PART III: THE OLA: A QUASI-CONSTITUTIONAL STATUTE (PROPOSED AMENDMENTS)

In Canada (A.G.) v. Viola, the Federal Court of Appeal described Canada's Official Languages Act[1] in the following terms:

“The 1988 Official Languages Act is not an ordinary statute. It reflects both the Constitution of the country and the social and political compromise out of which it arose. To the extent that it is the exact reflection of the recognition of the official languages contained in subsections 16(1) and (3) of the Canadian Charter of Rights and Freedoms, it follows the rules of interpretation of the Charter as they have been defined by the Supreme Court of Canada. To the extent also that it is an extension of the rights and guarantees recognized in the Charter, and by virtue of its preamble, its purpose as defined in section 2 and its taking precedence over other statutes in accordance with subsection 82(1), it belongs to that privileged category of quasi‑constitutional legislation which reflects “certain basic goals of our society” and must be so interpreted “as to advance the broad policy considerations underlying it.”[2]

This description applies equally well to the Official Languages Act of New Brunswick and the Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick, which are also quasi-constitutional statutes that express the fundamental objectives of New Brunswick society. Both statutes must also be interpreted in a manner that promotes the policy considerations that underlie them.

With respect to the Official Languages Act of New Brunswick, its quasi-constitutional character is confirmed in its preamble. The preamble reproduces verbatim sections 16 to 20 of the Canadian Charter of Rights and Freedoms.

The preamble states:

WHEREAS the Constitution of Canada provides that English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the Legislature and Government of New Brunswick; [Section 16(2) of the Charter].

AND WHEREAS the Constitution of Canada confers upon the public, in New Brunswick, the right to use English or French in the Legislature and in the courts of New Brunswick, as well as to have access to the laws of New Brunswick in both official languages; [sections 17(2), 18(2) and 19(2) of the Charter]

AND WHEREAS the Constitution of Canada also provides for the right of any member of the public to communicate with and to receive available services from any office of an institution of the Legislature or Government of New Brunswick in either official language; [subsection 20(2) of the Charter].

AND WHEREAS the Constitution of Canada also recognizes that the English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities; [s.16.1 of the Charter].

AND WHEREAS the Constitution of Canada affirms, with respect to both official languages, the authority of the Legislature and Government of New Brunswick to advance the status, rights and privileges set out therein; [subsection 16(3) of the Charter].

AND WHEREAS New Brunswick is committed to enacting an Official Languages Act that respects the rights conferred by the Canadian Charter of Rights and Freedoms and allows the Legislature and the Government to fulfill their obligations under the Charter.

In addition, section 1.1 of the OLA defines the purpose of the Act as follows:

“(a) to ensure respect for English and French as the official languages of New Brunswick;

(b) to ensure that English and French have equality of status and equal rights and privileges as to their use in all institutions of the Province; and

(c) to set out the powers and duties of the institutions of the Province with respect to the two official languages.”

The preamble and the section defining the purpose of the Act are not simply adornments serving as stylistic embellishments. They have true meaning and are used in the interpretation of the provisions that follow. I often feel that government officials tend to forget the important legal significance of the preamble and section 1.1.

Section 2 designates the Premier as the only person responsible for the application of the Official Languages Act. The Legislature did so with the intention of sending a clear message to the machinery of government regarding the importance it attaches to the Act. Unfortunately, successive Premiers since its adoption in 2002 seem to have forgotten the clear mandate that the Act gives them and have chosen to designate another Minister to "deal" with this task. It would be important in this review process to ensure that the person designated by the Act accepts the responsibilities assigned by the Legislative Assembly. We should not allow Premiers to unilaterally change the Act and thus avoid their obligations.

Section 3 gives the Official Languages Act precedence over all other Acts, except the Education Act and any Act, law or provision that is designed to promote the equality of the two linguistic communities, or to establish separate educational institutions or cultural institutions. Therefore, distinct educational institutions, distinct cultural institutions, the province's school system, including the English and French sections of the Department of Education, including schools, district education councils, community centers, universities and community colleges are not covered by the Act.

