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Home , 21st Canadian Parliament, Alberta Act, Guy Favreau, Jacques Flynn, Newfoundland Act, Ray Hnatyshyn

BRIEF BY

PROFESSOR FRANÇOIS LAROCQUE RESEARCH CHAIR IN LANGUAGE RIGHTS UNIVERSITY OF

PRESENTED TO THE

SENATE STANDING COMMITTEE ON OFFICIAL LANGUAGES

AS PART OF ITS STUDY OF THE OFFICIAL LANGUAGES REFORM PROPOSAL UNVEILED ON FEBRUARY 19, 2021, BY THE MINISTER OF ECONOMIC DEVELOPMENT AND OFFICIAL LANGUAGES, ENGLISH AND FRENCH: TOWARDS A SUBSTANTIVE EQUALITY OF OFFICIAL LANGUAGES IN

MAY 31, 2021

Professor François Larocque Faculty of Law, Common Law Section 57 Louis Pasteur Ottawa, ON K1J 6N5 Telephone: 613-562-5800, ext. 3283 Email: [email protected]

1. Thank you very much to members of the Senate Standing Committee on Official

Languages (the “Committee”) for inviting me to testify and submit a brief as part of the study of the official languages reform proposal entitled French and English: Towards a Substantive Equality of Official

Languages in Canada (“the reform proposal”).

A) The reform proposal includes ambitious and essential measures

2. First, I would like to congratulate the Minister of Economic Development and Official Languages for her leadership and vision. It is, in my opinion, the most ambitious official languages reform proposal since the enactment of the Constitution Act, 1982 (“CA1982”)1 and the Canadian Charter of Rights and

Freedoms (“Charter”),2 which enshrined the main provisions of the Official Languages Act (“OLA”)3 of

1969 in the Canadian Constitution. The last reform of the OLA was in 1988 and it is past time to modernize it to adapt it to Canada’s linguistic realities and challenges in the 21st century.

3. The Charter and the OLA proclaim that “English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the

Parliament and .”4 In reality, however, as reported by Statistics Canada,5 English is dominant everywhere, while French is declining, including in .

4. The reform proposal is based on two undeniable premises. First, despite proclamations in the

Charter and the OLA, English and French are not on equal footing in Canada. Second, it is up to

Parliament and the federal government to remedy the situation and to do more to promote and protect

French and achieve substantive equality of the two official languages.

5. As the and the Office of the Commissioner of Official Languages explain, the standard of substantive equality requires consideration of the differences that exist between the situation of the majority and the linguistic minority and the different implementation of language rights.6

1 Constitution Act, 1982, Schedule B to the (UK), 1982, c 11. 2 Canadian Charter of Rights and Freedoms, Part I of the CA1982. 3 Official Languages Act, RSC 1970, c. 0-2, replaced in 1988 by RSC 1985, c. 31 (4th supp). 4 Charter, supra note 2, subsection 16(1); OLA, ibid, preamble. 5 Statistics Canada, The evolution of language populations in Canada, by mother tongue, from 1901 to 2016. 6 R. v. Beaulac, [1999] 1 SCR 768, at para 22; Arsenault-Cameron v. , [2000] 1 SCR 3, at para 31; DesRoches v. Canada (Industry), [2009] 1 SCR 194, at para 31; Office of the Commissioner of Official

1 6. In other words, to achieve substantive equality between the official languages, French must be given a boost. To that end, the reform proposal includes over 50 legislative and administrative measures to support francophone communities and their institutions, to improve access to French immersion and, in general, to ensure that the federal government is more exemplary when it comes to official bilingualism.

In my opinion, it is the right approach.

7. Overall, I find that the legislative and administrative measures put forward in the reform proposal are ambitious and essential. If they were to be implemented, they would all represent positive progress for the linguistic security of official language minority communities. However, the devil is always in the details and we must ensure that the next version of the OLA reflects the ambition and courage shown by the authors of the reform proposal.

8. I stand behind the comments, praise and concerns expressed by the Fédération des communautés francophones et acadiennes du Canada (FCFA) concerning the reform proposal.

B) The reform proposal is incomplete, as it ignores the obligation to enact the French version of Canada’s constitutional texts as set out in section 55 of the Constitution Act, 1982

9. However, the reform proposal is incomplete, as it ignores the obligation set out in section 55 of the CA1982 to enact the French version of Canada’s constitutional texts.

10. Many would be surprised to learn that most of Canada’s constitutional texts are not officially bilingual, including the Constitution Act, 1867. Although a French version of that fundamental document was prepared at the time of Confederation, it was never tabled in Parliament at Westminster.

As a result, to this day, only the English version of the Constitution Act, 1867 has official status. The same is true for the other constitutional texts enacted in Westminster on behalf of Canada, including the

Rupert’s Land and North-Western Territory Order (1870), the Terms of Union (1871), the

Statute of Westminster and the (1949).

11. Of the 31 texts declared in the CA1982 to be part of the “,” only nine have been enacted in both official languages, including the CA1982 itself and the Charter. The Act

Languages, Interpretation Bulletin, Substantive Equality of Official Languages. See also S. Friedman, Discrimination Law, Oxford: OUP. 2011.

2 (1870), the Act (1905) and the Act (1905) have also been enacted in English and

French.

