Chapter 10: Language right (chapter 56)
 Language in Canada:
- French speakers constitute a minority in the country as a whole and in
every province except Quebec
- And English speakers constitute a minority in the province of Quebec
- Must determine whether there is constitutional recognition
 Distribution of powers over language:
- Language is not an independent matter of legislation
- There is no single plenary power to enact laws in relation to language
- The power to enact a law affecting language is divided between two
levels of government by reference to criteria other than the impact of
the law upon language
- A law prescribing that a particular language or languages must or may
be used in certain situations will be classified for constitutional
purposes a law in relation to the institutions or activities that the
provision covers
- The Federal officials languages act was upheld by the SC in the case of
Jones v AG of NB (1974). The act purported to make the English and
French languages the official language of Canada “in the institutions of
the parliament and government of canada”. The court held that the
law was authorized by federal power over federal governmental and
parliamentary institutions
- Provisions recognizing both languages in federal courts could also be
authorized by federal power over federal courts (s.101) and look at
(s.91(27))
- The courts have held in this case that peace, order, and good
government power should be confined to subjects of legislation that
are narrow and specific and it seems likely that the subject of language
would be too broad to qualify
- The court in the case Devine v Quebec (1988) accepted for
constitutional purposes language is ancillary to the law in relation to
the institutions or activities to which the law applies” and this was
challenged in provisions were in relation to commerce within the
province, which was a matter within the provincial jurisdiction over
property and civil rights in the province (s.92(13))
 Language of constitution:
- The CA 1982 and were enacted by the UK Parliament in both
languages
- The charter of rights being part I of the CA 1982 is therefore in both
languages
- Section 57 of the CA 1982 provides that the English and French
versions of that act are equally authoritative
- And s.56 provides that English and French versions of other parts of
the constitution of Canada that have been enacted in English and
French are also equally authoritative
- The rule is that is most helpful is addressed to the case where one
language version is doubtful or ambiguous and the other is clear, in
that case the doubt or ambiguity is resolved by reference to the clear
version
 Language of statutes:
o Constitutional requirements:
- S.133 of the CA 1867 permits either French or English to be used in
debated in the house of the federal parliament and Quebec
legislatures
- It only applies to legislative bodies of the federal government and
Quebec
- However Manitoba act 1870 includes as s.23 a provision that provides
for the use of English and French in the legislature of Manitoba in
terms very similar to s.133
- Part I of the CA `1982 INCLUDES SS 16 RO 23 A VARIETY OF LANGUAGE
PROVISION
o Quebec's charter of the French language:
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- Quebec created a charter in both English and French but before it was
invalid because it was French only
o Manitoba’s official language act:
- S.23 of the Manitoba act 1870 guarantee the rights of the French
speaking minority in Manitoba
- Manitoba legislature in 1890 enacted the official language act which
provided that the English language only shall be used in the records
and journals of the legislatures and in pleading and process in the
Manitoba courts.
- The Manitoba language act was usually considered unconstitutional
- Any mechanisms that attributed superior status to one language
version of a statute would violate s.23
o Incorporation by reference:
- Where a statute makes a reference to another document so as to
incorporate the document as part of the statute then the general rule
is that if there is a constitutional requirement that the incorporated
statute be in both languages then the requirement will apply to
incorporated documents
- In the case AG of Quebec v collier the two session papers were
unconstitutional because on was in French only.
- Remember there can be a bona fide reasons for exempting
incorporated document for requirement of bilingual text. ( cases
where there is no obligation in the legislative body to provide a
bilingual text)
o Delegated legislation:
- S.133 requirement is that acts be printed and published in both
languages applied to delegated legislation as well as statutes
- Regulations made by officials or bodies outside the government were
subject to s.133
- And regulations that were neither made by the government nor
approved by the government were not subject to s.133
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- Also not subject to s.133 were by laws of local municipalities and
school boards even if they were subject to the approval of the
government
- Another special category was the courts rule of practice these rules
although made by the judges not the government were subject to
s.133
- The SC Held in Re Manitoba language rights order no 3 (1992) that
s.23 only applied to instruments of legislative nature. An instrument
would have the following three characteristics (1) it would establish a
rule of conduct (2) it would have the force of law and (3) it would be
of general application rather than directed at specific individual or
situations
 Language of courts
o Constitutional requirement:
- Have an option of French or English in a federal court and the court of
quebex
- Similar requirement for NB and Manitoba
- The courts of the other seven provinces do not have this obligation
- The language of civil proceedings in the provincial courts is regulated
by provinces under s.92(14)
- The language in criminal proceeding in the court is regulated by
parliament under s.91(27)
o Definition of courts:
- The reference to the courts of Quebec included not only s.96 courts
and the inferior courts, but also administrative tribunals established by
statute that exercised adjudicative functions
o Language of process:
- S.133 where it conferred a choice of language does not guarantee that
the speaker writer or issuer of proceedings or processes will be
understood in the language of his choice by those he is addressing
o Language of proceedings:
- In the case of Acadiens the supreme court held that the society had
not established their allegation that the judge was incompetent in
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French. However they said that s.19(2) did not in any case confer on
French speaking litigant the right to be heard by a judge who
understood French
They held that the litigants right to use either French or English
impliedly included the right to be understood in the litigants language
of choice by the judge hearing the case
o Right to interpreter:
Expressly dealt with by s.14 of the charter of rights as it confers upon a
party or witness who does not understand or speak the language of
the proceeding or who is dead the right to an interpreter
There is a similar right but deadness is not included in s.2(g) of the
Canadian bill of rights
Under s.14 of the charter a party or witness is entitled to an
interpreter if…..
S.14 applies to any proceedings which can be criminal or civil and
probably includes proceedings before administrative tribunals as well
as courts
Language of government:
o (a) section 16 of the charter:
This section makes English and feench the official languages of Canada
and new Brunswick
And confers equality status and equal rights and privileges as to their
use in all institution of parliament and government of Canada
o (b) section 20 of the charter
Imposes an obligation on government to provide bilingual services to
the public
In the other 9 provinces there is no constitutional obligation to
provide government services in both official languages
New Brunswick (ask if this is the only province)
Language and commerce:
None of the language rights in the constitution of Canada protects the
use of the English or French language in commercial (or private )
settings
 Language of education:
o (a) section 93 of the CA 1867:
- Applies to Ontario, Quebec, NB, NS, BC and PEI
- Legislatures have the power to prescribe the language of instrument
of instruction in the schools
 Mackell case: (look more)
- Held that Ontario had the power to require that English be the
language of instruction in hitherto French speaking roman catholic
separate schools in province
- S.93
 Section 23 of the charter:
- Minority educational rights
 Mother tongue of parents: (look at lirans notes)
- S.23 (1)(a)
 Where numbers warrant:
- The right to minority language education that is conferred on 3
categories of parents that have just been described is not an absolute
rights
 Denominational schools:
The courts held that dominantional school rights were not
prejudicated they were merely regulated by the vesting of some
exclusive powers of management and control In trustees who
represented French speaking parents
 Supervision of remedial orders:
- A breach of s.23 may be remedied under s.24 (1) od the charter
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