While the National Assembly of Quebec is preparing to propose, as part of Bill 96 amending the Charter of the French language, the addition of two provisions to the Constitution Act of 1867 in order to affirm that French is the As the sole official language of the Quebec nation and the common language of Quebecers, all the federal parties pledged their support for this process during the recent election campaign.
At the same time, a bill tabled in the House of Commons, before the election, promised to modernize the Official Languages Act in order to reaffirm the importance of French in Canada and to promote its use. This project also includes recommendations made by the Senate Committee on Official Languages in a June 2019 report.
In short, the status of French is at the heart of debates both in Parliament and in the National Assembly.
And yet, we forget that, in this country where English and French are the official languages, there is no legal French version of the Constitution Act of 1867. Most of this founding text, an imperial law adopted by the Parliament of Westminster, still has legal force only in English. Canada is thus probably the only country in the world that declares itself a bilingual state with a Constitution written largely in one language.
And yet, during the patriation of the Constitution in 1982, the federal government of the time had undertaken to endow the country with a Constitution whose French text would be worth as much as the English text. This promise was made to all Francophones in this country, and in particular to Quebecers, in these terms:
French version of certain constitutional texts
55. The Minister of Justice of Canada is responsible for drafting, as soon as possible, the French version of the parts of the Constitution of Canada which appear in the schedule; any sufficiently material part is, as soon as it is ready, tabled for adoption by proclamation of the Governor General under the Great Seal of Canada, in accordance with the procedure applicable at the time to the amendment of the constitutional provisions therein.
The first part of the constitutional obligation was completed in December 1990 by the tabling in Parliament by the Minister of Justice of a report which contained a French version of the Constitutional Act, 1867 and some thirty other constitutional documents. .
But the second part is different. Almost forty years after the solemn commitment, a French version of the Constitutional Act of 1867 is not yet in force, on the grounds that adoption of the whole of this text requires, according to the amendment procedure put in place with the patriation of the Constitution, a resolution adopted by both Houses of Parliament and a majority of the provinces representing more than 50% of the Canadian population, or even according to many, unanimity of the provinces.
Fearing the risks associated with the initiation of such a process, the federal governments, both conservative and liberal, have done nothing since 1990 to finally endow the country with a bilingual constitution, while declaring to recognize the distinct society of Quebec, its national character and the importance of French in Canada. As a net result of this lack of appetite for the use of an amendment process that would not change anything in the distribution of powers, the structure of the federation and its institutions, the governments of the country are thus ignoring their planned constitutional obligation. in section 55 of the Constitution Act, 1982.
In an October 2018 report, Access to justice in French and English as part of the modernization of the Official Languages Act, the Canadian Bar Association writes: “the absence of an official French version [de la Constitution] has practical impacts on the development of the law and devalues the participation of French-speaking jurists and litigants in the debate on the interpretation of the legal texts most fundamental to our society ”.
The following year, the Association adopted a resolution, communicated to all governments, both federal and provincial, asking political actors to respect their constitutional obligation, rather than throwing it into oblivion. In order to be able to assess efforts in this direction, the resolution suggests amending the Official Languages Act in order to oblige the Attorney General of Canada to report, every five years, on the steps taken. In fact, given the importance of the issue, should the obligation to report not be on the Prime Minister?
While Ottawa says it is ready to adopt the resolution necessary for the Constitution Act of 1867 to be amended to incorporate Quebec’s proposals, why not take the opportunity to relaunch the process of francization of the country’s founding text? Francophones have been waiting for almost forty years. Isn’t it high time to do what is necessary to ensure that the promise made in 1982 is finally kept?