Julia Tétrault-Provencher: Hi. I’m Julia Tétrault-Provencher, and welcome to the Every Lawyer.

Julia: Hi. I’m Julia Tétrault-Provencher, and welcome to the Every Lawyer.

For over 157 years, the Canadian Federation has derived its legitimacy from a written constitution made up of 31 documents, the majority of which have no legal force in the French language, including the foundational Constitution Act of 1867, which we used to refer to as the British North America Act. While the Constitution Act of 1982 was written and adopted in both official languages, the remaining 71% of the documents, though translated, have yet to be promulgated, 42 years and counting.

This is nothing less than affront to the rule of law. How did we get here and what are the consequences of a 71% unilingual constitution? Please welcome Professor François Larocque from the Faculty of Law at the University of Ottawa, holder since 2018 of the first Canadian Francophone Research Chair in Language Rights.

So the first question for you would be why is it important to translate them and what are the consequences to have a unilingual version of those documents that are in the constitution?

François Larocque: Let me start out by just clarifying that in fact they have been translated. The Canadian Constitution exists in written form in both official languages, but only the English version, or 71% of those texts – no, that’s not correct. 100% of the constitutional texts are binding in a force of law in English. But only nine out of 30 or so constitutional texts have been translated and have force of law in French. That means 71% of the constitutional text does not have force of law in French.

So that’s a problem. And it’s a problem that the drafters of the constitution, at least our modern constitution at the time of patriation, they were aware of this problem. When the constitutional conventions and conferences began in the 1970s and the talk around patriation began, Pierre Trudeau was obviously keen on putting into the new constitution a charter of rights and freedoms. That was one of his big goals and objectives. And he wanted to include in that charter of rights and freedoms, the operative sections of the Official Languages Act that he of course had championed in 1969.

So Canada has been an officially bilingual country, so to speak, since 1969, with the enactment of the Official Languages Act. And at the federal level, that means that the executive, the legislative and the judicial branches of the federal apparatus are meant to be fully bilingual. That’s what the act established in 1969. And so in 1982 and 1981, when we started to work on patriation, the government wanted to enshrine those sections of the Official Languages Act into the Canadian Charter of Rights and Freedoms, making Canada not only bilingual by statute but by the supreme law of the land, so enshrining into the constitution the official bilingualism policy of the country. And so that’s sections16 to 20 of the Charter of Rights and Freedoms.

Section 23 is also very important. That has to do with bilingual education and access to education in the minority language in every province. But with respect to the Federal Government, sections 16 to 20 are the important sections here. And section 16 in particular, section 16 states that French and English are the official languages of Canada. They are equal in rights, status and privileges. So it not only makes French and English the official languages, but it puts them on an equal footing in law.

And that part is very key, is important, because the framers of the constitution reasoned that well if French and English are the official languages of the country and constitutionally so, then shouldn’t the constitution itself be officially bilingual? That’s how they got to that. And obviously everyone agreed. And so being included into the Constitution Act of 1982, a specific section, section 55, which was meant to effectively make the Canadian Constitution fully bilingual. And what section 55 provided, it provides that the French translation of all the documents that are listed in the schedule to the Constitution Act of 1982, so the 30 documents that are listed at the end, so a French version of all those documents shall be produced as expeditiously as possible by the Ministry of Justice. Those are the words, as expeditiously as possible by the Ministry of Justice. Period.

When a sufficient number of those translations are ready or have been prepared that warrant action, then they shall be enacted under the Great Seal of Canada and therefore have force of law. So it’s a two step process that is envisioned in section 55. The Ministry of Justice has to produce a French version of all the constitutional documents from that step one. Step two, when they are ready, they should be enacted under the Great Seal of Canada.

So what happened in 1982? Well, the dust settled after patriation. And in 1984, the Ministry of Justice got to work. It was keenly aware of the obligation that spoke directly to the Ministry of Justice under section 55 and its mandatory language. It says the Ministry of Justice shall do this as expeditiously as possible. So they got to work in 1984 and formed a committee, a drafting committee, constitutional drafting committee, banding together the best jury linguists, legal translators, ministers of justice and retired Supreme Court Justices, including Louis-Philippe Pigeon and then multi others, Gérald-A. Beaudoin, Gilles Reignier from McGill.

