PART V: OLA Review: Parliamentary and Legislative Bilingualism (Proposed amendments)

Many people would be inclined to minimize the influence that legislative and parliamentary bilingualism can have on the development and vitality of a minority language community. Without claiming that this sector of activity outweighs, for example, the right to education in the minority language, it is undeniable that the role it plays is decisive both in terms of promoting the language and culture of the minority and in affirming the identity of the minority group in relation to the majority language group. It is also a means of asserting the rights of the official language minority group. Conversely, the absence of the minority language in this public sphere sends a negative message to the minority group about the status of their language.[1]

The constitutional and legislative clauses regarding legislative and parliamentary bilingualism are therefore of real value not only sociolinguistically, but also politically. They raise the status of the minority language in the political sphere by placing it on par with the majority language. Moreover, they provide the minority group with a certain legitimacy. As one author notes:

"If we cannot, at a minimum, ensure the French language will be used in our legislatures and among our judiciary and lawmakers, it will become increasingly difficult to protect or encourage its use within the general population, and we will effectively be bidding it adieu within Canada.”[2]

A. Parliamentary Bilingualism

On July 1, 1867, the date of Canadian Confederation, section 133 of the Constitution was the only section that dealt with parliamentary and legislative bilingualism.[3] It introduced an embryonic form of bilingualism or a linguistic asymmetry at both the federal and Québec levels. It provided that everyone was free to speak in English or French in the debates of the House of Commons and the Senate and in the Québec National Assembly, and specified that the minutes, records and journals of the Parliament of Canada and the Québec National Assembly must be in both official languages and that the Acts of Parliament and the National Assembly must also be printed and passed in both languages. A similar provision applied to the province of Manitoba when it joined Confederation in 1870[4].

No language provision had been made at Confederation for the Acadians of New Brunswick. Nevertheless, on June 12, 1867, a petition signed by 173 Acadians was tabled in the Legislative Assembly by Robert Young, the Member for Gloucester. It asked the New Brunswick Legislative Assembly to publish its debates in French and English. Another petition was filed requesting that the government's public notices also be published in both languages. No action was taken on these petitions[5]. A resolution with the same objective as that of 1867 was reintroduced in 1874 by Théotime Blanchard, Member for Gloucester. It was also defeated[6]. It was not until the adoption of the Canadian Charter of Rights and Freedoms in 1982[7] that the right to legislative and parliamentary bilingualism in New Brunswick was finally recognized and enshrined in the Constitution.

Today, section 17 of the Canadian Charter of Rights and Freedoms and section 6 of the Official Languages Actguarantee Members of the Legislative Assembly of New Brunswick the right to use either English or French in parliamentary debates and committee proceedings.

Section 6 of the Official Languages Act reads as follows:

“Everyone has the right to use English or French in the debates and proceedings of the Legislature of New Brunswick.”

Since the provision uses the indefinite pronoun "everyone", it is clear that this right extends not only to Members of the Legislative Assembly, but also to officers of the Legislative Assembly and to any person appearing before the Assembly or any of its committees. Thus, persons appearing before the Assembly or its committees have the right to communicate orally or in writing in the official language of their choice. Surprisingly, as Commissioner of Official Languages Shirley MacLean has noted, until recently, simultaneous interpretation was not available to members of the Legislative Assembly during committee proceedings, which posed an obstacle to the use of French. Documents were also tabled in English only. However, it seems that this unfair situation has finally being corrected, thanks to the complaint filed by MLA Kevin Arseneau. It is nevertheless astounding that this situation has persisted for more than 50 years in the only officially bilingual province in Canada!

In an ideal legislature, where all MLAs would be bilingual, provisions such as section 17 of the Charter and section 6 of the Official Languages Act would not be a problem. However, this model assembly, linguistically speaking, does not exist. It certainly doesn’t exist in New Brunswick, where a high proportion of MLAs are either unilingual anglophones or, if they are francophones, are accustomed to speaking in English.

