The Legal Context of Canada's Official Languages

Official Status in Federal Institutions

Both French and English enjoy official language status in Canada. The expression co-official languages can also be used, as in other countries. This shared official status applies only to federal government institutions, i.e., the Parliament (House of Commons and Senate), federal administration, federal courts, Crown agencies and corporations, international treaties, and so forth. This status is rooted in history, going back to 1763 when Canada, which was part of New France, became a British North American colony.

In addition, when Canada is characterized as a bilingual country, a certain number of nuances are implied. All institutions that fall under federal jurisdiction are subject to official bilingualism, whereas provinces, municipalities, private businesses, and so forth are not. Although the federal government theoretically guarantees bilingual services in all areas under its jurisdiction, this is not always the reality. For example, if the demand for bilingual federal services is practically nonexistent in certain provinces with a significant Anglophone majority, such services are not always available. In Canada, the now well-known expression "where numbers warrant" is used. In this case, Francophones, estimated to make up approximately 5% or less of the population, must agree to communicate with the local federal administration in English.

Nevertheless, the Canadian Constitution and federal statutes give Canadians the following rights, whether they speak English or French:

1. Federal services available in both official languages "where numbers warrant"
2. Official documents that are either bilingual or available in both official languages throughout Canada
3. A bilingual Parliament (House of Commons and Senate) where discussion can occur in either of the two languages with simultaneous interpretation available. Legislation must be enacted and adopted in both languages, which are of equal value.
4. A bilingual Criminal Code
5. The packaging and labelling of food products and manufactured goods must be printed in both official languages, with at least minimal information.
6. The Canadian Radio-Television Commission (CRTC) regulates language use in radio broadcasts.
7. Public airports are bilingual.
8. The Canadian Armed Forces and the Royal Canadian Mounted Police (RCMP) are bilingual, but bilingual services are not necessarily available in all locations throughout the country.
9. Embassies and consular services are bilingual throughout the world. Canadian citizens and foreigners are at least guaranteed a written response in French or English, depending on their language.
10. Canadian currency features both official languages.
11. Postage stamps are bilingual, but services—particularly since their privatization—are not necessarily bilingual everywhere.

Official Status—in Whole or in Part—in Certain Provinces

The status of the English language is recognized in all the provinces, even in Quebec where it enjoys status in the Parliament, courts, schools, certain towns, and so forth. English is the sole official language of the following eight provinces: Alberta (de jure), British Columbia (de facto), Manitoba (de jure), Newfoundland (de facto), Nova Scotia (de facto), Ontario (de facto), Prince Edward Island (de facto), and Saskatchewan (de jure). Although English has never been declared the official language through legislation in British Columbia, Newfoundland, Nova Scotia, Ontario, and Prince Edward Island, it has become, through usage, the official language in practice (de facto). Other provinces— Alberta, Manitoba, New Brunswick, and Saskatchewan—have adopted acts regarding the status of English. In this case, English is the official language de jure, which means it is recognized by law.

Official Languages in Canada's Provinces and Territories

Province/Territory	Official Language(s) and Status
Alberta	English (de jure), but bilingual legal system
British Columbia	English (de facto)
Manitoba	English (de jure), but bilingual legal system
New Brunswick	English and French (de jure)
Newfoundland	English (de facto)
Nova Scotia	English (de facto)
Ontario	English (de facto), but bilingualism is recognized
Prince Edward Island	English (de facto)
Quebec	French (de jure), but bilingualism is recognized
Saskatchewan	English (de jure), but bilingual legal system
Yukon	English and French (de jure), but ambiguous status
Northwest Territories	English and French (de jure)
Nunavut	English and French (de jure), Inuktitut and Inuinnaqtun (de facto)

French is the sole official language of the province of Quebec. It is also a co-official language with English in the province of New Brunswick, as well as in the three federal territories ( Nunavut, the Northwest Territories, and the Yukon). But the legal situation of languages is not as straightforward as the expression "official status" may imply—in most provinces both French and English enjoy varying degrees of recognition.