12. To correct this incongruity, the authors of the CA1982 enacted section 55, which reads as follows:

55.(1) A French version of the portions of the 55.(1) Le ministre de la Justice du Canada est chargé Constitution of Canada referred to in the schedule de rédiger, dans les meilleurs délais, la version shall be prepared by the Minister of Justice of française des parties de la Constitution du Canada Canada as expeditiously as possible and, when qui figurent à l’annexe; toute partie suffisamment any portion thereof sufficient to warrant action importante est, dès qu’elle est prête, déposée pour being taken has been so prepared, it shall be put adoption par proclamation du gouverneur général forward for enactment by proclamation issued by sous le grand sceau du Canada, conformément à la the Governor General under the Great Seal of procédure applicable à l’époque à la modification des Canada pursuant to the procedure then applicable dispositions constitutionnelles qu’elle contient. to an amendment of the same provisions of the Constitution of Canada.

13. In 1984, to carry out this mandate, the Minister of Justice created the French Constitutional

Drafting Committee. A total of twelve of the most distinguished and recognized jurists and jurilinguists in

Canada worked on that Drafting Committee. Six years later, in December 1990, the Minister of Justice at the time, , tabled the Drafting Committee’s final report in the House of

Commons.

14. The Drafting Committee produced French translations of exceptional quality. Unfortunately, apart from a failed attempt in 1990, no steps have been taken to enact them, as clearly required, however, by section 55 of the CA1982. As a result, to this day, only the English version of several parts of our written constitution have official status.

15. The time has come to complete the repatriation work and give Canada a truly Canadian and entirely bilingual Constitution. Section 55 of the CA1982 requires that the Minister of Justice draft a

French version of the relevant constitutional texts “as expeditiously as possible.” That obligation on the

Minister of Justice was respected through the remarkable work of the Drafting Committee.

16. However, section 55 also provides that “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 .” That crucial element of the constitutional mission of section 55 unfortunately remains unaccomplished.7

7 L. Cardinal and F. Larocque, La Constitution bilingue de Canada : un projet inachevé, Quebec City: PUL. 2017.

3 17. The Constitution of Canada is the supreme law of the land. It is essential that its provisions be respected, as they express the greatest values and aspirations. The enactment of an entirely bilingual constitution is a constitutional obligation that reflects those values and aspirations. Respect for the rule of law and respect for French-speaking Canadians requires no less. The modernization of the OLA is the perfect opportunity to act on these strict obligations under section 55 and finally enact the French version of our constitutional texts.

18. The long road to achieving substantive equality begins first and foremost with minimal respect for formal equality, or parity. The enactment of the French version of Canada’s constitutional texts is a matter of formal equality and fundamental justice for French-speaking Canadians. It is also a matter of the rule of law. It is completely unacceptable that a mandatory provision of the Constitution of Canada – the country’s supreme law – has been blithely ignored for four decades!

19. This is why the Honourable Senator Serge Joyal, PC, OC, OQ (retired) and I launched proceedings before the Superior Court of Quebec on August 29, 2019, to demand that the Government of

Canada respect the strict obligations under section 55 of the CA1982 and begin the necessary steps to enact the bilingual Constitution of Canada as soon as possible.

20. The originating document is included as “Annex A” of this brief.

21. The persistent unilingualism of the Constitution of Canada sanctions the illegitimate supremacy of

English and perpetuates the inequality of the official languages. As long as the purpose of section 55 remains unachieved, French-speaking Canadians will not have the same rights, statuses and privileges as their English-speaking counterparts. As long as Canada refuses to even respect the minimum standard of formal equality by enacting its constitutional texts in both official languages, the aspiration of substantive equality of English and French will remain an illusion.

22. Lastly, I agree with the recommendations regarding section 55 that the FCFA put forward at paragraphs 197 and 198 of their brief, “Time for Action: The FCFA Proposes a New Wording of the

Official Languages Act.”

RECOMMENDATION 1: That this Committee add a binding provision to the OLA to require that the Minister of Justice make the best efforts take the steps needed with his provincial counterparts to validate the French version of the constitutional texts that have already been drafted under section 55.

4 RECOMMENDATION 2: That this committee propose the addition of a provision to the OLA requiring that the Minister of Justice submit a report to Parliament every five years outlining the efforts made to implement section 55 of the Constitution Act, 1982.

END OF BRIEF

5

ANNEX A

APPLICATION FOR A DECLARATORY JUDGMENT

AND JUDICIAL REVIEW

The Honourable Serge Joyal and François Larocque v. Canada (AG) and Québec (AG), No. 500-17-109358, Superior Court of Quebec, District of Montréal Filed on August 29, 2019

CANADA SUPERIOR COURT

PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL THE HONOURABLE SERGE JOYAL, PC, No. domiciled at 3507 University Street, in the city and district of Montréal, Province of Quebec, H3A 2A9

and

FRANÇOIS LAROCQUE, domiciled at 537 Besserer Street, in the city of Ottawa, Province of , K1N 6C6

Applicants

v.

ATTORNEY GENERAL OF CANADA, having its place of business at 200 René-Lévesque Boulevard West (Guy-Favreau Complex, East Tower), in the city and district of Montréal, Province of Quebec, H2Z 1X4

Defendant

and

ATTORNEY GENERAL OF QUEBEC, with a place of business at 1 Notre-Dame Street East, Suite 8.01, in the city and district of Montréal, Province of Quebec, H2Y 1B6

Applicant

APPLICATION FOR A DECLARATORY JUDGMENT AND JUDICIAL REVIEW (sections 34, 49, 142 and 529, CCP)

Page 1 of 13 TO ONE OF THE HONOURABLE JUSTICES OF THE SUPERIOR COURT SITTING IN AND FOR THE DISTRICT OF MONTRÉAL, THE APPLICANTS RESPECTFULLY STATE THE FOLLOWING:

I. INTRODUCTION

1. Section 55 of the Constitution Act, 1982, Schedule B to the Canada Act, 1982 (UK), 1982, c. 11 (“Constitution Act, 1982”) sets forth the obligation for the federal government to draft and the joint obligation of the federal and provincial governments to table for enactment the French version of the unilingual constitutional texts listed in the schedule to the Constitution Act, 1982 as soon as it is ready.

