The Promise of Canada’s Declaration of Official Languages

Section 16 marks a departure from the philosophy governing language provisions in the Canadian Constitution prior to 1982. Neither the Constitution Act, 1867 nor the other constitutional instruments addressed Canada’s official language status.⁷ It was not until 1969, with the adoption of the federal Official Languages Act,⁸ that official language status was granted to French and English in matters related to the authority of Parliament. Because of the constitutional limitations on the jurisdiction of the federal government, the Official Languages Act 1969 provided a delimited number of language rights and protections in matters under federal jurisdiction. Until 1982, Canada did not have – at either the legislative or constitutional level – an overarching statement of principle with respect to French and English.

By promoting a general commitment to official bilingualism – rather than to some of its features (as found in section 133 of the Constitution Act, 1867⁹) – to the constitutional level, the image of Canada was re-constituted and affirmed as a bilingual country in 1982. The importance attached toPage 247 this new status, and to the other language provisions that follow section 16, can be perceived from the relationship of the language provisions of the Charter to the notwithstanding clause¹⁰ and the amendment formula.¹¹ First, the legislature may not legislate «notwithstanding» the language rights guaranteed by the Charter as sections 16 to 23 are excluded from the scope of section 33.¹² Second, the consent of Parliament and the legislative assembly of every province is required for any amendment respecting «the use of the English or the French language».¹³ By requiring unanimity among Canada’s legislatures before subsection 16(1) can be amended, the affirmation of Canada’s official languages and their equality of status can be understood as contributing to and promoting pan-Canadian identity.¹⁴ The statement of principle in section 16 is that all Canadians may look to the federal authority, everywhere in Canada, as respecting and promoting bilingualism. Reference must also be made to section 43 of the Constitution Act, 1982, which permits a province – with the consent of Parliament – constitutionally to affirm itself officially bilingual; New Brunswick did so in 1982.¹⁵ Despite the importance of section 16 and the other language rights of the Charter, the Supreme Court did not immediately endorse an important role for language at the constitutional level.

The Supreme Court’s first interpretation of section 16 was undertaken in the light of an understanding of political negotiation and compromisePage 248 that mandated a restrictive and narrow role for the judiciary, which it confused for a restrictive and narrow role for language rights.¹⁶

The affirmation that the language provisions of the Charter are the fruit of political compromise is either a statement so obvious that it needs no mention¹⁷ or, as was the case, an unjustified basis for denying the political promise contained in the language guarantees of the Charter.¹⁸ For the Supreme Court, language rights were distinct in kind from so-called «universal» rights and therefore warranted a more restrictive interpretation; their growth was for the political process and not a proper subject of judicial interpretation. Relying on the «public knowledge that some provinces other than New Brunswick – and apart from Quebec and Manitoba – were expected ultimately to opt into the constitutional scheme or part of the constitutional scheme prescribed by ss. 16 to 22 of the Charter», Beetz J. in Société des Acadiens reasoned that if the provinces «were told that the scheme provided by ss. 16 to 22 of the Charter was [interpreted by the courts to be] inherently dynamic and progressive», they would have «no means to know with relative precision what it was that they were opting into».¹⁹

This approach was disingenuous. First, reading down the scope and significance of the Charter’s language rights in the name of maintaining the role of the political process denied language rights their priority and importance in the legal landscape of Canada. As we will review below, an expansive understanding of constitutional rights need not be equated with an expansive role for the judiciary. Moreover, a restrictive interpretation of language rights is contrary to the claim – sustained by the fact the language rights are withdrawn from the notwithstanding clause of the Charter and are not subject to the general constitutional amendment formula – that this is one negotiated political compromise that was not in-Page 249tended to be open to re-negotiation through the political process in the short-to mid-term.²⁰

Second, a concern for the «relative precision» of Charter rights has not had currency in justifying a narrow constitutional interpretation of other Charter rights. Consider, for example, the «dynamic and progressive» interpretation given by the Supreme Court to section 7’s «principles of fundamental justice».²¹

Third and most importantly, the narrow approach to language rights promoted by Beetz J. disappointed the people of Canada and New Brunswick who had opted in. It violated their expectations that the language rights of the Charter would be «a fundamental tool for the preservation and protection of [the] official language communities»²² of Canada and New Brunswick. It is regretful that the Supreme Court in Société des Acadiens did not pay greater heed to the reflection of Dickson C.J., dissenting in that case, that section 16 «provides a strong indicator of the purpose of the language guarantees in the Charter»:²³ namely, a manifest commitment by the governments of Canada and New Brunswick to official bilingualism and equality of status within their jurisdictions.

In the light of this first interpretation of section 16 by the Supreme Court – an interpretation that remained in favour until 1999 – one was led to conclude with Huppé that if Canada’s official languages gained anything by being positioned in the Charter «c’est bien la certitude de ne devoir demeurer désormais que cet absolu qu’on enchâsse par idéalisme mais qui s’évanouit lorsqu’on légifère.»²⁴ It is this gulf between the promise of section 16 and its actualization on which this paper focuses.