Legal Bilingualism

Bilingualism is compulsory not only in federal institutions, but also in public institutions that come under the authority of the provinces that have declared a certain level of bilingualism, such as Quebec, New Brunswick, Ontario, and the federal territories.

Alberta:

Though it allows the use of French, the Parliament can decide, with a simple resolution, to adopt its statutes and publish them only in English. Before using another language during the question period, permission must be obtained because, according to the Standing Orders of the Legislative Assembly, Members of Parliament must give two hours' notice to the Speaker of the House before they are permitted to express themselves in French. (This allows an interpreter to be summoned.)

The Francophone minority has had the right to a criminal trial in French since 1990. In the civil courts, the Supreme Court of Canada gives Francophones the right to express themselves in French before a judge, but not the right to be understood. In addition, the law does not give citizens the right to demand that the judge's decision be given in the official language that is their own. However, court employees must be capable of transcribing statements in the language chosen by the person on trial. The Alberta government provides certain bilingual services, but they are not required by law.

In the field of education, Alberta follows the "where numbers warrant" rule, in accordance with Section 23 of the Charter of Rights and Freedoms. On January 19, 1994, the School Amendment Act provided for a system of school management for Franco-Albertans. The Alberta School Act of 1995 gave Francophones the right to manage their schools.

British Columbia:

The provisions of the Canadian Criminal Code, which permits the use of French, did not come into effect until 1990. In the civil courts, the most that can be done is to demand the presence of an interpreter. In accordance with Section 23 of the Charter of Rights and Freedoms, all school districts are required to offer instruction in French in areas with 10 or more Francophone children. In 1996 the Supreme Court of British Columbia swore in the first members of the French School Board (Conseil scolaire francophone—CSF), formed in July 1995 in accordance with School Act regulations.

Manitoba:

In 1979, in accordance with the Constitution Act, 1870, the provincial legislature became bilingual again. Francophone legislative members can thus express themselves in French, but they must notify the Speaker of the House before doing so. In 1980, the Legislative Assembly of Manitoba adopted the Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes (Chap. 3). Since then, French and English have been recognized as legislative languages in Manitoba.

The government provides Francophones with simultaneous interpretation in all courts since only a few judges speak French.

In 1971, the Manitoba government adopted the City of Winnipeg Act, which still appears to be the only provincial legislation in Canada that requires municipal governments to offer services in the linguistic minority's language.

Since 1982, Manitoba has been subject to Section 23 of the Charter of Rights and Freedoms. In 1994, the government created Division scolaire franco-manitobaine (DSFM) to manage the Francophone school system.

New Brunswick (officially bilingual):

Bilingualism is required of all institutions under provincial authority in accordance with New Brunswick's Official Languages Act and the Canadian Constitution of 1982. This province is strict with regard to bilingualism in the fields of legislation, justice, education, and government services.

Newfoundland:

Existing legislation and practices ensue from the provisions of Section 23 of the Charter of Rights and Freedoms. Access to French schools is left to the discretion of the school boards, which can establish, maintain, and run schools that offer French First Language curricula. In July 1996, the government announced that the provincial Cabinet recognized its obligations under Section 23 of the Canadian Charter and that it approved the creation of a Francophone school board.

Nova Scotia:

Part XIV.1 of the Canadian Criminal Code, which allows a criminal trial to be held in French, has been in effect in the Nova Scotia courts since 1988.

In 1981, Act 65 amended the School Act of 1967, and the Education Act was adopted. This act authorized Francophones to receive instruction in French in Acadian schools, "where numbers warrant" (Sect. 2b, ii). Section 7 of the Education Act also decrees that French be used in the administration of and communication within Acadian schools.

In 1994, Nova Scotia created the Acadian and French Language Services Branch within the Department of Education. The organization's mandate is to "offer quality French First Language and French Second Language educational programming and services" that take into account the Acadian experience and cultural diversity and that encourage people to learn Canada's two official languages. Nova Scotia is now the third Canadian province (after Ontario and Prince Edward Island) to adopt a French-language Services Act.

