Speaking notes for the International Conference on Language Rights Equality of Rights and Duties: The Canadian Model
Graham Fraser - Commissioner of Official Languages
Barcelona, Spain, March 20, 2014
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Beginning of dialog
Minister Mascarell, Mayor Trias, Syndic Ribó, esteemed delegates.
Buenos días. Quisiera comenzar dando las gracias al resto de participantes y a todos los organizadores. Gracias a todos.
[translation from Spanish: Good morning. Let me begin by saying thank you to my fellow participants and all the organizers.]
La seva dedicació i la seva experiència han ajudat a garantir un reeixit començament d'aquesta conferència.
[translation from Catalan: Your dedication and your expertise have helped to ensure a successful start to this conference.]
I would particularly like to thank Rafael Ribó for his initiative, his openness and his hospitality.
I have long been looking forward to this gathering and I am delighted to be here in Barcelona to discuss Canada’s language policy. Language policy as a tool for managing language conflict has been at the heart of the Canadian experience since 1759, when the British wrestled control of New France from the French.
In various Canadians jurisdictions and at various stages in our history, language has been permitted, attacked, re-established, protected as a language of Parliament and the courts, eradicated as a language of education, and then promoted and protected in a series of legislative, constitutional and court decisions over the last five decades.
First, a very simple question. What is a language right? And where does it come from?
According to Michel Doucet—who will be presenting tomorrow—Michel Bastarache and Martin Rioux, the notion of language rights is relatively recent and coincides with the appearance of nationalism, the improvement of education and urbanization.
Allow me to quote from a recent study of theirs on language rights:
These rights encompass guarantees and rules regarding the use of one or more languages. The rules generally establish the language to be used in interactions between the State and the citizen—the public sphere—or, in some cases, in interactions between citizens themselves—the private sphere.
However, for these rights to exist, there must necessarily be legal guarantees. These guarantees exist only because of their legal recognition, arising from a constitutional or legislative text or a regulation. For example, the right to education in the language of the minority and the right to public services in the language of the minority only exist if they are recognized expressly or implicitly in a constitutional or legislative text.Footnote 1 [translation]
In Canada, these rights are recognized in section 133 of the Constitution Act, 1867 and section 23 of the Manitoba Act (dating back to 1870), under which English and French can be used before courts established by the Parliament of Canada and the provinces of Quebec and Manitoba.
However, as the authors I have just quoted elaborate, neither section 133 nor section 23 gives official status to these languages. They simply establish the bilingualism of federal, Quebec and Manitoba institutions.Footnote 2
Language rights began to be discussed in Canada in the broader context of human rights and freedoms in the years following the Second World War, when the Universal Declaration of Human Rights was being drafted at the United Nations.
In 1947, the Canadian deputy minister of Justice, E. P. Varcoe, appeared before a parliamentary joint committee that was studying the possibility of enacting a human rights charter—something that would not occur in Canada for another 35 years. He then defined what a right is, as compared to a freedom.
A freedom, he said, is the benefit or advantage a person derives from the absence of legal duties. A right, Varcoe said, is something quite different:
“A right, according to this view, connotes a corresponding duty in some other person, or the state, towards the person holding the right… If, for example, a person has the right to education, there is a corresponding duty upon the state to provide it.”Footnote 3
A more contemporary analyst, Peter Jones, distinguishes between claim rights, which require a duty to be performed, and liberty rights, which are actions one is not prohibited from performing.Footnote 4
Jones’ distinction between liberty rights and claim rights is a particularly useful one in looking at language rights, for they are clearly in both categories. The late F.R. Scott, a Canadian constitutional lawyer who served on the Royal Commission on Bilingualism and Biculturalism, described language rights as representing the protection to speak a language—passive, protective rights to be, in effect, left alone, a liberty right—and also the right to be responded to, and provided services in one language, by the state: claim rights.Footnote 5
Another way of looking at this is to say that language rights are both individual rights—the right of the individual to receive services from the state—and collective rights—the rights of a community to have what it needs to thrive and prosper. The right to education in one’s language of choice is an individual right, but schools are critical to the vitality of a community.
Canadian language rights were first set out in section 133 of the Constitution Act of 1867. These were limited to the right to use English and French in the Parliament of Canada, the Quebec legislature, the federal courts and the courts of Quebec.
But Canada is a federation, and many of the elements that are most important for the vitality of a minority language community—for instance, health and education—fall within provincial jurisdiction. For much of the century that followed, provinces acted to eradicate the existing French-language minority education rights that had existed, eliminating French as a language of instruction in Ontario, Manitoba, Saskatchewan and Alberta.
