank you, so could you give us a brief summary of the rights of linguistic minorities in Canada under our Constitution?
François Larocque: Right, so to start setting the table, you have to know that Canada has had two official languages since 1969, when there was the Official Languages Act. In 1982, when Canada repatriated the Constitution, that is to say, the means to amend our own Constitution without going through the United Kingdom were brought back to Canada, it’s at that time that Canada adopted the Canadian Charter of Rights and Freedoms, which is a codification of 34 sections that list and protect Canada’s fundamental rights, Canada’s human rights at the federal level and also against the provinces for certain rights.
Now, of the 34 sections of the Charter, almost half of them deal with language rights, so that’s a big part of our constitutional order when you think about it. Sections 16 to 23 of the Charter guarantee lots of language rights. We first recognize that French and English are the official languages of Canada, and that in law, in status, and in privileges, these two languages are equal, there is no hierarchy. Just because English is numerically superior in Canada, there are more people whose first language is English, does not mean that English is more important. On the contrary, our Constitution guarantees the equal rights, status and privileges of both languages.
And then the subsequent clauses, basically, guarantee to everyone, whether you’re French, English, or whether you speak Mandarin or Greek, in short, everyone in Canada is guaranteed the right to access the country’s most important institutions in the official language of their choice, either French or English. So, what does that mean? It means that Parliament, of course, will pass its laws in both languages. It means that everyone has the right to use English or French when interacting in Parliament or with the institutions of Parliament. It also means that we have the right to receive services in French or English where numbers warrant it, so there are regions of the country where there are no anglophones, so all federal services will be provided in French and vice versa in regions where there are no francophones at all and services will be available in English. But the general principle is that by communicating with the headquarters of government, departments and offices, and even in regions from coast to coast, you have the right to access services in both languages of the country. And finally, it also means that we have the right to access justice in English or French before federal courts or courts governed by section 19 of the Charter, which includes the courts of the territories, the Northwest Territories and the territories of Nunavut and Yukon.
And finally, the most important section for the minority itself is the right to access education in the minority language, that’s section 23 of the Charter. And, that, for the francophone minority outside Quebec, that’s what guarantees the right to primary and secondary education and that means that we have French-language schools in Saskatchewan, Alberta, the territories, everywhere. We have the right to go to school in French and to receive our primary and secondary education in French. Conversely, anglophones have the same right in Quebec, so anglophones have the right to access primary and secondary schools in their language. And so together, these are the rights guaranteed by the Canadian Charter of Rights and Freedoms, the sections of the Canadian Charter of Rights and Freedoms.
But there are also other laws: the federal Official Languages Act still exists, the territories have official languages acts that guarantee language rights to other languages, such as First Nations and Inuit languages, and also there are other provinces, such as Ontario, which has the French Language Services Act, Prince Edward Island has a French language services act, Nova Scotia has a French language services act. Virtually all provinces have laws or policies that guarantee or recognize the rights of the francophone minority. So that’s what forms the legal structure of language rights in Canada, and that’s what I study.
Mélanie Cantin: Thank you. In your opinion, what is currently the most important issue affecting francophones in Canada, and why?
François Larocque: Well, I think one issue that concerns everyone is the modernization of the Official Languages Act. So, the Official Languages Act was first passed in 1969, and then it was thoroughly revised in 1988, but it has remained pretty much untouched since 1988. So, we have had this legislation for a very long time, some 30 years now, and yet Canada has changed a lot, so we need to modernize this legislation and adapt it to 21st century Canada.
So, Canada has begun (when I say Canada, I mean the federal government) national consultations on how to modernize this legislation, what it should be. Then the various parties, the various communities, all made submissions, testified in Parliament, and I had the opportunity to speak four times before the various committees of Parliament, the Senate and the House of Commons, who are studying the bill, and we are now studying Bill C-13 (that is the name of the bill) line by line and we hope to see the adoption of this new Official Languages Act in 2023. So, this, I think, is going to be important.
This is important because, while recognizing the equality of French and English, which I was talking about earlier, we recognize that, in fact, French is in a more vulnerable position than English. We recognize that English dominates everywhere in Canada, but also around the world. It has really become the de facto international language, and that’s good, I think it facilitates a lot of international trade and interaction between countries, but within a country, when English crushes a minority language or minority languages, it gets more problematic. And that is why it is important to have good legislation like the Official Languages Act, which recognizes this reality, which recognizes that French is in a vulnerable position, and then puts in place mechanisms to further support this more vulnerable language.
Mélanie Cantin: Thank you. One fact that is somewhat less well-known about our Constitution in Canada is that the Constitution Act, 1867 was never officially adopted in French. Can you tell us a bit about the history behind the fact that this act exists only in English and why it hasn’t yet been translated?