2. To date, twenty-two (22) of Canada’s constitutional texts, including almost all of the Constitution Act, 1867, 30 & 31 Vict., c. 3 (“Constitution Act, 1867”) only have force of law in English.

3. Only nine (9) constitutional texts have force of law in English and French.

4. It is clear that the federal government and the Government of Quebec are in violation of their obligations under the Constitution Act, 1982.

II. THE PARTIES

5. The applicant, the Honourable Senator Serge Joyal, PC, is a retired lawyer and a member of the Senate for the Senate division of Kennebec, in Quebec, since being appointed in 1997.

6. Senator Joyal regularly consults the constitutional texts in his duties as a senator and as Chair of the Senate Standing Committee on Legal and Constitutional Affairs, of which he has been a member for twenty-two (22) years, and as Vice-Chair of the Standing Committee on Rules, Procedures and the Rights of Parliament.

7. Since the start of his parliamentary career, at the time as a federal Member of Parliament (1974 to 1984), Senator Joyal has dedicated himself to issues related to official languages and the status of French.

8. In particular, when he was a Member of Parliament, he was the applicant in Air Canada v. Joyal, [1982] CA 30 (QC) seeking to have the prescribed unilingualism of Air Canada declared in contravention of section 2 of the Official Languages Act, RSC 1970, c. O-2.

9. In 1976, while he was a Member, Senator Joyal tabled a bill that led to a government motion to create the Joint Committee of the Senate and House of Commons to review the annual report from the Commissioner of Official Languages, the forerunner to today’s Senate and House of Commons standing committees on official languages.

10. Between 1980 and 1981, while he was a Member, Senator Joyal co-chaired the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, which was mandated to review the Proposed Resolution for a Joint Address to Her Majesty the Queen Respecting the Constitution of Canada, which contained the text of the provision that would become section 55 of the Constitution Act, 1982.

11. While he was a Member and Secretary of State of Canada (1982-1984), Senator Joyal took the initiative of extending the Court Challenges Program to sections 16 to 23 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 (“Canadian Charter”) regarding official languages in Canada.

Page 2 of 13 12. The applicant, François Larocque, is a lawyer and full professor in the Faculty of Law of the University of Ottawa (Common Law Section).

13. In teaching in the Faculty of Law at the University of Ottawa and in his academic research, Professor Larocque regularly deals with issues related to official languages and the constitutional status of the French language.

14. Since the start of his career as a jurist, Professor Larocque has dedicated himself to issues related to official languages and the constitutional status of the French language; in particular, he has published, with Professor Linda Cardinal, a monograph entitled La Constitution bilingue du Canada : un projet inachevé, Quebec City: Presses de l’Université Laval. 2017.

15. Professor Larocque is the Research Chair in Language Rights, the first research chair in Canada dedicated to the study of normative frameworks related to the statuses, rights and privileges of the English and French languages and the active development of those legal frameworks.

16. As Canadian Francophonie Research Chair in Language Rights, Professor Larocque’s mandate is to study normative frameworks governing language rights and to be actively involved in the development of constitutional, legislative and jurisprudential frameworks that govern language rights, particularly through legal interventions.

17. The defendant, the Attorney General of Canada, is responsible for the administration of justice at the federal level and is also Canada’s Minister of Justice.

18. The defendant, the Attorney General of Quebec, is responsible for the administration of Justice for the province and is also Quebec’s Minister of Justice.

III THE FACTS

a) The enactment of twenty-two (22) of Canada’s constitutional texts by the British Parliament

19. On March 29, 1867, the British Parliament gave effect to the political union of United Canada, and by enacting, in English only, the Constitution Act, 1867, which came into effect on July 1, 1867.

20. Section 133 of the Constitution Act, 1867 required at that time that the enact its legislation in English and French:

Use of English and French Languages 133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those languages.

21. However, the next twenty-two (22) constitutional texts, the of which are listed in French in column II of the schedule to the Constitution Act, 1982 and most of which

Page 3 of 13 are amendments to the Constitution Act, 1867, were enacted by the British Parliament in English only:

i. The British North America Act, 1867, 30-31 Vict., c. 3 (UK) (now the Constitution Act, 1867)

ii. The Order of Her Majesty in Council admitting Rupert’s Land and the North- Western Territory into the Union, dated June 23, 1870 (now the Rupert’s Land and North-Western Territory Order)

iii. The Order of Her Majesty in Council admitting British Columbia, dated May 16, 1871 (now the British Columbia Terms of Union)

iv. The British North America Act, 1871, 34-35 Vict., c. 28 (UK) (now the Constitution Act, 1871)

v. The Order of Her Majesty in Council admitting Prince Edward Island into the Union, dated June 26, 1873 (now the Prince Edward Island Terms of Union)

vi. The Parliament of Canada Act, 1875, 38-39 Vict., c. 38 (UK) (now the Parliament of Canada Act, 1875)

vii. The Order of Her Majesty in Council admitting all British possessions and Territories in North America and islands adjacent thereto into the Union, dated July 31, 1880 (now the Adjacent Territories Order)

viii. The British North America Act, 1886, 49-50 Vict., c. 35 (UK)

ix. The Canada (Ontario Boundary) Act, 1889, 52-53 Vict., c. 28 (UK) (now the Canada (Ontario Boundary) Act, 1889)

x. The Canadian Speaker (Appointment of Deputy) Act, 1895, 2nd Sess., 59 Vict., c. 3 (UK) (now repealed)

