Canadian Charter of Rights and Freedoms

Supreme Court of Canada: Role, History, and Operation

Jay Makarenko — Wed, 16 Jul 2008 12:13:41 -0600

The modern Supreme Court of Canada plays a pivotal role in Canadian politics. As the highest court in the country, the decisions of the Supreme Court touch on a wide range of issues: criminal law, civil law, federalism, and individual rights and freedoms. This article provides an introduction to the Supreme Court of Canada, including its place in Canada’s court system, its history, its modern organization and operation, as well as key issues and debates regarding the Court.

The Supreme Court and Canada’s Judicial System

Introduction to status and role of the Supreme Court

History of the Supreme Court of Canada

Important events in the evolution of the Supreme Court

Operation of the Supreme Court of Canada

Overview of the organization and operation of the Supreme Court

Issues and Debates on the Supreme Court of Canada

Democracy, federalism, representation and the Supreme Court

Sources and Links to More Information

List of article sources and links to more on this topic

The Supreme Court and Canada’s Judicial System

Introduction to status and role of the Supreme Court

The Supreme Court of Canada is the nation’s highest court of appeal. In understanding its role further, it is useful to discuss the Supreme Court within the context of Canada’s judicial system.

Role of the Canadian Court System

The courts are the interpreters and arbitrators of Canadian law. The courts do not actually make law; that is, they do not have the power to pass legislation. The legislative branch of government (that is, the federal Parliament and provincial/territorial legislatures) performs this function. Nor do the courts have the power to enforce laws. The executive branch of government, with its bureaucracies and police forces, performs the role of enforcement. Rather, the courts’ role is to interpret the laws passed by the legislature, arbitrate disputes between parties over the application of law, and direct the executive on the proper enforcement of the law.

The reach of the courts is particularly evident when one considers the vast array of laws which it must interpret and adjudicate. There is, for example, the field of criminal law, which governs conduct deemed “criminal” and subject to forms of state sanction. There is also civil law, which regulates relations between individuals, corporations and governments regarding such things as contracts, tort disputes and property law. The courts are also responsible for interpreting and adjudicating the Canadian Constitution, which touches on a number of key political issues, including federalism (the relationship between different levels of government), Aboriginal rights, and the Canadian Charter of Rights and Freedoms (the relationship between the state and individuals).

Components of the Canadian Court System

In fulfilling its role as interpreters and adjudicators of the law, the Canadian court system encompasses a number of different components.

First, there are the purely provincial courts, which include the provincial and municipal courts of each province. The provinces alone establish and maintain these courts, as well as appoint and pay their judges (hence, the term “purely” provincial courts). These courts are usually divided into functional divisions, which reflect the sort of cases they hear; for example, the criminal division, the civil or small claims division, and the youth and family division.

The second component of the Canadian court system is the provincial superior courts, which includes provincial superior trial courts and provincial courts of appeal. These courts are established and maintained by their respective provincial governments. However, unlike purely provincial courts, their judges are appointed and paid by the federal government.

Lastly, there are the purely federal courts, which include the Supreme Court of Canada and the federal courts. The latter is a special set of courts which deal exclusively with matters specified in federal (as opposed to provincial) statute. This includes the Federal Court of Appeal, the Federal Court Trial Division, the Tax Court of Canada and military courts. The federal government alone establishes and maintains the Supreme Court and federal courts, as well as appoints and pays their judges (hence, the term “purely” federal courts).

Structure of the Canadian Court System

While there exist different components (see above), the Canadian courts are nevertheless organized into a single system. Provincial courts may hear cases dealing with federal laws, and federal courts may hear cases dealing with provincial laws. (The one exception is the federal courts, such as the Federal Court Trial Division, the Tax Court or military courts, which only hear cases dealing with particular federal statutes). As such, cases can begin with provincial level courts and cross over to federal level courts as they make their way through the Canadian court system.

This single system, moreover, is organized hierarchically, with lower and higher courts. This hierarchy allows the decisions of a lower court to be appealed to and reviewed by a higher court. At the top of this hierarchy is the Supreme Court of Canada, which is the nation’s last court of appeal and which has the power to overturn the decisions of any other court in Canada.

Figure 1: The Structure of the Canadian Court System

(Diagram taken from Canada’s Courts, McCormick, 1994)

Note that the arrows in Figure 1 indicate the flow of appeals in the Canadian court system. For a case heard in a provincial court, for example, an appeal would first be heard in a provincial superior trial court, then a provincial court of appeal, and finally, in the Supreme Court of Canada. Under this system, one could not appeal a decision in a provincial court directly to the Supreme Court, skipping the other courts.

The Supreme Court and Canada’s Court System

As the highest court in the land, the Supreme Court plays a central role in the state and evolution of Canadian judicial interpretation and analysis. For example, when rendering a decision, the Supreme Court often makes clear its view about how a particular law should be interpreted and applied by the court system as a whole. Lower courts are subsequently obliged to follow the Supreme Court’s lead; otherwise, they will run the risk of having their decision overturned on appeal. This, in turn, lends itself to uniformity in the Canadian court system across the various courts.

Moreover, the Supreme Court will often use its position to intentionally direct change in the interpretation and application of laws. In a decision, the Supreme Court may explicitly reject a traditional way of interpreting a law or manner of judicial reasoning, and will lay down a new approach. Again, the lower courts are obliged to follow the Supreme Court’s lead and apply the new principles when rendering their own decisions.

History of the Supreme Court of Canada

Important events in the evolution of the Supreme Court

Since its inception, the Supreme Court of Canada has undergone important changes in its role and operation. The following provides a brief summary of key events in the Supreme Court’s evolution.

Establishment of the Supreme Court

The Supreme Court was first created in 1875, with the federal government’s passage of the Supreme Court Act.

Early in its life, the Supreme Court was not truly “supreme” within the Canadian court system. When Parliament first created the Supreme Court, it did not abolish the traditional practice of appeals “to the foot of the throne” in the form of the Judicial Committee of the Privy Council (JCPC). The JCPC was a British body, staffed by respected judges and law lords, which advised the British monarch and served as the final court of appeal for the British Empire. Decisions of the Supreme Court could be appealed to and overturned by the JCPC. Moreover, if the litigants in a case agreed, it was possible for appeals to bypass the Supreme Court altogether, and go directly to the JCPC.

As a proportion of the Supreme Court’s total decisions, there were relatively few appeals to the JCPC, and they did not always result in an overturning of its decisions (McCormick, 1994). Nevertheless, the presence of the JCPC created a “captive court,” in which the Supreme Court was reluctant to display initiative or judicial leadership within the Canadian court system as a whole (McCormick, 1994).

Patriation of Judicial Authority in Canada

In 1949, appeals to the JCPC were abolished. As a result, the Supreme Court became truly “supreme” within the Canadian court system, as it was now the last court of appeal in the nation.

Patriation of judicial authority, however, did not lead to immediate and radical changes in Canadian jurisprudence. Since the amendment was not retroactive, cases already before Canadian courts continued under the traditional system of appeals, with the JCPC deciding its last Canadian case in 1957. Moreover, the legal doctrine of precedence, in which older decisions should be followed in new cases, further constrained the Supreme Court’s ability to effect drastic change (McCormick, 1994).

Nevertheless, there were some early indications that the Supreme Court was willing to take initiative and judicial leadership. This was most evident in a series of cases in which the Supreme Court altered judicial interpretations of Section 91 of the Constitution, which deals with the federal powers and jurisdictions. The JCPC had previously interpreted Section 91 as an emergency clause, which allowed the federal government to take on additional powers temporarily and only in times of national emergency. The Supreme Court, however, re-interpreted Section 91 to give the federal government permanent powers in key areas of national interest, such as aviation and telecommunications.

Entrenchment of the Canadian Charter of Rights and Freedoms

Over time, the Supreme Court has taken on the role of judicial leader to a fuller extent. This is particularly true in a relatively new area of constitutional law – the Canadian Charter of Rights and Freedoms. The Charter was added to the Canadian Constitution in 1982, and sets out the fundamental rights of individuals in Canada in relation to the state. The Charter provides persons with certain fundamental freedoms (such as freedom of religion and consciousness, expression, and association), legal rights, democratic rights, and equality rights.

The entrenchment of the Charter is significant in that it enables the courts to review any government law or action that may run afoul of Charter rights. Moreover, it is up to the courts to interpret the meaning of Charter rights and their application to specific circumstances. In the context of the right to freedom of expression, for example, the courts are responsible for decide the meaning of key concepts, such as “freedom” and “expression,” as well as when it is or is not permissible for the state to violate this right. As such, the courts have become, at least potentially, the final word on a wide range of public policy issues, at both the federal and provincial/territorial levels.