François Larocque: This is lesser-known fact and a big problem in our constitutional order. So, as you say, the Constitution Act, 1867, which before we called the British North America Act, was passed in 1867 in English only. And yet, one of the fundamental conditions of the Canadian federation was precisely that bilingualism, Quebec which was represented at the time by the four founding provinces, within the four founding provinces by Quebec. But the idea was that the Canadian federation should be bilingual, that is, that Parliament should pass its laws in both languages and that the Quebec legislature should pass its laws in both languages, and the federal and Quebec courts can operate in both official languages.
So, language rights were part of Canada’s initial agreement and we also understood that, as Canada grew, the other provinces that would be added would have the option to express or label themselves as being bilingual as well. Until now, New Brunswick has done so, and Manitoba also has constitutional obligations with respect to language. Canada has grown, constitutional texts have accumulated, but the vast majority of Canada’s constitutional texts have the force of law only in English, including the Constitution Act, 1867.
In 1982, when the Constitution was repatriated, and I’ll tell you about this in a second, we realized that this was a problem, especially when the Constitution itself says that French and English are the official languages of Canada. It would be important for the Constitution of Canada to be equally bilingual, wouldn’t it? So, the constituents at the time, the drafters of the Constitution in 1982, said, “We’re going to do something. We will mandate the Minister of Justice…” (this is in section 55 of the Constitution Act, 1982) “The Minister of Justice will be mandated to produce a French version of all Canadian constitutional texts”. We are talking about 30 texts. So 9 of them have legal force in both languages, so the vast majority of texts, 21 in all, have legal force in English only, including the Constitution Act, 1867. They therefore instructed the Minister of Justice to have all these texts produced in French as soon as possible, and when they were ready, to have them adopted according to the amending formula applicable to each of the texts.
So, we have to know that some texts will require federal support, I mean, unanimous support from all the provinces and the federal government. Certain texts may be adopted unilaterally by the federal government or the province concerned. Certain texts can be made by bilateral agreement between the federal government and the provinces. In short, different amending formulas are applicable, but we must adopt these constitutional texts in both languages, it is the Constitution itself that commands it! Yet here we are, in 2023, more than 40 years later, and it is still not done. The Constitution still does not have force of law in both official languages of the country, and that is a problem.
Melanie Cantin: Sorry, keep going.
François Larocque: No, well, I think it’s a good time to stop and hear your next question.
Mélanie Cantin: What are the problems more specifically that have arisen or that could arise from the fact that this constitutional legislation and the other pieces of legislation you are talking about have not yet been translated into French?
François Larocque: There are two types of problems, and there are many. The biggest practical problem is that, in Canada, we have expertise in interpreting bilingual laws. We are used to passing our laws in both official languages, both versions have equal authority, and then we can resolve ambiguities in one version of the act by referring to the other version of the act.
And that is a very powerful legal tool that if you are a judge or a court and you have to rule on a dispute, you can simply compare the two versions in each language, and find a meaning that harmonizes the two versions and resolve disputes in that way. It’s not possible with the Constitution, so it’s a problem when you don’t have a text against which to compare versions that are sometimes ambiguous. So sometimes there are ambiguities in the English version, so having a French version, certainly, would help with interpretation issues.
I will give you an example of a case in which I myself was involved in, a case that originated in Alberta, a language law case involving the interpretation of the Constitution Act, 1867 and the 1870 Order in Council that led to the annexation of Rupert’s Land to Canada. So, when the Hudson’s Bay Company sold Rupert’s Land to the rest of Canada, and it became essentially the Northwest Territories, and later it became Alberta, Saskatchewan, and all the provinces that were subsequently created. There was an agreement reached with Louis Riel and the francophone Métis that all the rights and privileges of the francophone Métis already recognized under the Hudson’s Bay Company would be continued under Canada. And Canada made that commitment again in an address that Parliament presented to Her Majesty the Queen in England in 1867 and a second address in 1869 and just before the annexation of that vast territory to Canada.
The address itself was produced in both languages because section 133 of the Constitution Act, 1867 requires Parliament to do everything in both languages. So, the address to Her Majesty, the promise to respect the rights of the inhabitants of the region was made in both languages. So, the French version says “de préserver les droits” and the promise in the English version says “to protect the legal rights”. So we have the expression “legal rights” that is used in the English version, and quite simply the expression “droits” [“rights”], which is potentially more encompassing, is it not, as an expression. The problem is that Parliament produces these two schedules and they are appended to the Order in Council that merges Rupert’s Land and Canada. Except that the order was taken in English only, so only the English version received constitutional effect and was therefore annexed to the Constitution. So it was only the expression “legal rights” that was constitutionalized. The term “droits” that was used in the appendix in the French version of the address of Parliament, it’s dead letter. It has meaning for us, but constitutionally, it does not carry the same weight as the English version.
