Canada is known around the world as an officially bilingual country. Federally, French and English share equal status as the “official languages.” The same is true in some of the provinces and territories. What is perhaps not known as widely (in southern Canada, at least) is that there are other official languages in two territories: Nunavut and the Northwest Territories.

Nunavut

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In Nunavut, the “Inuit Language” is an official language, along with English and French. Interestingly, which “Inuit Language” is official depends in which geographical area of the territory you are:

• In the northeast (around Kugluktuk, Cambridge Bay, and the Bathurst Inlet area), Iniunnaqtun is the official language.
• Inuktitut is the official Inuit Language for the rest of the territory.
• The government may declare both Iniunnaqtun and Inuktitut to be the official languages depending on the place and the purpose.

Declaring the local Inuit Language to be an official language makes sense when one considers that the population of Nunavut is overwhelmingly of Inuit descent (over 80%) though not all speak an Inuit Language. However, residents in many of the more remote, smaller and traditional communities often speak the local Inuit Language more than any other language.

The Northwest Territories

The Northwest Territories has the widest selection of official languages in Canada with eleven languages. In addition to English and French, nearly all of the Aboriginal languages used by sizable segments of the population have official status.

The nine other official languages of the Northwest Territories are:

1. Chipewyan (spoken mainly in the south-eastern corner of the territory, in the areas of Fort Smith and Fort Resolution and westwards toward Hay River);
2. Cree (spoken in the same regions as Chipewyan);
3. South Slavey (spoken in the southern part of the territory from Hay River to Fort Liard);
4. Tlicho (spoken in the area to the west of Yellowknife);
5. North Slavey (spoken in the Sahtu region along the Mackenzie Valley and around Great Bear Lake);
6. Gwich’in (spoken in the western part of the Mackenzie Delta, including the communities of Tsiigehtchic and Fort McPherson);
7. Inuvialuktun (spoken in the western Arctic, around Tuktoyaktuk, Paulatuk and Sachs Harbour);
8. Inuuinnaqtun (spoken in Uluhaktuk, and elsewhere in the Northwest Territories bordering the western edge of Nunavut); and
9. Inuktitut (spoken mainly in the far Eastern Arctic in what used to be part of the Northwest Territories but is now Nunavut). According to the Prince of Wales Heritage Centre in Yellowknife, virtually all Inuktitut speakers in the Northwest Territories now live in Yellowknife itself.

Law vs. Practice

Because of their shared history – until 1999 Nunavut and the Northwest Territories were a single territory – the laws in the two territories are almost identical. In both territories, the official nature of the various languages means that all are legally equal when it comes to government agencies and institutions. Any of the official languages can be used in the legislatures. Translation services are provided for anyone who wants to observe, in person or through media.

In March 2019, the federal government introduced legislation to carry out most of the Commission’s recommendations concerning Aboriginal languages.Similarly, any of the official languages can be used in the courts, and interpreters will be provided as necessary. Laws or regulations are usually only published in English and French, although the government can direct for translation into any of the other official languages. In the Northwest Territories, the court is only required to issue its decisions in English or French (and sometimes in both). In Nunavut, an interested party may ask the court to provide a translation of a decision or order into the official language of their choice.

Both territories have Languages Commissioners whose role is to oversee and enforce respect for the language laws. The legislation in both Nunavut and the Northwest Territories set out legal options for individuals who feel their language rights are not being respected and honoured.

Despite the similarities between the two territories, the Nunavut language laws actually go further than those in the Northwest Territories in ensuring the local Indigenous languages are preserved and used. It is mandatory in Nunavut that government institutions use all of the official languages on signs and notices. Keep in mind that, at most, this means using four languages. Accommodating the official languages is somewhat easier in Nunavut than would be in the Northwest Territories. Signs and notices in the Northwest Territories would have to be displayed in 11 languages if the law was the same as in Nunavut. Instead, the Government of the Northwest Territories may communicate in an official language other than English or French where it considers the demand is high enough and where it is reasonable, in all of the circumstances, that services be available in that other language.