In this context, the Supreme Court plays a critical role. As the highest court in the country, it has the final say on how all courts ought to interpret and apply Charter rights, with all other courts obliged to follow the Supreme Court’s lead. Moreover, the Supreme Court has shown a preparedness to uphold Charter rights in the face of the state. It has struck down or altered federal and provincial legislation in a wide range of areas, such as abortion, retirement rules, voting rights for prisoners, prohibitions on spreading false statements, and spending limits on political advertising during provincial referendum, just to name a few.

Operation of the Supreme Court of Canada

Overview of the organization and operation of the Supreme Court

Jurisdiction of the Supreme Court

As the final court of appeal, the Supreme Court possesses the jurisdiction to hear cases from a wide range of sources, including the civil law of the Province of Quebec, the common law of the other provinces and territories in Canada, and all legislation passed by federal, provincial, territorial and municipal governments.

The bulk of the Supreme Court’s caseload is appeals from the various provincial and territorial courts of appeal (McCormick, 1994). In special circumstances, the Supreme Court may hear appeals from provincial superior trial courts (normally, appeals from these courts go first to the provincial court of appeal). The Supreme Court also hears appeals from the Federal Court of Appeal, the Court Martial Appeal Court (the military court of appeal), and federal boards and tribunals.

Another important source of cases for the Supreme Court is federal government references, which are questions of significant legal consequence that are submitted by the federal government to the Supreme Court (the Court may also hear appeals from provincial/territorial government references which are submitted to provincial courts of appeal). In 2004, for example, the federal government referred a number of legal questions to the Supreme Court concerning the constitutionality of a federal law legalizing gay marriage.

Make-up of the Supreme Court

The Supreme Court consists of nine judges or justices: one Chief Justice of Canada and eight puisne justices (puisne simply means “inferior in rank”). A judge of the Supreme Court holds office until s/he retires or reaches the age of 75, but can be removed earlier for incapacity or misconduct by the Governor General on the direction of the Senate and House of Commons (Supreme Court of Canada, March 2007). During their tenure, judges must devote themselves exclusively to their judicial duties, and may not hold any other remunerative office under the federal or provincial/territorial government, nor engage in any business enterprise (Supreme Court of Canada, March 2007).

The Supreme Court Act sets out several rules concerning who may serve as a judge on the Supreme Court. Judges must either be drawn from among Canada’s superior court justices, or from among barristers with at least 10 years’ standing at the Bar of a province or territory. In addition, the Act requires regional representation in the makeup of the Supreme Court. At least three judges must be appointed from the province of Quebec. This rule is commonly justified on the grounds that Quebec uses civil law instead of common law (as the rest of the country does), and the Supreme Court needs judges familiar with that system. While not required by the Supreme Court Act, it is tradition to divide the remaining six positions on the Supreme Court in the following manner: three from Ontario, two from Western Canada, and one from Atlantic Canada.

For more information on current and former judges of the Supreme Court:

Appointments to the Supreme Court of Canada

Appointments to the Supreme Court fall within the exclusive jurisdiction of the executive branch of the federal government. Theoretically, the Governor General of Canada has the sole power to appoint Supreme Court judges. In practice, however, it is customary for the Prime Minister of Canada to choose the candidate, with the Governor General simply following the Prime Minister’s decision.

In choosing a Supreme Court judge, the Prime Minister has complete discretion, with the sole exceptions being the stipulations regarding professional experience and regional representation under the Supreme Court Act. The rest of Parliament, as well as the provinces and territories, have no formal authority in appointing judges to the Supreme Court. It is, however, open to the Prime Minister to consult with provincial/territorial leaders prior to making a selection, as well as to allow some parliamentary review of that selection, if s/he so chooses. In 2004 and 2006, special parliamentary committees were allowed to review the appointments of justices Rosalie Abella, Louise Charron, and Marshall Rothstein to the Supreme Court. It is important to note, however, that theses committee had very limited review powers and no authority to veto the Prime Minister’s selection.

The Chief Justice of Canada

A central figure on the Supreme Court is the Chief Justice. The Chief Justice is not chosen by the judges themselves, but is appointed to that position by the Prime Minister of Canada and his/her Cabinet.

In the context of deciding cases, the Chief Justice does not have any more power than the other judges on the Supreme Court. The decision of the Chief Justice does not count any more than the other judges. Nor can s/he overrule the decisions of other judges or remove them from their position. Nevertheless, the Chief Justice can attempt to use his/her leadership position to sway a court in one direction over another on key legal issues.

The Chief Justice possesses several formal administrative powers and responsibilities. He/she presides over all sittings of the Supreme Court at which s/he is present, and sits on several key government committees, such as the Canadian Judicial Council and the advisory committee to the Governor General on membership in the Order of Canada. The Chief Justice is also responsible for dividing the work of the Supreme Court by choosing the panels of judges to hear cases and motions brought before the court.

Moreover, should the Governor General die, become incapacitated, or be absent from the country for more than one month, the Chief Justice would become the Administrator of Canada and, under that title, exercise all the powers and duties of the Governor of General.

Appeals to the Supreme Court

The Supreme Court hears two sorts of appeals from lower courts: leaves to appeal and appeals as of right. The former refers to appeals which the Supreme Court has granted a party permission to appeal. In formal terms, this is referred to as “granting leave to appeal,” hence the term “leaves to appeal.” The Supreme Court has considerable discretionary power to grant or reject leaves of appeal, thus giving it control over the sorts of cases it hears. It usually grants leaves of appeal based on its assessment of the public importance of the legal issue raised in a given case and whether or not the issue warrants the consideration of the Court (Supreme Court of Canada, November 2007).

The second sort of appeal, appeals as of right, include those cases where the Supreme Court has no discretion as to whether or not to hear the appeal. Instead, the Court is obliged to hear the appeal and render a decision. In criminal cases, for example, an appeal may be brought as of right where one judge in a provincial or territorial court of appeal dissents on a point of law (Supreme Court of Canada, November 2007).

The Supreme Court holds three sessions, each of which lasts approximately three months. The Court’s hearings are open to the public and are often taped for delayed telecasting in both English and French, Canada’s two official languages. Most appeals are heard by a panel of seven to nine judges, with the Court usually hearing two appeals each day. During a hearing, litigants from each side are given an opportunity to present arguments, usually about one hour each. Interveners (or interested parties) may also be recognized by the Supreme Court and given an opportunity to be heard.

Judgments of the Supreme Court

Once the Supreme Court has heard an appeal, it will render its decision on the case. This is usually done in written form well after the appeal has been heard. Written decisions of the Supreme Court are very important in the Canadian court system, as they outline the particular reasons and principles endorsed by the Court in determining a case or legal issue. This allows lower courts, lawyers, governments, and the public to understand precisely how the Supreme Court is interpreting and applying Canadian law.

Central to any Supreme Court judgment (with the exception of government references) is whether it has allowed or dismissed the appeal. In allowing an appeal, the Supreme Court is recognizing that the lower court has made some error which affects the proper determination of the case. It will overturn the decision of the lower court, and either make its own decision or remit the case back to a lower court to be re-heard. In dismissing an appeal, the Supreme Court is recognizing that the lower court’s determination of the case should stand. It is important to note, however, that the Supreme Court may dismiss an appeal even if it takes issue with certain lines of reasoning of the lower court. This occurs when the Supreme Court adopts a different line of reasoning, but nevertheless comes to the same result as the lower court.

Supreme Court judgments do not need to be unanimous. In other words, there is no requirement that all judges on a panel come to the same determination of a case for exactly the same reasons. Instead, judges may decide the case in very different ways. In this context, the court operates under majority rule. Take the example of a seven-judge panel, where four conclude that an appeal should be allowed, while three conclude that it should be dismissed. The four judges in favour of allowing the appeal are referred to as “the majority,” and their ruling becomes the judgment. The other three judges are referred to as “the minority,” and their ruling becomes the “dissenting opinion.” Dissenting opinions can be important, as subsequent rulings of the Supreme Court can pick up on the lines of reasoning and principles endorsed in those decisions when determining future cases.

Issues and Debates on the Supreme Court of Canada

Democracy, federalism, social representation and the Supreme Court

The Supreme Court in the Context of Democracy

One important debate regarding the Supreme Court is its role in the context of Canadian democracy. On the one hand, it may be argued that the Supreme Court is an inherently undemocratic institution. The Supreme Court is an appointed body, beyond democratic control (although, judges on the Supreme Court are appointed by democratically elected governments). Moreover, the Supreme Court may use its powers to overrule democratically elected legislatures. As such, it is appointed judges, and not elected representatives, which have the final say on important issues of public policy, such as abortion, voter rights, spending on election advertising, etc.

