SECTION 41 OF THE OFFICIAL
SCOPE, EVOLUTION AND IMPLEMENTATION FRAMEWORK
Robert B. Asselin
Political and Social Affairs Division
17 September 2001
TABLE OF CONTENTS
EVOLUTION AND KEY JUDGMENTS
SECTION 41 OF
THE OFFICIAL LANGUAGES ACT:
SCOPE, EVOLUTION AND IMPLEMENTATION FRAMEWORK
rights are the cornerstone on which Canada was built. Without the guarantees made
to groups and minorities, it is unlikely that the peoples of Upper and Lower Canada, so
different from one another, would have joined to form a country.(1)
concept of language rights is closely related to that of the collective rights of
minorities. In Canada, language rights litigation is a relatively recent
phenomenon. Since 1982, English and French have enjoyed equal legal recognition at
the federal level, guaranteed by the Constitution of Canada. Through that
recognition, the Canadian government has hoped to consolidate national unity by creating a
legal balance between the two linguistic communities, thus ensuring social peace.
The Canadian government would probably not have recognized language rights if it had not
first acknowledged the principles of diversity and pluralism in its vision of Canadian
society. Multilingual accommodations within a state inevitably depend on the
recognition of collective rights.
guarantees must be provided for most language rights.(2)
At the federal level, the architecture of language rights is essentially founded on two
statutory instruments: the Constitution Act, 1982, more precisely
sections 16 to 23; and the Official Languages Act, first passed in 1969 and
revised in 1988 in the context of the new constitutional order resulting from 1982.
(sections 41 to 45) of the Official Languages Act, 1988 (OLA) marked a turning
point in the interpretation of language rights and the protection of minorities in
Canada. The interpretation and scope of section 41 have since been the subject
of extensive debate. According to section 41 of the OLA:
Government of Canada is committed to
enhancing the vitality of the English and French linguistic minority communities in Canada
and supporting and assisting their development; and
fostering the full recognition and use of both English and French in Canadian society.
years after the Act was passed, has justice been done to Parliaments
intentions? How has the case law helped to clarify the scope of section 41?
Has the government advocated a pro-active approach and put an adequate implementation
framework in place to act on the commitment it made in 1988? This paper will
endeavour to answer all these questions in three main sections. First, the issues
related to the interpretation of section 41 will be defined. Second, the
legislators intentions, as revealed by the parliamentary debates preceding the
OLAs passage and the impact of the case law in the construction of section 41,
will be considered. Lastly, the implementation framework established by the federal
government since 1988 will be considered.
establishing the legal infrastructure for the official languages first by the
initial act of 1969, then by sections 16 to 23 of the Constitution Act, 1982
and, lastly, by the new Act in 1988 the federal government made linguistic duality
a fundamental part of the Canadian identity. How has the federal government taken
positive action to implement that part? In other words, how has the federal
government used its constitutional powers such as its spending power to firm
up its commitment under section 41 of the OLA, that is to say, the vitality and
development of Canadas Anglophone and Francophone minorities? Is
section 41 a statement of intent or does it create an obligation for the federal
government to act?(3) If it results in an
obligation to act, how can the limits of government action be ascertained, and to what
extent will the courts be able to intervene to ensure they are fully complied with?
These are the main questions underlying the problem of the application of section 41,
Part VII, of the OLA.
It is an old principle of law that the legislator is deemed not to speak in vain.
That may occur, but not when writing laws.(4)
Canadian governments language policy has evolved considerably since the initial act
was passed in 1969. Building on the main findings of the Bilingualism and
Biculturalism Commission (Laurendeau-Dunton), the 1969 Act had three major
greater participation by Francophones in the federal public administration;
government services in French where numbers warranted; and
French one of the two languages of work within the federal Public Service.
to 23 of the Constitution Act, 1982 entrenched in the Constitution the equality of
English and French in the institutions of the Parliament and Government of Canada and the
equality of official language minority rights, particularly education rights.
