Notes for an address at the Annual Meeting of the Language Rights Support Program
“Demolinguistic Evolution and Immigration in Official Language Communities: Current and Upcoming Courses of Action for Language Rights”
Ottawa, November 19, 2014
Graham Fraser - Commissioner of Official Languages
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Beginning of dialog
“I believe that we require a broader definition and more extensive guarantees in the matter of recognition of the two official languages. The right to learn and to use either of the two official languages should be recognized. Without this, we cannot assure every Canadian of an equal right to participate in the political, cultural, economic and social life of the country.”Footnote 1
Pierre E. Trudeau, 1967
Good morning, ladies and gentlemen.
Since the beginning of my mandate, I have been keenly interested in the role played by immigration in supporting population growth, vitality and a strong identity in official language communities. I have made immigration a priority, and I will continue to do so for the rest of my term. I am also examining this issue with the French Language Services Commissioner of Ontario and the Commissioner of Official Languages for New Brunswick. In October, we issued a joint news release calling on the federal and provincial governments to step up their efforts to ensure that Francophone minority communities truly benefit from immigration.
Yesterday, Commissioner Boileau and I released a joint report on immigration to Francophone communities, which contains recommendations for both levels of government.
Immigration holds much promise for the renewal and vitality of Francophone minority communities. The report takes stock of the situation and highlights some of the main challenges associated with immigration, including the importance of learning the two official languages.
After meeting Canadians of different backgrounds from all across the country, I can say that numerous minority groups are very open to learning the two official languages. Immigrant families encourage their children to master several languages and make multilingualism a priority due to national and international market forces. Newcomers are often quicker to realize how important linguistic duality is to Canada’s identity than many native-born Canadians and are surprised to discover that bilingualism is not more prevalent among those born in Canada.
As a result of globalization, identities are more fluid, roots are less evident and human relationships are characterized by movement. This is as true for families that have been here for 13 generations as it is for those who have just arrived.
Canada is changing. We welcome 250,000 newcomers every year who have not lived through our historical struggles over language or learned our history in school.
For that reason, it is all the more important that linguistic duality be celebrated as a value and a central part of Canadian identity. We should give immigrants more opportunities to improve their second-language skills, such as exchange programs and language training programs in both official languages for newcomers and their children.
In fact, one of the most important changes for English and French communities in Canada is that both now welcome newcomers—even though they have very different realities, Francophone communities outside Quebec and Anglophone communities in Quebec both need newcomers to ensure their vitality.
Presently, immigrants have no constitutional language rights with respect to education in the minority language, since subsections 23(1) and (2) of the Canadian Charter of Rights and Freedoms confers such rights on Canadian citizens only. That poses a formidable challenge, particularly since immigrants are needed to strengthen the vitality of official language minority communities.
However, although subsections 23(1) and (2) cannot be interpreted so as to include immigrants, the right to management set out in subsection 23(3), which has been the subject of Supreme Court decisions (Mahe, Arsenault-Cameron), should be interpreted so as to allow school boards to admit immigrant children who do not qualify under those two provisions.
One of the issues in the appeal to the Supreme Court of Canada by the Commission scolaire francophone du Yukon concerns the scope of the power of management and the boundaries that provincial governments must respect when school boards exercise their powers to achieve the objectives set out in section 23 of the Charter. The outcome of that case will have significant implications for the ability of official language communities to welcome newcomers, and the ability of these newcomers to integrate into their new communities.
That is why I have sought leave from the Supreme Court to intervene in the appeal by the Commission scolaire francophone du Yukon, as I also did in the appeal by the Association des parents de l’école Rose-des-vents, in British‑Columbia. While the issues in the latter case are different, they are just as important for British Columbia’s Francophone community. They are also important for every official language community across Canada.
It is most unfortunate that official language communities still have to go as far as the Supreme Court of Canada to enforce the constitutional rights guaranteed in the Charter. Implementation of section 23 is crucial for them to be able to develop and thrive. There are several factors that can explain—but not justify—these situations in which some official language communities find themselves. One of those factors could be that section 23 was drafted based on the assumption that official language minority communities were static.
Allow me to trace the history of section 23 of the Canadian Charter of Rights and Freedoms.
For most of Canada’s first century, language rights were at best limited and constrained, and at worst eliminated.
