B. The Constitution Act, 1867

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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The original Confederation bargain in 1867 was shaped very much by Canadian dualism - that is, by the desires and needs of French- and English-speaking communities to express and protect their identities. For the French-speaking population of Quebec, federalism was the primary method to protect its interests. Federalism ensured that the French-speaking majority in that province would have the powers necessary for cultural preservation - notably, education and civil law.

"Language" was not expressly mentioned as a subject of either federal or provincial legislative jurisdiction in sections 91 and 92 of the Constitution Act, 1867, the sections that distribute legislative powers between federal and provincial governments. Accordingly, it is treated as an "ancillary" matter - that is, either government can legislate with respect to language when acting within other assigned legislative fields. For example, Parliament has enacted the Official Languages Act, which regulates bilingualism in the federal public service.4Similarly, Quebec has the authority to require that French be used as the language of business in the province and to regulate the use of English in signs (although these laws are now subject to the Charter rights described below).5In addition, the Constitution Act, 1867 contained limited positive rights protecting the use of the French and English languages in certain federal and Quebec institutions. Section 133 provides as follows:

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Either the English or French Language may be used by any Person in the Debates of the Houses of Parliament of Canada and of the House 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 in any Pleading or Process issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

This provision was duplicated in section 23 of the Manitoba Act upon Manitoba entering Confederation in 1870,6while the provinces of Saskatchewan and Alberta were required to comply with similar obligations by section 110 of the North-West Territories Act.7Those obligations continued after they became provinces in 1905 because of sections 16(1) of their constituent Acts.8However, these language rights were not entrenched and could be changed by legislation, and both provinces have since done so.9The Supreme Court has held that these...

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