The pendulum began to swing the other way in the late 1950s and early 1960s, with a surge in Quebec nationalism. In 1958, a group of 50 Conservative MPs were elected to the federal parliament—many of whom spoke little or no English. For the first time, the House of Commons was equipped with simultaneous interpretation. Previously, French-speaking MPs had every right to speak French—but little chance of being understood!
Then, in 1962, a group of 26 largely unilingual Francophone Quebec MPs were elected representing the Social Credit party, a now-forgotten group with odd views about currency and the economy.
What was more important than their eccentric idea that all of Canada’s economic problems could be solved by simply printing more money was their culture shock in discovering that Ottawa, the federal capital, operated entirely in English.
So every day, they raised questions about the fact that the Parliamentary Orders of the Day were in English only, the menu of the Parliamentary Restaurant was in English only, the announcements for rail passengers at Ottawa’s Union Station were in English only, and the security guards on Parliament Hill were often unilingual Anglophones.
Most dramatically, the President of Canadian National Railways, then state-owned, was questioned about the fact that none of his 17 vice-presidents were French-Canadians. The contempt shown by this public official during the ensuing exchange resulted in large demonstrations at every university in Quebec: a reflection of the growth of nationalism and the independence movement in the province.
In December 1962, Lester Pearson, then leader of the Opposition, promised that, were he elected Prime Minister, he would establish a commission to inquire into the state of bilingualism and biculturalism. When this happened, in 1963, he appointed a Royal Commission—whose members reported in 1965 that Canada was passing through the greatest crisis in its history, and who then, in 1967, made a series of recommendations. In response to those recommendations, the government passed the Official Languages Act in 1969. This was the beginning of a complex triangular conversation between Parliament, the Canadian people and the courts.
Key elements of the Official Languages Act were incorporated in the Canadian Charter of Rights and Freedoms, which became part of the Constitution in 1982; the Act was amended in 1988 to become consistent with the Charter, and the Supreme Court made a series of decisions that clarified the nature of the language obligations laid out in the Charter.
Let me give you an example of how the situation has changed over the past five decades, since that interim report of the Royal Commission.
In 1965, as the late Quebec premier Jean Lesage travelled across Canada, he repeatedly told the story of two engineers: an English Canadian in Vancouver, and a French Canadian in Montreal. Each is offered a promotion to move to the other city.
“For the English Canadian promoted to Montreal, it’s just an ordinary move. He can accept without hesitation. His children will go to school as usual, their lives will not be changed,” Lesage said. “But for the French Canadian promoted to Vancouver, it’s a terrible choice. If he accepts, his children must give up their language.”
For most of the 20th century, that was the situation. French-language education had been eradicated in Ontario—the province next to Quebec—as well as in the prairie provinces of Manitoba, Saskatchewan and Alberta—and it had never really existed on the west coast in British Columbia.
At the time that the Charter of Rights and Freedoms was debated in the 1970s and early 1980s, there were arguments over provincial autonomy, Quebec’s distinctiveness, and the risk that a Charter would Americanize Canadian institutions. Some nationalists in Quebec have made the argument that section 23, which defines the right to access to minority-language education, was “the last attempt to anglicize Quebec.”
Now, 30 years on, it is possible to see the impact that the Charter has had on language rights. To begin with, the children of Lesage’s mythical engineer could not only attend French school in any province; that school would be managed by a French-language school board.
In Canada, schools are funded in part through property taxes and voters elect trustees to run local school boards. These trustees represent both the majority and minority official language communities and run their own respective school boards—a departure from the days when majority language communities called all the shots in education. By adding a collective dimension to language rights, the Charter has allowed for Francophone schools to exist from coast to coast to coast, even in Nunavut, the new territory in Canada’s north. It is amazing how far we have come.
In 1988, Parliament significantly revised and strengthened the Official Languages Act to make it consistent with the Charter, establishing that English and French are both languages of work for public servants in designated bilingual regions, and introducing the notion of positive measures for the growth and development of minority language communities. Perhaps even more dramatically, in 1999, the Supreme Court established a clear principle concerning the protection of official language minorities.
“Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada,” wrote Justice Michel Bastarache in the R. v. Beaulac. This decision granted a Francophone defendant brought before the British Columbia Supreme Court a new trial so he could be heard in French.
The Beaulac judgment set the stage for a series of decisions both by the Supreme Court and by Parliament that broadened the nature of language rights, and deepened the obligations of government institutions to protect them.
First, Parliament amended the Official Languages Act in 2005, making the requirement that federal institutions take positive measures for the growth and development of minority language communities a binding obligation. The Supreme Court then concluded that simply making services available to the minority based on the needs of the majority is not sufficient, and it required the provinces to be more flexible in establishing who has the right to attend minority language schools.
In each case, parliamentarians and the Supreme Court have acted to ensure that language rights are not simply individual rights, but also collective rights; these rights are not in place simply to protect a single person, but to ensure the vitality of minority language communities across the country. The result is something that Jean Lesage could not have imagined when he travelled across Canada in 1965.
