1.1. Preamble to a preamble
“Whereas the French language is an historic and honoured language in Ontario and recognized by the Constitution as an official language in Canada; and whereas in Ontario the French language is recognized as an official language in the courts and in education; and whereas the Legislative Assembly recognizes the contribution of the cultural heritage of the French speaking population and wishes to preserve it for future generations; and whereas it is desirable to guarantee the use of the French language in institutions of the Legislature and the Government of Ontario, as provided in this Act;
Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:”3
The preamble of an act is in some sense an explanation of the reasons for which the members of the Legislative Assembly decided to pass it. Preambles often contain historical references to provide some context for legal texts, which tend to be colourless.
To interpret the preamble of the French Language Services Act, we have to go back to its source. Section 16(1) of the Canadian Charter of Rights and Freedoms states that English and French are the official languages of Canada, and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and Government of Canada.
Section 16(3) states that nothing in the Charter limits the authority of Parliament or a legislature, such as the Legislative Assembly of Ontario, to advance the equality of status or use of English and French. This is the constitutional framework for the Act.
A preamble is not a source of positive law, but in the absence of a provision, describing the act’s purpose, a preamble can be very useful. This was particularly true in the Lalonde (Montfort Hospital) case, in which the Court of Appeal for Ontario referred to the Act’s quasi-constitutional nature. Or, as noted by the former Chief Justice of the Supreme Court of Canada, the Right Honourable Antonio Lamer, the preamble to the Constitution, “invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text.’”4
The courts must interpret language rights, including Ontario’s French Language Services Act, in the light of the language right’s purpose. Thus, the exercise of language rights must not be seen as a request for accommodation. And in this sense, substantive equality — taking the minority community’s needs into account in the delivery of services — as opposed to formal equality, must be the norm.
In summary, the wording of the Act’s current preamble is quite strong. It states that it is desirable to guarantee the use of the French language in institutions of the Legislature and the Government of Ontario. Consequently, in the Lalonde case, the Court of Appeal for Ontario did not hesitate to refer to the preamble in deciphering the lawmakers’ intention for the purpose of interpreting section 5 on communications with and services to the public. Of course, it will be possible and necessary to improve the preamble considerably once a purpose for the Act has been added as part of the revision process.
3 French Language Services Act, R.S.O. 1990, c. F.32.
4 Lalonde v. Ontario, op. cit., para. 116.