Almost twenty years after Société des Acadiens, the Supreme Court accepted that it had erred in its approach to language rights. It recognized that constitutional negotiations are in essence about compromise and yet,Page 250 «that does not render them unprincipled».²⁵ Matters as important to Canadian identity as official bilingualism warrant respect and command attachment. To this end, the Court, legislatures, and Canadians have all understood language rights as a part of the Canadian constitutional culture devoted to protecting minorities,²⁶ as a special instantiation of equality,²⁷ and as promoting the personal autonomy of the individual, «dont le plein épanouissement passe par son nécessaire enracinement dans une communauté culturelle et linguistique particulière.»²⁸ Hence, even if section 16 is acknowledged to be the fruit of political compromise, the reason for this compromise must be fully appreciated. As Foucher comments:

il n’y a pas lieu de comparer le compromis de 1867 avec celui de 1982, car les circonstances donnant lieu à ce compromis ne sont pas les mêmes. En 1867, le Canada n’avait pas adopté de loi sur les langues officielles, le Nouveau-Brunswick n’avait pas de loi sur l’égalité des communautés linguistiques, le Manitoba n’avait pas agi en violation de l’article 23 de sa loi constitutive pendant près de cent ans; on ne savait pas encore que l’article 93 de la Loi constitutionnelle de 1867 ne protégeait pas les droits linguistiques.²⁹

Section 16 and the other language provisions must be interpreted as contributing to the remedying of past injustices. This frame of reference for interpretation was extended early on to section 23 minority language rights³⁰ but not to sections 16 to 20.³¹

Beyond the recognition of the importance of the commitment to official languages undertaken through political compromise, sections 16, 20, and 23 are important indicators of a shift in the constitutional consideration given to language with the Charter. Unlike sections 17, 18, and 19 which were inspired by section 133 of the Constitution Act, 1867, sectionsPage 251 16, 20 and 23 were new to the Constitution. They reflected a shift in the importance of language. Unfortunately, the similarity between section 133 and sections 17 to 19 led the Supreme Court to overlook the important difference in context in which these two sets of language guarantees find themselves. Critically, section 133 was alone in the Constitution Act, 1867 in speaking to language rights whereas sections 17 to 19 are encompassed under the Charter’s heading «Official Languages of Canada». Ignoring these important differences, the Supreme Court concluded that the interpretation to be given to sections 17 to 19 ought to be the same as that given to section 133 of the Constitution Act, 1867.³² The following statement from the Supreme Court in MacDonald illustrates why this approach is erroneous:

Section 133 has not introduced a comprehensive scheme or system of official bilingualism, even potentially, but a limited form of compulsory bilingualism at the legislative level, combined with an even more limited form of optional unilingualism at the option of the speaker in Parliamentary debates and at the option of the speaker, writer or issuer in judicial proceedings or processes.

[...]

This incomplete but precise scheme is a constitutional minimum which resulted from a historical compromise arrived at by the founding people who agreed upon the terms of the federal union.³³

This dicta suggests that if the Constitution Act, 1867 included a «comprehensive scheme» or a general affirmation of official bilingualism, a different interpretation would be mandated. In such a case, the guarantees in section 133 of the Constitution Act, 1867 would have been read, not as particular and delimited rights shy of a comprehensive policy of official bilingualism, but rather as features of a more general policy of official bilingualism and language equality.³⁴ This, to my mind, is how the language rights of the Charter ought to be approached. Given that sections 17 to 19 of the Charter followPage 252 section 16’s affirmation of official bilingualism, their interpretation ought to differ from the interpretation given to section 133. The affirmation of official bilingualism and equality of the French and English languages in section 16 must be appreciated as correcting the lacunae of the Constitution’s language provisions and as mandating an interpretation of sections 17 to 19 that is more robust than the interpretation accorded to section 133. In this light, I follow Huppé when he reasons: «Si l’effet de l’article 16 se borne à servir d’écho à ce que proclame l’article 133, il devient inutile, puisque cette dernière disposition jouissait déjà du statut protégé de norme constitutionnelle. Le législateur, et à plus forte raison le constituant, ne parle pas pour rien dire».³⁵ The interpretation given to sections 17 to 19 in the light of section 133 of the Constitution Act, 1867 must be revisited on this account.³⁶

Moreover, as is argued below, the promise of section 16 requires that we read sections 17 to 23 as though the words «for greater certainty» prefaced them; in other words, sections 17 to 23 specify some – and only some – of the features of section 16. Assuming that the constituent authorities were familiar with the reasoning advanced in MacDonald, the decision constitutionally to affirm «English and French are the official languages of Canada» in unqualified language suggests that section 16 should play a role not only in endorsing a constitutional policy of official bilingualism, but more importantly – and critically – in promoting it beyond the topical guarantees that follow in sections 17 to 23.