So, this is a problem. We have a text that, potentially, guarantees far more rights to the citizens of the entire territory of Rupert’s Land, which became Saskatchewan, Manitoba, Alberta, the Northwest Territories, Nunavut, in short, everything that was west of Ontario, essentially. There are potentially rights that are not recognized because of this linguistic problem. And so that was one of the debates to be resolved in the Caron case, and because the French version did not have force of law, we could not take it into account. The court said, “ah, in any case, we would have achieved the same result if we had access to both versions” but that is not what happened. The court, in the end, privileged a much more restrictive interpretation, closer to the meaning of “legal rights” than the term “droits”. So, this is a very concrete example, very specific, perhaps too specific for the question you asked me, but this is an example of how important it is to have updated constitutional texts in both languages.
There is another type of problem with having a constitution that is supposed to be bilingual in law, but that in fact is not. It’s a symbolic problem. It’s a collective representativeness problem. A large segment of the population of Canada, often referred to as one of the founding powers, one of the founding peoples, the Canadian francophonie, who gets promised things, but in fact, we don’t deliver on the promise. So symbolically, in terms of respect between Canada’s two official language communities, it’s very problematic. So, we have to solve this problem, the constituents in 1982 planned to solve it with section 55, to have both versions of the constitutional texts adopted.
Unfortunately, we simply did not follow through, there was no political follow-up to this imperative constitutional commitment. And it’s written, it can’t be clearer… this has to be done. It’s not “this can be done when the minister is willing to do it”, it’s “as expeditiously as possible, this will be done”. So it’s a constitutional order that’s just been ignored for over 40 years, and it’s very problematic. In an attempt to advance the national conversation on this issue, Senator Serge Joyal and I filed a motion in the Superior Court of Quebec asking the court to order the Government of Canada, the Government of Quebec, and eventually the other provincial governments, to respect section 55 and to follow through on the constitutional commitment that was made in 1982 so that we can finish once and for all with the repatriation of the Constitution of Canada, because until the Constitution is fully bilingual, our Constitution is not entirely Canadian, in my opinion.
Mélanie Cantin: Thank you, I think a lot of people understand the symbolic problem but your example really helps to make us see how it can become a real legal problem.
François Larocque: Well, let’s think of another more concrete example. Another dispute, the Comeau case, concerned the importation of alcohol between provinces by citizen. So, it was the gentleman from New Brunswick who brought beer to Quebec, in short, the RCMP intercepted him. It revolved around the interpretation of a section of the Constitution, section 121 of the Constitution Act, 1867. And still, unfortunately, only the English version had the force of law, so would the court’s analysis have been different if it had had access to both versions? These are the kinds of problems that arise. So, we are fortunate to have the possibility of a richer interpretation with both language versions, and unfortunately we are depriving ourselves of those advantages.
Mélanie Cantin: You mentioned a motion you filed with the Superior Court of Quebec. What is the status of this effort to complete the patriation of the Constitution, and are you aware of other efforts being made across Canada to try to change the fact that the Constitution is not fully translated?
François Larocque: Well, one of our objectives obviously was to bring this issue to national attention, to remind people that this is still not done and that we simply ignore, there is a collective willful blindness around section 55. And when I talk to judges, appellate court judges, superior court judges, even Supreme Court judges, they are still surprised to learn that this is still not done. They are either not aware of section 55 or on the contrary, they are aware of it, but they believed that it was already done, that the Constitution had the force of law in both languages. Because if we go on CanLII or on legal research websites, we can find French versions of all our constitutional texts, but there is a big banner at the top that says “Warning, the French version does not have the force of law”. It’s an unofficial version that exists, and a lot of people don’t read that banner and read the Constitution as if it had the force of law in French, but it doesn’t have the force of law and it hasn’t been adopted in accordance with the procedure prescribed by the Constitution itself.
In short, so our goal was to make this problem known and to bring it back to national attention, we’ve held a conference, myself and my colleague Linda Cardinal published a book on this in 2017 at the Presses de l’université de Laval, we held a colloquium here at the University of Ottawa, and we regularly give presentations to journalists on the issue, and even recently in the Senate, Senators now have been made aware of the problem, and there was a motion passed in 2022 in the Senate to ask the Government of Canada to report back to the Senate, periodically, on the progress they are making in implementing section 55.
So that is already progress, the fact that Parliament is now aware of the issue and that the courts are now aware of the issue. The problem is the government. The governments have to do something, federal and provincial. They have to move on the issue and stop burying their heads in the sand with the issue and finally comply with section 55.