Perhaps, in the spirit of ensuring the survival of Indigenous languages, it is time for the Northwest Territories to adopt a more localized but mandatory approach (similar to that in Nunavut) in using its official languages. For example, only a couple of years ago the Government of the Northwest Territories spent a significant amount of public money to replace all of its English-only communications (signs, letterhead, business cards and so on) with bilingual English-French forms. The most public example of this was likely the signs in Territorial Parks, which now show French and English. However, roughly only three percent of the territory’s population is French. The government did not provide for signs to display the local Aboriginal language, even in the areas where residents speak the local Indigenous language more than French.

The Northwest Territories has the widest selection of official languages in Canada with eleven languages.In a May 2019 newspaper column, Norman Yakeleya, the National Chief of the Dene Nation and regional Chief of the Assembly of First Nations, noted that only two of the Northwest Territories’ eleven official language are given priority – English and French. The other nine are acknowledged as equal only in law but not in practice. When it comes to Territorial Park signs, he suggested that at least the local Indigenous language(s) should also be included.

In late 2018, the Supreme Court of Canada issued a decision on Canada’s official languages. The Court confirmed that the government has a positive duty to implement and not interfere with the rights of French and English speakers, at least when it comes to contact with government agencies and institutions. In the Northwest Territories and Nunavut, the territorial governments surely have a similar important duty where the Indigenous languages are also “official”.

Aboriginal Languages across Canada

Canada has recently started to seek reconciliation with its Aboriginal Peoples. An important part of the reconciliation process should be the preservation, and in some cases the revitalization, of the languages of our Indigenous communities.

It is mandatory in Nunavut that government institutions use all of the official languages on signs and notices.In its 2015 report, the Truth and Reconciliation Commission called upon the federal government to implement legislation to preserve and strengthen the use of Indigenous languages, including by funding appropriate programs to accomplish this objective. This suggestion is particularly meaningful when we consider that a central part of the residential schools program included forcing (sometimes using violent methods) Aboriginal children to stop speaking their own languages and to use only English or French. In March 2019, the federal government introduced legislation to carry out most of the Commission’s recommendations concerning Aboriginal languages.

The Inquiry into Missing and Murdered Indigenous Women and Girls went even further in its 2019 final report. It called for all governments to recognize (at least the local) Aboriginal languages as “official”, “with the same status, recognition and protection provided to French and English”.

We are now seeing more efforts of Aboriginal language revitalization and preservation:

• Local Aboriginal communities are reclaiming their traditional names. As self-governance becomes more common, more communities are using their own languages for their internal political affairs and decision-making.
• Across Canada, schools in both Aboriginal communities and larger municipalities are teaching more and more Indigenous languages.
• There are courts in some provinces where the working language is the local Aboriginal tongue. For example, there is a “Cree Court” in Saskatchewan and a Mi’kmaq language court in Nova Scotia. And the Federal Court of Canada just announced in May 2019 that it will start translating some of its decisions into whatever Aboriginal language might be most relevant and appropriate in the circumstances.
• In larger cities, such as Edmonton and Toronto, municipal governments are renaming, or giving dual names to, streets and highways in the Aboriginal language of the area.
• Hockey Night in Canada recently produced its first Cree-language broadcast of a game. And in 2010, CBC broadcast a “Hockey Day in Canada” game in Inuktitut.

It is time for governments across Canada, at all levels, to be more proactive in promoting Aboriginal languages. The aim of past government policy was to extinguish Aboriginal languages. The only way to begin to repair the harm done is to now actively promote and encourage the rebirth and strengthening of the languages of Canada’s original founding peoples.

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Canada has two official languages: French and English. We always wonder why.

Canada’s two colonizing peoples are the French and the British. They controlled land and built colonies alongside Indigenous peoples, who had been living there for millennia. They had two different languages and cultures. The French spoke French, practiced Catholicism, and had their own legal system (civil law). The British spoke English, practiced Protestantism, and followed a common law system.

The British controlled parts of what is now Newfoundland. The French existed in the Maritimes (modern-day Nova Scotia, New Brunswick and Prince Edward Island) and Québec.

