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The irony of recognizing Quebec’s French character in a Constitution that’s only legal in English: Senator Dalphond
December 3, 2021
OPINION
image Pierre J. Dalphond
Pierre J. Dalphond
PSG - (Quebec - De Lorimier)

The National Assembly of Quebec is preparing to introduce, as part of Bill 96 amending the Charter of the French Language, two new provisions to the Constitution Act, 1867 to affirm that French is the only official language of the Quebec nation and the common language of Quebecers — a process for which all federal parties pledged their support during the 2021 election campaign.

Over in Ottawa, a bill tabled in the House of Commons shortly before the election call promised to modernize the Official Languages Act in order to reaffirm the importance of French in Canada and to promote its use. This bill also included recommendations made by the Senate Committee on Official Languages in a June 2019 report.

In short, both Parliament and the National Assembly are preoccupied with the status of the French language.

However, we overlook the fact that in this country, where English and French are the two official languages, there is no legal French version of the Constitution Act, 1867. Most of this founding document — an imperial act adopted by the Westminster Parliament — is still legally valid in English only. This probably makes Canada the only country in the world that declares itself officially bilingual but has a constitution written largely in only one language.

And yet, when the Constitution was patriated in 1982, the federal government of the day promised in writing to provide the country with a constitution with French text that would be as valid as the English text. This promise was made to all of Canada’s francophones, particularly Quebecers, as follows:

French version of Constitution of Canada

55 A French version of the portions of the Constitution of Canada referred to in the schedule shall be prepared by the Minister of Justice of Canada as expeditiously as possible and, when 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 pursuant to the procedure then applicable to an amendment of the same provisions of the Constitution of Canada.

The first part of the constitutional obligation was fulfilled in December 1990 when the justice minister tabled a report in Parliament containing a French version of the Constitution Act, 1867 and some 30 other constitutional documents.

But the second part is another matter. Nearly 40 years after that solemn commitment, the French version of the Constitution Act, 1867 is still not in force. This is because, according to the amending formula put in place with the patriation of the Constitution, adopting the entire document requires a resolution passed by both houses of Parliament and a majority of provinces representing more than 50% of the Canadian population — and even, according to several sources, the unanimous consent of the provinces.

Fearing the risks of initiating such a process, successive Conservative and Liberal federal governments have done nothing since 1990 to finally give the country a bilingual constitution, while declaring their recognition of Quebec’s distinct society, its national character and the importance of French in Canada. The bottom line of this unwillingness to use an amendment process that would change nothing in the division of powers, the structure of the federation or its institutions is that the country’s governments are ignoring their constitutional obligation under section 55 of the Constitution Act, 1982.

In an October 2018 report, Access to Justice in French and English in the Context of Modernizing the Official Languages Act, the Canadian Bar Association wrote: “The absence of an official French version [of the Constitution] 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.”

The following year, the association adopted a resolution, shared with the federal and all provincial governments, asking political players to fulfill their constitutional obligation rather than sweep it under the carpet. To assess efforts in this regard, the resolution suggested the government amend the Official Languages Act to require the Attorney General of Canada to report on the steps taken every five years. In fact, given the importance of the issue, shouldn’t the obligation to report fall on the prime minister?

If Ottawa claims it is ready to adopt the necessary resolution to amend the Constitution Act, 1867 to incorporate Quebec’s proposals, why not use the opportunity to restart the process of enacting a French version of the country’s founding document? Francophones have been waiting nearly 40 years.

Isn’t it finally time to do what is necessary to fulfill the promise made in 1982?


Senator Pierre J. Dalphond represents the De Lorimier division of Quebec.

This article appeared in the November 22, 2021 edition of Le Devoir (in French only).