Where are we at? Well, we filed the motion in 2019. Then there was a pandemic, which caused a lot of delays in procedures, but I understand from my lawyers that we are in the process of gathering all the documentary evidence to explain precisely why we have not yet completed the project that is section 55. So, we are at the stage of finalizing the evidence, the governments and we have made mutual disclosure of the documentary evidence that we have to put all this in court. So, it’s moving, very slowly, but it’s moving.
Mélanie Cantin: So, you’ve already answered this question a little, but do you think that the federal and provincial governments are doing enough to ensure the vitality of the French language and francophones in Canada and, if not, what are the problem areas?
François Larocque: The answer is no, they do not do enough, in my opinion and maybe I will always be more demanding and always ask that we do more, and we must recognize that, since 1960, since the first Official Languages Act was passed, there has been progress. The federal public service is more bilingual than it was 50 years ago, absolutely. Now that we have a constitutional right to school in the minority language in all the provinces and territories of Canada, that is undeniable progress. There are about 40 francophone school boards across the country outside Quebec, which is fantastic. Hundreds of thousands of children who, as we speak, are going to school in French outside Quebec this morning, that is undeniable progress.
That said, the Constitution is still largely unilingual, and the provinces are still reluctant to properly fund French language schools outside of Quebec, and we are always before the courts to get orders to compel governments to treat French-language schools equally and to ensure an equivalent learning experience for French-language students across Canada.
And we can still see during the pandemic that, for example, French and English are not treated the same way. We forgot to make press releases in French. When we had to bring in hand sanitizer, Purell and all that, Health Canada suspended all our rules regarding signage, bilingual labelling so that we could import cleaning products on an urgent basis, disinfectants, but all labelled in English only. This is not only contrary to our official languages and product labelling and merchandising laws, it is also a public danger for French-speaking Canadians who cannot read English and who must rely on written instructions in English. We see that there is still an unequal treatment of the two official languages, and that is frankly a disturbing problem. Progress has been made over the past 50 years, but we still have a long way to go.
Mélanie Cantin: What kind of improvements would you like to see to solve these problems in Canada?
François Larocque: At its core, it is a matter of respect and recognition that this is an important issue for minority communities that are trying to maintain and flourish in their languages. The provincial governments, which are responsible for education, health, and many services that affect the lives of Canadians on a day-to-day basis, must recognize that they have a part to play and take these obligations seriously.
Right now, in New Brunswick, there is a government that recently threatened to end French immersion and is still delaying modernizing its official languages legislation. Let’s not forget that New Brunswick is the only province that is fully bilingual in Canada, that is, the legislature, the courts, and the government have constitutional language obligations where English and French are supposed to be equal, but they trample on the rights of francophones in New Brunswick every day. So, it remains a daily struggle for people in the francophone minority who are asking to be recognized and respected by their government. We need governments that are sensitive to this reality and that make it a priority.
Mélanie Cantin: If you had to recommend one or a few decisions from the Supreme Court of Canada if someone wanted to find out about the rights of linguistic minorities in Canada such as francophones outside Quebec, which decision(s) would you recommend?
François Larocque: Ah, my God. There are so many. My top three this morning, off the top of my head, on the issue of the importance of language rights in the Canadian order, I would say the Reference re Manitoba Language Rights, I think it’s a judgment of the Court that is very, very important that deals with the very specific issue of Manitoba, but which nevertheless sets out principles that are relevant across the country. And I would add, in that same category, the Reference re Secession of Quebec, which recognizes the unwritten constitutional principles, so the unwritten premises of our constitutional order, which include the protection of minorities. Canada exists, among other things, to protect the minorities that make up this country and that is one of the reasons for our country’s existence, so it is in the Reference re Secession of Quebec that the Court reminded us of that.
I would add Beaulac, a 1999 Supreme Court of Canada decision that recognizes that when it comes to interpreting language rights, they must always be interpreted as broadly and liberally as possible, that is, in the most purposive way, so being based on the purpose of language rights, which is to ensure the maintenance and vitality of minority communities. That is why we codified all these language rights in the Constitution of Canada, to ensure the linguistic security of minority official language communities.
And finally, the last decision that I would recommend in order to fully understand section 23 of the Charter, that constitutional right to education in the minority language, I warmly recommend the Conseil scolaire francophone de la Colombie-Britannique decision, a 2020 Supreme Court decision, a fairly recent one, which provides a good synthesis of 30 years of case law and which reminds us of the crucial importance of this right, because it is through education that the francophonie can be transmitted intergenerationally. And so, it is by ensuring that these schools are well-funded and that the learning experience of francophones outside Quebec is equal to that of children of the majority that we can ensure, I think, that the francophonie will be there for generations to come in this country.
Mélanie Cantin: Thank you very much, and thank you for all the information you’ve given us today, it really helps to explain this area of law that is a little less well-known in Canada, so thank you very much.
François Larocque: My pleasure.