The French colonized Canada first. However, the British took over all French colonies in the Maritimes and Québec through different wars, including the Queen Anne’s War (1702-1713) and the Seven Years’ War (1756-1763). As a result, the British managed these territories politically, but the French dominated them culturally. That was a matter the British had to deal with. People in those colonies spoke French and followed French religious and legal practices (see: Official Bilingualism in Canada: History and Debates) [Official Bilingualism in Canada]).

In Québec, the British decided to authorize French culture and language but within British control. The British passed the 1763 Royal Proclamation. This action forced British law and practices on British colonies in North America, including those with large French populations. However, in 1774, the British enacted the Québec Act, which overturned this practice. This Act guaranteed the practice of the Catholic faith in Québec and allowed French civil law in private matters. In matters related to public administration, such as criminal prosecution, the common law system applied (see: Official Bilingualism in Canada).

The first Official Languages Act’s purpose was not to ensure that every Canadian spoke both English and French.In 1841, the Act of Union recognized that both the British and the French existed side-by-side but with the intention that French Canadians would eventually integrate into the British culture. The intention was that religious, cultural and legal dualism would be only temporary. This perception, based on the Durham Report, introduced a British parliamentary system including in Québec, but it could not banish the French language and the Catholic religion (see: Cultural Duality).

Following that, the federal government enacted many laws to preserve both languages. In 1867, the year of Confederation, the British Parliament passed the British North America Act (now the Constitution Act, 1867). This Act united three British colonies – Nova Scotia, New Brunswick and the province of Canada (Ontario and Québec) – as the “Dominion of Canada”. The Act allowed for other British colonies in North America to be admitted as well. With that came the idea that English and French-speaking communities should exist side-by-side and complete each other:

The Constitution Act of 1867 (formerly known as the British North America Act) established English and French as legislative and judicial languages in federal and Québec institutions. It also set out the right to denominational schooling, which at that time was closely associated with the anglophone (Protestant) and francophone (Roman Catholic) linguistic and cultural traditions. (See: Bilingualism.)

Section 133 of the Constitution Act, 1867 defined English and French as the official languages of the Canadian Parliament, as well as the courts. It also established both English and French as the official languages of the Québec legislature and courts. It states:

Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Québec.

The Acts of the Parliament of Canada and of the Legislature of Québec shall be printed and published in both those Languages.

In 1969, the federal government passed the first Official Languages Act on the recommendation of the Royal Commission on Bilingualism and Biculturalism. It proclaimed French and English as the official languages of Canada. According to this Act, all federal institutions must provide services in French or English, depending on the requested matter. In order to manage its implementation, the Act created the Office of the Commissioner of Official Languages (see: Official Languages Act (1969)).

The first Official Languages Act’s purpose was not to ensure that every Canadian spoke both English and French. The aim was to offer federal services to Canadian citizens in the official language of their choice. Those services were to be available in the requested language without any delay and were to be of equal quality, regardless of the chosen language (see: Understanding Your Language Rights).

The Official Languages Act is a federal act and applies only to federal institutions. It does not apply to provincial and territorial governments.One year later, in 1970, the federal government established the Official Languages in Education Program. This program provides provinces and territories funding for second language instruction and minority language education in both English and French. Besides this program, federal, provincial and territorial governments have also embraced French immersion education programs. In these programs, students receive most of their education in the French language (see: Official Bilingualism in Canada).

Moreover, to ensure that all Canadians can read and understand product packaging, the federal government enacted the Consumer Packaging and Labeling Act in 1974. This Act requests that consumer products sold in Canada be labelled in both English and French.

In 1982, the Charter of Rights and Freedoms recognized language rights. Section 16 of the Charter acknowledges that English and French are the official languages of Canada. Both languages have equal status and equal rights and privileges as to their use in all institutions of the Parliament and Government of Canada. Sections 17, 18 and 19 state that English or French are to be used in any debates and in the proceedings of Parliament, in parliamentary papers, and in court established by Parliament. Section 20 deals with the use of English or French in communications between federal institutions and members of the public. Section 23 talks about minority language education rights for English-speaking children in the province of Québec and French-speaking children in the rest of Canada.