In her 2013-2014 Annual Report, the Commissioner of Official Languages, Katherine d'Entremont, noted that a review of the transcripts of Question Period from November 6 to December 13, 2013, revealed that 82% of the debates were conducted in English. The same review for the period from December 4, 2014 to March 27, 2015 produced a result identical to that of 2013: on average, our elected officials spoke in English 82% of the time[9]. In 2015, the situation barely improved. From April 1, 2015 to March 31, 2016, a review of Question Period transcripts revealed that debates were conducted in English 80% of the time[10]. Unfortunately, this practice of accounting for the use of French in the Legislative Assembly was not continued during the interim term of Commissioner Michel Carrier. Just recently the Commissioner of Official Languages, Shirley MacLean, resumed this exercise and her analysis indicated that for thirty-five (35) Question Periods in 2019-2020 that she reviewed, English was used 85% of the time and French only 15% of the time. As such the situation does not seem to be improving.

In her 2015-2016 Annual Report, Commissioner d'Entremont wrote:

“The vitality of a language is not only related to the number of speakers. Several other factors play a role: its status (official language or not), its instruction in the schools, its use in the workplace, and its presence in the media. Also, public use of a language, particularly within large institutions, can have an influence on public perceptions with respect to its importance or place within society. We can therefore understand that a balanced use of both official languages in the Legislative Assembly is very important.”

As Commissioner d'Entremont notes, Question Period in the Legislative Assembly is one of the highlights of the Legislature’s activities. Broadcast on the web and closely followed by journalists, it has a direct and immediate impact on provincial news: "Although simultaneous interpretation is available during question period, the choice of languages used during a debate has a very symbolic value that cannot be underestimated.” While respecting the right of Members to use the official language of their choice during debate, the Commissioner made a point of reiterating in her annual reports the crucial role played by elected officials in maintaining the vitality of both official languages and proposed a more balanced use of both official languages in the Legislative Assembly. Let us hope that her timely message will one day be heard.

This brings me to the use of French in the public sphere by the Premier and provincial ministers. As we saw during the COVID-19 pandemic, French did not figure prominently in Premier Higgs' press conferences. Had it not been for a reporter from Gaspé who was told to ask her question in English, simultaneous translation would not have been available at these press briefings.

It has become normal in Fredericton for the Premier and his ministers to hold press briefings in English and leave it to francophone journalists to translate what was said. In doing so, our francophone journalists should be careful and remember the Italian maxim: "Traduttore, traditore” (to translate is to betray), meaning that translation is not an exact science and that even the professional translator must sometimes make linguistic choices that can have an impact on the meaning of the message.

In 2018, Commissioner d'Entremont published an investigation report denouncing the lack of importance given to French at a press conference held by Premier Brian Gallant. The conclusions of this report were repeated by Commissioner MacLean in another investigation report in 2020, this time concerning Premier Blaine Higgs. These two reports essentially recommended that all practices related to the use of both official languages in Government of New Brunswick announcements and press conferences be reviewed to ensure a balanced use of the official languages. Symbolically, the Commissioners are asking that we change the perception that in New Brunswick, there are two official languages: English and translated from English.

In her report, Commissioner d'Entremont wrote that even if the entirety of a government announcement is translated into French, this does not respect the equality status provided for in the Official Languages Act, since "a language that is available only through translation is not treated in the same way as the other."[13] She added that, "The fact that the Premier, who, under section 2 of the Act, is responsible for the administration of the Official Languages Act, used English more than French during the announcement may have been poorly perceived …and may have transmitted the message that one of the province’s official languages is more important than the other. It is therefore essential, during public announcements like the one on January 11, 2018, that the Premier be more attentive to ensuring that he uses both official languages equally in his presentation, regardless of where it is made."[14]

Commissioner d'Entremont added, "We therefore believe that balanced use of both official languages during a government announcement, whether it is delivered through traditional methods, social media, or new tools such as Facebook Live, is very important to the perception that each official linguistic community will have of its importance in New Brunswick society... The Office of the Commissioner wishes to reiterate that a balanced use of both official languages during government announcements is very important because this influences the perception that the members of each official community have about their own language."[15] Wise words that unfortunately do not seem to have been understood in Fredericton.

Therefore, I propose that an addition be made to the Official Languages Act to provide as follows:

• that during Government of New Brunswick announcements and press conferences, a balanced use of the province's two official languages be ensured.