It is undeniably true that Canada’s language rights are the product of political negotiation and compromise. In this respect, they are distinctly Canadian. Yet, this should not arouse our surprise. As F.R. Scott, member of the Royal Commission on Bilingualism and Biculturalism, commented: «every country that has a language problem, attempts to solve it in its own way. There are no universal rules, except perhaps the rule that language rights must be respected if you are to have domestic peace.»³⁷ The distinc-Page 253tive character of our language rights should not counsel us to read them as less deserving than «universal» rights; we must embrace Canadian language rights à la canadienne; as our response to our situation.

Under this heading, it is argued that section 16 of the Charter, being the first section under the heading «Official Languages of Canada», has a residual character and mandates an expansive reading of the language provisions that follow it.³⁸ I will maintain that sections 17 to 23 are illustrations of the principle of official bilingualism encapsulated in section 16 and that the scope and intensity of section 16 is not exhausted by sections 17 to 23.

We must begin by recognizing that affirming two languages as official languages leaves underspecified what consequences follow. There is no obvious specification of language rights; sections 16 and following are distinctively Canadian responses to the call for language rights. However, even if the constitutional affirmation of official bilingualism does not comprehensively determine what policies (constitutional or legislative) ought to follow, it is nonetheless erroneous to maintain that no policies are man-Page 254dated or required.³⁹ It should be an obvious point that official bilingualism ought to mean something; we should not presume the Constitution to speak in silence. In teasing out the questions that official bilingualism ought to direct us to ask, we may be guided by the reflections of Patten and Kymlicka who survey «a number of different domains in which language policy choices get made»:⁴⁰

• The use of language in the internal workings of the public service, both with respect to communication between employees and between officials and employees;

• The use of language in the offering and communication of public services by the government to the public;

• The use of language before the courts;

• The use of language in the legislative assembly;

• The language of education;

• Private language use;

• The consideration given to language in matters of immigration and naturalization;

• The consideration given to language in enlarging the State.

Though Patten and Kymlicka do not specifically address the question of the language of legislation, this also forms part of a language policy as does, in a vague sense, the image of the State (see Part II, heading B).

Patten and Kymlicka also list «official language declarations» as a domain of language policy, stating that such declarations «typically have both a substantive and a symbolic aspect.»⁴¹ Without denying the great symbolic importance of section 16, my focus in this part is on the substantive aspect of the affirmation of official languages in section 16. My con-Page 255tention is that declaring a language to be official – as section 16 does for French and English – creates the presumption that the State has a duty (and, correspondingly, the citizen has a right against the State) to articulate a language policy with respect to each of the domains identified by Patten and Kymlicka. This is a «presumption» rather than an «imperative» because other considerations may counter it.⁴² A brief review of sections 17 to 23 will illustrate that the Charter addresses many of the domains surveyed by Patten and Kymlicka, though some are left to the residual character of section 16.

Section 17⁴³ addresses the language policy in the proceedings of Parliament and section 18⁴⁴ does so with respect to the inner workings and enactments of Parliament. Section 19⁴⁵ addresses the use of language in courts established by Parliament and section 20⁴⁶ addresses communications by the public with federal institutions. The language policy of public education is outlined in section 23. Although Patten and Kymlicka do not identify the use of language in the public service as a domain in which language policy choices get made, in Part II, heading D, I argue that the right to work in the official language of choice is guaranteed by the affirmation of equality of status in subsection 16(1). As to private language use and immigration, naturalization, and State enlargement, the Charter contains no specific language provisions on point. It is my contention that section 16 must be interpreted to extend to these considerations. Indeed, Canada’s legislative policies extend to these topics: let us consider the bilingualismPage 256 requirements incumbent on the private airline Air Canada⁴⁷ (private language use) and the consideration given to knowledge of official languages in immigration applications (immigration and naturalization)⁴⁸.⁴⁹

What, then, is the relationship of section 16 to the language sections that follow it? Beyond the role of section 16 in interpreting sections 17 to 23 (see heading A, above), I contend that section 16 serves two residual functions: it can increase the scope of the constitutional consequences of official bilingualism and it can increase the intensity of specified obligations under official bilingualism. The distinction between scope and intensity may be easy to discern in some cases: for example, increasing the requirements of official bilingualism to the workings of the Royal Canadian Mounted Police (the federal police force) in all its operations, even when asked to enforce provincial law, is a question of scope,⁵⁰ whereas narrowly reading the limitations in section 20 so as to increase the instances of official bilingualism in communications with the public is a question of intensity. In other cases, the distinction between scope and intensity will be more difficult to discern: for example, is extending to regulations the obligation to enact statutes in both French and English better understood as expanding the scope of legislative bilingualism to the executive or as increasing the intensity of bilingualism for matters falling under the legislative authority of Parliament?⁵¹

