BRIEF BY PROFESSOR FRANÇOIS LAROCQUE RESEARCH CHAIR IN LANGUAGE RIGHTS UNIVERSITY OF OTTAWA 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 CANADA MAY 31, 2021 Professor François Larocque Faculty of Law, Common Law Section University of Ottawa 57 Louis Pasteur Ottawa, ON K1J 6N5 Telephone: 613-562-5800, ext. 3283 Email: [email protected] 1. Thank you very much to the honourable 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 government of Canada.”4 In reality, however, as reported by Statistics Canada,5 English is dominant everywhere, while French is declining, including in Quebec. 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 Supreme Court of Canada 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 Canada Act 1982 (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. Prince Edward Island, [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 Canadians 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 British Columbia Terms of Union (1871), the Statute of Westminster and the Newfoundland Act (1949). 11. Of the 31 texts declared in the CA1982 to be part of the “Constitution of Canada,” only nine have been enacted in both official languages, including the CA1982 itself and the Charter. The Manitoba Act Languages, Interpretation Bulletin, Substantive Equality of Official Languages. See also S. Friedman, Discrimination Law, Oxford: OUP. 2011. 2 (1870), the Alberta Act (1905) and the Saskatchewan 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, the Right Honourable Kim Campbell, 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 Great Seal of Canada.” 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.