Julia: Big names.

François: Also the biggest names you’d think about in French constitutional law at that time. And they all got together and got busy. From May 1984 to 1990, they got to work and they produced a French version of all the 30 constitutional texts and then some. They actually did a bit more. They went a bit beyond the scope of their initial mandate. But they produced not only a French version, Julia, but a beautiful French version. They’re beautiful texts. They’re written with a ‘souci littéraire’, they’re written in the spirit and the genius of the language, and reflected. And it’s beautiful. And it would be so wonderful if they ever got to see the light of day, at least to be enacted.

Julia: Can I ask you where they are now? They are available now, right?

François: They’re all available online, find them on CanLII, find them on the Minister of Justice website. And if you Google for instance the Order and Council Affecting the Transfer of Rupert’s Land, the 70 order and council that was enacted in Great Britain to transfer, to actually make the biggest real estate deal in the history of North America, the Transfer of Rupert’s Land to Canada, that order and council is a British order and council. And it’s now been translated into French thanks to this constitutional drafting committee and it’s available online.

But if you access it online you’ll see a big banner at the top of the page, saying, “Warning, this is not an official translation. This has been produced by the constitutional drafting committee under section 55 of the Constitution Act of 1982.” And that’s true for all the 30 documents that are enacted in the schedule. So they’re all available online.

The Ministry of Justice I would argue acted as expeditiously as possible in producing a French version of those texts. It wasn’t going to happen overnight. Dbell did not exist back then. Google Translate did not exist back then. They did it painstakingly, the old fashioned way, and they produced, as I said, a marvellous French version of all these documents.

Now the second step of section 55 though, that’s where the problem arises. When the committee finished its work in 1990, they tabled their final report including all the French translations, gave it to the Minister of Justice which then tabled them in the House of Commons and the Senate. Now, the Minister of Justice at the time was none other than the Right Honourable – she wasn’t quite right honourable just yet, but she was to become right honourable, Kim Campbell. She was the Minister of Justice at the time and as we know, she became Prime Minister.

So that was tabled. So the first part of section 55 has been done since 1990. But then since that time, crickets, nothing, silence, no more action. So section 55 remains woefully unfulfilled. The work is not done. And I would say the patriation therefore is not done. The goal of patriation was to give Canada its authentic, Canadian Constitution, including obviously part five of the constitution, the amendment formulas, and all the various ways we have to amend the Canadian Constitution. But also a truly Canadian Constitution means, I would argue, a bilingual constitution.

Julia: Definitely, definitely. And I think now I’m totally convinced as well that this is what it means. But can you tell us, to someone who’s – I mean we have only the English one and now we have this more or less very good, as you said, very good French translation. And they, obviously you said that they even had cases using this non-official translation. So why does it matter that we should now finish the process of Article 55?

François: Well, it matters for several reasons. It matters. First of all, let’s address the fact and you and I, as French speakers in this country, do not have the same rights as our fellow citizens who are English speakers to access the entirety of the constitution and to rely on the contents of that constitution in both official languages. We have to rely on the English version for us to have a sense of its legal sense. It creates therefore a two tier constitution, or a constitution in English that is binding for everyone and can be read in English, but a constitution that cannot be read entirely in French, therefore perpetuates an inequality between the official languages which runs directly contrary to section 16 of the Charter of Rights and Freedoms, which explicitly states French and English are meant to be equal and are on the same footing.

So they’re not on the same footing, I would submit, if the text of the constitution is not available and in force in both languages. It matters also as a matter of a right of citizenship, as I said. It matters also I think as a matter of rule of law. Here we have a mandatory section of the constitution that says the Minister of Justice shall do this as expeditiously as possible, and when they are ready, they shall be enacted. There’s not ambiguity there. And yet, there’s no action. If every time the Constitution of Canada says that something should be done, it should really be done, if it's not, that means that the constitution doesn’t matter. It means that the law of the land is not so supreme after all. It means that if we can choose, cherry pick which sections of the constitution we decide to respect and enforce, which other section might we choose to ignore and decline to enforce?