Politicians and government institutions all too easily forget that this legislation is at the top of the province's legislative hierarchy. The preamble and the provisions quoted evidently confirm the quasi-constitutional nature of the Act. Its quasi-constitutional status gives the Act an importance that other statutes do not have, and it is essential that it be taken into account in any revision of the Act.

Despite the importance of the Official Languages Act, and the fact that New Brunswick declared itself an officially bilingual province more than 50 years ago, the French language remains vulnerable in the province. Certain major demographic trends (language transfer, births, exogamy, age composition, migration) should be a source of concern. For example, although the population having French as its mother tongue has increased in sheer numbers since 1951 in New Brunswick, the proportion of that group within the province as a whole has continued to decline rapidly. If we compare the number of people who claim French as their mother tongue with the number of people who claim French as their first official language, we find that there are more people in the former group than the latter in New Brunswick. This should be of concern, because, apart from the fact that the francophone community is not integrating foreign language speakers, more and more people with French as their mother tongue are adopting English as their daily language at the expense of their mother tongue.

Add to this picture a fertility rate that is below replacement level, a language transfer rate that is close to 11% (and that rate is much higher in some regions of the province), a negative net migration rate, a low attraction capacity for immigrants and an aging population, and it is obvious that these major demographic trends will likely have negative effects on the vitality of the province's francophone community if nothing is done. Without becoming unduly pessimistic, it seems appropriate to consider that a certain social determinism could jeopardize the survival of the minority language community. To curb this trend, the provincial government will have to show a real willingness to act to provide the minority community with the means to redress its current demographic situation as quickly as possible.

In addition to living in an Anglo-dominant environment within its province, New Brunswick's francophone community is largely influenced by the anglophone culture present throughout Canada and North America. In many regions of the province, and unfortunately in many Acadian regions, French is nearly non-existent in the linguistic landscape. It is therefore of the highest importance that public decision-makers have an accurate understanding of the influence of the majority environment on language and on individual behaviour. Indeed, studies have shown the negative effects of the “status language” on the minority language:

(Translation) “the majority group's language becomes a "status language"; it is the language that dominates intergroup contacts and will be used primarily in areas related to social mobility. In other words, the minority language will tend to become a "private language" and the dominant group's language will become the "public language"[3].

It is not surprising then, that in this context, some members of the minority community prefer to speak the language of the majority when they are in public. Even though most of them are aware that they have rights, they hesitate to invoke them for fear of disrupting and destabilizing a certain established order and for fear of being perceived as provocateurs. If we want to ensure the survival of the French language in New Brunswick, a radical change of attitude is required, at the very minimum. Recognition and implementation of language rights can enhance the status of the minority language, which is why they are so important in a context like New Brunswick. But the government must believe in these rights, and the francophone community must be determined to use them, and in this regard, nothing is certain.

In the current process of the revision of the Official Languages Act, it would be appropriate to clearly recognize that the French language is in a vulnerable situation and that it must receive greater support from government institutions to ensure its vitality and development.

It is often difficult for a member of the majority language community to understand the situation of a person in a minority situation. In fact, anglophones in New Brunswick automatically take it for granted that they will be served in their language without delay, at the hospital, by Ambulance New Brunswick and by all provincial institutions, no matter where they are in the province. It seems perfectly normal for them to receive services in their language from private businesses, to work in their language, to have access to practice exams for professions in their language, or to have access to childcare services or a nursing home in their language.

For francophones in New Brunswick, obtaining these services in French is often haphazard and demanding them represents a political act, which, unfortunately, many are not prepared to do.

Evidently, in this context, we cannot underestimate the importance of maintaining strong institutions to protect the language and culture of the francophone community. The Official Languages Act must foster the development of the full potential of the francophone community by supporting its institutions. Institutional completeness[4] must not only be confirmed but actively supported by the provincial government, in education (from daycare to post-secondary), in health, in immigration, in culture, in justice, and so on.

To achieve this, I recommend that the Official Languages Act be amended to include:

- a commitment from the provincial government and its institutions to protect and support the French language and the institutions of the francophone community in order to help support their vitality.

- that the provincial government commit to supporting sectors that are key to the vitality of the francophone community (e.g. immigration, education, health, nursing homes, culture, justice, etc.) and to protect and promote strong institutions for the francophone community in these sectors.

