The Canadian Bar Association is set to urge the federal government to make the country’s Constitution fully bilingual.
CBA membership voted to approve a resolution at the organization’s Annual General Meeting Thursday calling on the government to adopt French versions of parts of Canada’s Constitution that have never been enacted.
Of the collection of documents that make up the Constitution, many do not have an official translation, despite the fact that s. 55 of the Constitution Act of 1982 required that a French version be prepared and enacted.
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Lawyers say this limits their ability to fully flesh out or interpret the Constitution and means that judges have to defer to the English version even in cases that are argued in French.
Lawyers who practise federal law are used to considering and comparing the two different versions of federal statutes, but they are unable to do so with large chunks of the Constitution.
It also means that the more than seven million people in Canada who consider French their first language cannot read an official version of their country’s Constitution in their mother tongue.
“We’re a bilingual country. At the very least, our foundational documents should be officially bilingual, too,” says Patricia Paradis, executive director of the Centre for Constitutional Studies at the University of Alberta, who seconded the resolution at the AGM.
Edmonton lawyer Allan Damer moved the resolution.
When the British Parliament passed the British North America Act — now known as the Constitution Act — in 1867 to create the Canadian confederation, it was written in both languages, but only the English version was enacted.
As many other parts of the Constitution were also enacted before Canada became a country with two official languages, they simply do not have an official French version.
In 1984, the federal government set up a committee to draft an official French version of the various parts that lacked one. Then-minister of justice Kim Campbell tabled the committee’s full French translation in Parliament in 1990, but it was never enacted. Those translations are publicly available on the federal government’s website, but they are not in force.
Observers say the government of the time may have been unwilling to tackle any issues that touched upon the Constitution after the failures of the Meech Lake Accord and the Charlottetown Accord.
Following that, anything concerning the Constitution was considered highly contentious, says François Larocque, a law professor at the University of Ottawa.
“The governments of the day thought this was too much of a hot potato and so nothing was done,” he says.
Larocque says governments have sidelined the issue over the years to focus on issues that were perceived to be more pressing.
He says there is a major inconsistency with the fact that s. 55 of the Constitution Act itself says a French translation must be prepared without delay.
“Canada is in breach of an imperative Constitutional obligation,” says Larocque, who wrote a book on the topic, La Constitution bilingue du Canada, un projet inachevé. “It’s hugely problematic. Imagine if another section of the Constitution was simply ignored or discarded.”