So it matters as a matter of constitutionalism and the rule of law, which as we know, they’re unwritten principles of our constitutional order. So the longer section 55 remains unheeded, then it risks undermining the entirety of our constitutional structure.

Julia: This is such a good point.

François: I think it’s supremely important. I don’t think the stakes could be higher frankly when it comes to section 55. It tends to go unnoticed. And that brings me to my third point of why it matters. It matters because a lot of people in the legal community, I’m including practicing lawyers but I’m also including scholars, university scholars like myself, and judges, are frankly not even aware. Of if they’re vaguely aware that section 55 is in there, they all assume that it’s been done, that this has been taken care of in 1982 or shortly thereafter. But that’s not the case, as I’m telling you. The Constitution, section 55 remains unfulfilled.

So it matters for those practical reasons where we have courts who are citing in their decisions the French version of these constitutional texts. But yet, they’re not binding law. The English version of the decisions might rely and faithfully cite the English version of the constitutional texts, but to the extent some decisions have to have force of law in French also, and they rely on the French version, then they don’t produce the same effect, do they, in the other language. So that’s hugely problematic I would argue.

And if we just look at which I think is the most flagrant example of non-respect of section 55, it’s the British North America Act, as it used to be called, or the Constitutional Act of 1867, our founding document. It’s no big deal. It’s just the document that establishes the country, that gives us our constitutional structure, the division of powers. It’s just little details.

But this is one of the documents that to this day, has no force of law in French. And it’s – I know, I’m looking at the expression on your face. You’re surprised and I think most people are very surprised to learn this.

Julia: This is a super important document, you know.

François: It could not be more important. And what’s more astonishing is when one considers that a French version was produced in 1867. When the constitutional conferences began in 1864, 1865, there were conferences in Charlottetown and in Quebec City, the articles that would become the British North America Act and the Constitution Act of 1867, they were drafted in both languages. They were debated and discussed between the provinces and the would be partners of the confederation in both languages.

But why was only one version enacted? Well, it’s because the Constitution Act of 1867 is a British Act. It was enacted by the Imperial Parliament in Westminster. And when the French version that was produced in 1867 by Eugène-Philippe Dorion, was very senior legal translator at the time that produced the French version with the help of George-Étienne Cartier no less that proofread and approved some of the language. the versions were sent across the pond for enactment in 1867. But when the British legislative lawyers got to work and finalized the proofreading of the documents, they only worked on the English version because that’s the only language they could read. And therefore, that’s the only version that made it through to enactment.

And to be very clear here, the British Parliament could have very well enacted a French version in 1867. It just failed to do so for administrative reasons, for silly, administrative reasons. So this is an historical oopsy that could have been and should have been fixed by now and still has not.

Julia: But can I ask you though, because we understand that those French versions exists, but somewhere, something didn’t work because it’s been 30 years, nothing happened. I would assume that the Province of Quebec being all about being French, would push for that or would argue more and we would hear more in Quebec. For a fact, I’m from Quebec and I’ve never heard about that until I did this podcast with you and the CBE started to also talk about it more. So it’s not something we talk about. So is there something here? Is it like at the federal or provincial level that it blocks, or is it everywhere? Why is it not getting -

François: Why is it not getting any more traction than it has so far? Well, those are very good questions. And we’re trying to get to the bottom of that. But the working theory is this: so in 1990 when the French versions were produced in accordance with section 55 of the Constitution Act of 1982, well, in 1990, we were off of Meech Lake and we were preparing for Charlottetown. And obviously both of those efforts to amend the constitution failed. And then Quebec disenchantment was riding very high.

There was I think across the country at the time what my former colleague now, Justice Sébastien Grammond, called a constitutional fatigue at the time. And that meant that any more talk of touching the constitution or reopening the constitution as it was called back then, was a non-starter. It just wouldn’t fly. So that’s one of the reasons I think why the early 90s, nothing happened.