In 1988, the federal government revoked the Official Languages Act of 1969 and replaced it with a new Official Languages Act. Section 2 sets out that the purposes of the new Act are to:

(a) ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, … ;

(b) support the development of English and French linguistic minority communities … ; and

(c) set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.

In 2005, the Government of Canada amended Part VII of the Official Languages Act. This part requires all federal institutions to take positive actions to promote the acknowledgment and use of both English and French in Canadian communities (see: Archived – Perspectives of Canadians of Diverse Backgrounds on Linguistic Duality).

In 1841, the Act of Union recognized that both the British and the French existed side-by-side, but with the intention that French Canadians would eventually integrate into the British culture.The Official Languages Act is a federal act and applies only to federal institutions. It does not apply to provincial and territorial governments. Therefore, each of Canada’s provinces and territories has adopted its own official language policy. Québec is the only province that acknowledges French as its sole official language. New Brunswick is the only bilingual province where both English and French are official languages. In other provinces and territories where English is the main working language, they provide government services in French as well as Aboriginal languages (see: Language in Canada).

The government enacted the laws described above in order to protect language rights and ensure that all Canadians are treated equally. However, having two official languages does not mean that every Canadian must speak both languages. It means that all federal services must be offered to Canadian citizens in both French and English. Bilingualism is one of Canada’s core values of inclusiveness and diversity. Canadians have recognized that diversity is a strength that has encouraged openness toward other peoples. And because of bilingualism, Canada is a more welcoming country for immigrants and refugees from different cultures and ethnic backgrounds.

Photo Credit: Jessica Nobert

See below for English translation.

Les droits linguistiques ont toujours été et sont toujours un sujet de discussion important dans de nombreux secteurs de la société canadienne, notamment :

• la promotion de l’accès aux services gouvernementaux et non gouvernementaux dans les deux langues officielles ;
• l’accès pour les justiciables à un système de justice sans barrière langagière ; ou
• la possibilité pour les parents de faire éduquer leurs enfants dans la langue officielle de leur choix.

Bien que de nombreux progrès aient été réalisés dans le domaine des droits linguistiques, la réalité est qu’un nombre significatif de Canadiens vivant en situation de minorité linguistique ont toujours de la difficulté à s’exprimer et à se faire comprendre dans leur langue maternelle lorsqu’ils tentent d’obtenir des services fournis par le gouvernement fédéral ou des agences fédérales.

La francophonie en Alberta

Fait peu connu : le français a été la première langue européenne parlée en Alberta. La langue a été importée avec l’arrivée des commerçants de fourrure au 17e siècle. En 1877, le français et l’anglais sont devenus les langues officielles de l’Assemblée législative des Territoires du Nord-Ouest, qui comprenait l’Alberta. En 1905, la Alberta Act créant la province de l’Alberta fut proclamée dans les deux langues, mais ne fit aucune mention des droits linguistiques.

Historiquement, l’enseignement du français était autorisé au cours des deux premières années d’école primaire.En 1988, la législature de l’Alberta a adopté le projet de loi 60, la loi Languages Act, qui abolissait les droits linguistiques prévus à l’article 110 de la loi sur les Territoires du Nord-Ouest de 1877. La Languages Act a officiellement déclaré l’Alberta comme province anglophone unilingue, mais permettait toujours l’utilisation de la langue française à l’Assemblée législative et devant les tribunaux.

À la fin des années 90, le Secrétariat francophone de l’Alberta est créé. En 2017, la province adopte sa première politique en matière de francophonie. La même année, le drapeau franco-albertain devient un emblème de l’Alberta.

Aujourd’hui, la francophonie en Alberta est en pleine croissance. En effet, 7 % des Albertains parlent le français et 2 % ont le français comme langue maternelle. En fait, l’Alberta compte le troisième groupe de francophones en situation de minorité en importance après l’Ontario et le Nouveau-Brunswick. L’Alberta compte également la population francophone ayant la croissance la plus rapide au Canada après le Québec. Quatre municipalités albertaines sont officiellement bilingues, tandis que 31 communautés albertaines ont une francophonie forte et diversifiée. Enfin, plus de 100 organismes francophones à but non lucratif opèrent en Alberta dans divers secteurs.