In her 2015-2016 Annual Report, Commissioner d'Entremont also made an important recommendation with respect to Officers of the Legislative Assembly. She recommended that the province follow the lead of the Canadian Parliament, which in 2013 adopted the Language Skills Act.[16] This Act provides that the ability to speak and understand both official languages clearly is a prerequisite for appointment to any of the following positions: Auditor General of Canada, Chief Electoral Officer, Commissioner of Official Languages of Canada, Privacy Commissioner, Information Commissioner, Senate Ethics Board, Conflict of Interest and Ethics Commissioner, Commissioner of Lobbying, Public Sector Integrity Commissioner and President of the Public Service Commission.

Commissioner d'Entremont suggested that the same condition be imposed in New Brunswick with respect to the positions of: Access to Information and Privacy Commissioner, Conflict of Interest Commissioner, Official Languages Commissioner, Child and Youth Advocate, Consumer Advocate for Insurance, Chief Electoral Officer, Ombud and Auditor General.

Unfortunately, this recommendation was rejected by the Gallant government without taking any time to examine its relevance.

Given this recommendation by Commissioner d'Entremont, I propose that the following be added to the Official Languages Act:

• that the ability to speak and understand both official languages be a prerequisite to the appointment of a person to any of the legislative officer positions listed above.

B. Legislative Bilingualism

Regarding legislative instruments, subsection 18(2) of the Charter provides:

“The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.”

This subsection, like subsections 17(2) and 19(2) of the Charter, is generally considered to have its origins in the language of section 133 of the Constitution Act, 1867.[17]

The Supreme Court of Canada has noted that "Subject to minor variations of style, the language of subsections 17, 18 and 19 of the Charter has clearly and deliberately been borrowed from that of the English version of section 133 of the Constitution Act, 1867, of which no French version has yet been proclaimed pursuant to s. 55 of the Constitution Act, 1982.[18]

Dickson C.J.C., in dissent, while noting that subsection 19(2) is "in part" a restatement of section 133, makes observations about the limited usefulness of the section 133 jurisprudence in interpreting the language guarantees of the Charter. In particular, he says that "despite the similarity between s. 133 and ss. 19(2), we are dealing with different constitutional provisions enacted in different contexts"[19].

The Court of Appeal of New Brunswick also concluded in Charlebois v. Moncton (City)[20] that subsection 18(2) has a different legal effect in New Brunswick and that the jurisprudence on section 133 does not fully exhaust the province's obligations. According to the Court of Appeal, section 133 imposes very minimal language guarantees. Its purpose is to preserve the pre-Confederation status quo. In contrast, the provisions of the Charter are the product of the legislative and political history of the province and their purpose is to recognize the cultural heritage of New Brunswick’s two official language communities. The "historical and legislative context of the enactment of subsection 18(2) reflects a linguistic dynamic much more fertile in nature than the context which might have inspired the framers of section 133 at the time of Confederation”.[21] The Court is also of the view that the jurisprudence relating to section 133 of the Constitution Act, 1867 must be examined with some caution when interpreting the language provisions of the Charter:

"In light of these statements dealing with the principles of interpretation of constitutional rights and in light of recent decisions of the Supreme Court in Beaulac and Arsenault-Cameron […], I think that the principle set out by Beetz, J., in Société des Acadiens, according to which the interpretation of language guarantees under section 133 must be taken into account cannot mean that the purposive analysis of rights established by the cases already cited can be ignored. As stated by the Supreme Court, “the focus on the historical context of language and culture indicates that different interpretative approaches may well have to be taken in different jurisdictions, sensitive to the unique blend of linguistic dynamics that have developed in each province[...][22]." [Emphasis added.]

For example, with respect to municipalities, the Supreme Court of Canada notes that, long before Confederation, the Legislative Assembly of Lower Canada or Québec, as it is known now, had expressly regulated the language that could be used in the drafting and publication of municipal by-laws or regulations. Therefore, municipalities and municipal regulation were on the mind of the framers in 1867. According to the Supreme Court's reasoning, municipal bylaws or regulations, while representing "legislative measures", are a distinct and independent category of legislative measures emanating from a third level of government. In coming to this conclusion, the Supreme Court of Canada based its findings on the historical context that existed at the time that section 133 was enacted. This context refers to the particular status of municipalities in Québec as it would have been perceived by the framers at that time.