1988, the federal government wanted to harmonize the provisions of the 1969 Act
with the new constitutional reality shaped by the Canadian Charter of Rights and
Freedoms of 1982. The bills passage was marked by a continuing focus on
the following general objectives:(5)
respect for and equality of status of the two official languages in federal institutions,
particularly with regard to the provision of services to the public;
the development of Anglophone and Francophone minorities;
the advancement of the two official languages within Canadian society; and
the powers and obligations of the federal institutions with regard to official languages.
were the objectives pursued by Parliament in developing Part VII of the OLA, more
specifically section 41? A brief review of some ministerial statements
preceding the OLAs passage is highly useful here.
22 March 1988, the Honourable Ray Hnatyshyn, then Minister of Justice and Attorney
General of Canada, stated before the House of Commons legislative committee responsible
for considering Bill C-72 on official languages:
part of the bill (Part VII) is based on the Charter (subs. 16(3)), that is to
say the principle of advancing the equality of status for use of English and French,
recognized by the Supreme Court of Canada in a number of important decisions.(6)
20 July 1988, appearing before the Senate Committee considering the bill, the Honourable
Lucien Bouchard, then Secretary of State for Canada, affirmed that:
importance which the federal government attaches to the communities, Madam Chair, is
expressed more particularly in Part VII of Bill C-72, implementation of which is the
responsibility of the Secretary of State. Section 41 states the full scope of
the governments intentions. It confers on the federal government the
obligation to enhance the vitality of the linguistic minorities, to support their
development and to foster the full recognition and use of English and French. This
is the first time that this notion of vitality of the linguistic minorities appears in an
] This section , and all those that support it in the bill,
provides a legislative basis for this objective we have set ourselves of full
participation for linguistic minority groups in the life of our country.(7)
may be concluded from the above passages that, in introducing Part VII, and more
particularly section 41, Parliament was not limiting itself to a statement of
intentions, but creating a positive obligation for the federal government to act in a
manner consistent with the spirit of subsections 16(1) and (3) of the Charter.
EVOLUTION AND KEY JUDGMENTS
Canadian Charter of Rights and Freedoms, enacted in 1982, considerably changed the
rules of judicial interpretation in the field of language rights. Although the
Supreme Court has never ruled on the scope of section 41 or Part VII, some of
its judgments since 1982 have been revealing.
1986, in Société des Acadiens du Nouveau-Brunswick v. Association of Parents
for Fairness in Education,(8)
Beetz J., writing for the majority, held that language rights were based on political
compromise and were not subject to the same rules of interpretation as the legal
guarantees set out in sections 7 to 15 of the Charter. This restrictive
interpretation of language rights was extensively altered by three decisions subsequently
rendered by the Court: Reference re Secession of Quebec, R. v.
Beaulac, and Arsenault-Cameron et al. v. Government of Prince Edward
the 1998 Reference,(10) the Court
determined that respect for minority rights was one of the five fundamental structural
principles of the Constitution, the others being federalism, democracy, the rule of law
and constitutionalism. According to Michel Doucet, a specialist in official
languages law, these principles are invested with a powerful normative force, and
are binding upon both courts and governments. [
] They [the principles] may in
certain circumstances give rise to substantive legal obligations ..., which constitute
substantive limitations upon government action.(11)
Can it then be concluded that section 41 of the OLA gives rise to a more substantive
obligation for the government?
Beaulac,(12) Bastarache J.,
writing for the majority, held that language rights are neither passive rights nor
negative rights and may not be exercised unless means are provided for that purpose.
Does the state have a duty to take positive measures to implement the linguistic
guarantees it has recognized? According to Doucet, the Charter guarantees create
obligations for the government and a clear financial and administrative commitment
for the machinery of government.(13)
its judgment, the Court distanced itself from the narrow interpretation adopted in Société
des Acadiens du Nouveau-Brunswick v. Association of Parents for Fairness in
Education. It held as follows:
rights must in all cases be interpreted purposively, in a manner consistent with the
preservation and development of official language communities in Canada. To the
extent that Société des Acadiens stands for a restrictive interpretation of
language rights, it is to be rejected.(14)
Doucets view, with this decision, the Court recognizes that it has an
effective power of judicial sanction in the field of language rights and that it will not
leave minority communities at the mercy of those who have previously shown a greater
tendency to disregard those rights than to ensure their promotion.(15)
is at least as important, if not more so, Beaulac confirmed that the OLA was a
1988 Official Languages Act is not an ordinary statute. It reflects
both the Constitution of the country and the social and political compromise out of which
it arose. To the extent that it is the exact reflection of the recognition of the
official languages contained in subsections 16(1) and (3) of the Canadian Charter of
Rights and Freedoms, it follows the rules of interpretation of that Charter as they may
have been defined by the Supreme Court of Canada. To the extent also that it is an
extension of the rights and guarantees recognized in the Charter [
], it belongs
to that privileged category of quasi-constitutional legislation which reflects
certain basic goals of our society and must be so interpreted as to
advance the broad policy considerations underlying it.(16)
Arsenault-Cameron et al., the Supreme Court mainly considered the scope and
application of section 23 of the Charter, which confers minority language educational
rights. Faithful to the spirit of Beaulac, the Court held that governments
must consider Charter requirements in exercising their discretionary power and in the
conduct of public affairs.