Les droits linguistiques et le système d’éducation albertain

Les droits linguistiques en Alberta ont souvent été, et sont toujours, revendiqués dans le contexte de l’éducation.

Historiquement, l’enseignement du français était autorisé au cours des deux premières années d’école primaire. En 1964, la School Act était modifiée pour autoriser l’enseignement en français de la 1re à la 9e année, mais selon une progression décroissante. La 1re et la 2e année peuvent s’enseigner entièrement en français à l’exception d’une heure d’anglais par jour. En 3e année, on devait assurer deux heures d’enseignement en anglais par jour. À compter de la 4e année, l’enseignement en français devait se limiter à une heure par jour.

Un élève albertain sur trois apprend le français.Quatre ans plus tard, une modification de la School Act autorisait  l’enseignement en français à raison de 50 % de la journée scolaire, et ce, de la 4e à la 12e année. En 1976, l’adoption du Règlement 250/76 modifiait de manière significative l’éducation en langue française. L’enseignement pouvait maintenant être offert entièrement en français, à l’exception d’une heure réservée à l’enseignement de l’anglais à partir de la 3e année.

À partir de l’année 1982, l’article 23 de la Charte canadienne des droits et libertés (la Charte) permet l’éducation dans la langue minoritaire si le nombre le justifie. En Alberta, les deux premières écoles francophones financées par des fonds publics ont ouvert leurs portes en 1984 : l’école Maurice-Lavallée à Edmonton et l’école Saint-Antoine à Calgary. En 1988, la province a adopté une politique permettant aux élèves albertains de s’inscrire dans un programme d’immersion française ou d’apprendre le français comme langue seconde.

Un exemple concret : l’affaire Mahé c Alberta

Bien que l’article 23 de la Charte accorde des droits aux minorités linguistiques, les parents franco-albertains n’avaient pas le droit de gérer leurs écoles de langue française, élément fondamental pour que la langue et la culture s’épanouissent en milieu minoritaire. En fait, il s’agissait là de la principale question soulevée dans l’arrêt Mahé c Alberta rendu en 1990 par la Cour suprême du Canada.

… le français a été la première langue européenne parlée en Alberta.La partie appelante était insatisfaite de l’éducation en français à Edmonton. En 1982, la partie appelante a proposé au ministre de l’Éducation de l’Alberta de créer une nouvelle école primaire publique de langue française à Edmonton. Cependant, selon sa politique, le ministre ne pouvait pas créer de nouveaux districts scolaires français.

Comme mentionné ci-dessus, en 1984, l’école Maurice-Lavallée a ouvert ses portes comme école ayant le français comme langue d’enseignement et d’administration. Cependant, les appelants étaient toujours insatisfaits, car leur école relevait de l’Edmonton Roman Catholic Separate School District. La partie appelante s’est appuyée sur l’article 23 de la Charte pour faire valoir que la minorité linguistique a le droit à ce que leur école soit administrée par son propre conseil scolaire.

La Cour suprême du Canada a accueilli l’appel et a conclu que l’article 23 accordait à la minorité linguistique d’Edmonton le contrôle et la gestion de l’éducation et des établissements d’enseignement.

Les impacts de la décision Mahé et les considérations politiques qui en découlent

À la suite de la décision Mahé, les Franco-Albertains ont obtenu le droit d’avoir des écoles francophones homogènes et de les gérer.

En fait, en 1999, cinq conseils scolaires régionaux francophones étaient établis en Alberta. En 2013, il y a eu une fusion des deux conseils scolaires francophone du sud de l’Alberta. À ce jour, il y a quatre autorités régionales francophones en Alberta.

Remarques finales et perspectives futures

Aujourd’hui, 27 communautés comptent une ou plusieurs écoles de langue française pour un total de 42 en Alberta. Un élève albertain sur trois apprend le français. Il y a 8 403 élèves francophones, 45 543 élèves dans un programme d’immersion française, et 146 439 élèves qui apprennent le français comme langue seconde. De plus le Campus Saint-Jean de l’Université de l’Alberta offre une éducation postsecondaire en français à environ 850 étudiants (statistiques de l’année universitaire 2017-2018).

