The Official Languages Act: Canada’s Living Document

Originally published in TEACH Magazine, 50th Anniversary of the Official Languages Act Special Issue, 2019

By Carolyn Gruske

Canada is a very different country than it was in 1969 when the Official Languages Act was first enacted. That’s why some people are working to update the Act.

“The 50th anniversary of the Act is here. And with all the changes in our society—in terms of new technologies, in terms of demography, with all of the immigration and the changes that are happening in our communities across Canada—the point is after 50 years, it’s time to reinforce the Act,” says Senator René Cormier, chair of the Senate’s standing committee on official languages.

For the past two years, the Senate committee has been hearing testimony from Canadians across the country—including young Canadians who offered the first series of presentations—and looking at ways to strengthen and improve the legal rights and protections granted to French or English speakers, no matter where they live in the country.

Additionally, the federal department of Canadian Heritage, under Minister of Tourism, Official Languages and La Francophonie of Canada Mélanie Joly, is also undertaking efforts to study the modernization of the act, and has been accepting submissions from Canadians about how to best improve it.

The Senate hopes to have a report, including recommendations for future updates, ready by mid-2019. Senator Cormier wanted to have the report in the hands of Canadians before the next federal election, which took place October 21, 2019.

“There’s always a sensibility, politicians really are always a bit afraid of speaking about languages, because it means we speak about identity, it means we speak about our national unity,” says Cormier.

“The Official Languages Act was first created to make sure that Canada would stay Canada. In the 1960s, there was that tension between Quebec and the rest of Canada, and [the Act] was a way to bring Canada together and say, ‘this is our social contract.’ So that’s why this act is a quasi-constitutional act. It’s a very important act for Canadians. So, my personal hope is that I wish that [the Act] is going to be there in public conversation, going forward towards the next federal election.”

Stéphanie Chouinard, an assistant professor in political science at both Queen’s University and the Royal Military College of Canada, was one of the people to testify before the Senate committee. She says all the major federal political parties have expressed their support for updating the Act.

“When it comes to the modernization of the Official Languages Act, it’s a multi-partisan push. You have not only Mélanie Joly, you have Conservatives like Alupa Clarke, for example, speaking of the need to modernize the Official Languages Act. I think the promises may be different, depending on who you will be talking to during the electoral campaign, but I feel like all three major parties will probably have some form of promise on that front,” she says.

No matter what happens to the Act—whether it gets updated before the election, altered after the election, or left unchanged as other legislative initiatives take priority—the Act, as it exists in 2019 isn’t the same document that was created in 1969. In fact, the Official Languages Act has a history of revisions and updates.

“It’s a living document in many ways, because it needs to adapt to the evolving circumstances in Canadian society,” explains Linda Cardinal, a professor of political studies and the holder of the research chair in Canadian Francophonie and public policies at the University of Ottawa.

A new version of the Act was adopted in 1988, and then in 2005, parliament passed Bill S-3 which clarified the scope of Part VII of the Official Languages Act, so if an update were to be passed, it would be far from unprecedented.

Teaching about the act and its revisions is a difficult challenge for teachers at any level because the creation of the act had its foundations in practically the whole of Canadian history. As Chouinard explains, it’s helpful to understand that with the arrival of the Loyalists, “the linguistic make-up of what was to become Canada really started to shift because prior to that … Francophones were the majority at the time.”

Their arrival, and their desire to have a governing body that would use the common law tradition (that originated in England and is based on precedent, not written rules) and work in English (as opposed to public bodies operating in French and following the civil law tradition (which originated in France and is based on a comprehensive series of rules), which had been the typical practice since the Quebec Act of 1774) and events that followed, including the creation of the province of Upper Canada, the 1837-38 Rebellions, and the Lord Durham Report, all played a role in the creation of the 1867 British North America Act—the country’s first constitution. Even after that, issues of language continued to drive the politics of the country.

When Matthew Hayday, a history professor at the University of Guelph, teaches about the Act, he says that even though there is a deep history of language issues throughout the country’s history, he usually begins talking about the 1960s, discussing the Quiet Revolution and the 1963 Royal Commission on Bilingualism and Biculturalism (B & B Commission), established under Prime Minster Lester B. Pearson, because “there isn’t a sense of crisis that would actually prompt the federal government to take the action it does until the 1960s.”

He says that crisis, at least in part, comes down to Francophones feeling the federal government was failing them and not providing services to them in French, and the creation of the Official Languages Act was an effort to deal with that fallout.

“The purpose of the Act is to promote two official languages in the country, and the idea of providing a full array of federal services to English speakers and to French speakers in their own language. It’s not about making Canada a bilingual country where everybody speaks both English and French. Indeed, one of the key things that underpins the Official Languages Act is that it should be possible for French speakers who make up over one-quarter of the population of the country to live and get government services in their own language, without having to switch to English or learn English to do so,” says Hayday.

When viewing the history that led to creation of the Act, Robert J. Talbot, manager of research for Office of the Commissioner of Official Languages, says it’s important to emphasize how essential co-operation was to the process.

“One of the reasons why we have an Act is there has been a history of conflict. But we also need to talk about the examples of successful collaboration. Why does Canada still exist? Because we have found ways, with some difficulty, for English and French speakers to live together. The Official Languages Act is essential for that. It is central to making Canada as a political project possible,” he says.