On the other hand, one may argue that the Supreme Court is fundamental to the promotion of an open and fair democratic society. Central here is the concern over the tyranny of the majority, in which a segment of society may use legal or political means to exclude minority groups from political or social participation. In such situations, the Supreme Court can be viewed as a protector of democracy, ensuring that all persons, regardless of their ethnicity, social status or moral/political views, have the necessary rights to fully participate in political and social institutions and processes.

The Supreme Court in the Context of Federalism

Another important debate concerning the Supreme Court centres on its status within the context of Canadian federalism. Here the issue isn’t so much the role of the Court, but its basic institutional framework. As discussed above, the Supreme Court is the highest court in Canada, with a jurisdiction that covers both federal and provincial/territorial laws, as well as interpreting and applying the basic principles of Canadian federalism. In sum, the Supreme Court can have a large impact on all levels of government.

Only the federal government, however, has the power to appoint its justices, with little or no input from the provinces and territories. As such, it is open to the federal government, if it so chooses, to fill the Supreme Court with judges that would support the exercise, or even extension, of federal power at the expense of the provinces. Whether or not such a bias does in fact exist in the Supreme Court is a source of controversy within the field of Canadian legal and political scholarship.

The Supreme Court and Social Representation

Another key issue centres on the representation of different social, gender, ethnic and religious groups in the membership of the Supreme Court. Canada is a highly pluralistic, economically stratified, and multicultural society, yet historically the judges of the Supreme Court have predominately been well-educated, affluent, white males of either British or French heritage.

One may argue that the lack of representation implies bias in the Supreme Court’s adjudication of cases. In its more vulgar form, this sort of argument centres on the presence of outright prejudice on the part of Supreme Court judges. While such an argument may have been plausible in the early years of the Court, it would be very hard to make such a case today. In its more subtle form, such an argument can be made in terms of identity politics and the ability of persons to fully understand issues which are beyond their own particular social subjectivity. Under such a view, one might argue that a white male judge cannot adequately comprehend and address racism or gender discrimination, as he has never lived it himself. The issue here is not outright prejudice, but simply an inability to understand the full nature and effects of discrimination due to one’s privileged status in society.

One may further argue that this lack of representation sends a message to society which reinforces inequality. As the Court has been predominately upper class, Christian, white males, the state is somehow creating or reinforcing social views that other social groups are to be valued less in society. By ensuring better social representation on the Court, the state is sending the alternative message that all groups are to be valued and respected equally, regardless of their gender, ethnicity or economic status.

Whether or not these problems do exist is an issue debated in Canadian political and legal scholarship. It is important to note, however, that today’s Supreme Court is much more representative than it has been in the past. At the time of the writing of this article, four of the nine judges on the Court were female, including the Chief Justice of Canada. Many of the judges are from non-British or French heritages, although, none are a visible minority. Moreover, the Supreme Court has rendered many decisions that can be viewed in terms of promoting minority rights and status in Canada. Nevertheless, the issue of inadequate representation cannot be easily dismissed.

Sources and Links to More Information

List of article sources and links to more on this topic

Sources Used for this Article

McCormick, P. Supreme at Last: The Evolution of the Supreme Court of Canada. Toronto, Ontario: James Lorimer & Company Ltd., Publishers., 2000.
McCormick, P. Canada’s Courts. Toronto, Ontario: James Lorimer & Company Ltd., Publishers., 1994.
“About the Judges.” The Supreme Court of Canada. 12 March 2007. 4 March 2008. <http://www.scc-csc.gc.ca/aboutcourt/judges/aboutjudges_e.asp>
“Role of the Court.” The Supreme Court of Canada. 23 November 2007. 4 March 2008. <http://www.scc-csc.gc.ca/aboutcourt/role/index_e.asp>
“Canadian Courts.” The Federal Court. 30 October 2006. 4 March 2008. <http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Courts_System>
Makarenko, J. “Supreme Court of Canada Appointment Process.” Mapleleafweb.com. 31 January 2007. 4 March 2008. <http://www.mapleleafweb.com/features/supreme-court-canada-appointment-process>

Links to More Information

The Indian Act: Historical Overview

Jay Makarenko — Mon, 02 Jun 2008 13:58:44 -0600

The Indian Act is federal legislation that provides the basic legal status and entitlements of Canada’s Aboriginal peoples. The Act deals with such things as the legal definition of who may claim Indian status in Canada, the rights and duties which accompany that status, the structure of Canada’s reserve system and the nature of Aboriginal self-government. This article provides an overview of the history of the Indian Act, including its early legislative foundations, the passage of the first Indian Act in 1876 and subsequent key amendments and revisions of the Act.

Early Foundations of the Indian Act

The Royal Proclamation and early Aboriginal legislation

Civilization and Assimilation: The First Indian Act

Overview of the first Indian Act, passed in 1876

Assimilation Reinforced: The Indian Act from 1876 to 1951

Early amendments and revisions of the Indian Act

Aboriginal Policy in Transition: The Indian Act from 1952 to 2002

Contemporary amendments and revisions of the Indian Act

Sources and Links to More Information

List of article sources and links to more on this topic

Early Foundations of the Indian Act

The Royal Proclamation and early Aboriginal legislation

The Indian Act did not simply appear out of thin air, but was heavily influenced by the legislative foundation established prior to its passage. Central here is the Royal Proclamation, 1763, which recognized Aboriginals as a distinct political unit within the colonial system, as well as legislation passed by Canadian authorities in the mid-1800s.

The Royal Proclamation, 1763

During the process of colonization, Europeans undertook several strategies in dealing with these populations. In some cases, this involved forced-relocation and even genocide. In other cases, Europeans implemented strategies of cohabitation, which were meant to achieve peaceful relations between settlers and indigenous populations.

One of the most important of these cohabitation approaches can be found in the Royal Proclamation of 1763, which was issued by King George III of Britain. The Proclamation established a system of government for former French colonies in North America, which Britain had won following the Seven Years War. Also included was a basic framework for relations with North American Aboriginals. As such, it is often referred to as an “Indian Magna Carta” or an “Indian Bill of Rights.”

Central to the Royal Proclamation was the separation of Aboriginal lands from those forming parts of the North American colonies, with the former being reserved for the exclusive use and possession of Aboriginal peoples. Moreover, the Royal Proclamation implemented a process by which Aboriginal lands could be purchased for British settlement and development. An Aboriginal group could only transfer lands to the British Crown, not to European settlers or other colonial officials. This surrender process was to occur on a formal nation-to-nation basis, from the Indian nation to the Crown, and was to be done in a public process with the consent of the Aboriginal group involved.

By instituting an Aboriginal right to land and a formal nation-to-nation land transfer process, the Royal Proclamation recognized Aboriginal groups in North America as autonomous and self-governing actors (Report of the Royal Commission on Aboriginal Peoples, 1996). Aboriginals were not simply private individuals, akin to other British subjects. Rather, they were distinct peoples and political units within the British imperial system, with the right to negotiate with the Crown as autonomous nations.

This is not to suggest a relationship of complete autonomy and equality between Aboriginals and the Crown. The Royal Proclamation recognized Aboriginals as groups living under Crown protection on lands within British dominions and territories. Nevertheless, the Crown could not simply appropriate Aboriginal lands whenever and however it saw fit. Instead, it was required to engage in a formal process of negotiation and to purchase the lands from Aboriginal nations.

Also central to the Royal Proclamation was the concern that Aboriginals were being exploited in their dealings with European settlers and colonial officials. In this context, the Royal Proclamation recognized a duty on the part of the Crown to act as a protector of Aboriginal peoples in their relations with colonial society. Over time, this has been formally recognized in terms of a fiduciary relationship, in which the Crown is recognized as a “trustee” for Aboriginal peoples, with the duty to act in their interests.

For more information on the Crown-Aboriginal fiduciary relationship:

Parliament of Canada: The Crown’s Fiduciary Relationship with Aboriginal Peoples

Aboriginal Legislation Prior to the Indian Act, 1867

At the time of the Royal Proclamation, 1763, responsibility for Aboriginal affairs in Canada lay with British imperial authorities. By the mid-1800s, however, Britain began to transfer this responsibility to the Canadian colonies themselves. Between 1850 and 1876 (when the first Indian Act was passed), Canadian authorities enacted several key pieces of legislation, which strongly influenced the nature of the Indian Act itself.

The first of these was An Act for the Better Protection of the Lands and Property of Indians in Lower Canada and An Act for the protection of Indians in Upper Canada from imposition, and the property occupied or enjoyed by them from trespass and injury, which were passed by the Province of Canada (then a British colony) in 1850. These statutes are important in that they represented the first attempt to define “Indian” and who would receive the rights and duties of Indian status. Under the acts, the term “Indian” was defined broadly to include the following: 1) any person deemed to be Aboriginal by birth or blood; 2) any person reputed to belong to a particular band or body of Aboriginals; and 3) any person who married an Aboriginal or was adopted by Aboriginals (Indian and Northern Affairs Canada, 1991). While the definition was broadly construed, it is important to note that it assumed for the government the responsibility for deciding who was an Aboriginal. In other words, Aboriginal groups themselves were not given the power to define their own communities. This power, instead, lay in the hands of non-Aboriginal authorities.