xi. The British North America Act, 1907, 7 Edw. VII, c. 11 (UK) (now the Constitution Act, 1907)

xii. The British North America Act, 1915, 5-6 Geo. V, c. 45 (UK) (now the Constitution Act, 1915)

xiii. The British North America Act, 1930, 20-21 Geo. V, c. 26 (UK) (now the Constitution Act, 1930)

xiv. The Statute of Westminster, 1931, 22 Geo. V, c. 4 (UK) (now the Statute of Westminster, 1931)

xv. The British North America Act, 1940, 3-4 Geo VI, c. 36 (UK) (now the Constitution Act, 1940)

xvi. The British North America Act, 1943, 6-7 Geo. VI, c. 30 (UK) (now repealed)

xvii. The British North America Act, 1946, 9-10 Geo. VI, c. 63 (UK) (now repealed) xviii. The British North America Act, 1949, 12-13 Geo. VI, c. 22 (UK) (now the Newfoundland Act)

Page 4 of 13 xix. The British North America Act (No. 2), 1949, 13 Geo. VI, c. 81 (UK) (now repealed)

xx. The British North America Act, 1951, 14-15 Geo. VI, c. 32 (UK) (now repealed)

xxi. The British North America Act, 1960, 9 Eliz. II, c. 2 (UK) (now the Constitution Act, 1960)

xxii. The British North America Act, 1964, 12-13 Eliz. II, c. 73 (UK) (now the Constitution Act, 1964)

b) The repatriation of the Constitution and enactment of the Constitution Act, 1982

22. In 1982, the Constitution Act, 1982 gave Canada its own constitutional amendment procedure, independent of the British Parliament (Part V) and enshrined in the Constitution the official nature of English and French under sections 16 to 21 of the Canadian Charter.

23. As set forth in section 52 of the Constitution Act, 1867, the Constitution of Canada is the “supreme ”; nothing can override it.

24. Subsection 16(1) of the Canadian Charter guarantees the official nature of the English and French languages and the equality of their status, rights and privileges as to their use in the institutions of the Parliament and government of Canada:

Official languages of Canada Langues officielles du Canada 16. (1) English and French are the official 16. (1) Le français et l’anglais sont les langues languages of Canada and have equality of status officielles du Canada; ils ont un statut et des droits and equal rights and privileges as to their use in et privilèges égaux quant à leur usage dans les all institutions of the Parliament and government institutions du Parlement et du gouvernement du of Canada. Canada.

25. Section 55 of the Constitution Act, 1982 provides that all constitutional texts listed in the schedule must be drafted and enacted in French:

French version of Constitution of Canada Version française de certains textes constitutionnels 55. A French version of the portions of the 55. Le ministre de la Justice du Canada est chargé Constitution of Canada referred to in the de rédiger, dans les meilleurs délais, la version schedule shall be prepared by the Minister of française des parties de la Constitution du Canada Justice of Canada as expeditiously as possible qui figurent à l’annexe; toute partie suffisamment and, when any portion thereof sufficient to importante est, dès qu’elle est prête, déposée pour warrant action being taken has been so adoption par proclamation du gouverneur général prepared, it shall be put forward for enactment sous le grand sceau du Canada, conformément à by proclamation issued by the Governor General la procédure applicable à l’époque à la modification under the Great Seal of Canada pursuant to the des dispositions constitutionnelles qu’elle contient. procedure then applicable to an amendment of the same provisions of the Constitution of Canada.

26. Section 55 imposes an obligation to act quickly: the French version of the constitutional texts must be drafted “as expeditiously as possible” and any portion sufficient to warrant action being taken must be put forward for enactment when it “has been so prepared”.

27. In the Proposed Resolution Respecting the Constitution of Canada, published on October 6, 1980, section 55 (at the time section 54) included the following explanatory note: “New. Many of the documents composing the Constitution of Canada were enacted by the Parliament, which enacted them only

Page 5 of 13 in English. While unofficial French versions appear in the Statutes of Canada, they do not have legal status. This section would provide for the enactment of official French versions of those documents”, as it appears in the excerpt from the Proposed Resolution Respecting the Constitution of Canada dated October 6, 1980, submitted as Exhibit P-1.

28. Section 56 of the Constitution Act, 1982 confirms, in particular, that the French version of constitutional texts enacted under section 55 of the Constitution Act, 1982 also have force of law:

English and French versions of certain Versions française et anglaise de certains constitutional texts textes constitutionnels 56. Where any portion of the Constitution of 56. Les versions française et anglaise des parties Canada has been or is enacted in English and de la Constitution du Canada adoptées dans ces French or where a French version of any portion deux langues ont également force de loi. En outre, of the Constitution is enacted pursuant to ont également force de loi, dès l’adoption, dans le section 55, the English and French versions of cadre de l’article 55, d’une partie de la version that portion of the Constitution are equally française de la Constitution, cette partie et la authoritative. version anglaise correspondante.

29. Thirty-seven (37) years later, no French version of constitutional texts enacted in English by the British Parliament and referred to in section 55 of the Constitution Act, 1982 have been the subject of a constitutional resolution duly tabled in Parliament and the legislative assemblies of the provinces under Part V of the Constitution Act, 1982.

c) Drafting of the French version of constitutional texts

30. In 1984, the Honourable Donald Johnston, Canada’s Minister of Justice, created the French Constitutional Drafting Committee (the “Drafting Committee”) and mandated it to establish an official draft French version of certain constitutional texts.

31. The Drafting Committee was chaired by Jules Brière from the firm of Hickson, Martin and Blanchard (Québec) and Gérard Bertrand, QC, the first Chief Legislative Counsel to Canada’s Minister of Justice.

