150 Years of Legislative Bilingualism in Canada: Past and Present

(Disponible en français : 150 ans de bilinguisme législatif au Canada : d’hier à aujourd’hui)

This HillNote provides an historic and contemporary look at the evolution of legislative bilingualism in the Canadian parliamentary context.

The genesis of a political compromise

On the eve of Canadian Confederation

Prior to Confederation, there were demands for laws and parliamentary documents to be bilingual in order to guarantee that linguistic minorities could interact with parliamentary institutions in the language of their choice. The 1840 Act of Union had established English as the sole official language of legislation and legislative documents.

Language obligations

There were calls during the constitutional negotiations to include measures to protect the English and French languages in the Constitution Act, 1867 (“Constitution”).

Constitutional obligations in the legislatures of Canada, Quebec, Manitoba and the territories

Section 133 of the Constitution contains the obligation to use both English and French for parliamentary records and journals, as well as for printing and publishing statutes. This constitutional provision also allows either English or French to be used in parliamentary debates. Only the Parliament of Canada and the Legislature of Quebec are subject to these principles.

Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.)

Section 23 of the Manitoba Act, 1870 made both English and French obligatory for the records and journals of the Manitoba Legislature, while either can be used in parliamentary debates. In 1979 and 1985, the Supreme Court of Canada confirmed Manitoba’s obligation to draft, print and publish its statutes in English and French.

Manitoba Act, 1870, 33 Victoria, c. 3 (Canada).
Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032.
Re Manitoba Language Rights, [1985] 1 S.C.R. 721.

In the three territories, which are “creatures” of the federal Parliament, similar obligations were included in the territorial laws.

Languages Act, RSY 2002, c 133.
Official Languages Act, RSNWT 1988, c O-1.
Official Languages Act, SNu 2008, c 10.

In New Brunswick

At the time, the Acadians wanted legislative bilingualism provisions to apply in New Brunswick. While legislative debates and statutes were occasionally translated into French, the Acadians had to wait until 1969 for this obligation to be included in the provincial Official Languages Act, and until 1982 for it to be enshrined in subsections 17(2) and 18(2) of the Canadian Charter of Rights and Freedoms (“Charter”). Subsection 16(2) of the Charter now recognizes that English and French have equality of status and equal rights and privileges as to their use in New Brunswick institutions.

The evolution of legislative bilingualism and its current interpretation

Chronology

There have been a number of watershed events over the years that have moved legislative bilingualism forward in the context of the federal Parliament. The following is a chronology:

Interpretation by the courts

Several judicial decisions have clarified the nature of the legislative bilingualism guaranteed by section 133 of the Constitution. The following is the interpretation given to this provision by the courts:

The right to express oneself in the language of one’s choice

All federal parliamentarians are free to use English or French in debates in the Senate or House of Commons. Members of the Quebec Legislature also benefit from this right. Simultaneous interpretation was introduced in the Senate and House of Commons in 1961 and 1959 respectively, but it is uncertain whether this practice benefits from constitutional protection.

MacDonald v. City of Montreal, [1986] 1 S.C.R. 460.

The language of records and journals

The respective records and journals of the Parliament of Canada and the Quebec Legislature must be entirely drafted in English and French.

Blaikie v. Procureur général du Québec, [1978] S.C. 37.

The language of laws

The laws of the Parliament of Canada and the Quebec Legislature must be printed and published in English and French, but they must also be adopted and assented to in both official languages. This means that English and French must be used simultaneously when laws are being adopted. Delegated legislation, i.e., regulations and orders of a legislative nature, are also subject to these obligations.

Blaikie v. Procureur général du Québec, [1978] S.C. 37.
Att. Gen. of Quebec v. Blaikie et al., [1979] 2 S.C.R. 1016.
Reference re Manitoba Language Rights, [1992] 1 S.C.R. 212.

Amendments to section 133

Pursuant to the provisions governing amendments to the Constitution of Canada, section 133 cannot be unilaterally amended by the Parliament of Canada or the Legislature of Quebec, and is indivisible from the Constitution of Canada and Quebec.

Att. Gen. of Quebec v. Blaikie et al., [1979] 2 S.C.R. 1016, p. 1025.
Jones v. A.G. of New Brunswick, [1975] 2 S.C.R. 182.