Another important statute was An Act to Encourage the Gradual Civilization of Indian Tribes in this Province, and to Amend the Laws Relating to Indians, passed by the Province of Canada in 1857. Commonly referred to as the Gradual Civilization Act, this statute was the first to introduce the concept of enfranchisement or the process by which Aboriginals lost their Indian status and became full British subjects. In introducing the Act, the colonial government viewed enfranchisement as a privilege for Aboriginals, by which they could gain their freedom from the protected Indian status and gain the rights of full colonial citizenship, such as the right to vote. It is at this point that the strategies of civilization and assimilation begin their legislative existence, with colonial authorities encouraging Aboriginals to forgo their Indian status and be drawn into the larger colonial society as regular citizens (and, hence, become “civilized”).

Under the Act, only Aboriginal men could seek enfranchisement. In order to do so, they had to be over the age of 21, able to read and write in either English or French, be reasonably well educated, free of debt, and of good moral character as determined by a commission of non-Aboriginal examiners (Report of the Royal Commission on Aboriginal Peoples, 1996). Once enfranchised, the person was entitled to receive up to 50 acres of land from the reserve on which they lived and a per capita share of treaty annuities and other band monies. Enfranchisement was to be fully voluntary by the man seeking it. However, an enfranchised man’s wife and children automatically lost their Indian status, regardless of whether or not they so desired.

In 1860, the Province of Canada passed the Indian Lands Act. An important element of this Act was the centralization of control over Aboriginal affairs for the colony. The Act created the office of the Chief Superintendent of Indian Affairs, and transferred all authority for Aboriginals and their lands in the Province of Canada to this single official. Moreover, the Chief Superintendent was given very broad discretionary powers over reserve Aboriginals. This centralization continued in 1867, when the Province of Canada was united with Nova Scotia and New Brunswick to create the new nation of the Dominion of Canada. Section 91(24) of the Constitution Act, 1867, gave legislative authority over Aboriginals and their lands to the federal Parliament, removing it from the provincial legislatures.

In 1869, the Government of Canada passed An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31st Victoria. This Act is significant in that it was the first to introduce the notion of self-government for Aboriginals on reserves. Under the Act, Aboriginal tribes or bands were permitted to elect chiefs and band councils for the purpose of general administration on reserves. These elected officials were granted limited bylaw powers, and were elected to terms of three years. It is important to note many Aboriginal groups did not engage in democratic practices at the time. Consequently, the Act granted the government the power to impose democratic institutions on them, regardless of what Aboriginal groups desired. Furthermore, Aboriginal women were excluded from voting for band chiefs and councils (women in general were excluded from voting at this time, as women’s suffrage was not achieved in Canada until the early 1900s).

In addition to a mechanism for Aboriginal self-government, the 1869 Act included other key provisions. It prohibited the sale of alcohol to Aboriginals, on the paternalistic grounds of protecting Aboriginals from themselves. Furthermore, the Act instituted a compulsory enfranchisement provision. Under the Gradual Civilization Act (see above), enfranchisement was a completely voluntary process, by which Indian status could only be lost at an individual’s choosing. Under the 1869 Act, however, Aboriginal women who married non-Aboriginal men automatically lost their Indian status, regardless of whether or not they so desired it. Moreover, any children resulting from the marriage would also be denied Indian status. This provision continued with the strategy of assimilation, as many Aboriginal women, and their children, forcefully lost their Indian status and gained Canadian citizenship.

Civilization and Assimilation: The First Indian Act

Overview of the first Indian Act, passed in 1876

The Government of Canada, now an independent nation, introduced the first Indian Act in 1876, with the purpose of consolidating all prior federal legislation regarding Aboriginals into one single piece of legislation. The following provides an overview of the underlying philosophy and key provisions of the Indian Act, 1876.

Philosophy of the Indian Act, 1876

The first Indian Act adopted an explicit vision of assimilation, in which Aboriginals would be encouraged to leave behind their Indian status and traditional cultures and become full members of the broader Canadian society. In this context, Aboriginals were viewed as children or wards of the state, to which the government had a paternalistic duty to protect and civilize. This underlying philosophy was clearly expressed by the Canadian Department of the Interior in its 1876 annual report:

“Our Indian legislation generally rests on the principle, that the aborigines are to be kept in a condition of tutelage and treated as wards or children of the State. …the true interests of the aborigines and of the State alike require that every effort should be made to aid the Red man in lifting himself out of his condition of tutelage and dependence, and that is clearly our wisdom and our duty, through education and every other means, to prepare him for a higher civilization by encouraging him to assume the privileges and responsibilities of full citizenship.” (Report of the Royal Commission on Aboriginal Peoples, 1996)

It is important to note the change in Aboriginal policy from the Royal Proclamation, 1763 to the first Indian Act. The first Indian Act maintained the Crown’s role as trustee of Aboriginal interests, but had a very different view of that relationship. No longer were Aboriginal groups viewed as autonomous quasi-nations within the broader Canadian political system, to which the Crown had an obligation to protect from abuse and encroachment from European colonial society.

Key Provisions of the Indian Act, 1876

The Indian Act, 1876 adopted much of the basic framework established in previous Aboriginal legislation, with some minor alterations.

First, the Act maintained the centralized administration of Aboriginal affairs, with a Superintendent General of Indian Affairs, which was a cabinet position, who had broad discretionary powers in dealing with Aboriginals and their lands.

The Act also continued the practice of imposing a definition of Indian status on Aboriginal groups, thus ensuring that it was the Canadian government, and not Aboriginal groups themselves, that had the power to decide who was, and who was not, Aboriginal. However, the Act did place a stronger emphasis on male lineage in its definition of Indian status. Under the Act, the term “Indian” now referred to 1) any male of Indian blood reputed to belong to a particular band; 2) any child of such person; and 3) any woman who is or who was married to such a person. Moreover, the Act explicitly denied Indian status to the Métis of Manitoba, which were persons of mixed Aboriginal and European decent.

The Act also maintained and broadened the system of enfranchisement, by which Aboriginals could lose their Indian status and gain full citizenship. Previously, Aboriginals could voluntarily apply for enfranchisement if they met certain criteria. Moreover, compulsory enfranchisement occurred for Aboriginal women when they married non-Aboriginal men. In addition to maintaining these provisions, the Act allowed for the compulsory enfranchisement of any Aboriginal who received a university degree or who became a doctor, lawyer or clergyman, regardless of whether they desired to lose their Indian status and gain full citizenship.

Regarding self-government, the Act continued the system of elected chiefs and band councils, who served for three years, and had limited bylaw powers. As before, the Act granted the Superintendent General the power to impose democratic systems on Aboriginal groups, regardless of whether they were desired.

Moreover, the Act allowed the Superintendent General to order a reserve to be surveyed and divided into lots, and then require band members to obtain tickets for individual plots of land. The allowed the government to promote individualism amongst Aboriginals, by breaking up communal use of reserve lands, and encouraging practices of individual ownership of property.

Finally, the Act also included many protective features. No one other than an “Indian of the Band” could live on or use reserve lands without licence from the Superintendent General. Moreover, no federal or provincial taxation on real estate or personal property was permitted on a reserve; no liens under provincial law could be placed on Aboriginal property; and no Aboriginal property could be seized for debt.

Assimilation Reinforced: The Indian Act from 1876 to 1951

Early amendments and revisions of the Indian Act

Since its introduction in 1876, the Indian Act has undergone several amendments and reforms. The following provides a summary of key changes to the Indian Act during the period 1876 to 1951.

Amendments to the Indian Act 1876-1950

Between 1876 and 1950, the purpose of the amendments to the Indian Act was to strengthen the philosophy of civilization and assimilation underlying the first Act. Moreover, many of the changes to the Act granted the government greater powers to move Aboriginals and expropriate their lands for the purpose of non-Aboriginal use.

Key amendments to the Indian Act during this period include:

1885: Prohibition of several traditional Aboriginal ceremonies, such as potlaches.
1894: Removal of band control over non-Aboriginals living on reserves. This power was transferred to the Superintendent General of Indian Affairs.
1905: Power to remove Aboriginal peoples from reserves near towns with more than 8,000 people.
1911: Power to expropriate portions of reserves for roads, railways and other public works, as well as to move an entire reserve away from a municipality if it was deemed expedient.
1914: Requirement that western Aboriginals seek official permission before appearing in Aboriginal “costume” in any public dance, show, exhibition, stampede or pageant.
1918: Power to lease out uncultivated reserve lands to non-Aboriginals if the new leaseholder would use it for farming or pasture.
1927: Prohibition of anyone (Aboriginal or otherwise) from soliciting funds for Aboriginal legal claims without special licence from the Superintendent General. This amendment granted the government control over the ability of Aboriginals to pursue land claims.
1930: Prohibition of pool hall owners from allowing entrance of an Aboriginal who “by inordinate frequenting of a pool room either on or off an Indian reserve misspends or wastes his time or means to the detriment of himself, his family or household.”