Focusing here on scope, section 16 can play a role where the other language provisions of the Charter are silent. To my mind, section 16 extends Parliament’s obligations for official bilingualism in debates and proceedings (section 17) to ensuring simultaneous translation so that all Members of Parliament can be understood in their official language choice.⁵² It furthermore requires that where Parliament’s debates and proceedings are broadcast to the public, they are available in both official languages.⁵³ Likewise, the federal government prints and publishes much more than Par-Page 257liament’s «statutes, records and journals» (section 18); all official government publications should be available in both official languages.⁵⁴ Moreover, as the Supreme Court has recognized, all legislation (including regulations) must be enacted, rather than merely printed and published, in both official languages.⁵⁵ To translate an enactment from English to French (or vice versa) is to deny the equality of status of English and French throughout the stages of adopting a bill, including the first, second, and third readings and the study of a bill in committee. The right to «use» either English or French in a court established by Parliament (section 19) must, in the name of official bilingualism, be extended to the right of an accused to receive disclosure in the official language of choice.⁵⁶ Furthermore, section 16 should be read as creating a duty on the State to communicate a summons in both official languages.⁵⁷

Focusing now on intensity, limitations of «significant demand» and «nature of the office» to the right to communicate with federal institutions (section 20) ought to be interpreted in a manner that promotes official bilingualism.⁵⁸ The presumption must be in favour of bilingual services given the statement of equality of French and English in section 16. Government ought to demonstrate both the absence of a sufficient demand and that the nature of the office are such that it would not be unreasonable to withhold bilingual services before doing so.⁵⁹ Moreover, in furtherance of the presumption in favour of bilingual services, the government should only be heard to offer a justification for non-bilingual services after a period of «active offer» of bilingual services.⁶⁰ Citizens should bear no burden of proof:Page 258 the presumption of bilingual services is in their favour. What is more, I maintain that the principle of equality in subsection 16(1) requires that there be a minimum of bilingual services in all federal institutions, such that no Canadian ought to be told that communicating in the other official language is the only way to receive services. Federal offices with full bilingual services ought to coordinate with less bilingual offices so that the delay in responding to the query of a Canadian ought to be the only significant difference between a fully bilingual office and one that is not.

These are but some examples of the residual role that section 16 should be understood to play. To those that would argue that this interpretation subverts the specificity of sections 17 to 23, we must respond that section 16 is too general to justify reading it as though it was limited to no more than the features of official bilingualism that follow it in sections 17 to 23.⁶¹ To this end, I cannot agree with Woehrling and Tremblay that «la déclaration formelle du statut de langue officielle n’ajoutera rien, comme tel, aux dispositions prévoyant de façon spécifique les conséquences de ce statut en termes de droits pour les individus et d’obligations corrélatives pour la puissance publique».⁶² Rather, sections 17 to 23 do not close the categories of activity (the sites) to be covered, nor do they exhaust the procedural and structural possibilities for achieving the goals of section 16 (the modes). That is, the modes and sites of section 16 are as expansible as technology permits us to communicate in multiple ways (modes) and as the changing roles of government permit it to pursue its objectives with new institutions and tools of governance (sites).

Section 16 does not permit us to interpret the language provisions of the Charter as though they were specific instances of an incomplete language policy. It requires that all constitutional language provisions be read as promoting a comprehensive constitutional policy of official bilingualism. In this respect, the «watertight compartments» approach developed in some Courts of Appeal must be rejected.⁶³ It ought not to follow that because the issuance of a speeding ticket is part of a «court proceeding» andPage 259 therefore falls under section 19, it cannot equally be considered a «service to the public» under section 20.⁶⁴ This is not to say that the issuance of a speeding ticket is a «service to the public» under section 20; however, this question ought to be determined on its merits. Rather than avoid conflict by defining rights narrowly, we should embrace an expansive interpretation of all language rights and see to it that conflicts are resolved in the spirit of official bilingualism and – taking our direction from subsection 16(3) – in favour of what would «advance the equality of status or use of English and French».⁶⁵

Before turning to Part II, it is important to highlight that the interpretation of section 16 that is here endorsed is not innovative: Parliament’s Official Languages Act 1988 guarantees much of what has been outlined above. I suggest that Parliament’s Act represents a generous and correct interpretation of the Charter’s official bilingualism. We must not forget that the Supreme Court holds no monopoly in interpreting the Constitution; indeed, Parliament has positioned itself as a more aggressive defender of language rights than the Supreme Court.

There are two schools of thought with respect to the role of section 16.⁶⁶ The first understands the section as an abstract, preamble-like provision which articulates an objective or general goal, the parameters of which are exhausted by the sections that follow it. The second understands the section as a fundamental and autonomous principle in the constitutional affirmation of official bilingualism. I favour the second understanding and view section 16 as the heart of the Charter’s official language guarantees. To demonstrate why this understanding is the correct one, I will challenge the arguments in favour of the first school of thought and make out a case in favour of the alternative understanding. Under heading B, C, and D, I review some possible consequences of adopting this approach.