So 1993 rolls around. The Liberals are in power. And Jean Chretien asks his minister of justice at the time, Allan Rock, Stéphane Dion who was the Minister of Intergovernmental Affairs, to please take a look at section 55 and what can be done to finalize this work, because if anyone was aware of section 55, again it was Jean Chretien who had been one of the most active participants in the repatriation efforts with Roy Romanow and Roy McMurtry. They were going around and getting all the provinces on board with the enactment of the Constitution Act of 1982, all the provinces except, as we know, Quebec.

So Quebec did not sign on to the Constitution of 1982, and so this is why Meech and Charlottetown was so important. And again, it failed, so Jean Chretien said in 1993 through his ministers, let’s see if we can get this one once and for all. So Minister of Justice, Rock asked his Associate Deputy Minister, Mary Dawson, may she rest in peace, she passed this year and we’re very sad to see her go. But she, to my knowledge, took the final last crack at it, so to speak. She reached out to all the ministers of justice across all the provinces and territories, seeing if she could build some consensus around these drafts of the French language constitution. And she sent all the French documents around and she got some interesting answers.

Some of the provinces said yes, they look great, let’s go and adopt this French translation of the constitution. Other provinces quibbled with some terminology, and they said, eh, we don’t like this term, we’d like to have a discussion and we would be on board if we changed it to these terms. So some slight turbulence back and forth. But the reception was generally quite positive, except Quebec. Quebec at the time, this was now a Parti Québécois government. And as we know, the Quebec referendum of 95 was right around the corner. So again, that sentiment, the anti Canada sentiment was very strong. So the Quebec answer to Mary Dawson’s letter was no, thank you, but no thank you, we are not interested in participating in this exercise.

And so it didn’t go any further than that. And to my knowledge, this was the last federal attempt and it’s been laying dormant and picking up dust ever since, until 2015 when I picked up the ball with the University of Ottawa and former Senator Serge Joyal.

Julia: That’s how all this started, because I was going there. You knew exactly where I was going because you feel the lawsuit. But I’d like to know a bit with Senator Serge Joyal or [Joval] Joyal. Joyal, so that’s with the case so with Senator Serge Joyal. So how did all this start, because you guys, I feel like it was a skeleton. And you know how we say that you got that guy.

François: Yeah, well it was something. Here’s the story. It was I guess late 2014, early 2015, my dean, the dean in my law school at the time, now a Justice of the Superior Court in Ontario, Nathalie Des Rosiers, so as she then was, Dean Des Rosiers, called me in her office along with a few other colleagues, namely la Profésseure Linda Cardinal. She’s a political scientist, was at U of Ottawa at the time. My colleague Jean Marquis who was a legal drafter and retired legal drafter from justice who is now a professor at their law school.

And we were the four of us in our office brainstorming ideas for the Canada 150. Do you remember Canada 150?

Julia: Yeah.

François: So Canada was turning 150 in 2017. So here we were in 2015, brainstorming ideas of what we could do to celebrate or mark the 150^th anniversary of confederation. And it was during that brainstorming session that the idea of doing something around section 55 was floated. I believe in might have been Jean Marquis or Nathalie herself who said, “How about the bilingual constitution? That’s still a thing, right? We’re still wondering about that.” And that’s what we agreed, that this was the right project to do a very university, academic exercise.

We organized a conference in 2015, November 2015 on the unfinished repatriation of our constitution. And that was held at the University of Ottawa. We had a few surviving members of the famous drafting committee, people that were involved in preparing the French versions in the 1980s. Alain-François Bisson was still with us. Mary Dawson was there as well. The Senator Sarge Joyal was there and he was a very important figure at the time because as a very young MP, he was not a senator back then, but as a very young MP, he was co-chair of the parliamentary committee that did the line by line reading and adoption of the Canadian Charter of Rights and Freedoms.

Julia: Oh wow, okay, he was very involved.

François: And so we was involved with the enactment of our Constitution Act of 1982. So we has privy to those discussions around section 55. He has a very clear memory of what was intended and how everyone hoped this would get done very quickly. And this is all things that came out during the conference. And it’s after the conference that Senator Joyal and I started talking. He says, “Okay, this was a lot of fun. Now we’ve written a book. We’ve published some articles and some book chapters on this issue. What else can we do?”