1951 Revision of the Indian Act

In the late 1940s, the federal government established a Joint Committee of the Senate and House of Commons to examine Aboriginal policy. While recommending broad changes to the Indian Act, the Joint Committee nevertheless continued with the previous philosophy of transitioning Aboriginals from wardship to citizenship.

In response to the Joint Committee’s report, the federal government instituted some changes to the Indian Act in 1951 (although, overall, the new Act continued with many of the practices under the previous legislation).

In regard to general administration, the 1951 Act assigned responsibility for Aboriginals to the minister of Indian Affairs, with broad discretionary powers over the implementation of the Act as well as the daily lives of Aboriginals on reserves. The Act also maintained the government’s power to expropriate Aboriginal lands, albeit in a significantly reduced manner.

Concerning the definition of Indian status, the 1951 Act instituted some limited reforms. The Act maintained the federal government’s power to define Indian status and band membership, instead of transferring this power to Aboriginals themselves. However, the new Act abandoned the criterion of “Indian blood” in favour of a system of registration with strong biases in favour of descent through the male line.

The 1951 Act continued with the band council system, with some small alterations. Band council authority was still limited. However, under the new Act, bands that reached “an advanced stage of development” could acquire additional powers, such as authority to tax local reserve property. The new Act also allowed the full participation of Aboriginal women in band democracy.

The practice of enfranchisement was kept in the 1951 Indian Act. Voluntary enfranchisement was still permitted, as well as the compulsory enfranchisement of Aboriginal women who married non-Aboriginal men was continued and Aboriginals who received a university degree or who became a doctor, lawyer or clergyman. Moreover, the 1951 Act introduced the double-mother rule, which provided for the compulsory enfranchisement of persons whose mother and grandmother had obtained Indian status only through marriage to a man with status. However, under the new Act, the minister could only enfranchise an individual or band upon the advice of a special committee established for that purpose.

The new Act removed many of the prohibitions on tradition Aboriginal practices and ceremonies, such as potlaches and wearing traditional “costume” at public dances, exhibitions and stampedes. The Act, however, continued many of the paternalistic elements of earlier versions. For example, the Act made it an offence for Aboriginals to be in the possession of intoxicants or to be intoxicated.

One of the more important reforms concerned the application of provincial law to Aboriginals. Previously, the federal government had asserted exclusive jurisdiction to legislate in the context of Aboriginals. Changes made in 1951, however, provided that whenever a provincial law dealt with a subject not covered under the Indian Act, such as child welfare matters, Parliament would allow that provincial law to apply to Aboriginals on reserves. This opened the door to provincial participation in Aboriginal law making.

Aboriginal Policy in Transition: The Indian Act from 1952 to 2002

Contemporary amendments and revisions of the Indian Act

Since the revisions of 1951, the Indian Act has continued to undergo changes, both in terms of its underlying philosophy and its specific provisions. The following provides an overview of the Indian Act during the period 1952 to 2002.

Conflicting Views on Aboriginal Policy

From the 1950s onward, Aboriginal policy in Canada entered into a complex period. On the one hand, there still remained the traditional philosophy of assimilation, which encouraged Aboriginals to leave behind their Indian status and integrate into the broader Canadian society. Contrasted to this, however, were new approaches to Aboriginal policy, based on the desire of Aboriginal groups to assume control over their own communities, as well as new ideas derived from the international indigenous movements of the time. Central to this approach was the view of Aboriginal groups as distinct nations, which were entitled to political, social and economic self-determination.

This period of complexity is evident in the range of actual and proposed amendments that occurred to the Indian Act between 1952 and 1985. For example, in 1960, Aboriginals received the right to vote federally without having to give up their Indian status. Furthermore, in 1961, the compulsory enfranchisement provisions were removed from the Indian Act, meaning that Aboriginals could no longer be forced to give up their Indian status. This eliminated some of the key assimilation provisions of the Indian Act, which had been in existence since the late 1800s.

In 1969, however, the federal government introduced the 1969 White Paper on Aboriginal affairs. This strategy paper proposed the abolition of the Indian Act altogether, the rejection of land claims, and the assimilation of Aboriginals into Canadian society (with the status of an ethnic minority, as opposed to being a distinct national-cultural group). Strong Aboriginal and non-Aboriginal criticism of the 1969 White Paper eventually led the federal government to back away from this position.

The 1985 Revision of the Indian Act

One of the more significant changes to the Indian Act came in 1985, when the federal government introduced Bill C-31. This amendment was in response to changes in Canada’s constitutional framework; in particular, the introduction of the Canadian Charter of Rights and Freedoms in 1982. Section 15 of the Charter prohibited discrimination based on certain characteristics, such as race, ethnicity, religion, sex, age, or mental or physical disability. This right to equality had important implications for sections of the Indian Act, particularly in regard to the historical practice of compulsory enfranchisement for Aboriginal women who married non-Aboriginal men (while Aboriginal men marrying non-Aboriginal women could retain their Indian status).

The Indian Act, 1985 removed this discrimination by asserting that women could no longer gain or lose Indian status as a result of marriage. Moreover, the new Act permitted the restoration of Indian status to several groups that had been forcefully enfranchised in the past. This included Aboriginal women who had lost status due to marrying non-Aboriginals; children enfranchised as a result of their mothers’ marriage to non-Aboriginals; persons enfranchised as a result of the double-mother provision; and illegitimate children of Aboriginal women who lost their Indian status because of non-Aboriginal paternity.

In addition to removing elements of discrimination from the Act, the 1985 revision also granted Aboriginal bands the right to determine their own membership. Under the Act, bands were allowed to administer and update their band lists, which was a record of all persons who were recognized as formally belonging to the band. Moreover, bands were allowed to establish their own rules of membership in administering their band lists. This reform enabled greater Aboriginal control over who was to be considered an Aboriginal for the purpose of the Indian Act.

Recent Amendments to the Indian Act

The last major revision of the Indian Act occurred in 1985. Since that time, however, there have been further amendments to the legislation.

In 1988, the Act was changed to allow bands greater powers to tax land interests on their reserves, as well as permitted individuals to mortgage these leaseholds on reserves. The purpose of these reforms was to provide bands with access to revenues and financing in order to promote economic development on reserves.

The 1990s and early 2000s saw renewed efforts on the part of the federal government to significantly revise the Indian Act. In the early 1990s, the federal government announced its intention to eventually abolish the Indian Act. As part of this policy, the government introduced the Indian Act Optional Modification Act in 1996. The proposed legislation included modifications to the Indian Act in several areas, such as the system of the band governance, bylaw authority, and the regulation of reserve land and resources. The Act faced strong opposition from Aboriginal groups, and was never passed by Parliament.

In 2002, the federal government again initiated a major overhaul of the Indian Act with the introduction of The First Nations Governance Act. Central to the new Act was the requirement that Aboriginal bands develop a system by which to choose their leaders, as well as clear rules regarding how band money is spent. Furthermore, under the Act, the actions of Aboriginal bands would no longer be exempt from the Canadian Charter of Rights and Freedoms. Again, however, the new Act faced opposition from Aboriginal groups and was never passed by Parliament.

For more information on The First Nations Governance Act:

Parliament of Canada: Bill C-7: The First Nations Governance Act

While these large overhaul packages were never passed, the federal government did implement more narrow revisions of the Indian Act during this period. In 1999, it enacted The First Nations Land Management Act (FNLMA). Previously, reserve land management, such as environmental standards and land use policies, was governed by provisions of the Indian Act. Under the FNLMA, however, bands can apply to the federal government to assume control over land management on their reserves. The purpose of the legislation is to improve band capacities and opportunities for economic development.

For more information on The First Nations Land Management Act:

Government of Canada: First Nations Land Management Act

Furthermore, in 2000, the Indian Act was amended to allow band members living off-reserve to vote in band elections and referenda. This amendment was in response to a 1999 Supreme Court of Canada decision which concluded that the denial of voting rights for off-reserve band members violated their right to equality under Section 15 of the Canadian Charter of Rights and Freedoms.