32. The following people were members of the Drafting Committee and held the positions identified:

i. The Honourable Gérald A. Beaudoin, Senator, O.C., Q.C., Professor, Faculty of Law at the University of Ottawa

ii. Robert C. Bergeron, Q.C., General Counsel, Legislation Section, Department of Justice

iii. Alain-François Bisson, Professor, Faculty of Law at the University of Ottawa

iv. Alexandre Covacs, Jurilinguist, Legislation Section, Department of Justice

v. François La Fontaine, Senior Counsel, Legislation Section, Department of Justice, Secretary of the Committee

vi. Robert Décary, Q.C., of Noël, Décary, Aubry et associés, Hull

vii. Christine Landry, Legislative Counsel, Legislation Section, Department of Justice, and Secretary of the Committee

viii. Louis-Philippe Pigeon, Professor, Faculty of Law of the University of Ottawa

Page 6 of 13 ix. Gil Rémillard, Professor, Faculty of Law at Laval University

x. Michel Robert, Q.C., Bâtonnier

33. On November 18, 1986, the Drafting Committee presented a first report to the Honourable , Canada’s Minister of Justice, including a French version of the Constitution Act, 1867, as it appears in the First report of the French Constitutional Drafting Committee responsible for providing the Minister of Justice with a draft official French version of certain constitutional acts (“First report”) dated November 18, 1986, submitted as Exhibit P-2.

34. On December 17, 1986, Minister Hnatyshyn brought to the House of Commons a copy of the First report of the Drafting Committee, as it appears in the Journals of the House of Commons from December 17, 1986, submitted as Exhibit P-3.

35. On December 17, 1986, the Honourable Senator William Doody brought to the Senate a copy of the First report of the Drafting Committee, as it appears in the Journals of the Senate from December 17, 1986, submitted as Exhibit P-4.

36. On June 16, 1988, the Senate Standing Committee on Legal and Constitutional Affairs (“LCJC Committee”) asked the Honourable Senator Jean Le Moyne to study and report on the First report of the Drafting Committee, as it appears in the Minutes from June 16, 1988, submitted as Exhibit P-5.

37. On September 12, 1988, while the LCJC Committee was meeting to examine the First report from the Drafting Committee, Senator Le Moyne and Senator , Deputy Chair of the LCJC Committee commented on the excellence of that First report, as it appears in the Deliberations of September 12, 1988, submitted as Exhibit P-6.

38. On September 30, 1988, the LCJC Committee adopted its report on the study of the First report of the Drafting Committee, which gave its assent to the report from Senator Le Moyne, who commented that the French in the First draft was “impeccable” and that he [translation] “only sees in the following pages terms, expressions and constructions that I stumbled over, or that drew my attention because they were foreign to my idiosyncrasies, or because I was unfamiliar with them”, as it appears in the Deliberations of the Senate Standing Committee on Legal and Constitutional Affairs of September 30, 1988, submitted as Exhibit P-7.

39. In 1990, the Drafting Committee presented a final report to the Honourable Kim Campbell, Canada’s Minister of Justice, including a French version of all the texts listed in the schedule to the Constitution Act, 1982, as well as eight additional texts translated in the interest of consistency by the Drafting Committee, as it appears in the Final Report of the French Constitutional Drafting Committee responsible for providing the Minister of Justice of Canada with a draft official French version of certain constitution enactments (“Final report”) from 1990, submitted as Exhibit P-8.

40. On December 19, 1990, Minister Campbell brought to the House of Commons a copy of the Final report of the Drafting Committee, as it appears in the Journal of the House of Commons from December 19, 1990, submitted as Exhibit P-9.

41. On December 20, 1990, Senator Doody brought to the Senate a copy of the Final report of the Drafting Committee, as it appears in the Journal of the Senate from December 20, 1990, submitted as Exhibit P-10.

42. Thus, since December 1990, a “portion … sufficient to warrant action being taken” of the “French version of the portions of the Constitution of Canada referred to in the

Page 7 of 13 schedule” has been ready to be put forward for enactment by proclamation issued by the Governor General under the Great Seal of Canada, in accordance with the applicable constitutional amendment procedure (i.e., by enactment of the constitutional resolutions needed within the meaning of Part V of the Constitution Act, 1982).

d) A single invitation from the federal government to enter talks concerning the enactment of the French version of constitutional texts

43. Between 1990 and 1997, no concrete steps were taken for the French version of the constitutional texts to be enacted, despite the obligation to put them forward for enactment “as expeditiously as possible”.

44. On April 11, 1997, Mary Dawson, Associate Deputy Minister at Justice Canada, sent a letter to Michel Bouchard, Deputy Minister of Justice and Deputy Attorney General of Quebec, inviting the Government of Quebec to enter talks regarding the French version of the constitutional texts prepared by the Drafting Committee for its enactment, as it appears in the letter from Mary Dawson dated April 11, 1997, submitted as Exhibit P-11.

45. On May 21, 1997, in response to that invitation, Michel Bouchard indicated that the Government of Quebec did not wish to take part in that process, as it appears in the letter from Michel Bouchard to Mary Dawson dated May 21, 1997, submitted as Exhibit P-12.

46. In doing so, the Government of Quebec refused to act on its obligation to adopt the French version of the constitutional texts as set out in section 55 of the Constitution Act, 1982.

47. On December 5, 1997, in Québec (Procureur général) v. Langlois, Québec 200-7-000514-979 (QC), the Court of Quebec dismissed the defendant’s argument that the lack of an official French version of the Constitution Act, 1867 would make it of no force or effect, but nonetheless made the following declaration:

[Translation] The Court DECLARES that the result sought by section 55 of the Constitution Act, 1982 has not been achieved;

48. On April 23, 1998, Mary Dawson sent a letter to Michel Bouchard reporting the status of steps taken to obtain consensus on the texts, as it appears in the letter from Mary Dawson to Michel Bouchard dated April 23, 1998, submitted as Exhibit P-13.