Compte tenu de la croissance actuelle de la francophonie en Alberta et de l’intérêt croissant pour l’éducation en français, il sera intéressant d’observer la direction que prendra l’Alberta pour respecter et mettre davantage en œuvre les droits linguistiques de sa minorité de langue officielle.

Ensuring French Education: Franco-Albertans and Their Linguistics Rights

Linguistic rights have always been and continue to be an important topic of discussion in many areas of Canadian society, including:

• promoting access to governmental and non-governmental services in both official languages;
• providing litigants with access to a justice system free from language barriers; or
• giving parents the opportunity to educate their children in the official language of their choice.

While much progress has been made in the area of linguistic rights, the reality is that a significant number of Canadians living in a linguistic minority situation still have difficulty speaking and being understood in their first language when accessing services provided by the federal government or agencies.

The Francophonie in Alberta

Historically, French education was allowed in the first two years of elementary school.A little known fact: French was the first European language spoken in Alberta. The language was imported with the arrival of the fur traders in the 17th century. In 1877, French and English became the official languages of the Northwest Territories Legislative Assembly, which included Alberta. In 1905, the Alberta Act, which created the province of Alberta, was proclaimed in both languages but made no mention of linguistic rights.

In 1988, the Alberta legislature adopted Bill 60, the Languages Act, which abolished language rights provided in section 110 of the Northwest Territories Act of 1877. The Languages Act officially declared Alberta a unilingual anglophone province but still allowed the use of the French language in the legislative assembly and in the courts.

At the end of the 1990s, the Alberta Francophone Secretariat was created. In 2017, the province adopted its first policy regarding francophone matters. The same year, the Franco-Albertan flag was declared as one of Alberta’s emblems.

Today, the Francophonie in Alberta is growing. Indeed, 7% of Albertans speak French with 2% having French as their first language. Actually, Alberta has the third largest population of Francophones in a minority situation after Ontario and New Brunswick. Alberta also accounts for the fastest growing francophone population in Canada after Québec. Four Alberta municipalities are officially bilingual while 31 communities in Alberta have a strong and diversified Francophonie. Lastly, more than 100 non-profit francophone organizations operate in Alberta in various sectors.

Language Rights and the Alberta Education System

Linguistic rights in Alberta have often been, and continue to be, claimed in the context of education.

Historically, French education was allowed in the first two years of elementary school. In 1964, the School Act was amended to allow teaching in French from grades 1 to 9, but in a decreasing progression. Grades 1 and 2 could be taught entirely in French with the exception of one hour of English per day. In grade 3, two hours of English instruction per day were required. Beginning in grade 4, instruction in French was limited to one hour per day.

One in three Alberta students learn French.Four years later, an amendment to the School Act allowed instruction in French for 50% of the school day from grades 4 to 12. In 1976, the adoption of Regulation 250/76 brought a significant change to French-language education. Teaching could now be offered entirely in French, with the exception of one hour per day reserved for teaching English starting in grade 3.

Starting in 1982, section 23 of the Canadian Charter of Rights and Freedoms (the Charter) allowed for education in the minority language where numbers warranted. In Alberta, the first two publicly funded French schools opened in 1984: École Maurice-Lavallée in Edmonton and École Saint-Antoine in Calgary. In 1988, Alberta adopted a policy allowing Alberta students to register in a French immersion program or to learn French as a second language.

A Case in Point: Mahé v Alberta

Although section 23 of the Charter grants rights to linguistic minorities, Franco-Albertan parents did not have the right to manage their French-language schools. This is fundamental for the language and culture to flourish in a minority setting. Indeed, this was the main issue in the 1990 Supreme Court of Canada decision in Mahé v Alberta.

The appellant was dissatisfied with French education in Edmonton. In 1982, the appellant proposed to the Alberta Minister of Education to create a new French-language public elementary school in Edmonton. However, according to his policy, the minister could not create new French school districts.