And Senator Joyal was a fantastic man and he’s a very combative spirit. By then he was a senator and he said, “Why don’t we sue the government?” And you know, Senator Joyal had already brought a few very important lawsuits in the field of language rights, the Joyal contre [arc] Canada, Joyal contre les gens de l’air. This was early litigation around the old official languages act, the first version of the Official Languages Act. Even as a member of Parliament, we was bringing these lawsuits to the front.

And so he wanted to do that again and said, let’s see what we can do around section 55. And I agreed. So we found a team of brilliant, young lawyers who were willing to help us draft our pleadings. And in 2019, it took us a few years to get organized, and COVID certainly didn’t help with the lawsuit getting off the ground, but we filed in 2019 in the Superior Court of Quebec, a lawsuit seeking orders and declarations from the court to prompt the governments, and I say governments plural because we named the Federal Government and we named the Quebec Government, to get going and finally make good on these section 55 obligations.

Julia: And what was the answer?

François: Well, we still have not heard the answer to our lawsuit because it’s still the very early phases. Here we are in 2024, this is now five years ago and it is slowly making its way through the procedural phases of litigation. And that didn’t help, but now that that’s all behind us, the good news is that the governments are now fully seized at the file.

Julia: That’s good.

François: Opposing us which perhaps should have been expected, but is very disappointing in my view. And they’re saying that the lawsuit, as we frame it anyway, is not justiciable. And so they brought a motion to strike. So we’re going to be in court of November of this year to answer to those motions.

Julia: As you say, this is disappointing because that would have been so easy. I feel like there’s no point for not going with it. They could stop it now and be like, okay yeah, let’s talk. Because what are you asking exactly in your lawsuit?

François: We’re asking for the governments to get together and talk.

Julia: That’s it. That’s what I mean.

François: That’s all we’re asking for. We’re asking the courts, A) to recognize that section 55 has been breached since at least 1990.

Julia: Which is obvious.

François: Yes. There’s a clear breach. So we’re seeking a declaration from a court to that effect. But the order, the remedy so to speak, is obviously a court cannot – I don’t think anyway – a court should not enact the French version of the constitution. It has to go through the process that has been spelled out in part five of the Constitution Act of 1982.

So there are 30 documents and some of those documents need unanimous approval of Parliament and all the legislative assemblies of the provinces and the territories. Other documents can be enacted by bilateral action from the Federal Government and the concerned province. For instance, the terms of adherence for Newfoundland in 1949, those documents obviously were enacted in English, only the French version could be adopted by a simple agreement between Newfoundland Labrador and the Federal Government. The same for BC, terms of adherence, and so forth.

But other documents like the Westminster from 1931 and the big one, the big enchilada, the British North America Act of 1867 that will also require unanimous. It’s a vexing problem, circling back to that 1867 document, because there are not only unofficial French versions floating, but there are competing, unofficial French versions. The 1867 one produced by Eugène-Philippe Dorion that I mentioned earlier, but also the Federal Minister of Justice in the 1960s decided to ‘la réforme legislative’.

Julia: ‘La réforme legislative’...

François: How do you say that in English?

Julia: The revised statutes.

François: The revised statues, the revised statutes of Canada. So the Minister of Justice enacted a working translation, because they didn’t like the 1867 Eugène-Philippe Dorion version. And meanwhile, the Quebec Government, as I found out down the road, has also adopted its own French version because they didn’t like the Federal unofficial French version. So the Quebec translator has got to work and also have a working copy, so to speak, of the French version of the British North America Act, the Constitutional Act of 1867, which they’re purported to amend very recently when Bill 96 was enacted. Do you remember Bill 96 with that amended -

Julia: Oh yeah.

François: So in 2022, Quebec underwent massive reform of Bill 101, as it’s called, but at the charter of a French language, and modernized it and strengthened it also to protect the French language. And one of the things it did, it purports to have anyway, the Legislative Assembly of Quebec purports to have unilaterally amended the Constitution Act of 1867 to add two sections, one stating that French is the official language of Quebec and French is the official language of the Quebec people.

