The Power of Perspectives

The Canadian Bar Association

Kim Covert

Canada’s unilingual constitution: More than just bad optics

November 30 2018 30 November 2018

 

Words matter. When it comes to the Constitution – the document which guarantees the equality of English and French – the fact that the majority of constitutional documents are available in English only makes it look like the words are more equal in one language than the other.

The optics, as they say, are bad.

“The lack of a complete official French version of the constitutional documents … has a jarring symbolic effect, and is an affront to the equality of status of both official languages in Canada and to our Constitution’s underlying fundamental principles, which are the rule of law and the protection of minorities,” say the CBA’s French-Speaking Common Law Members Section and Constitutional and Human Rights Section in a joint submission to the Parliamentary committee studying the modernization of the Official Languages Act.

But the problem is not merely one of optics and symbols.

“The absence of an official French version has practical implications for the development of law and devalues French-speaking jurists’ and litigants’ participation in discussions on the interpretation of our society’s most fundamental legal texts,” says the submission.

A complete French version of the constitutional documents has been available since 1990, but governments have failed to pass them into law due to what the submission characterizes as both political and legal hurdles.

Legally, there’s no consensus among the courts over the binding nature of section 55 of the Constitution, which calls for the federal Justice Minister to prepare French versions of the constitutional documents and put them forward for enactment.

Politically, the cooperation of the provinces is required to enact the French version, and in the early 1990s, when there was considerable tension between the federal and Quebec governments, Quebec refused to participate in the process.

The Sections say Parliamentary action is needed.

“The impasse is related to each stakeholder’s lack of accountability in adopting the French version of the Canadian Constitution,” they write. “The obligation to put forward the French version of the constitutional documents for enactment necessarily devolves to all parties involved in carrying out the applicable constitutional amendment procedure. However, the wording of section 55 of the Constitution Act, 1982, which does not explicitly describe the extent of each party’s obligation, enabled, if not encouraged, a certain degree of idleness on the part of political actors who have been waiting since the 1990s for their peers to take the initiative and reignite the discussion.”

The Sections recommend that Parliament add an enforceable section to the Official Languages Act, requiring the Minister of Justice to make best efforts to implement section 55, thereby renewing the government’s commitment to official bilingualism.

Past CBA submissions have encouraged the government to modernize the 30-year-old Official Languages Act “to make it an efficient tool that will reflect the present-day reality of Canada’s linguistic duality.”

“For a country that is said to be officially bilingual, Canada is slow to fulfil its duty to adopt a complete official French version of its Constitutions,” the submission concludes. “This anomaly has a harmful impact on the vitality of Canadian linguistic communities and undermines access to justice and the rule of law.”

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