The argument limiting subsection 16(1) to being no more than a declaration of principle focuses principally on its wording. Three principal arguments are relied on in support of the view that official bilingualism is a statement of principle without mandatory force: the absence of a specified right-holder; the indeterminacy of the features of official bilingualism; and the role of the judiciary. I will review these arguments in turn and explain why a different approach is required for section 16(1) of the Charter.

Absence of a specified right-holder. Subsection 16(1) speaks not of a right-holder as such, but affirms the status, rights, and privileges of the English and French languages. Though this formulation differs from the formulation of fundamental freedoms («Everyone»), the right to vote and mobility rights («Every citizen of Canada»), legal rights («Everyone», «Any person charged», «A party or witness»), equality rights («Every individual»), and minority language educational rights («Citizens of Canada»), it is not foreign to constitutional rights in Canada. The very guarantee of all rights and freedoms in the Constitution Act, 1982 is formulated in the affirmative (section 1: «The Canadian Charter of Rights and Freedoms guarantees ...»), the sitting of Parliament is written in the imperative (section 5: «There shall be a sitting of Parliament»), and aboriginal and treaty rights are «recognized and affirmed» (section 35). In short, the absence of a specified right-holder in subsection 16(1) should not lead one to conclude that the section is merely declaratory. Though there may be difficulties with respect to standing (for example, do I act «in right of the French language» when I claim that the sta-Page 261tus of French in a given institution is unequal to that of English?), these difficulties are not dissimilar to those that face courts with respect to the other constitutional rights listed above or in cases of public interest standing.⁶⁷ Under heading C, it is argued that the absence of reference to «Anglophones» and «Francophones» or «English-Canadians» and «French-Canadians» could be understood as a decision by the drafters of the Charter to encompass all Canadians, i.e. making Canada’s duality linguistic rather than cultural.⁶⁸ In sum, so long as it is recognized that section 16 imposes a duty on the State, the corresponding beneficiary of that duty – the right-holder – should not be denied the recognition of the constitutional force of language rights.

Indeterminacy of consequences. Above, we distinguished indeterminate consequences from the absence of consequences (Part I, heading B). Although the affirmation of official bilingualism does not specify, in and of itself, what is entailed, it does not follow that nothing is entailed. The courts may, rightly, be hesitant to specify the features of official bilingualism. Yet, judicial restraint must be distinguished from narrow constitutional interpretation. Indeed, I take Parliament’s Official Languages Act 1988 as an instantiation of the legislature’s responsibility to interpret the Constitution and to specify the meaning of sections 16 and following of the Charter.

Institutional considerations. The courts’ concern for the importance of the political process in the exposition of official bilingualism should be embraced. It is true that «the legitimacy of the policy on official bilingualism is contingent upon the quality of the public deliberations that produce it»,⁶⁹ and in this light, courts should articulate remedies that promote public deliberation and political responsibility and that avoid determining the outcomes of such political engagement. The role of the courts under the Constitution ought not to be confused with the scope of the Constitution itself, such that a court’s unwillingness to participate in an area of legal debate (for reasons of competence or other) implies that constitutional guarantees relevant to that area are narrowly construed. Rather, an appropriate way to reconcile a generous interpretation of language rights with a limited judicial role is for a court to make a declaration that the govern-Page 262ment is constitutionally responsible for specifying the features of a comprehensive language policy.

Having reviewed the arguments in favour of reading section 16 as merely declaratory and having articulated a case in favour of reading it as mandatory, I now turn to consider the consequences of reading subsection 16(1) as mandatory.

Thus far, I have referred to the affirmation of official languages and equality of status in subsection 16(1) without speaking to how they interact, except that they work in concert in informing the philosophy of section 16 and the interpretation of the Charter’s language provisions. Under this heading, I maintain that both halves of section 16 work in concert, while proposing that the reference to official languages be read as separate from the reference to equality of status. My aim is to demonstrate that the reference to «Canada» in the first half of subsection 16(1) should be given a wider meaning than the reference to «institutions of the Parliament and government of Canada» in the second half. This argument requires that we compare both official language versions of subsection 16(1) of the Charter:⁷⁰

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.

Le français et l’anglais sont les langues officielles du Canada; ils ont un statut et des droits et privilèges égaux quant à leur usage dans les institutions du Parlement et du gouvernement du Canada.

This subsection contains two verbs («are» and «have»; «sont» and «ont») that predicate two separate objects («official languages» and «equality of status and equal rights and privileges»; «langues officielles» and «statut et [...] droits et privilèges égaux»), which in turn are given individual scope by two distinct prepositional phrases («of Canada» and «in all institutions of the Parliament and government of Canada»; «du Canada» and «dans les institutions du Parlement et du gouvernement du Canada»).

