Canadian law students are reporting for JURIST on national and international developments in and affecting Canada. Mélanie Cantin is JURIST’s Chief Correspondent for Canada and a 2L at the University of Ottawa. In honor of the International Day of Francophonie, this dispatch was published first in French; that version is available here.
In honour of the International Day of Francophonie, I interviewed Professor François Larocque, a professor at the University of Ottawa’s Faculty of Law in the French common law program, where I am 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
As many know, Canada has two official languages: French and English. The issues related to the status of these languages in our constitutional order, as well as in our daily lives, are important issues that the area of language law considers. Although French and English are supposed to be equal, this is not always true in practice.
To contextualize the Canadian constitutional order with respect to language rights, Professor Larocque begins by generally explaining the rights that Canada’s linguistic minorities enjoy under our Constitution. Among other things, sections 16 to 23 of the Canadian Charter of Rights and Freedoms provide Canadians with the right to access federal services, federal institutions, federal courts, and tribunals “governed by section 19 of the Charter, which includes the courts of the territories” in both of Canada’s official languages. The Charter also guarantees access to education in the minority language. This means that members of the francophone minority outside the province of Quebec and the anglophone minority inside Quebec both have the right to receive their primary and secondary education in their respective official languages.
As for all francophones living outside of Quebec, this right that is so dear to me was assured to me by previous generations of francophones who fought for an express declaration of the equality of English and French in Canada to be an integral part of the repatriation of the Canadian Constitution (the process by which Canada became truly autonomous by having the ability to amend its own Constitution, independently of the UK).
However, as Professor Larocque points out, this repatriation was not exactly pursued to the end. Under section 55 of the Constitution Act, 1982 — an act that contains the Charter and describes the procedures for constitutional amendments — Canada had an obligation to adopt all of its constitutional texts in French “as expeditiously as possible”. Today, 21 of Canada’s 30 constitutional texts, including the Constitution Act, 1867, remain without an official French translation, which means that they only have force of law in English.
The fact that the government has had this obligation since 1982 to act “as expeditiously as possible” and has still not fulfilled it is particularly problematic, explains Professor Larocque. “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.”
This poses problems, both on a practical and symbolic level. On the practical side, as a country whose courts often rely on the other language version of a piece of legislation for interpretation purposes, such as resolving ambiguities in legislation, a whole tool of legal interpretation is taken away from us by the failure to translate these constitutional texts into French.
An example given by Professor Larocque is a file on which he himself worked, where the English version of an Order in Council annexed to the Constitution Act, 1867 (which has force of law only in English) indicated that the applicants had certain “legal rights”, whereas the French version simply used the expression “droits” (“rights”).
According to Professor Larocque, this difference could have informed the court’s interpretation of the nature and extent of the rights in question. After all, “rights” seems to have a broader meaning than “legal rights”, but because the Constitution Act, 1867 does not have force of law in French, the court could not even take into account that version of the Order in Council.
On the symbolic side, the fact that 21 Canadian constitutional texts have only the force of law in French is a clear indication that French continues to be treated as secondary to English in Canada. The Canadian francophonie is “a large segment of the population of Canada, often referred to as one of the founding powers”, yet it is not respected enough for the government to stop ignoring section 55 of the Constitution Act, 1982. “[The federal and provincial governments] must move on the issue and stop burying their heads in the sand with the issue and finally comply with section 55,” says Professor Larocque.
Even so, despite the difficulties, the victories of francophones in Canada are not insignificant, and they deserve to be celebrated. “Since the first Official Languages Act was passed, there has been progress,” says Professor Larocque. “The federal public service is more bilingual than it was 50 years ago, absolutely. Now that we have a constitutional right to education 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.”
For those who wish to learn more about the law of linguistic minorities in Canada, such as francophones outside Quebec, and about language law more generally, Professor Larocque recommends reading the following decisions of the Supreme Court of Canada:
- The Reference re Language Rights in Manitoba and the Reference re Secession of Quebec as decisions that set out key principles on the protection of linguistic minorities
- The decision in R v Beaulac, which recognizes the need to interpret language rights as they appear in the Constitution as broadly and liberally as possible
- The decision in Conseil scolaire francophone de la Colombie-Britannique v Colombie-Britannique, “which provides a good synthesis of 30 years of case law and which reminds us of the crucial importance of [the right to education in the minority language]”
A translated transcription of my full interview with Professor Larocque is available here.