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The Senate

Motion Pertaining to Section 55 of the Constitution Act, 1982--Debate Continued

February 8, 2022

Honourable senators, I rise today to express my support for the motion pertaining to section 55 of the Constitution Act, 1982.

The motion has two parts. The first states an objectively verifiable fact, namely that the government has not adopted a French version of all the texts that make up the Canadian Constitution, even though section 55 was intended to ensure that a French version was adopted quickly.

As Professor Ruth Sullivan explained in her 2014 treatise on statutory interpretation:

Section 55 of the Constitution Act, 1982, provides for a French version of the constitutional laws that are in English only to be prepared as expeditiously as possible. As soon as it is ready, it shall be put forward for enactment pursuant to the procedure applicable to an amendment of the Constitution.

Although section 55 requires expeditious action . . . an official version has not yet been adopted.

The second part of the motion calls upon the federal government to include a requirement to submit a report every five years in its next reform of the Official Languages Act. These reports should detail the efforts it has made to adopt the official French version of the constitutional texts, pursuant to section 55.

How can one oppose this motion, except to say it should have been brought forward much earlier? For close to 40 years, the federal government did not move, and refused to give Canadians a French version of their Constitution, which would stand as the law. In fact, section 55 compelled the government to table important parts of the French version as soon as they were ready.

I agree with the point of view that Professor Sébastien Grammond expressed in 2017 before being appointed to the bench. In a collective work entitled La Constitution bilingue du Canada, un projet inachevé, he wrote:

The current situation, where the Constitution of a bilingual country is partially unilingual, is indefensible: There is no good reason or principle for refusing to complete the process of enacting a French version. The reason this has not happened in the more than 30 years since the Constitution was repatriated is purely political.

Many of today’s politicians are extremely reluctant to get involved in a project that requires a constitutional amendment.

Such inaction by the federal government obviously has legal consequences for statutory interpretation. I will give you an example, taken from a book entitled Constitutional Law of Canada, by the late professor Peter Hogg:

So long as the French version of the Constitution Act 1867 remains unofficial, any discrepancy between the English and French version would have to be resolved by recourse to the English version, because it is the only authoritative one.

More importantly, the absence of a complete official French version of the constitutional texts sends a symbolic message that is demoralizing to francophone Canadians. I agree with the professor and lawyer François Larocque, who said the following in May 2021, in a brief submitted to the Standing Senate Committee on Official Languages:

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.

The federal government can and must take the initiative to try and fulfill its obligation pursuant to section 55. The first step is easy. It just has to invite its provincial counterparts to discuss the French version that has already been prepared by the Department of Justice Canada for all constitutional texts.

In December 1990, the French Constitutional Drafting Committee, which was established by the Department of Justice Canada, completed the French version of 30 constitutional texts set out in the schedule to the Constitution Act, 1982, as well as eight additional texts deemed important by the committee.

Thirty-one years have passed since 1990. The problem is that in the interim, the federal government has practically made no attempt to have this French version become law.

Of course, even if the federal and provincial governments initiate talks, this does not guarantee that they would quickly come to an agreement, especially considering that adopting the French version of these constitutional documents would require using constitutional amendment procedures.

As you know, the Constitution Act, 1982, provides for different amending formulas. These require either the agreement of one or more provinces or the unanimous agreement of all provinces, depending on the subject of the amendment to be made to the Constitution.

In other words, certain constitutional texts or parts of them may be more complex to adopt, but others could be adopted easily and quickly, depending upon the type of agreement required by the applicable amending formula.

This idea is important. Section 55 does not require that the government simultaneously adopt all of the French versions of the dozens of constitutional texts mentioned in the 1990 report.

Here are some examples of constitutional texts that could be easier to adopt, according to Professor Grammond:

 . . . it is clear that many constitutional texts that must be translated apply only to a single province or group of provinces. The terms of union for British Columbia, Prince Edward Island and Newfoundland fall under this category, as do the acts creating Alberta, Saskatchewan and Manitoba. The same goes for the Constitution Act, 1930, which applies only to the four western provinces. According to section 43 [of the Constitution Act, 1982], all of these texts can be amended only with the consent of Parliament and the legislative assembly of each province to which the amendment applies. This could make it easier to adopt a French version of these texts, in that only one province would have to provide consent for each of these texts.

Similarly, in the 2017 collective work I mentioned earlier, lawyers Mark C. Power, Marc-André Roy and Emmanuelle Léonard-Dufour stated that even the federal Parliament could unilaterally decide to adopt a certain number of constitutional provisions in French, under its power to amend the Constitution in relation to federal parliamentary institutions.

The federal Parliament is granted this power in accordance with the amending formula set out in section 44 of the Constitution Act, 1982.

In contrast, the constitutional amending formula set out in section 41 requires the unanimous agreement of the provinces. However, this formula applies only to a minority of constitutional provisions for which a French version is desirable, according to Professor Grammond. The examples he offers are sections 9 and 17 of the Constitution Act, 1867. They have to do with the office of the Queen, a subject covered by the formula set out in section 41.

I agree that the path forward to an agreement between the federal government and the provinces could be long and difficult. However, according to several experts, section 55 of the Constitution Act, 1982 does not allow the federal government to do nothing to restart talks with the provinces. These discussions were interrupted in 1998, as Senator Dalphond mentioned in his speech in December.

The Commissioner of Official Languages is also in favour of reopening a dialogue about this between the federal government and the provinces. His position is in line with the wording of the motion:

In my recommendations for the modernization of the Official Languages Act, I supported the proposal specifically requiring the Minister of Justice of Canada to make every effort to enact the French versions of the constitutional texts.

The author of the article that quotes Mr. Théberge also states the following:

The Canadian Bar Association and other stakeholders also made similar recommendations in their comments on the modernization of the Act.

I would argue that it would be a historic step forward for all Canadians if our country finally had a fully bilingual Constitution.

According to the same article, the Commissioner of Official Languages is of the opinion that:

 . . . adopting a French version of Canada’s constitutional texts is a fundamental issue that raises important questions about the equal status of our two official languages and goes to the very heart of the foundations of our country.

He also stated, and I quote:

If we want a society in which two official languages coexist and evolve, we must remedy this historic injustice, which has gone on for too long.

Colleagues, for all these reasons, I encourage you to support this motion. It will encourage the federal government to overcome its inaction by requesting periodic reports on its efforts to comply with section 55. If any provinces refuse to adopt the French version of certain constitutional texts or portions of them, the government can still adopt the parts of the Constitution for which it has obtained the necessary agreements in accordance with the constitutional amending formula or formulas applicable to those parts. The government could include those kinds of actions in its periodic reports.

In closing, although I support the motion, I think the five-year deadline to produce a report should be much shorter. A shorter deadline would make it possible to more quickly hold the federal government to account for taking measures to meet its obligation to adopt French texts.

To that end, I draw your attention to the lawsuit filed by François Larocque and our former colleague, the honourable Serge Joyal, that is currently before the Superior Court of Quebec. They are asking the court to rule that the federal and Quebec governments are in violation of section 55. To compensate for that violation, their suit calls for these governments to periodically report to the court on the steps that have been taken and to submit a plan for steps to be taken in future to enact the French version of the Constitution.

Their suit calls for these reports to be produced:

 . . . within six months of the date of the judgment and every twelve months until the French version of the Constitution is enacted . . .

I think their idea of calling for a 12-month deadline for producing periodic reports is a good one.

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