The English version of subsection 16(1) uses the conjunction «and»; the French version divides the first half from the second with a semi-colon.Page 263 Both «and» and the semi-colon function grammatically to compound what could otherwise be two independent sentences. In neither case is a relative clause employed (i.e. «which have» or «qui ont») to indicate subordination between the statements. The separation between both halves is made especially clear in the French version which even repeats the subject («ils»), making the semi-colon grammatically transposable with a period, so that the English version of subsection 16(1) could equally be stated as:

English and French are the official languages of Canada. They have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

Subsection 16(1) could have been drafted to read: «English and French are the official languages 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 would have made clear that the official languages affirmation operated only with respect to the «institutions of the Parliament and government of Canada». Alternatively, the constituent authorities could have specified «Canada» to mean only Parliament and government of Canada; an obvious example was before them. Section 2 of the Official Languages Act 1969 provides:

The English and French languages are the official languages of Canada for all purposes of the Parliament and Gov-ernment of Canada, and possess and enjoy equality of status and equal rights and privileges as to their use in all the institutions of the Parliament and Government of Canada. [Emphasis added]

L’anglais et le français sont les langues officielles du Canada pour tout ce qui relève du Parlement et du gouver-nement du Canada; elles ont un statut, des droits et des privilèges égaux quant à leur emploi dans toutes les institutions du Parlement et du gouvernement du Canada. [Je souligne]

In this case, the section limits the scope of «Canada» to Parliament and the Government of Canada. Section 16 does not so limit the scope of «Canada».

Many resist reading «Canada» more broadly than the «institutions of the Parliament and government of Canada». Some assume that it is limited to the federal authorities without explaining why this should be so,⁷¹ whilstPage 264 others, recognizing the difference in formulation between section 2 of the Official Languages Act 1969 and subsection 16(1) of the Charter, nonetheless conclude that the latter provision ought to be read as though the words «for all purposes of the Parliament and Government of Canada» followed «Canada».⁷² In what follows, I outline what would be some consequences of reading «Canada» more broadly. But first, a brief word on the meaning of the expression «institutions of the Parliament and government of Canada» in section 16.

It is no understatement that «institutions» is a difficult juristic concept.⁷³ The expression «institutions of the Parliament and government of Canada» is used in sections 16 and 20, whereas the expressions «Parliament» (sections 17 and 18) and «court established by Parliament» (section 19) are used in other language provisions. Unlike paragraph 32(1)(a) («Application of the Charter») which refers to the «Parliament and government of Canada»,⁷⁴ the expression «institutions of the Parliament and government of Canada» in sections 16 and 20 has not received much judicial attention.⁷⁵ I propose to read the reference to «institutions» as specifying that the obligation of linguistic equality is primarily one of institutional, rather than personal, responsibility. This interpretation overcomes the restrictive interpretation adopted by the Supreme Court in 1986, which focussed on conflicts between the rights of individuals.⁷⁶ By interpreting language rights as the right of a speaker to not be interfered with in language choice and extending this right to all potential speakers, the Court rea-Page 265soned that one speaker could not seek to impose on another speaker a language choice. In other words, the Court reasoned that language rights permitted speakers to speak but not to be understood. Alternatively, by focussing on the obligation of the «institution» to be bilingual, this conflict largely dissipates: «[i]nstitutional bilingualism is achieved when rights are granted to the public and corresponding obligations are imposed on institutions [...]. No rights are given as such to institutions.»⁷⁷ To this end, sections 16 and 20 require that institutions be structured so as to satisfy the requirements of official bilingualism and the equality of French and English.

Given the partial overlap between subsection 16(1) and section 32, the jurisprudence under section 32 will assist in determining the application of subsection 16(1), especially with respect to the delegation of government functions.⁷⁸ By way of illustration, federal departments, governmental bodies, administrative bodies, Crown corporations, the R.C.M.P., Canada Post, and – more controversially – the Territories are all subject to subsection 16(1).⁷⁹ The relevant question is not what form institutions traditionally assume, but rather what governance functions ought to be assumed by government institutions. A willingness to approach the question outside the paradigm of institutional form has guided the Court in some of its section 32 interpretations.⁸⁰ It should also guide the interpretation of section 16.⁸¹

How, then, is «Canada» to be interpreted if it is to be read more broadly than «institutions of the Parliament and government of Canada»? It must first be acknowledged that «Canada» is not to be read as including the provincial authorities, as subsection 16(2) of the Charter («Official languages of New Brunswick») and the simplified amendment procedure atPage 266 section 43 of the Constitution Act, 1982 make clear. The following discussion of the meaning of «Canada» seeks only to set the groundwork for a more complete answer.

Office of the Governor General of Canada and of the Prime Minister of Canada. In her parliamentary capacity, the Governor General of Canada part of the «institution of the Parliament» as that expression is used in subsection 16(1).⁸² In addition, the Governor General, as an officer within the government of Canada, is part of «all institutions of the government of Canada». However, the Governor General is also the Canadian Head of State.⁸³ To employ the language of section 20, the «nature» of the Office representing the Head of State of Canada requires that it be officially bilingual. Similarly, the Office of the Prime Minister, as the head of the Canadian Federation, should also be officially bilingual.

