There are many disparate constitutional texts that have been adopted across different points in Canada’s history, which created the obligation to legislate in both French and in English. These texts apply to different jurisdictions.
Section 133 of the Constitution Act (1867) requires the Federal Parliament, as well as the legislature of Québec to print and publish their laws in French and English, a fact which the Supreme Court of Canada has interpreted as including the obligation to adopt them in French and English (Blaikie v. Québec, no. 1, 1979). This duty also extends to the regulations of the government (Blaikie v. Québec, no. 1, 1979), but it does not encompass the regulations of municipalities, schools, or organizations who do not need government approval (Blaikie v. Québec, no. 2, 1981) [SCC]. The commitment to legislate in the two official languages cannot be modified by Québec without at least the consent of that province and the federal government (Blaikie v. Québec, no. 1., 1979; article 43b of the Constitution Act, 1982). The same section permits the use of French or English in the debates and federal parliamentary bills and the Legislative Assembly of Québec. Section 17(1) of the Canadian Charter of Rights and Freedoms allows the use of French or English in the debates and bills of Parliament.
Section 18(1) of the Canadian Charter of Rights and Freedoms takes up the requirement of bilingual federal laws and specifies that each version of these laws has an equal value. Section 18(1) cannot be modified without the unanimous consent of all Canadian provinces and of the federal government (Section 41c of the Constitution Act, 1982). Because the wording of section 133 of the Constitution Act (1867) was taken up in the text of section 18(1) of the Canadian Charter of Rights and Freedoms, it can be reasonably affirmed that the rule of the equal value of any two proposed versions in section 18(1) for federal laws also extends to the laws of Québec.
Section 23 of the Manitoba Act of 1870, which is part of the Canadian Constitution by way of section 5 of the Constitution Act (1871), requires the Manitoba Legislature to have the same obligation as Québec’s: Manitoba has to adopt and publish its laws in French and English. This obligation cannot be modified anymore by Manitoba without the approval of that province and of the Federal government (Forest v. Manitoba, 1979, [SCC]; section 43b of the Constitution Act of 1982). The failure to comply with this obligation by Manitoba for close to 100 years led the Supreme Court of Canada to pronounce the total annulment of all of Manitoba’s laws that had been only adopted in English since 1891. However, because this meant that Manitoba would not have a legal existence anymore, and that would be against the rule of law, the Supreme Court suspended its decree on the annulment of Manitoba’s laws for as long as the province required to translate and re-adopt its laws (Reference re Manitoba Language Rights 1985) [SCC]. Because the text of section 23 of the Manitoba Act takes up that of section 133 of the Constitution Act of 1867 and it was taken up in the text of section 18(1) of the Canadian Charter, it can be reasonably assumed that the rule of equal value of both versions stated in section 18(1) for the federal laws also extends to Manitoba.
The requirement of official language bilingualism extends to the government’s decrees that create laws and to documents incorporated in these laws and regulations, whether they are produced by Manitoba, by another government or by a company or by a private organization, “...unless it cannot be demonstrated that its incorporation without translation is founded on legitimate grounds” (Reference re Manitoba Language Rights, 1992, summary decision) [SCC]. In the same ruling, the Supreme Court specified that legitimate grounds would be in reference to the laws of another province or country for the purposes of inter-governmental cooperation, international regulations, or technical standards (such as ISO or ICANN) adopted by private organizations.
Section 18(2) of the Canadian Charter of Rights and Freedoms dictates the same requirement to New Brunswick: the province must adopt its laws in French and in English, each version having the same legal value. The requirement extends to regulations, but also to municipal by-laws (Charlebois v. the city of Moncton, 2001). Section 18(2) cannot be modified without the consent of the province and of the federal government (Section 43(b) of the Constitution Act of 1982). Section 17(2) of the Charter permits the use of either French or English in the Legislative Assembly.
The Supreme Court has decided that the constitutional requirement of the adoption of bilingual laws does not extend to the provinces of Saskatchewan and Alberta, which were created in 1905 through a federal law. The Order of Her Majesty in Council admitting Rupert’s Land and the North-Western Territory in the Union, 1870, which was adopted almost at the same time as the Manitoba Act of 1870, did not provide any explicit guarantee for the adoption of bilingual laws, contrary to the Manitoba Act. The Saskatchewan Act of 1905, and the Alberta Act of 1905, also did not contain explicit linguistic clauses. According to the Supreme Court, this meant that negotiations between the Métis and the Canadian government knew how to guarantee and protect linguistic rights and their omission, in the Order in Council of 1870, or in the laws that created those provinces, was therefore intended (Caron v. Alberta, 2015) [SCC].
The other provinces and territories do not have the explicit constitutional obligation to pass their laws in the two official languages. It is necessary, therefore, to consult the laws of each jurisdiction to understand the situation.