For more information on this amendment of the Indian Act:

Government of Canada: Amendments to the Indian Band Election Regulations and the Indian Referendum Regulations

Sources and Links to More Information

List of article sources and links to more on this topic

Sources Used for this Article

“An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31st Victoria, Chapter 42.” Indian and Northern Affairs Canada. 14 April 2008. <http://www.ainc-inac.gc.ca/pr/lib/phi/histlws/hln/a69c6_e.html>
“Historical Legislation: 1850-1970.” Indian and Northern Affairs Canada. 14 April 2008. <http://www.ainc-inac.gc.ca/qc/csi/hist1_e.pdf>
“Current Legislation: 1985.” Indian and Northern Affairs Canada. 14 April 2008. <http://www.ainc-inac.gc.ca/qc/csi/present1_e.pdf>
“First Nations Land Management Act.” Indian and Northern Affairs Canada. 23 April 2004. 14 April 2008. <http://www.ainc-inac.gc.ca/pr/pub/matr/fnl_e.html>
“Amendments to the Indian Band Election Regulations and the Indian Referendum Regulations.” Indian and Northern Affairs Canada. 232 April 2004. 14 April 2008. <http://www.ainc-inac.gc.ca/nr/prs/s-d2000/00168bkd_e.html>
Hurley, M. “Bill C-7: The First Nations Governance Act.” Library of Parliament. 18 December 2003. 14 April 2008. <http://www.parl.gc.ca/common/bills_ls.asp?Parl=37&Ses=2&ls=c7>
Hurley, M. “The Indian Act.” Government of Canada. 04 October 1999. 14 April 2008. <http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/EB/prb9923-e.htm>
Hurley, M. “The Crown’s Fiduciary Relationship with Aboriginal Peoples.” Library of the Parliament.” 18 December 2002. 14 April 2008. <http://www.parl.gc.ca/information/library/PRBpubs/prb0009-e.htm>
“Report of the Royal Commission on Aboriginal People.” Indian and Northern Affairs Canada. October 1996. 14 April 2008. <http://www.ainc-inac.gc.ca/ch/rcap/sg/sgmm_e.html>
Henderson, W. “Indian Act.” The Canadian Encyclopedia. 14 April 2008. <http://www.thecanadianencyclopedia.com/index.cfm?PgNm=TCE&Params=A1SEC876967>

Links to More Information

Official Bilingualism in Canada: History and Debates

Jay Makarenko — Sun, 01 Jul 2007 00:00:00 -0600

Language politics and the issue of official bilingualism have been a factor in Canadian politics since before Confederation. They have impacted not only the operation of federal institutions, but also the cultural and linguistic makeup of Canadian society. This article provides a historical and public policy overview of official bilingualism in Canada. In particular, this article examines the history of bilingual politics in Canada, the nature and scope of modern federal bilingual policy, and current issues relating to this topic in the Canadian context.

History of Bilingual Politics in Canada

From colonization to a Royal Commission

Modern Federal Bilingual Policy

Key government objectives and initiatives on language policy

Issues in Canadian Bilingual Policy

Sources of debate on bilingualism in Canada

Sources and Links for More Information

List of article sources and links for more on this topic

Credits: This article was originally written by Rhonda Lauret Parkinson. It has since been modified by Denise Brennan and Jay Makarenko.

History of Bilingual Politics in Canada

From colonization to a Royal Commission

English and French Colonization of Canada

The notion of Canada as a bilingual country is not a new concept in Canadian politics, but can be traced back to the European colonization of Canada. The territory of modern-day Canada was colonized not by one European ethnicity but by two: the English and the French. Both European groups built strong colonies in Canada alongside pre-existing Aboriginal communities. In eastern and central Canada, the British settled in parts of present-day Newfoundland, while the French developed colonies in parts of present-day Nova Scotia, New Brunswick, Prince Edward Island, and Quebec.

By the early 1700s, large populations of both English and French-speaking colonialists were established – colonial groups that differed significantly in their cultural characteristics. Generally speaking, the French colonists spoke French, practiced Catholicism, and followed their own legal and political systems (such as civil law). In contrast, the British colonists spoke English, practiced Protestantism, and followed a legal system based on the common law tradition.

The British eventually consolidated their control over Canada. Through a series of European wars, such as the Queen Anne’s War and the Seven Years War, the British acquired all French territories in the Maritimes and Quebec. While the British controlled these territories politically, these new acquisitions were French-dominated in terms of culture. Their populations were predominately French-speaking and characterized, naturally, by French religious and legal practices.

Legal Recognition of French Culture and Language

In dealing with its new French population, the British adopted several different strategies. In Acadia, the former French colony in the Maritimes, the British adopted a policy of forced relocation, expelling thousands of French Acadians to France or to the American colonies (in particular, present-day Louisiana). Other French settlers fled elsewhere in the Canadian colonies.

In New France, or present-day Quebec, the British adopted a different policy, choosing to legally recognize French culture and language but within the realm of British rule. Initially, the British had enacted the 1763 Royal Proclamation, which forced British law and practices on all of their colonies in North America, including those with large French populations. In 1774, however, the British reversed this practice with the Quebec Act, legislation that set out the principles of governance in the Province of Quebec. Under the Quebec Act, the British guaranteed the practice of the Catholic faith in Quebec while upholding the use of French civil law for private matters. The British system of common law was reserved only for matters relevant to public administration, such as criminal prosecution.

This practice of legally recognizing French culture was continued through Confederation and the uniting of former British colonies into the Dominion of Canada. Under the nation’s first constitution, which was set out in the Constitution Act, 1867, French-speaking citizens were given the right to continue practicing the Catholic religion and French civil law, in addition to significant language rights. Section 133 of the Act, for example, established English and French as the official languages of the new Canadian Parliament, as well as the courts. The section also established both English and French as the official languages of the Quebec provincial legislature and courts. This same constitutional language rights were also extended to the new province of Manitoba when it was established in 1879. At the time, Manitoba had a significant French-speaking population.

The 1960s – Quebec’s Quiet Revolution

The Quiet Revolution refers to the period of social, cultural, and political upheaval that took place in Quebec in the 1960s. Language politics played an important role in these changes. While the French-speaking majority in Quebec had been granted substantial language and cultural rights prior to and following Confederation, francophones still faced several challenges in their home province. Of particular concern was the fact that an anglophone minority controlled most elite positions in Quebec business and industry, and the worry that the French language was losing ground to English in the province.

During the Quite Revolution, the provincial Liberals in Quebec enacted several policies to help French-speaking Quebecers become “Maîtres Chez Nous,” or “Masters in Our Own House.” The government created the first provincial department of Cultural Affairs, nationalized private hydroelectric facilities, and opted out of several federal government programs, such as the newly implemented Canada Pension Plan. Not surprisingly, the separatist movement gained momentum during the Quiet Revolution, as Quebecers increasingly questioned Quebec’s role within Confederation.

The Quiet Revolution was significant in that it brought the issue of French cultural and language politics to the forefront of Canadian politics. Political elites and the Canadian public were faced with questions of how to deal with the cultural and language aspirations of French-speakers in Quebec. For those supporting a Canadian federation with Quebec, the issue centred on how to best accommodate this linguistic cultural group within a united Canada.

Royal Commission on Bilingualism and Biculturalism

This issue of accommodation led the federal government, under Liberal Prime Minister Lester B. Pearson, to form the 1963 Royal Commission on Bilingualism and Biculturalism (commonly referred to as the “B and B Commission”). Chaired by André Laurendau, editor of Le Devoir (a major Montreal daily newspaper) and University administrator Davidson Dunton, the Commission was charged with investigating and reporting upon “the existing state of bilingualism and biculturalism in Canada and to recommend what steps should be taken to develop the Canadian Confederation on the basis of an equal partnership between two founding races.”

In its reports, the Commission highlighted a great crisis in Canadian language politics, stemming from a failure by all levels of government outside of Quebec to respect Canada’s French-speaking minorities. According to the Commission, adequate accommodation of Quebec in Canada required more than simply officially recognizing the French language in the nation’s political institutions. Instead, the Commission recommended the formal recognition of French-speaking Canadians as a distinct and equal society within Canada. Moreover, the Commission rejected the creation of two unilingual regions in Canada, where the primary language in Quebec would have been French, while the rest of the country would have been dominated by English. Instead, the Commission recommended a bilingual strategy that would promote both languages across the nation. This strategy would include the protection of French and English linguistic minorities, as well as promoting bilingualism (use of both languages) amongst Canadians.

The B and B Commission, and its recommendations, are significant to language politics, at least at the federal level. Firstly, it brought forth the notion that governments should be actively involved in language politics. Language was no longer to be a private issue, but a public one in which the federal government had an important role to play. Secondly, the B and B Commission helped to frame language politics and government action in terms of equality and a common community. Both linguistic groups were to be recognized as having equal status in Canada. Moreover, English and French Canadians were not to be separated into separate linguistic communities. Instead, both languages were to be promoted across Canada in an attempt to create a single bilingual community.