49. Ms. Dawson reported that, following her letter dated April 11, 1997, which was sent to all deputy ministers of justice across the country, Prince Edward Island, New Brunswick and Saskatchewan indicated that the text was acceptable to them and that most other provinces indicated their support in principle, but were unable to act on the project or were awaiting approval from some of the larger provinces.

50. Since then, the Government of Quebec has never discussed the accuracy of the text of the French version of the Constitution for its enactment.

51. On March 8, 2019, the Applicants asked Quebec’s Minister of Justice to commit to favourably receiving an effort by the federal government to enact the French version of the Constitution, as it appears in the letter to Quebec’s Minister of Justice dated March 9, 2019, submitted as Exhibit P-9.

52. No response to that letter has been received.

Page 8 of 13 53. Since 1997, Canada’s Minister of Justice has not entered into any talks with the provincial government concerning the enactment of the French version of the constitutional texts.

54. For example, the Minister of Justice and Attorney General of Canada’s mandate letter dated November 12, 2015, does not mention the constitutional obligation to put forward for enactment the French version of the Constitution, as it appears in the Minister of Justice and Attorney General of Canada’s mandate letter dated November 12, 2015, submitted as Exhibit P-15.

55. Before filing this application, the Applicants respectively asked the federal government to enter into talks and to put forward for enactment the French version of the Constitution of Canada, as it appears in the letter from Senator Joyal to the Honourable Jody Wilson-Raybould dated September 26, 2018, submitted as Exhibit P-16, the letter from François Larocque to the Honourable Jody Wilson-Raybould dated September 26, 2018, submitted as Exhibit P-17, and the letter from Senator Joyal to the Honourable dated January 25, 2019, submitted as Exhibit P-18.

56. On February 15, 2019, the Canadian Bar Association also asked the federal government to enter into discussions and to put forward for enactment the French version of the Constitution of Canada, as it appears in the letter from the Canadian Bar Association to Minister Lametti dated February 15, 2019, submitted as Exhibit P-19.

57. On February 26, 2019, in a response to Senator Joyal, Minister Lametti did not indicate that steps were being taken by the federal government to try to remedy the unilingualism of the Constitution of Canada, as it appears in the letter from Minister Lametti to Senator Joyal dated February 26, 2019, submitted as Exhibit P- 20.

58. On April 4, 2019, in a letter to Senator René Cormier as Chair of the Senate Standing Committee on Official Languages, Minister Lametti did not indicate that steps were being taken by the federal government to try to remedy the unilingualism of the Constitution of Canada, as it appears in the letter from Minister Lametti to Senator Cormier dated April 4, 2019, submitted as Exhibit P-21.

59. Thus, to date, there is no indication that the federal government or the Government of Quebec will fulfill their constitutional and unavoidable obligations regarding the francization of the Constitution of Canada.

IV. THE LAW

a) The obligations imposed by section 55 of the Constitution Act, 1982

60. Section 55 of the Constitution Act, 1867 is not just a statement in principle – it imposes mandatory obligations on the federal government and on provincial governments.

61. The enactment of that section, at the same time as subsection 16(1) of the Canadian Charter, which enshrines the equal status of English and French, and section 56 of the Constitution Act, 1982, which confirms the equal status of the English and French versions of constitutional texts enacted in both languages, shows that the purpose of section 55 is to create binding obligations aimed at quickly remedying the unilingualism of the Canadian constitution.

62. Thus, section 55 of the Constitution Act, 1982 imposes, among other things, the obligation for Canada’s minister of justice to prepare the French version of the

Page 9 of 13 constitutional texts referred to in the schedule to the Constitution Act, 1982 as expeditiously as possible.

63. Once the French version of the constitutional texts is ready, section 55 of the Constitution Act, 1982 also imposes the following obligations on the federal and provincial governments:

i) Enter into talks with the parties whose approval is required in accordance with the applicable constitutional amendment procedure concerning the enactment of the constitutional resolutions needed to enact the French version of the constitutional texts listed in the schedule to the Constitution Act, 1982.

ii) Discuss the accuracy of the text of the French version of the constitutional texts with the parties whose approval is needed required in accordance with the applicable constitutional amendment procedure to ensure the enactment of the constitutional resolutions needed to enact the French version of the constitutional texts listed in the schedule to the Constitution Act, 1982.

iii) Put forward for enactment a constitutional resolution by Parliament and the legislative assemblies of the provinces concerning the enactment of the French version of the constitutional texts listed in the schedule to the Constitution Act, 1982.

64. The federal and provincial governments are subject to these obligations until the French version of the constitutional texts is enacted and has force of law.

b) Violation of subsection 16(1) of the Canadian Charter

65. The unilingualism of the twenty-two (22) constitutional texts is a violation of the official nature of the French language and the equality of its status, rights and privileges with English as to its use in the institutions of the Parliament and government of Canada, guaranteed by subsection 16(1) of the Canadian Charter.

c) Remedy

66. A declaratory judgment would resolve a real difficulty under article 142 of the CCP, in that it would put an end to the inaction by the federal government and the Government of Quebec concerning the implementation of their constitutional obligations under section 55 of the Constitution Act, 1982.

67. In exercising its inherent authority of monitoring and controlling the pubic bodies set out in article 34 of the CCP, the Superior Court has the authority to grant any appropriate remedy, including declaratory conclusions, while not being limited to the specific conclusions set forth in article 529 of the CCP.

