The Constitutional Basis for Bilingualism in Canada.

• Date: 01 September 2019
• Author: Bowal, Peter

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...