La valeur juridique du projet de loi reconnaissant l'égalité des deux communautés linguistiques officielles au Nouveau-Brunswick

The principles that an Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick would incorporate in the laws would be better put in the preamble to a constitution, because of their symbolic and educational value. They comprise two possible fundamental protections : the first is protection against discrimination (or the entrenchment of formal equality) ; the second is protection against assimilation (or resultant equality). It is this second objective which stresses the need for the recognition of collective rights in New Brunswick, such as the right to distinct social, educational and cultural institutions and, by implication, the need for the most advanced form of autonomy possible for each distinct linguistic community. One may wonder whether the Act gives the courts of New Brunswick a clear enough indication of the objectives of the Legislature to allow them to put aside the restrictive concept of equality developed in the interpretation of human rights legislation in Canada ? It would seem that the preamble to the Act limits its purpose to a declaration of principle. This legislative intent is best demonstrated by the fact that no section giving a right of action to citizens is included. The Act also has some very important limitations that result from various difficulties of interpretation. These difficulties are enhanced by the fact that the Act itself is not constitutional in nature. Section 1 borrows its language from Section 2 of the Official Languages Act of Canada, this section having been interpreted in a positive but uncertain way in Air Canada v. Joyal. Given the fact that the purpose of the Act, as set out in the preamble, is to create a set of political principles for the government of New Brunswick, it is difficult to see where it could be given a wider interpretation than the Canadian Bill of Rights with regard to the term « equality ». Whatever success was obtained in the courts has depended on the fact that the rights set out were in each instance very clear. Section 2 is the most difficult to understand because it gives no indication as to the means through which the government of New Brunswick is to ensure equality between the linguistic communities. The reference to distinct institutions is extremely uncertain and could only be given some legal force if the courts were to recognize that they have the duty to determine the true meaning of the section in a discretionary manner. But here the Act does not provide for any sanction and reflects the intention of creating declaratory legislation only. Section 3 is more or less a declaration of intent. The problem raised by the adoption of Acts of a declaratory nature was raised last year in the Forest case. The difficulty is that the declaratory judgment does not generally constitute an order given to the government or the Legislature to act in a specific way. In the United States, the Courts of Equity found that they could take into consideration the common interest in deciding whether there were obstacles to a mandatory order resulting from the application of declaratory legislation. In Canada, the courts have been very timid. One might ask whether the Act is likely to bring about a better understanding between the two linguistic communities of New Brunswick. Politically, it is obvious that the Act will not provide a true framework for political change. Legally, it can be said without doubt that the Act will not create any rights or bring about an era of judicial interventionism. However, even an implicit adoption of the concept of collective rights could mark a turning point in the relationship between the two linguistic communities in New Brunswick

Teaching the Common Law in the French Language

There are many difficulties associated with the setting up of a new law school; these difficulties were compounded at the Universit6 de Moncton with considerations relative to the language of instruction, the particularities of the clientele, it being relatively small and unconcentrated geographically, the lack of a legal tradition in French language communities outside of Quebec. My purpose here is not to analyse in a general way the experience of the last four years at the Universit6 de Moncton, but to consider only one aspect of this experience, the one which is the most often put to me in the form of a question: what are the difficulties of teaching the Common Law in the French language? Before the experience actually began at Moncton, many opinions had been expressed on the difficulties involved. These opinions were summed up in a report prepared by Dean Daniel Soberman for the Maritime Provinces Higher Education Commission in 1976. Mr. Soberman was of the opinion that our legal system is founded on linguistic and cultural characteristics that are fundamentally English and that it would be impossible to communicate full knowledge of the Common Law without resorting to the English Language.\u27 Convinced that a new faculty could not recruit sufficient numbers of qualified students or qualified teachers to form a unit of 20 full-time teachers and 250 students, which he considered a minimum, Mr. Soberman recommended that the faculty of law at the University of New Brunswick be expanded and become bilingual

Pour réussir le bilinguisme judiciaire au Nouveau-Brunswick

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

Dualism and Equality in the New Constitution

The need for constitutional reform has brought to light the fundamental problem of defining the concept of dualism in Canada and deciding how it should be reflected in political institutions and the distribution of powers. The author indicates here the wide implications of dualism as understood by the Acadian people and shows how this concept could translate into the political realities of tomorrow.La nécessite' d'une réforme constitutionnelle n’est pas sans créer certains problèmes fondamentaux. Entre autres, comment définir le concept du dualisme au Canada? De quelle façon ce concept devrait-il se refléter dans les institutions politiques et sur le partage des pouvoirs? C’est ce que l’auteur tente de caractériser en indiquant, d’une part, quelles sont les nombreuses implications du dualisme tel que le conçoit le peuple acadien et en démontrant, d’autre part, comment ce concept pourrait se manifester dans les réalités politiques de demain