The Seat of the Government of Canada. Ottawa is the national capital⁸⁴ and a matter of national concern.⁸⁵ The lack of bilingualism in the City of Ottawa is what F.R. Scott aptly recognized as «an anomaly that must be ended if the concept of equal partnership is to be given real as well as symbolic meaning.»⁸⁶ As the home of all Canadians, the national capital must fulfil the affirmation of official bilingualism in section 16.⁸⁷ Official bilingualism must cross jurisdictional boundaries and affect the status of the municipality of Ottawa. In the national capital, the State – municipal, provincial, and federal – should be a model of official bilingualism.

The Supreme Court of Canada. The language provisions of the Charter already speak to the Supreme Court of Canada. As a court established by Parliament,⁸⁸ «either English or French may be used by any person in, or in any pleading in or process issuing from» the Supreme Court. However, section 19 has not been interpreted by the Supreme Court as guaranteeingPage 267 the right to be understood. It is only through the door of natural justice that an interpreter is legally required.⁸⁹ Parliament, in 2002, corrected this narrow construction and modified the Official Languages Act 1988 to require that «every judge or other officer who hears [...] proceedings is able to understand [the official language or languages chosen by the parties] without the assistance of an interpreter».⁹⁰ Yet, the Official Languages Act 1988 expressly excludes the Supreme Court of Canada from this duty.⁹¹ At the apex of the Canadian judicial system as the final court of appeal in all matters, the Supreme Court is more than a «federal institution»; it is a Canadian institution. Parties ought to be entitled to address themselves, and to be understood directly, in their official language of choice. The use of an interpreter strikes at the status of the Supreme Court in a bilingual country. As explains Roderick Macdonald: «The reason why it is important to be able to argue before a court in one’s own language owes much to the rhetorical power of language. [...] If a judgment is the rhetorical act of convincing, its presentational elements are equally important. The process of argumentation in law is more than a process of rational justification; it is also a process of presentational dialogue.»⁹²

I contend that section 16 of the Charter renders unconstitutional the exception for the Supreme Court in the Official Languages Act 1988 and obliges the government to nominate judges able to understand parties in either official language or obliges the Court to hear cases in panels able to understand the parties directly. This conclusion is the only one consistent with the Supreme Court’s own affirmation that «where institutional bilingualism in the courts is provided for, it refers to equal access to services of equal quality for members of both official language communities in Canada.»⁹³

The Constitutional Courts of Canada. Section 96 courts, as they are commonly referred to, are the only courts provided for by the Canadian Constitution.⁹⁴ Other courts, be they courts of appeal, provincial courts, or the Federal Court of Canada, are authorized by the Constitution but arePage 268 not expressly created thereby.⁹⁵ I propose that section 96 courts be recognized as the courts of «Canada»,⁹⁶ despite being provincially-constituted courts the judges of which are appointed by the Governor General. Being the courts of Canada, section 96 courts have an obligation of institutional bilingualism. This would not impose many, if any, additional obligations on the judiciary given that an accused person already has the right to a trial in the official language of choice anywhere in Canada.⁹⁷ As such, section 96 courts are already institutionally structured to extend this right to all court proceedings.⁹⁸ Conscripted section 96 courts, such as the bankruptcy court, the divorce court, and the unified family court are no exception to the argument developed here. Further consideration should be given to whether this reasoning extends to the appointment of a section 96 judge to federal and provincial Royal Commissions and arbitration hearings, to take two examples.

Other Institutions of Canada. Following the admittedly vague idea of «Canadian institution» developed above, there are a number of institutions which, though they may properly be understood as «federal», are – by virtue of their importance to the Canadian State – equally understood as institutions of Canada. As such, they are included within the scope of subsection 16(1) despite not, or in addition to, being «institutions of the Parliament and government of Canada». Included within this list would be the Bank of Canada, the Canadian Armed Forces, and Foreign Diplomatic Offices. Taking the last example, Canadians abroad ought to be able to communicate with an Embassy or High Commission despite the fact that subsection 20(1) of the Charter is limited to «any member of the public in Canada».⁹⁹ Moreover, the activities of the State of Canada in the international arena must be conducted in the spirit of official bilingualism, as affirmed by the Parliament of Canada: «The Government of Canada shall take all possible measures to ensure that any treaty or convention betweenPage 269 Canada and one or more other states is authenticated in both official languages.»¹⁰⁰ To this end, Canada should insist that international arbitration to which it is a party be conducted in both French and English.

Returning to the domestic scene, entrepreneurs involved in public-private partnerships and franchisees exercising governmental functions could be included within the concept of a «Canadian institution» for the purposes of section 16.