Modern Federal Bilingual Policy

Key government objectives and initiatives

Since the Royal Commission on Bilingualism and Biculturalism, the federal government has pursued a language policy characterized by equality between French and English and the vision of a common bilingual community (although, some would argue that this is no longer the case today – see the Issues in Canadian Bilingual Policy section of this article). This has involved several federal initiatives to promote French and bilingualism in Canada, in addition to protecting linguistic minorities across the country. The following section provides an introduction to several aspects of this federal strategy.

The Official Languages Act

One of the key initiatives undertaken by the federal government in response to the Royal Commission on Bilingualism and Biculturalism was the introduction of the Official Languages Act in 1969. This legislation declared French and English to be the official languages of Canada while requiring all federal institutions (such as government departments, agencies, and Crown corporations) to provide their services in French or English at the customer’s choice. The Act also created the office of Commissioner of Official Languages to oversee its implementation. The Commission had the power to ensure compliance with the Act and to investigate complaints, and responsibility for submitting annual reports to Parliament on its progress.

Over the years, the Act has been broadened. In 1988, the federal government reformed the Act in the following manner (Office of the Commissioner of Official Languages, 2003):

Expanding the requirements for use of both official languages in federal institutions.
Clarifying the roles of the official languages commissioner, the secretary of state (now called the Minister of Canadian Heritage), and the Treasury Board in implementing the Act.
Placing major provisions in the Act under executor authority, meaning that an individual or the Commissioner of official languages can seek a court remedy if these provisions are not followed (when certain conditions are met).
Requiring the federal government to provide federal services in both official languages in Ottawa, and any region with significant demand. In 1991, the government adopted a series of Official Languages Regulations setting out the conditions where a “significant demand” existed.
Committing to providing equal employment opportunities for French-speaking and English-speaking Canadians in federal institutions.
Setting out policies to support the development of official language minority communities and to promote the use of both languages in Canadian society.
Guaranteeing federal employees the right to work in the language of their choice in prescribed regions (located in Ontario, New Brunswick, and Quebec).
Amending the Criminal Code of Canada to allow the use of either official language in criminal cases.

For more information on the Official Languages Act, 1988:

Office of the Commissioner of Official Languages: Official Languages Act, 1988 Synopsis (PDF)

In 2005, the federal government amended Part VII of the Official Languages Act to strengthen the federal government’s commitments. The amendment obligated the government to take “positive measures” to translate the government’s commitment to promoting linguistic duality into action (Office of the Commissioner of Official Languages, 2007).

Hiring in the Federal Public Service

In addition to the Official Languages Act, the federal government has also undertaken other initiatives to promote a bilingual community in Canada. In the context of public service hiring, the federal government adopted a strategy of increasing the number of French-speaking and bilingual personnel. There were two key reasons for this initiative:1) to ensure that Canadians were able to receive services in either official language, and 2) to increase employment opportunities for French-speaking Canadians in the federal public service.

Prior to the policy change, French-speaking Canadians were at a distinct disadvantage as English was the primary language of business in the public service. French-speaking Canadians seeking federal employment had to be both bilingual and prepared to work almost exclusively in their second language. Not surprisingly, they were under-represented in the public service, particularly at senior management levels.

Bilingualism in Public Education

In addition to addressing bilingualism in the public service, in 1970 the federal government also launched the Official Languages in Education Program. It provides provinces and territories with funding for second language instruction and minority language instruction in both official languages.

In addition to the second language education, federal and provincial/territorial governments have also supported French immersion education. French immersion is a program whereby students receive the majority of their instruction in the French language. The two most common forms of French immersion are early immersion, when students enter at kindergarten or grade one, and late immersion, when students enter at the beginning of junior high school. Normally, French immersion students are English-speaking, although francophone students may enroll if instruction in their language is not otherwise available.

Bilingual Consumer Packaging

Another well-known federal initiative is the Consumer Packaging and Labeling Act, first introduced in 1974. The Act requires the bilingual labelling of most consumer products sold in Canada, including goods and services ranging from cereal boxes to clothing and textiles. The legislation serves to ensure that all consumers, regardless of whether they speak English or French, or their geographical location, are able to read and understand product packaging in Canada.

The Charter and Language Rights

Enacted in 1982, the Canadian Charter of Rights and Freedoms constitutionally enshrines several key language rights. Section 16 of the Charter recognizes English and French as the official languages of Canada and of New Brunswick. Moreover, both languages have equality of status and equal rights and privileges as to their use in government institutions. Sections 17-22 outline particular language rights in government institutions, such as the right to use either French or English in any proceeding in the Canadian Parliament, the right to use either language in any court established by Parliament, and the right of the general public to communicate and receive services in either language when dealing with government institutions and agencies (at both the federal level and provincial level in New Brunswick).

In addition to these language rights associated with the operation of government, the Charter also provides several minority language education rights. Section 23 of the Charter requires that provincial governments offer education to Canadians in the official language of their choice, even when only a minority speaks that language. In English-dominated areas, this means French-speaking minorities have the right to educate their children in French (and vice versa in French-dominated areas). This section of the Charter does, however, provide several important qualifications. For example, in order to claim minority language education rights for their children, in most cases parents must have the minority language as their first language, or have received their own primary education in the minority language, or have a child who has received, or is receiving, his/her education in the minority language.

Issues in Canadian Bilingual Policy

Sources of debate on bilingualism in Canada

Competing Visions of Language Policies

As discussed in the previous section, over the years the federal government has pursued a language policy largely based on a vision of common bilingual community, characterized by the promotion of both French and English throughout Canada. This vision of language politics, however, can be contrasted with others, particularly, those that equate French Canada with Quebec. This alternative view of language politics involves recognizing Quebec as the heartland of French Canada, and advocates providing that province with special powers to protect French culture and language within English-dominated North America. The goal, then, is not to promote a common bilingual community, but two separate linguistic communities – one based in Quebec and the other residing in the rest of Canada.

This “two communities” vision has often been reflected in the Government of Quebec’s approach to language politics. Since the 1930s, a series of Quebec provincial governments, of different political stripes, have pursued language policies that have sought to promote the French language over English. Underlying these policies has been the belief that Quebec is the heartland of the French language in Canada, and that it is the responsibility of the Government of Quebec to promote a unique French society within the province.

In 1974, for example, the Quebec Liberal government passed the provincial Official Languages Act, making French the province’s official language. In addition, the Act required Quebec businesses to give themselves French names, advertise primarily in French in Quebec, and to acquire a certificate of ‘francization’ (which could only be obtained when the business proved to the government that it could function in French and address its employees in French). Another example is the 1977 Charter of the French Language, passed by the Parti Québécois government, declaring French to be the only language allowed on commercial signs in the province, with some limited exceptions. The Charter also required that children of new immigrants to Quebec, attending public schools, study in French until the post-secondary level. Finally, the separatist movement in Quebec, which has been supported over the years by Parti Québécois governments, is often grounded in the “two communities” vision of language politics. The notion is that Quebec should seek political independence from Canada in order to fully promote French culture and language in English-dominated North America.

Conflict over the federal government’s pursuit of a single bilingual community can also be found in parts of the country outside of Quebec, particularly in regions that have very small French-speaking populations. The concern here is often with the forced ‘bilingualization’ of regions that are predominately English-speaking. Moreover, this concern is associated with a rejection of government action in what is considered to be a private issue (language), or with federal intrusion into provincial politics. One example of this sort of criticism could be found with the Reform Party of Canada, a federal political party founded in the 1980s. A largely western-based political party, the Reform Party strongly opposed the policy of official bilingualism and government action in the realm of language.

While strong opposition to the federal government’s bilingual strategy does exist, this is not to suggest there is also a lack of support for bilingualism. The vision of a common bilingual community in Canada does have its supporters in all parts of the country, and in particular, in areas where there are large minority language communities – be it either English minorities in French-dominated areas or vice versa.

Bilingual Policy in Public Service

Another issue in language politics focuses not on the basic principles of federal bilingual policy, but on its ability to actually achieve its ends. In the context of the public service, for example, the evidence is somewhat mixed on this account.

On the one hand, participation rates by French Canadians in the public service has improved greatly between the 1970s and the early years of the 21st century. Beginning in 1974, all public service positions were reclassified as English-speaking, French-speaking, or bilingual. The revised system benefited French-speaking Canadians, many of whom already spoke both official languages. In 1978, French-speaking Canadians accounted for 25 percent of the total federal public service and 18 percent of public service management positions. By 2002 that figure had increased to 31 percent of the total public service and 28 percent of management positions (Government of Canada, 2003).

Improved participation rates by French Canadians, however, does not necessarily mean the public service has become more bilingual. In 2003, a federal government report on official bilingualism found that there continues to be an imbalance in the use of the two languages in the public service. English remains the preferred language of work by public servants, to the detriment of French, except in Montreal (Government of Canada, 2003). The same report also found that the offer of services in either language by the federal public service remains inadequate, except in Quebec. This is due, in large part, to a shortage of sufficiently bilingual public servants to meet demand (Government of Canada, 2003).

