Canada's Original Think Tank

Court Challenges Program—Inquiry

Court Challenges Program—Inquiry

Court Challenges Program—Inquiry

Court Challenges Program—Inquiry


Published on 13 June 2017
Hansard and Statements by Senator Serge Joyal

Hon. Serge Joyal:

Honourable senators, I know it’s late, but this item has been on the Orders of the Day for 14 days now. Before I seek consent to move adjournment in my name, I would like to explain the three aspects of this motion, which I will expand on in a speech at a later date.

The motion has to do with funding for the Court Challenges Program in matters of official languages. Now, I myself started the program over 33 years ago, so I’m sure you will understand why I want to begin with a look at all of the cases that have gone to court with the help of this funding so we can take stock. In other words, how has the program been used, and what has it accomplished?

The second aspect I want to talk about is how the program serves the Official Languages Act. As you know, the Commissioner of Official Languages tabled a report through the Speaker last week. The report contains but one recommendation: review the Official Languages Act. Regulations have been adopted under the act that I feel conflict with the spirit of the act. The act is more than just a set of ethical principles; it has a spirit. In my opinion, these regulations, particularly those having to do with significant or sufficient demand, are unconstitutional.

Since this year marks the 150th anniversary of Confederation, the third thing I would like to draw your attention to as part of this inquiry is the fact that the Constitution Act, 1867, which is also 150 years old this year, still only has one official version, the English one.

Section 55 of the Constitution Act, 1982, reads as follows:

It is going to surprise you because this section of the Constitution, in my humble opinion, has not been implemented after 35 years, and I think this legislation is unconstitutional, as it stands.

Let me read section 55 of the Constitution Act, 1982.

It says:

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 . . . .

Since 1984, or 1982, since the adoption of the Constitution Act, 1982, in our Constitution, through the Minister of Justice, we have the obligation to adopt a French version of the Constitution as soon as possible. While it seems obvious, “as soon as possible,” after 35 years, is overdue.

I will read section 55 in English so you have it for thought in the forthcoming days of summer:

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 . . .

That was 35 years ago. Anyone can go to court and challenge the constitutionality of the 1987 legislation.

In the follow-up of my presentation, I would like to expose a problem. When I say “we,” I say collectively, as a country, we have a problem.

Since we are celebrating the 150th anniversary of Confederation and since the government has made Canada’s bilingualism a priority in the context of these celebrations, I think it would be appropriate for the Standing Senate Committee on Official Languages to report on this issue. It seems to me that all of these celebrations to mark Canada’s achievements do not change the fact that there is still a major flaw in the Constitution Act, 1867: the fact that it is still only official in one language, English, the very language in which it was passed by the Westminster Parliament at the time. That said, the 15 pieces of legislation amending the original act that were passed since 1867—they, too, only have force of law in English.

It may seem like a flight of fancy to focus on such an anomaly that does not seem to have any impact on the application of the law. However, you can be sure that, one day or another, a Canadian will appear before the courts with the help of the Court Challenges Program and will challenge the constitutionality of the law, just like the laws in Manitoba were challenged because they were passed only in English. Every law passed in Manitoba over 90 years was declared unconstitutional by the Supreme Court of Canada.

I believe that to be a major problem. I believe that this inquiry, which raises the importance of the Court Challenges Program with regard to the Official Languages Act and the Constitution Act, 1867, should be referred to the Standing Senate Committee on Official Languages in short order. As part of the Canada’s 150th, I think that we need to remedy this situation. It is important. The time is right for us, as a parliamentary institution, to take an official position on this issue by calling on the Minister of Justice and the government to respond to a recommendation made by the Senate in this regard.

I have a little bit of time left. I ask for leave of the Senate to adjourn the debate. That would allow me to come back to the other two points that I raised, concerns that I wanted to share with you as part of this inquiry.