A specific case: the co-drafting of federal laws

A look back in time

In 1976, the Commissioner of Official Languages revealed in his annual report that there was an obstacle to the equal status of the two official languages in the area of legislation, specifically with regard to the methods used to draft federal laws. The Commissioner recommended that the Department of Justice implement a plan to ensure equality of the two official languages in the drafting of laws and reviewing of regulations; a plan that respected the spirit of each language as well as Canadian bijuralism, and that promoted co-drafting.

The co-drafting of federal laws

Since 1978, when the Department of Justice began co-drafting, the method for drafting federal laws has involved two jurists, one francophone and one anglophone, simultaneously drafting the French and English versions of a legislative text.

McLaren, Karine. “Bilinguisme législatif : regard sur l’interprétation et la rédaction des lois bilingues au Canada,” 2014. [Available in French only]

The advantages of co-drafting

Co-drafting favours equal status of both official languages because it ensures that the English and French versions of legislative texts can stand alone, that each properly reflects departmental instructions and that “[n]either version is subordinated to the other.” Co-drafting also reflects Canadian bijuralism, as it involves jurists trained in Canada’s two legal systems: common law and civil law.

Interpreting bilingual laws

Over the years, the courts have stipulated that the English and French versions of a legislative text have equal authority. Moreover, this interpretation rule has been codified in section 18 of the Charter and section 13 of the Official Languages Act. As well, given that the English and French versions of a legislative text articulate the same concepts, the courts have determined that in interpreting bilingual laws, common sense should be used to appreciate the meaning that is common to both versions. [Article available in French only]

The challenges that remain

All in all, legislative bilingualism is one area in which recognition of the status and equality of both official languages is almost complete in the Canadian parliamentary context. Notwithstanding the progress made and the model that is embodied by the Canadian Parliament on a number of fronts, some would like to take bilingualism a step further.

A bilingual Constitution?

From early Confederation until the adoption of the Statute of Westminster, the British Parliament legislated on behalf of Canada. As a result, the Constitution of 1867 was ratified in the United Kingdom in English only. To this day, there is no official French version of the constitutional text. However, section 55 of the Charter stipulates that a French version should be drafted “as expeditiously as possible.” Some have called for the federal government to redress this historic wrong in the context of the 150th anniversary of Confederation. Despite the efforts of the French Constitutional Drafting Committee in the early 1990s, this has yet to be achieved, because since the failures of the Meech Lake Accord and the Charlottetown Accord, there has never been a constitutional resolution to give substance to the committee’s recommendations.

Sources

Bastarache, Michel. The Law of Bilingual Interpretation, Markham, LexisNexis, 2008.

Privy Council Office. Part 2 – Making Acts.

Commissioner of Official Languages. Sixth Annual Report – 1976, Ottawa, 1977.

The Royal Commission on Bilingualism and Biculturalism. Report of the Royal Commission on Bilingualism and Biculturalism, Book 1: General Introduction Official Languages, 1967, pp. XI and XII.

Doucet, Michel. “Le bilinguisme législatif,” in Michel Bastarache (Ed.), Les droits linguistiques au Canada, 3rd ed., Cowansville, Éditions Yvon Blais, 2013. [Available in French only]

Doucet, Michel. “Les Acadiens du Nouveau-Brunswick et la Confédération,” L’Acadie Nouvelle, February 20, 2017. [Available in French only]

Foucher, Pierre. “Une constitution entièrement bilingue pour le Canada en 2017?” Blog of the International Observatory on Language Rights, November 16, 2015. [Available in French only]

McLaren, Karine. “Bilinguisme législatif : regard sur l’interprétation et la rédaction des lois bilingues au Canada, ” Vol. 45, No. 1, Ottawa Law Review, 2014, pp. 21–37. [Available in French only]

Migneault, Gaétan. “La législation bilingue du Nouveau-Brunswick,” Les Cahiers de droit, Vol. 55, No. 3, 2014, pp. 619–644. [Available in French only]

Migneault, Gaétan. Les Acadiens du Nouveau-Brunswick et la Confédération, Lévis, Les Éditions de la Francophonie, 2009. [Available in French only]

The Canadian Pacific Railway Co. v. Robinson, [1891] 19 S.C.R. 292.

The King v. Dubois, [1935] S.C.R. 378.

Related resources

Library of Parliament. Canadian Parliamentary Historical Resources.

Forget, Chloé, Marie-Ève Hudon, and Élise Hurtubise-Loranger. Official Languages and Parliament, Publication No. 2015-131-F, Background Paper, Parliamentary Information and Research Service, Library of Parliament, 19 April 2017.

Authors: Marie-Ève Hudon and Chloé Forget, Library of Parliament