Protecting language: the best defense is a good offense
Quebec calls for greater language protection for Canadian federal enterprises
The Parliament of Quebec and the Bloc Québecois have formally requested an extension of cooperative federalism to Quebec language protection. ‘Cooperative federalism’ is a legal principle that has courts interpret legislation in ways that allow federal and provincial laws to work together. The term evokes greater ‘interlocking federal and provincial legislative schemes’. This principle is rejoined by the double aspect principle of interpretation: provincial and federal legislation can touch on the same subject matter from different perspectives.
On November 24, 2020, the Parliament of Quebec passed an unanimous resolution calling on the federal government to apply the Charter of the French Language to public and private federal works and undertakings. Quebec’s request is couched in federal legislative terms. The House of Commons read bill C-254, entitled An Act to amend the Canada Labour Code, the Official Languages Act and the Canada Business Corporations Act, for the first time on the same day. The bill amends the three acts in its title to declare that federal-jurisdiction undertakings respect Quebec’s Charter.
Bill C-254 works with the Quebec Assembly’s resolution to preclude any constitutional challenge to enhanced french language laws in Quebec. This bill is significant because the Conservative party has endorsed its principle. The House of Commons could pass the private member’s bill in short order, if parties were willing.
Federal legislation is the easiest way to accomplish Quebec’s aim. It is not, however, the only way. The Charter of the French Language lays down detailed specifications regarding labour relations and business arrangements. These specifications create higher standards than the federal Official Languages Act and apply more broadly to private enterprise. Quebec’s linguistic jurisdiction in this regard was peremptorily refused by the Federal Trial Court in Association des gens de l'air v. Lang, but the Court’s conclusion was never confirmed on appeal.
Modern cooperative federalism and double aspect suggest that a province’s right to regulate civil rights could already regulate federal works and undertakings within its borders. The Supreme Court in Devine confirmed Quebec’s right to legislate on language; it further held in R v Beaulac that power to legislate on language rights was an ‘ancillary power’ to constitutional heads of power.
A stirring description of the Court’s finding in Beaulac occurred in 1899, when Lord Watson characterized the division between federal works and provincial regulation in terms amenable to cooperative federalism:
The British North America Act, whilst it gives the legislative control of the appellants' railway quà railway to the Parliament of the Dominion, does not declare that the railway shall cease to be part of the provinces in which it is situated, or that it shall, in other respects, be exempted from the jurisdiction of the provincial legislatures.
This statement was applied in Ontario v Canadian Pacific Ltd, a 1995 case that questioned provincial regulation of environmental standards. Ontario’s environmental protection legislation regulated controlled burning; the railway was required to keep its lines free from combustible natural material. It disobeyed the provincial law while obeying the federal law, and the province charged the company with an environmental protection offense. The Supreme Court tersely applied Lord Watson’s statement to find that the province could regulate environmental standards for federal works.
The Supreme Court did decide in Bell Canada v Quebec that provincial governments could not control federal labour rights, which is a hurdle that language rights will need to clear. A Quebec-based employee relied on Quebec’s workplace protection regime instead of the federal regime. Bell contested this decision, and the Court found that provincial legislation couldn’t ‘bear on the specifically federal nature of the jurisdiction to which such works, things or persons are subject’.
The problem then becomes whether the language of work or business is sufficiently federal in nature to preclude provincial legislation. The Official Languages Act, for example, occupies the field for federal government and federal crown corporations: Quebec would not be able to enforce its language laws in this case. Federally chartered corporations, however, might not be able to escape so handily.
Another line of inquiry examines the degree to which regulation of language will frustrate a federal work’s federal purpose. This line of inquiry targets private enterprise controlled by federal laws, such as railways or banks.
My take on this problem is that language is a civil (rather than a human) right because it is so crucial to legal decisions. While a federal work might legitimately have a need to use a particular language (e.g., operators regulated by the Aeronautics Act, who have to use English in most radio communications), that need weighs against a province’s ability to legislate the language in which private decisions are officially conducted.
If language is characterized as a civil right, the Supreme Court of Canada’s decision in Canadian Western Bank v Alberta supports the extension of Quebec’s Charter to federal works and undertakings. The case confirmed that banks, which are chartered under federal law, would have to submit to provincial legislation regulating insurance because it was an exercise of provincial power over civil rights. Justices Binnie and LeBel said that:
the courts must never lose sight of the fundamental rule of constitutional interpretation that, “[w]hen a federal statute can be properly interpreted so as not to interfere with a provincial statute, such an interpretation is to be applied in preference to another applicable construction which would bring about a conflict between the two statutes”.
If we apply this rule in the spirit of cooperative federalism, the application of Quebec’s Charter is already de jure.
If Parliament does not accede to Quebec’s request, a Court—I suggest the Federal Court—can interpret federal laws so as not to interfere with Quebec’s protection of the French language. In Lord Watson’s words, federal laws cannot cause federal works and undertakings to cease to be part of the provinces in which they are situated. The Supreme Court powerfully described language rights in Reference re. Manitoba Language Rights:
The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.
A more responsible Canadian federation admits unique provincial language concerns to a more universal application because of language’s particularly local nature. Provincial communities can only exist when united by language, and this is especially true for linguistic minorities, particularly so when they are an official language community.