conclusions are to be drawn from these judgments on the scope of section 41 and
Part VII? It appears that recent Supreme Court judgments on language rights add
clear weight to the scope of section 41 of the OLA and of the governments
obligations provided for therein, mainly because it evidently subjects the OLA to Charter
sections 42 and 43 of the OLA, the Minister of Canadian Heritage (formerly the
Secretary of State) has essential responsibility for the implementation of
section 41. In consultation with Cabinet colleagues, that minister must
encourage and promote a coordinated approach to the implementation by federal institutions
of the commitments set out in section 41 (OLA, section 42). In addition
to being named as the coordinator of federal government action in implementing
section 41, the Minister is required to take all possible measures to advance
the equality of status and use of English and French in Canadian society (OLA,
meet its commitments under the OLA, has the federal government made support programs
available to the official language communities? It would appear that most of those
programs were already in existence when section 41 of the OLA was enacted in
1988. These include: the Official Languages in Education Program (first and
second (immersion) languages); the Official Language Minorities Aid Program, which is
intended for community groups; and the Promotion of Official Languages Program, which is
aimed at organizations in the volunteer and private sectors.
24 March 1988, the Honourable David Crombie, then Secretary of State, informed the
House of Commons Committee considering Bill C-72 that:
of the provisions of this bill concerning the Secretary of State merely entrench in the
act what we have already been doing for some time now. The programs I named a moment
ago, official languages, education, minority assistance and so on have been in existence
for a certain number of years. The only area where we have not been substantially
present in the past is the private sector.(17)
the Department of Canadian Heritage is not a central agency of the federal
government, in that it has no coercive power over the other departments, can it be
concluded that the governments commitment under section 41 is shared and one of
the priorities of all government departments and agencies? Note that, in June 1996,
the Joint Committee on Official Languages recommended that the Privy Council Office
coordinate the implementation of section 41, Part VII, of the OLA.
August 1994, Cabinet approved a corporate accountability framework for the implementation
of sections 41 and 42, Part VII, of the OLA. Under that decision, 27 designated
federal institutions were required to consult the official language minority communities
for the purpose of developing an annual action plan and to submit a report on their
previous years achievements to the Minister of Canadian Heritage. Since that
time, the Minister of Canadian Heritage has tabled an annual report in Parliament on
results achieved. This was the first government initiative to implement
Part VII since the OLA was passed. Consequently, in March 1994, the Clerk of
the Privy Council reactivated a deputy ministers committee on official
languages. Apart from programs and policies already concerned with official
languages, do the federal departments take into consideration the governments
commitment under section 41 of the OLA in their decision-making processes?
the Throne Speech of 30 January 2001 at the opening of the 37th Parliament, the
federal government asserted:
linguistic duality is fundamental to our Canadian identity and is a key element of our
vibrant society. The protection and promotion of our two official languages is a
priority of the Government from coast to coast. The Government reaffirms its
commitment to support sustainable official language minority communities and a strong
French culture and language. And it will mobilize its efforts to ensure that all
Canadians can interact with the Government of Canada in either official language.
on 25 April 2001, Prime Minister Chrétien announced the appointment of Privy Council
President, the Honourable Stéphane Dion, as official languages
years after section 41 of the OLA was adopted, it is hard to say with any certainty
whether the federal government has done justice to the intentions Parliament expressed in
1988. It is clear, however, that the legislators intentions at the time the
OLA was passed and the Supreme Court judgments on language rights since the Reference
re Secession of Quebec tend to show that there is a positive obligation for the
Canadian government to act on the objectives described in subsections 16(1) and (3)
of the Charter, which are implemented under section 41 of the OLA. The means
used to meet this obligation may clearly vary, and their effectiveness must be measured on
the basis of results achieved.
