Thank you very much, Mr. Chair, and good afternoon.
As dean of the Faculty of Law at McGill University, I am proud of the bilingual and bijural character of the faculty. Our program, which is offered in both French and English, integrates common law and civil law. Indigenous traditions also have an increasingly important place. Each year, we have a bilingual student body from all across the country. If I may offer one piece of advice to the government, it would be to strengthen French as a second language in universities across Canada.
As a constitutional scholar, I am devoting my time this afternoon to briefly establish a context for the reform document and to deal with some questions it raises. Official bilingualism is deeply rooted in the Constitution. Section 133 of the Constitution Act, 1867 includes, among other things, the right to use English and French in the houses of Parliament and in the courts of Canada.
The Canadian Charter of Rights and Freedoms enshrines official bilingualism at the federal level as part of the Constitution. Subsection 1 of section 16 reads:
16.(1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
This fundamental principle, that the official languages are equal in status, is therefore a constitutional imperative.
I should also emphasize that language rights under the Charter cannot be subject to the notwithstanding clause.
Furthermore, respect for minorities is one of the underlying principles that breath life into our entire Constitution and are recognized by the Supreme Court of Canada in the Reference Re Secession of Quebec. The court emphasized that, while the language provisions are the result of political compromises, they reflect a broad principle related to the protection of minority rights.
The reform document proposes significant changes to the Official Languages Act. In areas of federal jurisdiction, the Act is the expression of those constitutional guarantees. The Act is quasi-constitutional in nature. In the event of a conflict, it prevails over other federal laws. In light of all this, any amendment to the Act must therefore be carefully and thoughtfully considered.
Let's be clear. Robust and meaningful official bilingualism at the federal level is often at odds with provinces' laws, policies and spending priorities. In each province, official language minorities thus look to the federal level for support and defence of their rights. We saw this most recently in the cry for help regarding post-secondary education in French in Ontario. The same is true in my home province of Quebec, the sole jurisdiction where the official language minority is English speaking.
It appears that the legislative proposals would represent a fundamental shift in the framework and the purpose of the Official Languages Act. It's certainly open to Parliament to shift policy within its constitutional boundaries, but I wonder whether the proposals would amount to a shift away from the equality of status of both official languages as enshrined in the charter's text. That text is appropriately interpreted in the light of the principle of the protection of minorities.
Let me share two examples.
First, the paper calls for recognizing within the act the linguistic dynamics of the provinces and territories. This includes recognizing for the first time in federal law that Quebec has declared French its official language. This seems to be a sea change. As it stands, the framework of the act is province neutral. The same legal principles apply across the federation. What effect would this have on the interpretation of language rights for official language minorities?
Recall that provinces vary. New Brunswick has constitutional language rights. Ontario has legislated ones. Some have none. Would this principle peg the demands of the federal act to those varying provincial guarantees? Given the act's symbolic significance, might courts detect in such legislative language a warrant for differential interpretation of the charter's linguistic guarantees, including section 23?
Does the proposal resile from the Supreme Court's affirmation that language rights must in all cases be interpreted purposively, consistently with the preservation and development of official language communities in Canada?
Second, the paper proposes to create or strengthen rights with respect to French but not English. This would be another big first in federal language law. For instance, the paper proposes stating in the act's preamble and provisions that English predominates and that French must receive increased protection and promotion.
Another example concerns the protection and promotion of French. The paper proposes rights to work and rights to service in federally regulated enterprises with respect to French alone. Would these proposals effectively differentiate the status of English and French within a quasi-constitutional law?
In conclusion, I invite the committee to carefully consider these interesting proposals. Given their potential for consequences both direct and indirect, they deserve close consideration. I will follow the developments with the utmost interest.
I thank you for your attention.