As mentioned above, in 1984, École Maurice-Lavallée opened its doors as a school with French as the language of instruction and administration. However, the appellants were still dissatisfied because their school belonged to the Edmonton Roman Catholic Separate School District. The appellant relied on section 23 of the Charter to argue that the linguistic minority is entitled to have their schools administered by their own school board.

The Supreme Court of Canada allowed the appeal and concluded that section 23 grants the Edmonton linguistic minority the control and management of education and educational institutions.

Impacts of the Mahé Ruling and Ensuing Policy Considerations

… French was the first European language spoken in Alberta.Because of the Mahé case, Franco-Albertans have the right to manage and control their French-language schools.

By 1999, five francophone regional school boards were operating in Alberta. In 2013, the two French-language school boards in southern Alberta amalgamated. To this day, there are four French-language school boards in Alberta.

Concluding Remarks and Future Perspectives

Today, 27 communities have one or more francophone schools for a total of 42 in Alberta. One in three Alberta students learn French. There are 8,403 francophone students, 45,543 French immersion students, and 146,439 students learning French as a second language. Furthermore, the University of Alberta’s Campus Saint-Jean offers post-secondary education in French to approximately 850 students (2017–2018 academic year statistics).

Given the current growth of the Francophonie in Alberta and an increasing interest in French-language education, it will be interesting to observe the direction Alberta will take to respect and further implement the language rights of its official language minority.

Photo Credit: Jessica Nobert

Language is not merely a means or medium of expression; it colours the content and meaning of expression. It is … a means by which a people may express its cultural identity. It is also the means by which the individual expresses his or her personal identity and sense of individuality.

– Ford v Quebec ([1988] 2 SCR 712 (SCC) at para 40)

Introduction

Language underlies the human experience, and language rights are fundamental to the peace and order of Canada. Given its European history of British and French settlement, Canada has experienced a lively debate over centuries about language rights, which have largely taken constitutional form. This article describes the constitutionalization of language in Canada. The powers and responsibilities for language rights are divided between federal and provincial governments.

Constitution Act, 1867

This 1867 constitutional document, sometimes referred to as the British North America Act, sets out the powers of the federal and provincial governments. Municipalities derive all their power from the provinces in which they are located.

Language Rules in the Fledgling New Canada

Section 133 of the Constitution Act, 1867 addressed language rights and obligations in a very limited way. It only prescribed the language of federal and Quebec parliamentary and court proceedings:

Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.

Regulating Language According to Federal and Provincial Jurisdictions

For over 100 years, Canada had no other constitutional guidance on language. In 1969, the federal government enacted the Official Languages Act, which conferred equal status on French and English in Government of Canada institutions. The Supreme Court of Canada, in Jones v AG of New Brunswick, confirmed six years later that this was constitutional – that language is important enough to the sphere of federal operations that it could be regulated under the overarching mandate of the “peace, order, and good government” of Canada.

In the 1985 case of Re Manitoba Language Rights, the Supreme Court of Canada concluded that all of the unilingual English statutes from the Manitoba legislature were and always had been invalid and of no force or effect. But what about the power of each province to likewise regulate language within the spheres of activity over which they exercise constitutional authority? In other words, it is one thing for the federal government to legislate official language status in the post office and immigration hearings. However, did each province have equivalent power to legislate language over its own provincial institutions, such as in its schools, hospitals and municipalities?

In 1977, Quebec passed the Charter of the French Language. This Act established French as Quebec’s official language and mandated that all commercial forms, invoices, receipts, signs, posters, advertising and publications be solely in French. It declared that every Quebecois had the right to communicate in French in matters of civil administration, health and social services, and business. Substantial fines and the forced removal of any non-conforming posters, signs or advertisements backed up this law.

The Supreme Court of Canada, in its 1988 decision in Devine v Quebec, found this language legislation to be within provincial competence under the “property and civil rights” head of 1867 constitutional power. The Court characterized this “not as a law in relation to language [which is not enumerated in the 1867 Constitution], but as a law in relation to the institutions or activities that the provision covers”. The Court determined that language is not an independent matter of legislation but is rather “ancillary” to the province’s exercise of its power over the subject matter assigned to it (in this case, public administration and commerce).