Bilingual Policy in Education

As in the case of the public service, the success of federal bilingual policies in the area of education has also been mixed.

On the one hand, participation in bilingual-based educational programs has increased significantly since the 1970s. Enrolment in second language programs, for example, has increased from approximately 40 percent of all students in 1978, to 50 percent in 1999 (Government of Canada, 2003). Enrolment in French immersion programs in English Canada has also grown since the 1970s: from 0.5 percent of total English language enrolment in 1978 to 6.8 percent in 1999 (Government of Canada, 2003).

The results of these programs were evident by the early 1990s. Among anglophones aged 15-24 living outside Quebec, the percentage that considered themselves to be bilingual doubled between 1971 and 2001, rising from seven percent to 14 percent. Bilingualism in Quebec also increased; between 1971 and 2001, the number of bilingual 15-24-year-old francophones living inside Quebec rose from 31 percent to 42 percent (Government of Canada, 2003).

There have, however, been some key concerns in the area of bilingual education. While realizing strong increases in the 1970s and 1980s, enrolment in second language and French immersion programs has stalled in the 1990s and in the early years of the new millennium. This is due, in part, to several structural problems in bilingual education in Canada, such as inadequate teaching materials, a lack of qualified teachers, and high dropout rates among students in secondary school language programs – often because of the perception they will not be able to obtain post-secondary education in French (Government of Canada, 2003).

Language Minority Communities

Another issue in language politics centres on the health of minority language communities in Canada, be it English-speaking minorities in Quebec or French-speaking minorities in the rest of Canada. Both the anglophone population in Quebec and the francophone population outside of Quebec have declined in recent years. For anglophone Quebecers, this is due largely to relocation outside of the province. Francophones living outside of Quebec, however, face a real problem with assimilation. Most live in areas where less than five percent of the population speaks French. It is difficult for these families to pass along the French language to their children where the environment and culture are predominantly English.

Federal Commitment to Official Bilingualism

Finally, there is the issue of whether the federal government remains committed to the ideal of a single bilingual community in Canada. In 2003, the federal Liberal government, helmed by Jean Chrétien, released an action plan on bilingualism titled The Next Act: New Momentum for Canada’s Linguistic Duality. In that plan, the federal government reaffirmed its commitment to a common bilingual community in Canada, and to promoting bilingualism and equality between French and English in the public service, education, and minority language communities. The federal government also committed more than $750 million over five years in support of the action plan and its initiatives.

For more information on the 2003 Action Plan on bilingualism:

Government of Canada: The Next Act: New Momentum for Canada’s Linguistic Duality (PDF)

The commitment to a single bilingual community was further evidenced in 2005, when the federal government amended Part VII of the Official Languages Act. Under the amendment, federal institutions became obligated to take “positive measures” to translate the government’s commitment to promoting linguistic duality into action. More specifically, the 2005 amendment committed the federal government to “enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development,” while imposing the duty of “fostering the full recognition and use of both English and French in Canadian society” (Office of the Commissioner of Official Languages, 2007). The amendment was supported by both major political parties in the House of Commons, the Liberal Party of Canada and the Conservative Party of Canada.

Nevertheless, there have been some criticisms of the federal government’s commitment to the ideal of a common bilingual community in Canada. Following the Liberal federal government’s release of its 2003 action plan on bilingualism, the Office of the Commissioner of Official Languages criticized the government’s implementation of the strategy. In particular, the Commissioner noted the lack of cohesion and coordination at the leadership level, the government’s failure to measure progress on a regular basis, and its failure to inform Canadians of the results achieved.

For more information on the Commissioner’s assessment:

Office of the Commissioner of Official Languages: Annual Report, 2004-2005, Volume II

In 2007, the Office of the Commissioner of Official Languages released a stronger criticism of the federal government, helmed at the time by the Conservative Party of Canada and Prime Minister Stephen Harper. According to the Commissioner, the Conservative government’s actions cast doubt on its genuine commitment to implementing the Official Languages Act and pursuing a policy of a common linguistic community in Canada. Of particular concern to the Commissioner were budget cuts undertaken by the Harper government eliminating key bilingual initiatives, including: the Court Challenges Program (which provided funding to minority groups to challenge government policies, such as those dealing with language, in court); the Innovation Fund (used to increase bilingualism in the public service); and other cuts within federal government departments which reduced the capacity of federal institutions to fully implement the 2003 Action Plan. Moreover, with the 2003 Action Plan set to expire in March 2008, the Commissioner expressed concern over the apparent lack of a federal vision for bilingual language initiatives beyond that date.

For more information on Commissioner’s 2007 assessments:

Office of the Commissioner of Official Languages: Annual Report, 2006-2007

Sources & Links to Further Information

List of article sources and links to more on this topic

Sources Used for this Article

“The Next Act: New Momentum for Canada’s Linguistic Duality, The Action Plan for Official Languages.” Government of Canada. 2003. 08 July 2007. <http://www.pco-bcp.gc.ca/olo/docs/Action/ActionPlan_e.pdf>
“Official Languages Act.” Office of the Commissioner of Official Languages. 01 September 2003. 08 July 2007. <http://www.ocol-clo.gc.ca/legislation/ola_llo.asp>
“2004-2005 Annual Report Volume II” Office of the Commissioner of Official Languages. 2005. 08 July 2007. <http://www.ocol-clo.gc.ca/archives/ar_ra/2004_05/2004_05_2_e.pdf>
“2006-2007 Annual Report.” Office of the Commissioner of Official Languages. 2007. 08 July 2007. <http://www.ocol-clo.gc.ca/archives/ar_ra/2006_07/2006_07_e.pdf>

Canadian Charter of Rights and Freedoms

Supreme Court of Canada: Role, History, and Operation

Introduction to status and role of the Supreme Court

Important events in the evolution of the Supreme Court

Overview of the organization and operation of the Supreme Court

Democracy, federalism, representation and the Supreme Court

List of article sources and links to more on this topic

The Supreme Court and Canada’s Judicial System

Role of the Canadian Court System

Components of the Canadian Court System

Structure of the Canadian Court System

The Supreme Court and Canada’s Court System

History of the Supreme Court of Canada

Establishment of the Supreme Court

Patriation of Judicial Authority in Canada

Entrenchment of the Canadian Charter of Rights and Freedoms

Operation of the Supreme Court of Canada

Jurisdiction of the Supreme Court

Make-up of the Supreme Court

Appointments to the Supreme Court of Canada

The Chief Justice of Canada

Appeals to the Supreme Court

Judgments of the Supreme Court

Issues and Debates on the Supreme Court of Canada

The Supreme Court in the Context of Democracy

The Supreme Court in the Context of Federalism

The Supreme Court and Social Representation

Sources and Links to More Information

Sources Used for this Article

Links to More Information

The Indian Act: Historical Overview

The Royal Proclamation and early Aboriginal legislation

Overview of the first Indian Act, passed in 1876

Early amendments and revisions of the Indian Act

Contemporary amendments and revisions of the Indian Act

List of article sources and links to more on this topic

Early Foundations of the Indian Act

The Royal Proclamation, 1763

Aboriginal Legislation Prior to the Indian Act, 1867

Civilization and Assimilation: The First Indian Act

Philosophy of the Indian Act, 1876

Key Provisions of the Indian Act, 1876

Assimilation Reinforced: The Indian Act from 1876 to 1951

Amendments to the Indian Act 1876-1950

1951 Revision of the Indian Act

Aboriginal Policy in Transition: The Indian Act from 1952 to 2002

Conflicting Views on Aboriginal Policy

The 1985 Revision of the Indian Act

Recent Amendments to the Indian Act

Sources and Links to More Information

Sources Used for this Article

Links to More Information

Official Bilingualism in Canada: History and Debates

From colonization to a Royal Commission

Key government objectives and initiatives on language policy

Sources of debate on bilingualism in Canada

List of article sources and links for more on this topic

History of Bilingual Politics in Canada

English and French Colonization of Canada

Legal Recognition of French Culture and Language

The 1960s – Quebec’s Quiet Revolution

Royal Commission on Bilingualism and Biculturalism

Modern Federal Bilingual Policy

The Official Languages Act

Hiring in the Federal Public Service

Bilingualism in Public Education

Bilingual Consumer Packaging

The Charter and Language Rights

Issues in Canadian Bilingual Policy

Competing Visions of Language Policies

Bilingual Policy in Public Service

Bilingual Policy in Education

Language Minority Communities

Federal Commitment to Official Bilingualism

Sources & Links to Further Information

Sources Used for this Article

Links for Further Information