Volume 24, numéro 1, 1983 Égalité juridique des langues

EN :

This introduction includes a résumé ofpanels and debates of the colloquium organised conjointly by the Faculty of law and the International Center for Reseach on Bilingualism in November 1982. Papers presented at that occasion are published thereafter.

EN :

The legal status of the French and English languages in Canada has been a difficult question for the past two hundred years. In the following article, the Honorable Jules Deschênes traces the evolution of the two official languages. He points out that any given linguistic situation is a direct product of the concerned country's political decisions and adds that politics and culture do not necessarily go hand-in-hand. The author also stresses the fragility of legal action as a means of maintaining or eliminating a given language in a society.

EN :

The tradition of bilingual proceedings before Quebec courts is examined firstly, as to its historical development, and, secondly, as to the legal and sociological aspects of the question. Although the province of Quebec has since 1760 always permitted some form of bilingual representation at the judicial level, the legislature has pondered more than once during this period over the exact status the French language should enjoy in its courts. The author believes that the effectiveness of the present-day system depends largely upon the notion of individual, rather than institutionalized, bilingualism and that its future success lies in the willingness of the province's lawyers to meet the linguistic requirements of the courts.

It has been proven that discriminatory linguistic policies lead necessarily to major conflicts. On the other hand, acceptance of the group's language rights will serve to reinforce its feeling of belonging to a social unit. However, it is the author's opinion that more than a coherent policy is needed to ensure the survival of a particular language in the courts.

EN :

This article outlines the different attempts over the years to secure the status of the French language in legal proceedings in New Brunswick. A 1968 opinion reiterated rulings dating from 1650 and 1784 that English is the applicable language in all proceedings at the provincial level. Subsequent rulings have modified the state of events but in most cases on paper only.

In 1980, the New Brunswick Association of Lawyers set up an investigative commitee whose tasks were to identify any inherent problems in the use of French in provincial courts and to find a way of integrating the two official languages into New Brunswick's legal practice with as little animosity as possible.

The publication of the committee's report led to new legislative measures assuring the implantation of bilingualism in its provincial courts. Although legislators had hoped for speedier implementation of the measures, it is important to keep in mind the difficult context in which these changes are taking place. A change in attitude is apparently necessary before the transformation is complete.

EN :

This article examines in detail the bilingual system of justice presently in effect in Canada's federal courts. The author first discusses the effect ot the Official Languages Act (1969) and the recent constitutional reforms on the status of the French and English languages before the nation's courts. He affirms that both languages are indeed equal in the eyes of the law — in theory, at least. In practice, however, he shows that this balance is slightly modified

EN :

Linguistic rights in New Brunswick have progressed since the enactment of the Official Languages of New Brunswick Act of 1969. The Canadian Charter of Rights and Freedoms has caused the entrenchment of some linguistic guarantees in the Constitution and has provided for judicial enforcement. Collective rights have also been given legislative sanction through the passing, in 1981, of An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick, and new legislation to replace the 1969 Act has now been proposed in a recent government-sponsored study.

This paper looks at the legal consequences of these enactments in relation to public administration in New Brunswick.

EN :

The author first examines the various public declarations which form the basis of the federal government's official languages policy, and then identifies the various stages in the application of this policy to the public service sector.

He concludes with an examination of the current situation.

EN :

In this article, the author gives a historical account of the different laws enacted by the National Assembly in order to enhance the status of the French language at administrative levels as well as among the province's résidants themselves. The schools, being vehicles of social and cultural influence, were included. Laws 63 and 22 were little more than tentative, hesitant sallies into the linguistic battle confronting the province and its minority groups. Law 101 provided a more coherent line of reasoning in deciding Quebec's language policies. Nevertheless, it is contested by some groups on constitutional grounds.

EN :

The question of education is probably one of the thorniest political problems in Canadian history. English andfrench speaking Canadians have long stood divided on the matter.

In the first part of his article, the author describes the effect of two specific clauses of article 93 of the BNA Act on the nation's schools. Much of the hostility felt by Canada's major linguistic groups can, from his point of view, be linked to these two provisions.

In the second part, he discusses the recent constitutional reforms and expresses the hope that the new agreement, if correctly implemented, will bring about the long-awaited reconciliation between Canada's linguistic communities.

EN :

This article examines school language policies currently in effect in all provinces except Quebec. The struggle for linguistic equality has been long and arduous, even in areas where the number of French-speaking residents is considerable. But it is also far from complete. Although some progress has been made, there remains much to be accomplished before the French language school structures outside the province of Quebec can equal English school systems in Quebec.

EN :

A substantial gap exists between theory and practice in the area of linguistic equality. While it is widely accepted that Canada's two major linguistic groups should have equal access to services in their respective languages, difficulties arise in the application of this principle to concrete situations.

From a theoretical point of view, the author recognizes that many reforms have been discussed promoting the goal of linguistic equality. While he admits that is unlikely that laws alone will guarantee the accomplishment of this objective, he indicates the areas where the laws are most likely to influence linguistic reality.

EN :

Referring to doctrinal categories, the judicial control of public authorities' actions could be achieved not only through « private actions », directly aimed at protecting the plaintiffs own subjective rights, but also through so-called public interest actions. The latter represent attempts by « public-spirited » citizens or groups of persons to affirm the rule of law with respect to situations in which they cannot be deemed to be personally and directly aggrieved. The extent to which the courts are ready to consider such public interest actions depends on how they conceive the prerequisite of having a « sufficient interest » in order to bring an action at law. Is a « subjective » or, on the contrary, an « objective » attitude to be adopted in this regard ? The former attitude leads one to consider the impact of the act complained of upon the plaintiffs own interest ; the latter would reflect a primary concern for the social values sought to be affirmed by the intervention of the court.

The present text purports to establish the relative acceptance of these trends in defining the locus standi by the Quebec judiciary. Account is taken of the influence of the Thorson-McNeil approach by the Supreme Court of Canada in matters involving a constitutional feature, and also, from a practical point of view, of the use that could be made of Book Nine of the Code of Civil Procedure on Class Actions.

EN :

Until recently, the Income Tax Act and its provincial counterpart had refused the common law spouses the tax treatment granted to « legal » spouses. Modifications were introduced in two specific areas of the act allowing these « outlaws » firstly a tax-free rollover when properties are transferred between them and secondly a deduction for the payor and a correlative inclusion for the beneficiary when an allowance is paid after the termination of the common law relationship.

An analysis of these provisions indicate clearly that the effective scope of the changes will be of limited application since only « de facto » spouses from Ontario will be able to take advantage of them.