These preliminary proposals as to how to read the reference to «Canada» in section 16 are not revolutionary. Many would require no more than conferring constitutional status on an on-going practice; others would offer constitutional incentive to political decisions that ought, but as of yet have failed, to be taken. I have not specified the modalities and specific consequences of extending the meaning of «Canada» in subsection 16(1) beyond «institutions of the Parliament and government of Canada». The argument for an official bilingualism policy having been presented, if accepted it would be incumbent on the relevant authorities to provide the features of such a policy. The courts, should they be called upon, could act as the reviewers of the justificatory reasons offered by these authorities for their choices in fulfilling their constitutional mandate. Instead of asking the courts to read the Constitution as though it contained a blueprint for a comprehensive policy of official bilingualism, we should read the Constitution as identifying the priority of official bilingualism and as requiring legislative authorities to articulate a policy. The role of the court, according to this understanding, is to evaluate the legislative reasons in justification of a policy choice, and not to substitute and to provide an alternative policy.¹⁰¹ To my mind, this approach would further acknowledge the structural force of Canada’s two languages on the political landscape of Canada.

Subsection 16(1) avoids the concepts of minority or majority. There is no qualifier of «significant demand», «reasonable» in the circumstances, or «where the number [...] so warrants» as found in sections 20 and 23 of the Charter. It is the French and English languages and not the French andPage 270 English linguistic communities that are posited as equal.¹⁰² No Canadian requires membership in an official language community in order to claim the rights guaranteed by sections 16 to 20. Moreover, it is not for the State to inquire as to the linguistic membership of the individual; from the State’s perspective, the individual may make use of either official language (or both of them).¹⁰³ As noted above, the duality of section 16 is linguistic, not cultural.

The equality of both official languages signifies a shift away from the framework of reasonable accommodation. As Bastarache J. explains in Beaulac, «the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation.»¹⁰⁴ In contrast to an approach that provides special accommodation to people who «lack sufficient proficiency in the normal language», the designation of certain languages as official «involves a degree of equality» between the official languages.¹⁰⁵ Unlike the special accommodations approach, a person is entitled to make use of and be understood when using either official language, irrespective of that person’s ability to speak the other official language. In this respect, the approach taken by the Supreme Court to the use of an official language in court proceedings is wrong: accommodating an official language through the use of an interpreter – rather than guaranteeing the right to be understood directly – denies that official language the full equality guaranteed by subsection 16(1).¹⁰⁶

The equality of Canada’s official languages is a status afforded to two languages over others in Canada; a «privilege» as that term is used in sec-Page 271tions 16, 21 and 22. In this respect, section 15¹⁰⁷ cannot be used to modify the status accorded to French and English, both because «all parts of the Constitution must be read together»¹⁰⁸ and, perhaps more importantly, because the language provisions of the Charter «could also be viewed not as an “exception” to equality guarantees but as their fulfilment in the case of linguistic minorities».¹⁰⁹

We now turn to consider a particular manifestation of equality in the institutions of the Parliament and government of Canada.

I share the view that subsection 16(1) confers on federal public servants the right to work in the official language of their choice.¹¹⁰ Though this right could be a derivative of the official language status accorded to French and English, it is clearly anchored in the «equality of status and equal rights and privileges» of both languages in all institutions of the Parliament and government of Canada. Because the federal public service cannot be considered part of «the public», subsection 20(1) does not ground this right.

Though a public servant has the right to work in the official language of choice irrespective of numbers, a critical mass of official language speakers is required to make real the right to work in either official language. Indeed, the right to work in French in the federal public service would be of little consequence if there was only one French-speaker. As a result, the right to work in an official language should require that both official languages have «equitable or proportional representa-Page 272tion».¹¹¹ To this end, the Official Languages Act 1988 provides that «work environments of the institution [should be] conducive to the effective use of both official languages».¹¹² It may be that in some regions of Canada, it will be difficult to establish a critical mass of official language workers. In these circumstances, it will fall on the State to justify the limitation of this right.¹¹³

The right to work in an official language is independent of the right of a member of the public to communicate with a federal institution in the official language of choice; nevertheless, there is a correlation between both rights. The right guaranteed in subsection 20(1) requires that federal institutions be bilingual to the extent required to communicate with the public in both official languages. Should a member of the public communicate with a federal institution in English and all the public servants of that institution choose to work in French, there is a conflict of rights. However, it is important to avoid viewing this conflict as it was presented by the Supreme Court in Société des Acadiens.¹¹⁴ The State must not be equated with its individual representatives; this could yield a conflict between the right of a member of the public under subsection 20(1) and the right of the public servant under subsection 16(1). Rather, once the conflict is understood as being between a member of the public and a State institution, it largely dissipates: the institution is under a duty to be bilingual, without requiring that every public servant that communicates with the public be bilingual. The resolution of this conflict of rights is partially addressed by ensuring that institutions communicating with the public have a critical mass of official language speakers.

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