However, in Charlebois v. Moncton, the Court of Appeal of New Brunswick reached a different conclusion than the Supreme Court of Canada on the obligations imposed on New Brunswick municipalities by the Charter in subsection 18(2). The Charlebois case raised the issue of whether municipalities in New Brunswick must adopt bylaws in both official languages. To conclude that they did, the Court of Appeal had to overcome a major obstacle, namely the Supreme Court of Canada's decision on municipal bylaws and section 133. To do so, the Court of Appeal found that a liberal interpretation of language rights required consideration of the historical development of French-language minority rights in the province:

"Given the significant role played in the history of this province by the law and the Constitution in matters of language rights as I have just described, I think it is quite appropriate to recall, as recognized by Canadian language rights case law, that the recognition of the status of official languages is both a legal and a political act. Politically, the recognition of the constitutional principle of the equality of official languages in New Brunswick is the manifestation of a fundamental political choice based on a compromise between the two recognized official linguistic communities of our province. Legally, it is incumbent upon the courts to delineate the scope of Charter-guaranteed language rights by reference to the history and sources of these rights to determine their purpose and scope as well as to the constitutional documents themselves. A review of the historical evolution of minority rights in New Brunswick is one of the requirements that follow from the use of the broad and liberal method of interpretation that should be used in this matter.”

According to the Court of Appeal, the effect of the province's language laws and specific constitutional language provisions has been to create a constitutional regime in the province that is unique in the Canadian context:

"Indeed, the recent history of the last thirty years shows that successive New Brunswick governments have, on four separate occasions during that period, enacted language rights legislation or have entrenched language rights in the Canadian Constitution which collectively provide the province with a constitutional language regime quite particular to New Brunswick and unique in the country. Obviously, these legislative and constitutional provisions impose obligations on the province which are also particular to New Brunswick.[24]”

It therefore concluded that it would be incorrect to assume that any court called upon to rule on the interpretation of sections 17, 18 and 19 of the Charter must adhere to the interpretation that courts have already given to section 133 of the Constitution Act, 1867. In the Court of Appeal’s view, "it is immediately apparent that the historical and legislative context of the enactment of subsection 18(2) of the Charter in 1982 is different from the context at the time of Confederation when section 133 of the Constitution Act, 1867 was enacted". [25] Thus, it concluded, contrary to what had been decided by the Supreme Court of Canada in the context of section 133, that bylaws adopted by New Brunswick municipalities are subject to the obligations set out in subsection 18(2) of the Charter.

With respect to legislative bilingualism, the relevant provisions of the Official Languages Act are found in sections 9 to 15.

Section 9 states that English and French are the official languages of the legislation.

Section 10 provides that:

« The English and French versions of legislation are equally authoritative. / La version française et la version anglaise des lois du Nouveau-Brunswick ont également force de loi. »

Section 10 raises a problem of interpretation. First, the term "loi" in the French version of this provision is equivalent to "legislation" in English. Section 9, on the other hand, uses the English term "legislation" and, in French, "législation". Gérard Cornu's Vocabulaire juridique defines the word "legislation" in the following terms: Action de légiférer; ensemble des travaux tendant à l’élaboration des lois (projets et propositions de lois, rapports, amendements, débats parlementaires, vote). (Translation: Action of legislating; the whole of the work tending to the elaboration of laws (bills and proposed laws, reports, amendments, parliamentary debates, voting))[26]. Thus, the word "legislation" may well be used in this broad sense. The word "law" may be used in a restricted sense (as in this one: an enactment of a legislative assembly) or in an extended sense (as in the one given, for example, to the term "rules of law"), in which case the law includes its regulations [27]."

Black's Law Dictionary defines the English word "legislation" as meaning either "the law so enacted; collectively, the formal utterances of the legislative organs of government" or "the whole body of enacted laws".[28] The English word "legislation" therefore refers to a body of legislation that includes statutes and regulations. Thus, there is no reason to conclude that the word "legislation" in section 10 is limited to "laws".