Provincial language legislation must relate to an institution or activity that is within provincial jurisdiction. This prevents governments from over-reaching and creating laws for institutions and activities that they do not govern. The Supreme Court of Canada reaffirmed this principle a decade later in the Reference re Succession of Quebec case. In that case, the Court echoed the “autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction”.

Special Case of Manitoba

The Manitoba Act, 1870 was a constitutional statute that created the Province of Manitoba. It also gave rights to the Métis, including bilingual institutions. Section 23 accorded French and English equal status for “Acts, records and journals” in the legislature. Nevertheless, Manitoba enacted its own Official Languages Act in 1890, which appointed English as the only language for legislative processes.

Provincial language legislation must relate to an institution or activity that is within provincial jurisdiction. In the 1985 case of Re Manitoba Language Rights, the Supreme Court of Canada concluded that all of the unilingual English statutes from the Manitoba legislature were and always had been invalid and of no force or effect. The Court reasoned that the constitutional duty in Manitoba – about the manner and form of enacting legislation – protected the substantive rights of all Manitobans to equal access to the law in either French or English.

The sudden declaration of invalidity of all of Manitoba’s legislation “would create a legal vacuum with consequent legal chaos” and destroy the rule of law. The province would be left with “an invalid and therefore ineffectual legal system until the Legislature is able to translate, re‑enact, print and publish its current laws in both official languages”. Therefore, the Court granted the laws temporary validity until the government could translate and re-enact the laws in both languages. Seven years later the Court was still negotiating extensions of time with Manitoba.

Charter of Rights and Freedoms

As has been shown, until the Constitution Act, 1982 (also known as the Charter of Rights and Freedoms or the Charter), the Canadian Constitution did not comprehensively engage the language issue. The Charter explicitly addressed language rights in detail in sections 16 through 23 as well as implicitly in section 2 as “freedom of expression”. Most of these provisions copy and clarify the existing 1867 obligations (and add New Brunswick to the list of bilingual provinces) and entrench the principles of the federal Official Languages Act. (A thorough review of these rights is beyond the scope of this article.) There have been challenges and elaborations on many fronts, including language in education and law courts across Canada.

Much of the post-1982 Charter focus has been on Quebec’s Charter of the French Language (known also as Bill 101). This Act endeavours “to make French the language of government and the law [in Quebec], as well as the normal and everyday language of work, instruction, communication, commerce and business” (preamble).  It has, on several occasions, attracted the attention and analysis of the Supreme Court of Canada, including in two companion cases in 1988: Ford and Devine.

Quebec (like all other provinces) can legislate for language within the province under the Constitution Act, 1867 (section 92) but all language laws must also comply with the Charter. The Court struck down some provisions that required all public signs, advertisements and commerce be printed solely in French. The Court reasoned that these provisions unduly infringed on non-francophones’ freedom of expression and engendered discrimination based on language. This led to the first – and only (to date) – invocation of the Charter’s “notwithstanding clause” (section 33). In the intervening three decades, Quebec’s Charter of the French Language has been amended often to comply with Canada’s Charter. In summary, Quebec (like all other provinces) can legislate for language within the province under the Constitution Act, 1867 (section 92) but all language laws must also comply with the Charter.

Language and Education

The Charter sets out the language rights of Canadians in their public education. They enjoy constitutional rights to receive primary and secondary schooling in French or English, depending on which language they have first learned and understood. French-Canadians must be offered French schooling for the entirety of their basic education while English-Canadians are offered the same in English.

Quebec’s Charter of the French Language requires all children in Quebec to attend a French language school unless they have parent who received a basic education in English, or they have already completed most of their education in English. This is the lone path to an English-only education in Quebec.

Conclusion

Today Canada is one of 55 bilingual countries around the world. Our Constitution establishes and protects bilingualism and gives the various levels of government power and responsibility over language and language rights to all Canadians.

The interlocking tension between the Constitution Act, 1867 grant of power to governments to regulate the activities and institutions within their jurisdiction and the freedom of expression created by the Constitution Act, 1982 will continue to define the living cultural waters of language in the years to come. This same constitutional process will also continue to ensure our official national bilingualism.