68. The violation of subsection 16(1) of the Canadian Charter gives rise to such remedies as the Court considers appropriate and just under the circumstances under subsection 24(1) of the Canadian Charter.

69. Subsection 24(1) of the Canadian Charter gives rise in particular to the granting of declarations of right and orders.

70. Concerning the federal and Quebec governments’ failure to act to implement a constitutional obligation that they have had for thirty-seven (37) years, it is appropriate to issue declarations of right affirming the scope of that obligation and noting the violation of section 55 and subsection 16(1) of the Constitution Act, 1982.

Page 10 of 13 71. In light of the persistent inaction of the federal government and the Government of Quebec regarding a clear constitutional obligation, orders requiring that they fulfill their obligation and report to the Court on their efforts would be useful in defending the guaranteed rights.

V. CONCLUSIONS

72. The federal government is in violation of (i) section 55 of the Constitution Act, 1982 and (ii) subsection 16(1) of the Canadian Charter in that it is failing in its mandatory obligation to enter into talks, to discuss the accuracy of the text of the French version and to put forward for enactment in Parliament a constitutional resolution concerning the enactment of the French version of the constitutional texts.

73. The Government of Quebec is on violation of section 55 of the Constitution Act, 1982 in that it is failing in its mandatory obligation to discuss the accuracy of the text of the French version and to put forward for enactment by the National Assembly a constitutional resolution concerning the enactment of the French version of the constitutional texts.

FOR THESE REASONS, MAY IT PLEASE THE COURT TO:

ALLOW this application for a declaratory judgment and judicial review;

DECLARE that the French language in Canada does not have the official and equal status given it under subsection 16(1) of the Canadian Charter insofar as the constitutional texts listed in the schedule to the Constitution Act, 1982 do not have the same force of law as the English-language constitutional texts;

A. REGARDING THE ATTORNEY GENERAL OF CANADA

DECLARE that the federal government is in violation of section 55 of the Constitution Act, 1982;

DECLARE that, by way of its omissions, the federal government is harming the official and equal status of the French language as protected by subsection 16(1) of the Canadian Charter;

DECLARE that, in accordance with section 55 of the Constitution Act, 1982, the federal government has an ongoing obligation to enter into talks with the parties whose approval is required in accordance with the applicable constitutional amendment procedure concerning the constitutional resolutions needed to enact the French version of the constitutional texts listed in the schedule to the Constitutional Act, 1982;

DECLARE that the federal government has failed to enter into talks with the parties whose approval is required in accordance with the applicable constitutional amendment procedure concerning the enactment of the French version of the constitutional texts listed in the schedule to the Constitutional Act, 1982;

DECLARE that, in accordance with section 55 of the Constitution Act, 1982, the federal government has an ongoing obligation to discuss the accuracy of the text of the French version with the parties whose approval is required in accordance with the applicable constitutional amendment procedure to ensure the enactment of the French version of the constitutional texts listed in the schedule to the Constitutional Act, 1982;

DECLARE that the federal government has failed to discuss the accuracy of the text of the French version with the parties whose approval is required in accordance with

Page 11 of 13 the applicable constitutional amendment procedure to ensure the enactment of the French version of the constitutional texts listed in the schedule to the Constitution Act, 1982;

DECLARE that, in accordance with section 55 of the Constitution Act, 1982, the federal government has an ongoing obligation to put forward for enactment by Parliament a constitutional resolution concerning the enactment of the French version of the constitutional texts listed in the schedule to the Constitution Act, 1982;

DECLARE that the federal government has failed to put forward for enactment by Parliament a constitutional resolution concerning the enactment of the French version of the constitutional texts listed in the schedule to the Constitution Act, 1982;

ORDER the federal government to enter into talks and discuss the accuracy of the text of the French version, as soon as possible, with the parties whose approval is required in accordance with the applicable constitutional amendment procedure concerning the constitutional resolutions needed to enact the French version of the constitutional texts listed in the schedule to the Constitution Act, 1982;

ORDER the federal government to prepare and communicate to the Court, within six months of the date of the judgment and every twelve months until the French version of the Constitution is enacted, a report on the steps that have been taken to implement section 55 of the Constitution Act, 1982 and a plan for steps to be taken to enact the French version of the Constitution;

B. REGARDING THE ATTORNEY GENERAL OF QUEBEC

DECLARE that the Government of Quebec is in violation of section 55 of the Constitution Act, 1982;

DECLARE that, in accordance with section 55 of the Constitution Act, 1982, the Government of Quebec has an ongoing obligation to discuss the accuracy of the text of the French version with the parties whose approval is required in accordance with the applicable constitutional amendment procedure to ensure the enactment of the French version of the constitutional texts listed in the schedule to the Constitutional Act, 1982;

DECLARE that the Government of Quebec has failed to discuss the accuracy of the text of the French version with the parties whose approval is required in accordance with the applicable constitutional amendment procedure to ensure the enactment of the French version of the constitutional texts listed in the schedule to the Constitution Act, 1982;

DECLARE that, in accordance with section 55 of the Constitution Act, 1982, the Government of Quebec has an ongoing obligation to put forward for enactment by the National Assembly a constitutional resolution concerning the enactment of the French version of the constitutional texts listed in the schedule to the Constitution Act, 1982;

ORDER the Government of Quebec to discuss the accuracy of the text of the French version, as soon as possible, with the parties whose approval is required in accordance with the applicable constitutional amendment procedure to ensure the enactment of the French version of the constitutional texts listed in the schedule to the Constitution Act, 1982;

ORDER the Government of Quebec to prepare and communicate to the Court, within six months of the date of the judgment and every twelve months until the French

Page 12 of 13 version of the Constitution is enacted, a report on the steps that have been taken to implement section 55 of the Constitution Act, 1982 and a plan for steps to be taken to enact the French version of the Constitution;

ISSUE any other judgment or order that this Honourable Court considers just and appropriate;

ALL with costs.