Ontario:

In accordance with Ontarian statutes, bilingualism is required in the fields of legislation, legal services, and education.

In accordance with the French Language Services Act, 1986 (or Act 8), Francophones have the right to receive services in French where numbers warrant in the 23 "designated areas." The Office of Francophone Affairs was created, and language coordinators were named for all the ministries—all of which report to a Cabinet member.

In this province, the principle "where numbers warrant" does not apply—at least not in the legal system. All students have the right to instruction in the native language of one of their parents.

Prince Edward Island:

Since the French Language Services Act came into force, provincial acts have been filed, amended, adopted, and published simultaneously in English and French. Some provisions of the law provide for the use of French in the administration of justice. The courts' written decisions must be made public simultaneously in English and French if the court proceedings took place, in whole or in part, in both languages or if the pleadings or other documents were written, in whole or in part, in both languages. The law aims to accommodate Acadians in French throughout the entire judicial process.

The French Language Services Act specifies the range of services provided in French by provincial government institutions and contributes to the development of Francophone and Acadian communities in the province. The School Act (adopted in 1974; modified in 1977, 1980, 1987, 1988, and 1992) repeats the provisions of Section 23 of the Charter of Rights and Freedoms but applies them in light of the "where numbers warrant" clause. The minister of education can nevertheless use his or her discretionary power to rule that a minimum of 25 students (spread over a period of three consecutive years) is necessary before offering classes in French.

Quebec:

The Canadian Constitution of 1867 imposed legislative (National Assembly) and judicial (the courts) bilingualism in Quebec. Although officially French, Quebec is bilingual with respect to the National Assembly, all the courts, education, and government services—though these services are not a constitutional right.

Saskatchewan:

In this province, all acts and regulations may be adopted, printed, and published either solely in English or in French and English. Regulations and resolutions are used to designate those acts (and regulations) that have already been adopted and published only in English, but which need to be published in both French and English. Nevertheless, the law makes the use of English and French official in the Legislative Assembly.

The law specifies that court proceedings are to be printed and published in French and English. The right to use French in the courts is limited to six courts, and the right to appear before a bilingual judge is rejected, but possible, with the exception of the criminal courts, which are under federal jurisdiction and recognize bilingualism. However, court employees are required to transcribe statements in the language chosen by the person on trial. Bilingualism is permitted, but not required, with respect to civil matters in the six main courts.

Section 180 of the Education Act decrees that "English is to be the language of instruction in schools," subject to regulations that provide for another language. In Fransaskois schools, French is the primary language of instruction. The provincial government created the Official Minority Language Office, which is responsible for French education in Saskatchewan. Its main functions are to develop, test, implement, and update curricula for the core French program, immersion schools, and Fransaskois schools.

Federal Territories (Nunavut, the Northwest Territories, and the Yukon):

The federal government, citing Subsection 31.1 of the Constitution Act, 1982 and certain sections of the Official Languages Act of Canada, 1988, exerted pressure on the territorial governments to become bilingual. The Constitution Act, 1982 states in Subsection 32.1 that the Canadian Charter of Rights applies not only to "the Parliament and government of Canada," but also to "all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories." Sections 16–20 of the Charter of Rights and Freedoms regarding the use of French and English in the Parliament, courts, and federal government services also apply to the territories, with local governments then required to become bilingual. Last, some sections of the Official Languages Act, 1988, obligated the two territorial governments to adopt a certain type of official bilingualism.

In 1906, French lost its status in the territories. The federal Parliament had, it seems, accidentally adopted an act that abolished the acts and orders of an annex containing an 1886 amendment that provided for an individual's right to use French or English in the territorial courts. As a result, Section 110 of the Northwest Territories Act (the equivalent of Section 133 of the Constitution Act, 1867) was effectively abolished. On April 1, 1999, the Northwest Territories were divided in order to create a new federal territory— Nunavut.