And so Quebec purports to have unilaterally amended the 1867 document which exists in an unofficial version in Quebec, in Ottawa, and also the 1867 version. So there’s competing versions of the 1867 document. It is a mess. This is why we also need I think to get this work done.  

Julia: Definitely, honestly. And I’m laughing because I’m thinking it was such a huge mess. But as a lawyer, if you need at some point to litigate something that you found in those versions, how do you do it? Has it happened so far that some lawyers had to litigate and we need to use those unofficial versions? You don’t even know the words that are being translated. You can’t have a discussion about that. We know words are super important as lawyers. I’m feeling like you can be caught into this huge mess and it can take more time to get something done. So if you have examples.

François: Yes, I do have examples which goes to the practical reasons why this is important or why we need to do this as soon as possible or as expeditiously as possible, as section 55 states. So yes, it happens in litigation. You’ll see it in judgements. Thank you for these podcasts by the way because the more we talk about this section 55 and its unfulfilled nature, the more people are becoming aware of it.

And so judges now increasingly are referring to the Constitution Act of 1867, and in the French version of their reasons for judgement, they’ll comment and say, “This is the unofficial version.” They’ll flag that we must obviously rely on the English version since the French version is unofficial. So there’s another practical example of why it matters.

But in litigation, I can give you an example where it happened in a case where I was involved. I was involved with this litigation in Alberta. The Caron case is about – the issue before the court was whether Alberta has a constitutional obligation to enact its statutes. And this came before the courts because Gilles Caron was a Franco-Albertan who got a ticket, a moving violation ticket, $54. And the litigation went up to the Supreme Court twice on a $54 ticket. The main argument that he presented was that his ticket was invalid because the laws under which the ticket was issued were enacted in English only, and he submitted Alberta had a constitutional duty to enact its statutes in both languages.

Why? Because of the state of affairs and because of the events that occurred in 1869 and 1870, when Rupert’s Land was sold to Canada for 300 pounds sterling from the Hudson’s Bay Company to Canada. Now in order for this to make sense, you have to understand that in Rupert’s Land, under the governance of the Hudson’s Bay Company, statutes, so to speak, or they were called ordinances at the time, were enacted in both French and English because Rupert’s Land was inhabited by French speaking Métis and French settlers. They actually made up the majority of the population at the time.

There were English speaking Métis and there were English and Scottish and Welsh settlers as well, but the Francophone element was actually the dominant one. So even though the Hudson’s Bay Company was very much a British company, they enacted ordinances in French. They also had a court system, it was all the judicial recorder. And that person had to be bilingual as per the letters patented to the position. They had to be bilingual. So there was obviously already in place in Rubert’s Land a certain level of official bilingualism, at least in the courts and in the legislature.

So when Louis Riel and the Métis Provisional Government seized Fort Garry in the fall of 1869 and they drafted their list of rights, these were the terms by which the Métis would consent to joining Canada essentially if the deal went through, they demanded that the legislature enact all its laws in French and English and that the courts operated in French and English, essentially replicating for Rupert’s Land the same terms that existed since 1867 for the Province of Quebec in accordance with section 133 of the British North America Act, and also saying essentially that while we want – there were some conditions – we want to maintain the rights that we’ve grown accustomed to. The Hudson’s Bay Company recognized, we want a bilingual legislature and we want bilingual courts.

This is what Riel negotiated for, and this is what he obtained. In 1870, the Manitoba Act, which was obviously the first province to be created from Rupert’s Land, that act, the Manitoba Act, section 23 provides exactly that for a, like Quebec, a bilingual court system and bilingual legislature.

Now what was in the minds of the Métis anyway at the time was that all of Rupert’s Land would be affected by those provisions because that’s where the Métis lived. They lived, not only in the postage stamp province of Manitoba in 1870, but they lived throughout Rupert’s Land and they wanted all of their country to be governed as well, because this is what they’ve always known. Unfortunately that’s not how history played out. When Canada acquired Rupert’s Land, they created Manitoba and then the rest was called the Northwest Territories. And eventually, as we know, we carved out new provinces from the Northwest Territories, Alberta and Saskatchewan in 1905 being the first.

