Hon. Pierre J. Dalphond: Honourable senators, I urge you to support this motion whose purpose is twofold: First, to serve as a reminder that despite the commitment made in 1982 to have a fully bilingual Constitution, in accordance with section 55 of the Constitution Act, 1982, to this day 22 of the 31 texts forming the Constitution of Canada are official in English only, including most of the Constitution Act, 1867; second, to call on the government to include, in the context of the review of the Official Languages Act, the obligation to periodically report back on the efforts made to implement section 55 and the constitutional commitment made almost 40 years ago.

With its Bill 96 to amend the Charter of the French Language, the National Assembly of Quebec is preparing to propose that two provisions be added to the Constitution Act, 1867, to affirm that French is the official language of the Quebec nation and the common language of Quebecers. In the recent election campaign, all federal parties promised to support this bilateral constitutional amendment.

At the same time, the government made a commitment in the Throne Speech to table a bill to modernize the Official Languages Act in order to reaffirm the importance of French in Canada and to promote its use.

While the status of French is becoming an issue of concern, both in Parliament and at the Quebec National Assembly, we keep forgetting that although our country’s official languages are French and English, there is still no official French version of the Constitution Act, 1867. The majority of the founding document, an imperial statute adopted by the Westminster Parliament, is only legally valid in English. Canada is probably the only country in the world that claims bilingual status but has a Constitution essentially written in just one of its official languages.

It is even more surprising that this is the case in 2021, since section 55 of the Constitution Act, 1982, states the following:

A French version of the portions of the Constitution of Canada referred to in the schedule shall be prepared by the Minister of Justice of Canada as expeditiously as possible and, when any portion thereof sufficient to warrant action being taken has been so prepared, it shall be put forward for enactment by proclamation issued by the Governor General under the Great Seal of Canada pursuant to the procedure then applicable to an amendment of the same provisions of the Constitution of Canada.

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[English]

As you know, our Constitution is made principally of the Constitution Act, 1867, often called the British North America Act, or the BNA Act, and is complemented by 30 other pieces of legislation, including acts to officially add the colonies of Prince Edward Island, British Columbia and Newfoundland to Confederation.

While eight of these additional texts, including federal statutes creating new provinces, including Manitoba, Alberta and Saskatchewan, were adopted in both official languages, to this day, 22 constitutional documents remain official in English only, including, as I said previously, most of the Constitution Act, 1867, the foundational text of our federation.

While French-speaking Canadians have the constitutional right to rely on the French text of all ordinary federal statutes, they lack the means to exercise this fundamental right in regard to nearly all of Canada’s constitutional texts, despite the country being officially bilingual since 1968.

During the patriation of the Constitution in 1982, following the Quebec referendum, two things were promised to rectify this situation, which was no longer acceptable, with the adoption of section 55 of the Constitution Act, 1982: first, a constitutional obligation for the Minister of Justice to have the French version of all texts that are part of the Constitution drafted as soon as possible; and second, the obligation of the governments of the country to take the necessary steps for the coming into force of these French texts as soon as available.

[Translation]

In 1984, the Honourable Donald Johnston, Canada’s justice minister, created the constitutional drafting committee to draft the French text of the Constitution. The committee was made up of distinguished jurists, including Senator Gérald Beaudoin, former Supreme Court of Canada justice Louis-Philippe Pigeon, Robert Décary, who was later appointed to the Federal Court of Appeal, and Gil Rémillard, who later became Quebec’s justice minister.

In 1990, the committee submitted its final report to the Minister of Justice, the Honourable Kim Campbell, who then tabled it in the House of Commons and the Senate in December 1990. That fulfilled the first institutional obligation in section 55. Unfortunately, the second obligation is a whole different story.

Over the next seven years, governments took no concrete action to adopt the French versions of the constitutional texts. It wasn’t until April 1997, a little more than a year after Quebec’s second referendum, that the Right Honourable Jean Chrétien’s federal government invited the Government of Quebec to start talking about fulfilling the second obligation. The provincial government, under the Honourable Lucien Bouchard at the time, declined the offer.