- that the provincial government adopt a policy on francophone immigration in collaboration with representatives of the province's francophone community.

To finalize the recognition of the distinctiveness of New Brunswick’s linguistic characteristics in the Canadian Charter of Rights and Freedoms, I believe the time has come to merge the Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick (Bill 88) with the Official Languages Act.

The Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick should, in the New Brunswick context, play a role similar to that played by Part VII of Canada's Official Languages Act. We need to give this Act a more visible place, as it has been overlooked, to say the least, since its adoption in 1981.

The Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick offers a detailed vision of the duality of the two official language communities in the province. Its preamble states that one of the legislator's goals in adopting the Act was to increase the opportunities for the French-speaking community to benefit from its cultural heritage and to preserve it for future generations. That is why the legislator considered it important to recognize the principle of equality of status of the two linguistic communities. This quasi-constitutional law must be interpreted broadly and liberally, in accordance with its purpose. It must be binding and have some means to bring about its implementation. The Act Recognizing the Equality of Communities must provide a framework for action by public institutions. What should that framework include?

First, the Act Recognizing the Equality of Communities reaffirms the equality of status and the equality of rights and privileges of the two communities. Second, the Government of New Brunswick shall ensure the protection of the equality of status and of the equal rights and privileges of the official language communities and, in particular, "their right to distinct institutions within which cultural, educational and social activities may be carried on”. Although the law uses the adverbial phrase "en particulier/in particular" instead of the adverb "notamment/including" that is used in section 16.1 of the Charter, I am of the view that it still provides generous institutional protection that can be used to further clarify the scope of the institutions that section 16.1 protects.

Section 3 of the Act provides that "in the allocation of public resources and in its policies and programs,’’ the government shall take ‘’positive actions to promote the cultural, economic, educational and social development of the official linguistic communities”.

In Charlebois v. City of Moncton, the New Brunswick Court of Appeal clearly explained the scope of this Act:

“At the same time, subsection 16.1(2) of the Charter expressly provides that it is “the role of the legislature and government of New Brunswick to preserve and promote” the status, rights and privileges of the two official language communities. This provision encompasses, like section 23 of the Charter, a collective dimension and imposes on the government the obligation to act positively to ensure the respect and substantive application of these language guarantees. In addition, section 3 of An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick, the principles of which were entrenched in section 16.1 of the Charter, is more explicit about the commitment of the government and states that the government “shall, in its proposed laws, in the allocation of public resources and in its policies and programs, take positive actions to promote the cultural, economic, educational and social development of the official linguistic communities.”

Unfortunately, other than in the Charlebois decision, the Act Recognizing the Equality of Communities has received little, if any, mention in the courts since its adoption. Successive provincial governments have largely ignored it, as if it did not exist. The public does not seem to be aware of its existence. It is time to correct this situation.

I therefore propose that the following sections be added to the Official Languages Act:

- Recognizing the unique character of New Brunswick, the French linguistic community and the English linguistic community are officially recognized as one province, for all purposes to which the authority of the Legislature of New Brunswick extends; the equality of status and the equal rights and privileges of the two communities are affirmed.

- The Government of New Brunswick is committed to ensuring the protection of the equality of status and the equality of rights and privileges of the official linguistic communities and in particular their rights to distinct institutions where cultural, educational, and social activities can take place.

- The Government of New Brunswick will, in its proposed legislation, in its allocation of public resources and its policies and programs, take positive measures to ensure the cultural, economic, educational and social development of the official language communities.

In the next section, I will address the issue of the implementation of the Official Languages Act.

1] RSC 1985, c 31 (4th Supp) [Federal OLA].

2] 1991 1 FC 373, para 16, [1990] ACF no 1052 (QL) (CA).

3] R. Landry, R. Allard and K. Deveau, "Un modèle macroscopique du développement psycholangagier en contexte intergroupe minoritaire" (2008) Diversité urbaine 45 at 53-54.

[4] Linda Cardinal and Rémi Léger, "La complétude institutionnelle en perspective", in Politique et Société, digital release: November 29, 2017, https://id.erudit.org/iderudit/1042233ar

5] Charlebois v. Moncton, (City of), 2001 NBCA 117, at para 115.