Michel (ed.). Les droits linguistiques au Canada.
Éditions Yvon Blais, 1986.
Jonathan L. Constitutional Adjudication in Canada: Purposive or
Political? Statute Law Review 21:163-187, No. 3, 2000.
Michel. Les droits linguistiques : une nouvelle
trilogie. Revue de droit de lUniversité du Nouveau-Brunswick,
tome 49, 2000.
Robin. References, Structural Argumentation and the Organizing Principles of
Canadas Constitution. The Canadian Bar Review 80:67-142,
of Commons. Standing Joint Committee on Official Languages. Implementation
of Part VII of the Official Languages Act. Interim Report of the Standing
Joint Committee on Official Languages, House of Commons, June 2000.
Joseph. Official Languages of Canada. Éditions
Yvon Blais, 1995.
Beverley. Democracy and Rights: A Canadian Perspective. Canadian
Speeches, Issues of the Day 14:36-45, January/February 2001.
of the Commissioner of Official Languages. A Blueprint for Action:
Implementing Part VII of the Official Languages Act, 1988. Department of
Supply and Services Canada, 1996.
Commission on Bilingualism and Biculturalism. Preliminary Report.
Queens Printer, 1965.
(1) Beverley McLachlin, Democracy and
Rights: A Canadian Perspective, Canadian Speeches, Issues of the Day,
14:36-45, January/February 2001.
A. Braen, Les droits linguistiques, in Michel Bastarache, ed., Les
droits linguistiques au Canada, Éditions Yvon Blais, 1986, p. 15.
(3) In Canada (Commissioner of Official
Languages) v. Canada (Department of Justice), 2001 CFP 1239, the
Attorney General of Canada contended that Part VII cannot be construed as providing
an obligation for the federal government always to take the measures that promote the
vitality and development of the minority communities to the greatest degree. The
Attorney General further argued that language laws must be interpreted in a prudent
(4) Pierre E. Trudeau, cited in Lac Meech,
Trudeau parle, Éditions Hurtubise, 1989, p. 44.
(5) House of Commons Debates, Statement by the
Honourable Ray Hnatyshyn, Minister of Justice and Attorney General of Canada, 8
February 1988, 33rd Parliament, p. 12704.
(6) Minutes of Proceedings and Evidence of the
Legislative Committee on Bill C-72, House of Commons, 33rd Parliament, 22 March 1988
(7) Proceedings of the Senate Special Committee on
Bill C-72, 33rd Parliament, 20 July 1988 (authors emphasis).
(1986) 1 S.C.R. 549.
For a more exhaustive analysis of these three judgments, see Michel Doucet,
Les droits linguistiques : une nouvelle trilogie, Revue de droit de
lUniversité du Nouveau-Brunswick, tome 49, 2000.
(1998) 2 S.C.R. 217.
Doucet, supra, note 9, p. 5.
(1999) 1 S.C.R. 768.
Doucet, supra, note 9, p. 10.
(14) R. v. Beaulac, supra,
note 12, pp. 850-851 (authors emphasis).
Doucet, supra, note 9, p. 11.
(16) R. v. Beaulac, supra,
note 12, p. 788 (authors emphasis).
(17) Minutes of Proceedings and Evidence,
Legislative Committee on Bill C-72, House of Commons, 33rd Parliament, 24 March
(18) In a news release dated 25 April, the Prime
Ministers office announced: In addition to coordinating issues in which
the question of official languages is raised, Minister Dion will be at the forefront
of the federal governments efforts to promote bilingualism. His duties will
also include the development of a new policy framework to strengthen the Official
Languages Program. The Prime Minister added: I have asked
Minister Dion to consider strong new measures that will continue to ensure the
vitality of minority official-language communities and to ensure that Canadas
official languages are better reflected in the culture of the federal public