However, by using the word "loi" in the French version, the legislature creates a problem of interpretation. It could be concluded that the word "loi" is intended to have a narrower meaning, which could be interpreted as excluding regulations. A court might conclude, given the context, that the French version is a better expression of the Legislative Assembly's intention, and that it excludes regulations from the application of the "equal value" rule. Since, as the saying goes, lawmakers never legislate in vain, a court might conclude that the use of a different word in sections 9 and 10 is deliberate and expresses an intention to restrict the scope of the rule in section 10 to laws passed by the legislature and to exclude regulations and other instruments.

This point of potential ambiguity needs to be addressed.

• The wording of these two sections should be reviewed to ensure that no ambiguity exists and that the intent is clearly to encompass all legislation, including statutes and regulations.

Section 11 of the OLA provides as follows:

"Bills shall be simultaneously introduced in both official languages before the Legislative Assembly and shall be simultaneously adopted and assented to in both official languages./Les projets de lois sont déposés à l’Assemblée législative simultanément dans les deux langues officielles et ils sont aussi adoptés et sanctionnés dans les deux langues officielles."

Thus, contrary to the 1969 Official Languages Act of New Brunswick, it would seem that bills and other documents should be excluded from the equal value rule whereby English and French versions of texts have equal authority and that one does not prevail over the other. The 2002 provision does refer only to the obligation to introduce, enact and assent to bills in both official languages and makes no mention of equal value, unlike section 14 of the Official Languages Act of New Brunswick, 1969. The same conclusion appears to apply to rules, orders, orders in council, proclamations, which are required to be published in the Royal Gazette (section 13), notices, advertisements and other material of an official character whether or not they are required to be published in the Royal Gazette (section 14), and notices, material or documents required to be published by the province or its institutions under this or any other Act (section 15). Nor does section 35 of the OLA, which provides that municipalities and cities in the province must pass and publish their by-laws in both official languages, provide that both versions of these by-laws have equal status.

Did legislators really intend to exempt all of these documents from the application of the equal value rule? Did the legislators, when they passed the new Act in 2002, make a conscious decision to narrow the scope of the provision in the 1969 Act? I cannot answer these questions.

It may be that legislators considered that the equal value rule was sufficiently established in section 18 of the Charter that it did not need to be repeated in the OLA and that the word "Act" as used in that section refers to delegated legislation and municipal bylaws.

To resolve the ambiguity, I propose that a clause similar to the one that existed in the 1969 Act be adopted:

• In interpreting any official document, bill, statute, by-law, writing, minute, report, motion, notice, advertisement, exhibit, collective agreement or other writing referred to in this Act, both official language versions shall be equally authoritative.

There is also an important opportunity in the Official Languages Act to provide for the establishment of a standing committee on official languages in the Legislative Assembly. It is incomprehensible that, after 50 years of official bilingualism, such a committee has not yet been established. The mandate of such a committee could include receiving the annual reports and investigation reports of the Office of the Commissioner of Official Languages, making recommendations for the implementation of the Act and the Commissioner's recommendations, and dealing with any other matters relating to official languages.

Therefore, I propose this be added to the OLA:

• That a Standing Committee on Official Languages be established. The Committee will be composed of representatives of the political parties represented in the Legislative Assembly.

In the next section, I will address the issue of judicial bilingualism.

[1] See, among others, R. Landry, «Autonomie culturelle et vitalité des communautés linguistiques officielles en situation minoritaire» (2009) 11 RCLF 19.

[2] T. Yurkewich, «Adieu à la langue française» (December 16, 2015), online: ABlawg.ca <http://ablawg.ca/wp-content/uploads/2015/12/Blog_TY_Caron_Dec2015.pdf>.

[3] Constitution Act, 1867, 30 & 31 Vict, c 3, reproduced in R.S.C. 1985, ann II, no 5, art 133 [Constitution Act, 1867].