Talbot adds that examples of co-operation exist throughout the country’s history, starting with Louis-Hippolyte LaFontaine and Robert Baldwin working together to bring in responsible government, and Sir John A. Macdonald and Sir George-Étienne Cartier forming an alliance that would lead to the creation of the British North America Act.

While the Act did result in changes in how government services were offered, it wasn’t perfect. By the late 1980s, the Constitution had been repatriated and the Charter of Rights and Freedoms had been adopted (and included recognition of language rights), and there was a realization that the Act needed strengthening.

“The fact that [the 1969 version] was merely a declaratory act is something that came up rather quickly as one of the biggest caveats to the Act. This is why, in 1988 when the Mulroney government decided for a pretty solid amendment of the Official Languages Act—the biggest revamping of the Act that we’ve seen since—that a number of the sections of this act were made to be justiciable, so if the official languages commission saw that there were repeat offenders within the federal state apparatus, then he or she could decide to go to the federal court,” says Chouinard.

Another major change in the 1988 version imposed a duty upon the federal government to work to promote the health and vitality of minority-language communities.

“There was a new section added which is called Section 7 which… said that the Canadian government had the obligation to see to the development and enhancement of its official language communities in both Quebec and in the rest of Canada, so that was a new legislation, and a very important piece of legislation, because it gave the government the status of fiduciaries of those minorities,” says Cardinal.

“Then, in 2000, the changes were meant to beef up that section because the government had good intentions, but we couldn’t see how they were being applied. The modification in 2000 was to reflect the need to add a bit more meat to that section… and make sure that the government was doing something in that particular area.”

As for today, teaching about any potential changes that may be made to the Act in the future, both Cardinal and Chouinard explain that one of the fundamental questions an updated Act should probably address is about the government’s use of social media, and whether that use is congruent with the obligations laid out under the Official Languages Act. Is delivering policy by tweet an acceptable way to transmit information? And what happens when the tweets are released in only one official language?

Then, when social media is combined with artificial intelligence and machine learning and online translation tools, this becomes an especially thorny issue. Are machine-generated translations good enough and clear enough and understandable enough to count as French or English under the Act? What is the obligation of the government to ensure that the translations are accurate?

Chouinard and Cardinal feel that these are the types of questions that can be raised in classroom discussions in a variety of subject areas and at an assortment of grade levels, and make great entry-points to introducing lessons about the Act.

For more senior students, Chouinard says that another area of discussion might be to look at ways to update the role of the official languages commissioner to make enforcement of the Act easier and to ensure there are more serious consequences for violating the Act. That topic was part of her testimony before the Senate.

“We give the official languages commissioner greater power or we change their role entirely and create an administrative tribunal where private Canadians don’t need to go through the official languages commissioner. They can go to this tribunal and ask for reparations directly,” she explains.

Cardinal offers another exercise for more senior students: compare and contrast how different jurisdictions in the country manage their obligations to official language communities.

“They could try to identify what is the language regime from one province to another—what kind of policy framework there is in the different provinces. Where is it in Canada that you can have French and English language services provided by government? That’s just one exercise,” says Cardinal.

“It would be interesting for students to know that New Brunswick is the only province that has an official languages act, just like the federal one. Ontario has legislation on French language services. Manitoba has a policy. So what’s the difference between an official languages act versus legislation versus a policy?”

While thinking about how the federal government interacts with the Canadian population may be a bit of an abstract reach for some students, Talbot offers some suggestions for how to frame the effects of the Act in more relatable ways.

“How do I explain [the Act] to a kid in kindergarten? Let’s say, if you’re a five-year-old visiting the Children’s Museum in Gatineau you can do that in French or English. If you’re a ten-year-old who is visiting a national park across Canada or a National Historic Site, you can do that in English or in French. If you’re an eighteen-year-old, who’s applying for federal bursaries or a federal scholarship or a federal internship program, you can do that in English or in French. So I think [the Act] might relate to the lives and the aspirations of youth in more ways than then we might think.”

Speaking as professors, Cardinal, Chouinard, and Hayday share that the students they encounter have very little familiarity with the Official Languages Act and its history. But in a lot of ways that’s understandable due to the present political climate of the country, and that is something to keep in mind when speaking to young students today about the topic—that it’s not part of the cultural landscape the way it was in the 1960s, the 1970s, the 1980s and even the early 1990s when issues like Quebec sovereignty, the Quebec referendum, and the Meech Lake Accord were part of the daily news.

“They don’t tend to think about Francophone Ontario or Acadia. They tend to think about Quebec if they’re English speakers. And Quebec hasn’t been a major issue on the national radar now for a couple of decades. There has been a certain amount of disconnect between Quebec and English Canada for a while. There hasn’t been a major separation crisis. We haven’t been dealing with referendums. There hasn’t even been an elected government—even a [Parti Québécois] one—that actually had a new referendum as top of mind. So this just hasn’t been resonating on their consciousness as something to really be paying attention to,” says Hayday.

Carolyn Gruske is an award-winning reporter and former magazine editor. She often writes about the intersection of business, technology and the law, but she also has a deep interest in educational topics.

Cover image: Canadian Charter of Rights and Freedoms (source: collectionscanada.gc.ca)