And the legal question that arose was whether or not the terms that Louis Riel and the Francophone Métis negotiated were binding upon Alberta and Saskatchewan after their creation in 1905. This is what Mr. Caron argued. He said yes, the terms that were negotiated in 1869 by Louis Riel et Company were still operative in Alberta and Saskatchewan. And therefore all the legislation that was written in English only, was invalid including his $54 ticket.

So the litigation, and this was a very long explanation but I think was necessary to -

Julia: No, I love the circles. It’s good to bring us back also to where it comes from.

François: It is important because – and we’ll get into why the missing French version here is important. So in the course of the litigation, several arguments were put forward but one of them was that Canada had made an undertaking to respect the rights, including the language rights of the inhabitants of Rupert’s Land. And as evidence of this, we unearth the address that the Parliament presented to her Majesty the Queen, Queen Victoria in 1867 whereby Canada solemnly undertook to respect the rights of the inhabitants of Rupert’s Land.

If her Majesty would fuse Rupert’s Land and provide Canada with Rupert’s Land. That address has been enacted and is now part of the Constitution of Canada under the Rupert’s Land Order of 1870. I think I referenced that document earlier in our discussion. So that order and council whereby the Imperial Cabinet annexed the Rupert’s Land to Canada includes that famous address, 1867 address from Parliament saying, we will respect the rights of the inhabitants of Rupert’s Land.

So this became important in the Caron litigation because here’s where we get into the weeds. But that address was produced in both French and English because in 1867, this was an address from Parliament. Everything emanating from Parliament in 1867 had to be both in French and English in accordance with section 133 of the Constitution Act of 1867.

Now when in 1870 Canada proceeded with the annexation of Rupert’s Land through the Imperial Council, again, only the English version of the address was sent to London and was therefore annexed to the order of council that was passed in London. So the French version, though it was official in Ottawa because it was produced contemporaneously to the English version, did not receive the constitutional imprimatur [00:42:24] with the order of in council.

So why does it matter? Well, because the French and English versions, as it often is the case, don’t say the same thing. The English version of the address says, “Canada undertakes to respect the legal rights of the inhabitants of Rupert’s Land.” Whereas the French version says, “Le Parliament s’engage à respecter les droits acquis. 00:42:49]” Les ‘droits acquis’ is acquired rights, which is much broader as a legal category than legal rights. Legal rights one could argue is what we have when – natural justice, when we go through courts, the right to an interpreter, the right to council, the right to be presumed innocent. Those are the legal rights in the charter of rights and freedoms. 00:43:10].

But acquired rights are much broader, particularly when one considers the context of what rights were enjoyed.

Julia: Exactly, this was like the core of the issue here.

François: So here we were before the Alberta courts, arguing that the court also had to consider the French version of the initial address, even though it was a non-binding document, because it had not yet been translated and enacted, pursuant to section 55 of the Constitution Act of 1982. So here we had an unofficial French version that unfortunately the court did not take into account, because the only one that mattered was the English version. And that was the much more narrow legal rights.

So that’s just one example of where it was very important for the court to consider both versions of these legal texts. Unfortunately only one was binding.

Julia: I mean, and for Canadian citizens, because this case goes back to a citizen who knew it’s very old. So it brings us back to us, the citizens of Canada and how it affects us. So it’s a very good example I think. It’s very concrete as well. And I’m just wondering, with the examples you gave with Quebec having its own French version and then there’s another version happening, I just feel like as a citizen, you’re wondering where to go and even where to look at. So even that, it’s a bit of uncertainty happening, which is very unfortunate. And it has to be so -

François: And we deserve better, don’t we?

Julia: Yeah, definitely also.

François: The Francophones of this country deserve a clear, intelligible constitutional document or a set of constitutional documents, the same right that our Anglophone colleagues enjoy. So as a matter of formal equality between Francophones and Anglophones, never mind substantive equality, as simple, formal equality, there should be French versions, because section 16 says, English and French are the official languages of Canada. They are equal status and rights, status, privilege. We’re still waiting.