[4] Manitoba Act, 1870, R.S.C. 1985, app II, no 8 [Manitoba]. Although in 1870 this provision gave Francophones in the province of Manitoba certain constitutional language rights, the Manitoba government did not hesitate 20 years later to pass the Act to Provide that the English Language shall be the Official Language of the Province of Manitoba, 1890 (Man.), c 14, now RSM 1970, c O-10, thus making English the only official language of the province. In 1892, in Pellant v. Hébert, an unpublished decision reproduced in (1981) 12 RGD 242, the St. Boniface County Court ruled that the Act was unconstitutional, holding that Manitoba did not have the jurisdiction to amend or repeal the language guarantees contained in section 23. Manitoba ignored this decision, and unilingualism continued. In 1909, the Court of Appeal was called upon to rule once again on this issue in Bertrand v. Dussault, a decision that is unpublished but reproduced in Re Forest and Registrar of Court of Appeal of Manitoba (1977), 77 DLR (3d) 445, [1977] MJ No 106 (QL) [Re Forest], this same court again ruled that the law making English the province's only official language was unconstitutional. Once again, the provincial authorities pretended not to be aware of this court decision. It was not until 1979, in Forest v. Manitoba (Attorney General), [1979] 2 SCR 1032, 101 DLR (3d) 358, that the Supreme Court of Canada was called upon to decide the issue. It concluded that Manitoba could amend its Constitution, but that it did not have the authority to amend the language rights recognized in section 23. She equated section 23 with section 133 of the Constitution Act, 1867, which is an integral part of Canada’s Constitution and, as such, cannot be amended by the Province of Quebec. Thus, in a modern context, Quebec can amend its Constitution through Bill 96, but it cannot affect the rights conferred by section 133. The same logic would apply in New Brunswick if the government sought to repeal the language rights recognized in the Canadian Charter of Rights and Freedoms. Unfortunately, in Manitoba, the correction had to wait 100 years!

[5] See R. Wilbur, The Rise of French in New Brunswick, Formac Publishing, Halifax, 1989 p 3; G. Migneault, Les Acadiens du Nouveau-Brunswick et la Confédération, Les Éditions de la Francophonie, Lévis, 2009, pp 149-52 [Migneault].

[6] Migneault, Ibid. pp 153-54.

[7] Part I de la The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[8] Office of the Commissioner of Official Languages for New Brunswick, Annual Report 2013-2014, Fredericton, 2014 p 89.

[9] Office of the Commissioner of Official Languages for New Brunswick, Annual Report 2014-2015, Fredericton, 2015 p 88.

[10] Office of the Commissioner of Official Languages for New Brunswick, Annual Report 2015-2016, Fredericton, 2016 p 84.

[11] Ibid.

[12] Ibid.

[13] Office of the Commissioner of Official Languages for New Brunswick, Investigation Report, July 2018, p. 11

[14] Ibid.

[15] Ibid., p 11 and 13

[16] Language Skills Act, SC 2013, c 36

[17] Constitution Act, 1867, supra note 3.

[18] Société des Acadiens v. Association of Parents, [1986] 1 SCR 549 para 50, 69 NBR (2) 271 [Société des Acadiens].

[19] Ibid. para 10.

[20] Charlebois v. Moncton (City), 2001 NBCA 117, 242 RNB (2) 259 [Charlebois v Moncton].

[21] Ibid. para 93.

[22] Ibid. para 47.

[23] Charlebois v Moncton, supra para 11.

[24] Ibid. para 8.

[25] Ibid. para 48.

[26] G. Cornu, Vocabulaire juridique, 8th ed, p 506, sense 2.

[27] In my research, I have found that in the Charter and the statutes of some provinces, the word "lois" in the French version has «Acts» or «Statutes», as equivalents in the English version, never «legislation». See theCharter, where section 18 has in French, «lois» and in English, «statutes». The Interpretation Act, CCSM, c I80, art 7 (Acts); Charter of the French Language, RLRQ c C-11, art 7; Legislation Act, LO 2006, c 21, annx F, art 65; Language Act, SS 1988-89, c L-6.1, art 4; Languages Act, RSY 2002, c 133, art 4; Official Languages Act, RSNWT 1988, c O-1, art 7(1); and Official Languages Act, SNu 2008, c 10, art 5. Even in Interpretation Act, RSNB 1973, c I-13, the word «loi» is systematically rendered in English by the word «act».

[28] Brian A. Garner, ed, Black’s Law Dictionary, 10th ed, Thomson Reuters, 2014.