, on 2019

[Original signed]

The Honourable Serge Joyal, PC

Montréal, , 2019

Mark Power Darius Bossé Audrey Mayrand

500 Place d’Armes, Suite 1800 Montréal, QC H2Y 2W2 Tel./Fax: 514-612-8505 [email protected]

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SUMMONS (articles 145 et seq., C.C.P.)

Filing of a judicial demand

Take notice that the applicant has filed with the registry of the Superior Court of the Judicial District of Montréal this application for a declaratory judgment.

Answer to this application

You must answer to this application in writing, personally or through counsel, at the Montréal Courthouse located at 1 Notre-Dame Street East, Montréal, Quebec, H2Y 1B6, within the 15 days of the service of this application or, if you have no domicile, residence or establishment in Quebec, within 30 days of it. The answer must be notified to counsel for the applicant or, if the applicant is not represented, to the applicant himself or herself.

Failure to answer

If you do not answer within the prescribed time limit of 15 or 30 days as the case may be, a default judgment may be rendered against you without further notice when the time limit expires, and you may, depending on the circumstances, be liable to pay the costs.

Content of the answer

In your answer, you must indicate your intention to

• Agree on the settlement of the matter; • Propose mediation to resolve the dispute; • Challenge this application and, in cases required by the Code, co-operate with the applicant in preparing the case protocol that is to govern the conduct of the proceeding. The protocol must be filed with the registry of the court of the above district, within 45 days of the service of this summons or, in family matters or if you have no domicile, residence or establishment in Quebec, within three months of the service; or • Propose to hold an out-of-court settlement conference.

The answer must have your contact information and, if you are represented by counsel, the name of counsel and his or her contact information.

Change of court district

You may ask the court to transfer this application to the district were you are domiciled or, if not, where you reside, or the domicile that you elected or agreed upon with the applicant.

If the application is related to a work, consumer or insurance contract or to the exercise of a hypothecary right to an immovable you use as your primary residence and you are the consumer, employee, insuree, beneficiary of an insurance contract or hypothecary debtor, you may request the transfer to the district where your domicile, residence or immovable or the emergency site is located. You can present this application to the special registrar of the district that has territorial jurisdiction after notifying the other parties and the registry of the court that the application was filed with.

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Transfer of the application to the Small Claims Division

If you qualify to act as a plaintiff under the rules relative to the recovery of small claims, you may also contact the registrar of the court to have this application processed under those rules. If you make that request, the plaintiff’s legal costs will thus not exceed those prescribed for the recovery of small claims.

Summons to a management conference

In the 20 days following the filing of the above protocol, the court may summon you to case management conference to ensure the case is going smoothly. If not, the protocol is deemed to have been accepted.

Evidence in support of the application

In support of his or her application, the applicant relies on the following evidence:

Exhibit P-1: Proposed Resolution Respecting the Constitution of Canada, dated October 6, 1980

Exhibit P-2: First report of the French Constitutional Drafting Committee responsible for providing the Minister of Justice with a draft official French version of certain constitutional acts, dated November 18, 1986,

Exhibit P-3: Journals of the House of Commons from December 17, 1986

Exhibit P-4: Journals of the Senate from December 17, 1986

Exhibit P-5: Minutes of the Senate Standing Committee on Legal and Constitutional Affairs from June 16, 1988

Exhibit P-6: Deliberations of the Senate Standing Committee on Legal and Constitutional Affairs from September 12, 1988,

Exhibit P-7: Deliberations of the Senate Standing Committee on Legal and Constitutional Affairs from September 30, 1988,

Exhibit P-8: Final Report of the French Constitutional Drafting Committee responsible for providing the Minister of Justice of Canada with a draft official French version of certain constitution enactments from 1990

Exhibit P-9: Journal of the House of Commons from December 19, 1990

Exhibit P-10: Journal of the Senate from December 20, 1990

Exhibit P-11: Letter from Mary Dawson to Michel Bouchard dated April 11, 1997

Exhibit P-12: Letter from Michel Bouchard to Mary Dawson dated May 21, 1997

Exhibit P-13: Letter from Mary Dawson to Michel Bouchard dated April 23, 1998

Exhibit P-14: Letter from Senator Joyal and Mr. Larocque to Quebec’s Minister of Justice dated March 8, 2019

Exhibit P-15: Mandate letter for the Minister of Justice and Attorney General of Canada dated November 12, 2015

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Exhibit P-16: Letter from Senator Joyal to the Honourable Jody Wilson-Raybould dated September 26, 2018

Exhibit P-17: Letter from François Larocque to the Honourable Jody Wilson-Raybould dated September 26, 2018

Exhibit P-18: Letter from Senator Joyal to Minister Lametti dated January 25, 2019

Exhibit P-19: Letter from the Canadian Bar Association to Minister Lametti dated February 15, 2019

Exhibit P-20: Letter from Minister Lametti to Senator Joyal dated February 26, 2019

Exhibit P-21: Letter from Minister Lametti to Senator Cormier as Chair of the Senate Standing Committee on Official Languages dated April 4, 2019

Evidence available upon request.

Application accompanied with a notice of motion

If this is an application filed during the proceedings or an application under Books III, V, except those regarding family matters stated in articles 409, or VI of the Code, the preparation of the case protocol is not required; however, such an application must be accompanied with a notice stating the date and time of its filing.

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