In April 1998, the federal Department of Justice again contacted the Government of Quebec to advise it that Prince Edward Island, New Brunswick and Saskatchewan had indicated that the French texts were acceptable to them and that other provinces were awaiting approval from Quebec and Ontario before giving their final response.

This request was ignored by Quebec City, and no one in Ottawa seemed to want to restart the process that would have finally led to an official French version of the country’s most important law, the Constitution Act, 1867.

Accordingly, nearly 40 years after the solemn commitment made in 1982 and 30 years after the tabling of the French versions of some of the texts, we still don’t have a French version of the founding text of the country, on the grounds that an adoption of the whole text requires, in accordance with the amendment procedure put in place in 1982 at the time of the repatriation of the Constitution, a resolution passed by both houses of Parliament and a majority of the provinces representing more than 50 per cent of Canada’s population, or, according to some, perhaps even unanimity among the provinces.

[English]

As the Commissioner of Official Languages, Mr. Raymond Théberge, explained in his appearance before the Standing Senate Committee on Official Languages last June, in response to a question from Senator Bovey:

The timeline is in the hands of the Minister of Justice and the Attorneys General across the country. In order to do that, we have to bring the provinces around the table so that they can agree.

Mr. Théberge also said that:

The work still has to be done. It is up to the federal government to bring people around the table from the other provinces and territories to do this.

[Translation]

Fearing the risks involved in starting such a process, successive Conservative and Liberal governments have done nothing for over 20 years to ensure that Canada has a bilingual Constitution. They nevertheless have recognized that Quebec is a distinct society, a nation, that the Acadian nation is important, and that the government wants to promote the use of French across Canada, especially in regions where many francophones live.

Because Canadian governments have shown such a lack of appetite to use an amendment process that yet would change nothing in terms of the division of powers, the structure of the federation and its institutions, these governments have clearly neglected their constitutional obligation set out in section 55 of the Constitution Act, 1982.

It is of course a travesty that Canada does not have a bilingual Constitution that reflects a fundamental characteristic of our country, but there are also practical implications. In an October 2018 report entitled Access to Justice in French and English in the Context of Modernizing the Official Languages Act, the Canadian Bar Association stated the following:

The absence of an official French version has practical implications for the development of law and devalues French-speaking jurists’ and litigants’ participation in discussions on the interpretation of our society’s most fundamental legal texts.

Honourable senators, it would be an understatement to say that not having an official French version of our Constitution, despite the constitutional obligation under section 55, is a source of embarrassment, particularly for federalists living in Quebec; it is also evidence of a lack of political leadership. I am not the first person to point this out, but I am doing so today in a very specific context. As indicated in the Speech from the Throne, the government plans to modernize the Official Languages Act to strengthen the use of French in Quebec, in Acadia and elsewhere in the country.

As the government works on drafting the proposals it intends to table in the other place in the near future, I would like to see this chamber invite it to include a provision requiring reports to Parliament every five years outlining efforts made to finally ensure compliance with section 55 of the Constitution Act, 1982. Incorporating this provision into the Official Languages Act would ensure that the government’s efforts are periodically shared with the public and would remind other governments in this country of their constitutional obligation to complete this woefully incomplete part of the repatriation of the Constitution. As the Canadian Bar Association explained in its report, the addition of a requirement to report every five years would contribute to the accountability of all the stakeholders whose participation is essential to making the applicable constitutional amendment procedure work.

As a final point, I would like to highlight another initiative taken to remind the government of its obligation to remedy the unilingualism of the Constitution of Canada. In August 2019, Senator Serge Joyal, our former colleague, together with Professor François Larocque of the University of Ottawa, filed an application for a declaratory judgment and judicial review before the Quebec Superior Court.

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The purpose of this process is to have the federal government initiate talks on the accuracy of the French version of the text as soon as possible with the provinces whose approval is required, in accordance with the applicable procedure for amending the Constitution.

In closing, honourable senators, I invite you, by means of this motion, to call on the government to do what is required to ensure that the constitutional rights of the francophones of the country are fully respected.

Thank you, meegwetch.