Julia: Thank you so much for this work that you’re doing. And thank you for doing the podcast because for our listeners, maybe you don’t know, but François also did a podcast in French for us and now we’re doing it in English to make sure that it reaches more and more people. So it’s also very appreciated and that’s the idea. So thank you for doing that. But I would have one last question for you. And I asked you in French as well, but I’d like to discuss it in English as well because well, Canada is much more than a bilingual country. We have distinct, Aboriginal languages. I don’t know how many, but probably more than – I don’t want to express how much but I think in the Canadian website, it said it was more than 70. Maybe there’s even more, probably actually.

And with the UN Declaration on the Rights of Indigenous Peoples and [supplementation? 00:46:19] Act, we know that we also need to recognize Aboriginal languages. So do you think there’s even more room now to talk about more translation of the constitution or the legal texts that we have in Canada?

François: Yes, of course. As we speak, there are in fact multiple versions of the Canadian Charter of Rights and Freedoms. They’re available if you go on the Justice Canada website, you can download it in Spanish, in Tagalog. I think there’s an Inuktitut version, and several languages, so it’s dozens of languages in fact, and as it should be. I think the constitution belongs to every Canadian as a matter of citizenship.

And yes, absolutely, that includes indigenous languages. The number I have in my mind for some reason is around 60 languages being spoken that are currently living languages and spoken by interlocutors, indigenous interlocutors in Canada. And yes, measures like the Indigenous Languages Act that was enacted in 2019, they’re usually important because they will create, I hope, conditions that will support indigenous communities as they endeavour to reclaim and revitalize their traditional languages in a landscape where every other language is playing catchup to English.

Even though we have two official languages, French is the minority official language. And every other language by definition therefore is also a minority language. Language is such a core aspect of our human experience. We are unable to think without languages. We can’t even count to 10.

Julia: Yeah, that’s true.

François: We can’t even use numbers without using words, without using language. That’s the way that our human brains work. And languages are magnificent repositories of collective experience and culture and memory. This is true of every language, including the hedonic English language. And Canada is a multicultural society. And we should endeavour to reflect that in our constitutional texts as well.

But I would argue, and I’m preaching from my own choir here, but we should perhaps start with the official languages and do well by those, and then also support other indigenous languages and other languages spoken in Canada so that they also may be heard, and may they flourish forever.

Julia: Thank you so much Professor Larocque. It’s very, very nice. I don’t know if there is anything else that you would like to add. Maybe from we know the work that has been done because you’ve also done through the CBA because there’s like this very great ad from the CBA. That’s where I learned about it first. If you want to add anything to our listeners, well now is the time to share it.

François: You should provide the link to that in the -

Julia: Yes, we will, because it’s so good.

François: You’re talking about the Improtéine

Julia: Exactly.

François: Yes. So Improtéine, for those who may not know, is an improv group based in Ontario. They’re Franco-Ontarians. And they do great comedy and sketch comedy. And they also have a political voice. And I was really proud to see that the CBA had hired them to do a little ‘topo’ (French for expos é) on section 55 and on the constitution.

And the more people talking about it in different media, online and in podcasts, and now the courts are seized of the issue. And Parliament is seized with the issue. There’s a few senators, Senator Dalphond, Senator Carignan in Quebec who make it their duty to periodically rise up the issue of – raise the issue of section 55 in their speeches in the work on the various committees that they do. So the more people talking about it, the better. So I’m thankful to the CBA for taking the time today.

Julia: Can I ask you, as citizens, or even as lawyers, but as citizens, just a Canadian citizen, is it relevant to write to our own MPs to ask, put this on the table, right. to talk about it?

François: Absolutely it’s important. I think the more our MPs and representatives hear of this, the more traction the issue will get.

Julia: That’s it. Okay, well we take good note of that as well. That’s perfect. Thank you so much. It was very great again to hear you talk about this. You talk with so much passion. It’s very interesting. And we will follow what’s going to happen with this case for sure. And maybe we’ll have another podcast eventually to discuss where we are now with the lawsuit.

François: I’d be very pleased to come back. Thank you very much.

Julia: Thank you so much for your time.

François: Thank you.

Julia: Thank you for listening to the Every Lawyer and please reach out to us any time at podcast@cba.org and have a great day.