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Canada's official-languages legislation

The Constitution Act of 1867, the legislation that officially created Canada, provided for the option to use French or English in the debates of the Quebec legislature and the Parliament of Canada, and before the courts formed in these two jurisdictions. However, the journals, debates and archives of the Government of Canada and the Government of Quebec were required to be published in both languages, but it was not until 1969, when it passed the Official Languages Act, that Parliament established French and English as the official languages of Canada. Since then, numerous measures have been adopted to encourage respect for the official languages and to support official-language minority communities.

Constitutional measures

The Constitution Act of 1982 officially entrenched recognition of both official languages into the Canadian Charter of Rights and Freedoms.

  • Section 16 of the Canadian Charter of Rights and Freedoms states that English and French are the official languages of Canada and enjoy equal status, rights and privileges as to their use in the institutions of Parliament and the federal government. In 1993, the Charter recognized for the first time, in section 16.1, the equality of the French and English communities of New Brunswick.

  • Section 17 of the Charter states that English and French may be used in any debates and other proceedings of Parliament and the legislature of New Brunswick.

  • Section 18 of the Charter provides that the statutes, records and journals of Parliament and of the legislature of New Brunswick shall be printed and published in both English and French.

  • Section 19 of the Charter provides that English and French may be used before the courts established by Parliament and the legislature of New Brunswick.

  • Section 20 of the Charter provides for the right to communicate with and receive services, in the official language of one's choice, from the head or central office of any institutions of Parliament or the federal government or of the legislature or government of New Brunswick. In addition, there is also a right to communicate with or receive services in either English or French from offices that are not part of the central offices of the above institutions, provided there is significant demand or the nature of the office justifies it.

  • Section 23 of the Charter establishes the right to instruction in the minority language, as well as the right to control and manage public educational institutions (school management) as indicated by the Supreme Court of Canada, particularly in the Mahé (1990) and Arsenault-Cameron (2000) rulings.

  • Under section 133 of the Constitution Act, 1867, Quebec has constitutional obligations that are very similar to the constitutional obligations set out in sections 17, 18 and 19 of the Canadian Charter of Rights and Freedoms, that is, in terms of legislative and judicial bilingualism.

  • Finally, it is important to point out that, under section 23 of the Manitoba Act, 1870, Manitoba also has linguistic obligations under the Constitution that are very similar, if not identical to, those of Quebec.

Federal legislation

  • The Official Languages Act came into effect in 1969 and was amended by the addition of Part VII in 1988, among others. Amended in 2005, Part VII of the Act is now justiciable under Part X of the Official Languages Act. It binds the federal government and its institutions to adopt positive measures to foster the vitality of official-language minority communities and support their development. This Act is quasi-constitutional, which means it takes precedence over all other federal legislation.

  • Part XVII of the Criminal Code provides that an accused, anywhere in the country, can obtain a trial in French if desired. The Supreme Court of Canada decision in Beaulac (handed down on May 20, 1999) confirmed this fact by eliminating all doubt and any administrative red tape.

  • There is a multitude of other federal laws promoting the respect of both official languages, such as the Consumer Packaging and Labelling Act, the Trademarks Act, the Immigration and Refugee Protection Act, as well as the Broadcasting Act which established the Canadian Broadcasting Corporation (CBC) and the Canadian Radio-television and Telecommunications Commission(CRTC).

A number of significant cases

Despite an increasingly favourable legislative and constitutional framework, Francophones have been forced on several occasions to ask the courts to rule on the scope of their language rights. Below are a number of examples.

  • In 1990, the Supreme Court of Canada recognized that section 23 of the Canadian Charter of Rights and Freedoms gives minority parents a right to manage and control their children's' educational institutions.
  • The Reference on the secession of Quebec, handed down on August 20, 1998 by the Supreme Court of Canada, ruled that the Constitution of Canada is much more than a simple written law. It is the sum total of a series of rules and principles that emerge from the understanding of the written text, its historical context and various inter-pretations given by the courts on constitutional matters. The Supreme Court therefore set out four fundamental guiding principles that political and judicial players must take into account whenever there is a question of indepth changes to the Canadian Constitution. These involve federalism, democracy, constitutionality and the primacy of the law, as well as respect for minorities. In devising these principles, the highest court has reaffirmed the high degree of importance that must be given to respecting minorities.
  • The decision in the Beaulac case referred to above radically changed the view of language rights in Canada. The Supreme Court gave the federal, provincial and territorial governments guidelines on which linguistic rights must in all cases be interpreted according to their subject, in a manner compatible with the maintenance and the vitality of Canada's official-language communities and on the principle of genuine equality. It also affirmed that institutional linguistic rights require government measures for their implementation and thereby create obligations for the State.
  • In 2000, in the Arsenault-Cameron case, the Supreme Court rendered another important decision regarding the interpretation of the language rights provided for in the Canadian Constitution, more specifically section 23 of the Canadian Charter of Rights and Freedom. An interpretation based on the subject of the rights provided for in section 23 is based on the true objective of that section, which is to remedy past injustices and ensure for the official-language minority that it will have equal access to a high quality of teaching in its own language, under circumstances that favour the community's development. The highest court in the land reaffirmed certain principles set out previously in other decisions, specifically in the Mahé and Beaulac cases.
  • In the Montfort case, the petitioners challenged the decision by the Ontario government to close the Montfort Hospital, the only Ontario hospital where French is the working language, and where health-care services are available in French at all times. That hospital also enjoyed a unique role in the education and training of health professionals in Ontario. The Ontario Court of Appeal decided, in December 2001, that under the unwritten principle of the protection of minorities set out in the Reference on the secession of Quebec governments are not permitted to close an institution as significant as that to the Franco-Ontarian community.