These are rights that are defined by the courts, though services for official language minority communities vary significantly from one part of the country to another. Canada is a federal country, and many of the services that are most important to such communities, such as health and education, are provided by the provinces. The result is a significant degree of asymmetry.
For instance, New Brunswick is the only bilingual province. Quebec is a unilingual French-speaking province. Nova Scotia and Prince Edward Island each have a French language services act, while in Newfoundland and Labrador there is no provincial act or policy but there is an Office of French Services. The other provinces and territories in Canada also have a whole range of different arrangements for providing French-language services. These vary from a clearly defined policy in Ontario, with a commissioner of French-language services acting as an ombudsman, to a situation where British Columbia refuses to accept court documents in French.
Each provincial policy reflects a different degree of language planning:
- in Quebec, there are clear requirements designed to protect the majority language, which is a tiny minority in North America;
- in New Brunswick, there are legal and constitutional protections for both languages and communities; and
- in designated districts in Ontario, there is an obligation to proactively provide French-language services.
To the casual observer, Canada’s approach to language policy can appear complex, even confusing. Therefore, it may not be surprising to you that how we Canadians see our own identity—or identities—should be so different. We have always studied 10 versions of history approved by 10 different provincial departments of education.
Back in 1992, in a piece I wrote for The Globe and Mail, I expressed my concern that Canadians did not know their country and were learning different versions of their past.
Teachers were using different textbooks to varying degrees, but the differences between the publications showed why it wasn’t surprising that the same generation of Canadians did not have the same interpretation of the past.
Looking at a random selection of three textbooks used in high schools in three provinces showed three very different views of the country and its history. The versions of the past didn’t overlap. There were three references to Quebec in the Saskatchewan text and one reference to Saskatchewan in the Quebec text, while the Ontario text discussed the country’s past in a much less regional way.
Although textbooks have come a long way from the absolute certainty of their predecessors, which conveyed a single version of what happened, regional and linguistic differences were certainly not new then.
Today, 50 years after the Royal Commission on Bilingualism and Biculturalism, encouraging signs are appearing because of our immersion programs, which can be found at the primary and secondary levels in every province. We are seeing the commercial advantages of bilingualism in New Brunswick and a subtle, unofficial growth in bilingualism in Ontario. More and more Montrealers are equally at ease in both official languages. And newcomers to Canada are embracing linguistic duality for their children because they say it makes them feel more Canadian.
As for my role as Commissioner, I have a number of powers to protect the language rights of Canadians and to promote linguistic duality in Canada. That said, my power to intervene before the courts is not well known among parliamentarians and members of the public. Since 2006, I have intervened in 14 court cases relating to language rights guaranteed by the Act or the Canadian Charter of Rights and Freedoms.
I usually play a strategic role, mostly as an intervener, in court remedies initiated by complainants. Through these interventions, I feel that I have been able to make a unique contribution to the language rights debate. From a legal standpoint, however, it is the courts themselves that help to advance language rights by encouraging governments to demonstrate their leadership and engage Canadians in public dialogue.
The linguistic equality of English and French is a fundamental value and a pillar upon which Canadian society is built. This, I believe, is a distinctive feature of our country. Canada’s linguistic duality is reflected not only in our identity but also in our way of living, as illustrated by our bijural justice system, combining both civil and common law traditions. Furthermore, at the core of Canada’s vision of linguistic duality, however, is a strong conviction that the promotion of and respect for official languages can and will foster our country’s growth, harmony and energy.
But, in looking back over the past five decades, I continue to be struck by the fact that each decade seems to carry us yet another step forward in our interpretation of linguistic duality in Canada. We have just celebrated the 50th anniversary of the launch of the Royal Commission on Bilingualism and Biculturalism, and, I am hopeful that this sixth decade with bring another defining moment in the interpretation of language rights.
In closing my remarks, I will say that Canada has put in place a robust approach to language policy, and I believe we are well on the way to achieving substantive equality. Our goal is within sight.
- Footnote 1
Michel Doucet, Michel Bastarache and Martin Rioux, “Les droits linguistiques : fondements et interprétation,” in Les droits linguistiques au Canada, 3rd edition, Michel Bastarache and Michel Doucet eds., Éditions Yvon Blais, Cowansville, 2014, p. 23.
- Footnote 2
Ibid., p. 27.
- Footnote 3
Quoted by F. R. Scott in “Dominion Jurisdiction over Human Rights and Fundamental Freedoms,” Canadian Bar Review 27 (1949): p. 506.
- Footnote 4
Peter Jones, Rights, New York, St. Martin’s Press, 1994.
- Footnote 5
Scott, op. cit., p. 534.