Until 1962–1963, for more than a century, Quebec’s school system—controlled by the Church—was such that non-Catholic immigrants were classified as Anglophones.
In 1969, when the Official Languages Act was enacted, there were still very few French-language schools outside Quebec, and no French-language school boards. The use of French had, in fact, been outlawed in several parts of the country. Not surprisingly, in the aftermath of such repression of French language rights, the debate over the Official Languages Act was angry and bitter; in parts of the country, it caused a lot of resentment.
A few years later, in 1973, following the tabling of the report of the Commission of Inquiry on the Situation of the French Language and Linguistic Rights in Quebec,Robert Bourassa’s Liberal government adopted Bill 22, the Quebec Official Language Act, making French the only official language in the province and the only language of instruction. English public schools were available only to children with a “sufficient knowledge” of the English language. Language tests were administered to six-year-olds to determine if they in fact had “sufficient knowledge.”
In 1976, the Parti Québécois put forward Bill 1, which would evolve and subsequently become Bill 101. At the meeting of the provincial premiers in Saint Andrews in August 1977, prior to the third reading of Bill 101, René Lévesque made a reciprocal offer to the other premiers. However, his offer was roundly rejected, and Bill 101 was adopted the week following the meeting.
The original wording of Bill 101 stipulated that all children had to attend French‑language elementary and secondary schools. According to section 73 of Bill 101, the only children who could attend English-language schools were those with at least one parent having received an elementary and secondary school education in English in Quebec; this came to be known as the “Quebec clause.”
A fierce debate raged in Quebec for several years following the passage of Bill 101. At issue was whether access to English-language schools should be limited to native-born Anglophones with at least one parent having received an education in English in Quebec, or in English elsewhere in Canada. The “Quebec clause” was therefore pitted against the “Canada clause.”
In 1982, the Canadian Charter of Rights and Freedoms consolidated equality and language rights. It recognizes the right to an education in the minority language for Canadian citizens who meet specific criteria, and the right to management where the number of children warrants, in every Canadian province and territory.
In 1984, the Supreme Court of Canada determined that the “Quebec clause” was unconstitutional on the grounds that it violated the Canadian Charter of Rights and Freedoms. That put an end to the debate once and for all. Paragraph 23(1)(b) of the Charter states that citizens of Canada who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population have the right to have their children receive primary and secondary school instruction in that language in that province. Consequently, in 1984, the “Canada clause” definitively replaced the “Quebec clause” in the Quebec school system.
To sum up, section 23 of the Charter is the federal mirror of a Quebec debate. It was drafted in response to the debate that took place in Quebec around Bill 101, and played a role in making and breaking successive governments for more than 15 years.
Now, 30 years later, official language minority communities find themselves in different situations. They need immigrants to grow their communities and strengthen their schools. These communities are faced with tangible obstacles, unlike majority communities. Immigrants from Senegal and France who settle outside Quebec have no guarantee that they can send their children to French schools. Some schools, school boards and provinces will tell them that they can indeed enrol their children in French-language minority schools; if they are lucky, they will know about that before they settle there. However, once they have moved into the communities, there is absolutely no constitutional guarantee that gives them the right to send their children to French-language schools.
Since the adoption of the Canadian Charter of Rights and Freedoms, all provinces and territories have established minority-language primary and secondary education systems. However, let’s not forget that most of these provinces only did so after official language minority communities initiated legal proceedings. Today still, some communities have to turn to the courts to have their rights respected.
The provincial governments’ oft-held position in these proceedings evinces a misunderstanding of the purpose and nature of the rights guaranteed by section 23 of the Charter. These rights are not meant to protect just one person, but to ensure the vitality of official language communities throughout the country.
And, since communities need immigrants to ensure their vitality, the minority school boards should have the authority to admit their children into community schools.
Immigration does not weaken Canada’s minority language communities—it makes them stronger. French-language schools in Toronto, Winnipeg, Edmonton, Vancouver and other cities across Canada are becoming as culturally and ethnically diverse as their English-language counterparts. Interprovincial mobility also plays a significant role. Some see the out-migration of 50,000 Quebecers, including French speakers, between 2006 and 2011 as a direct loss to French-speaking Canada. In fact, Quebecers who move to Western Canada send their children to French-language schools, join Francophone associations, watch French-language television, listen to French‑language radio and strengthen the minority language communities outside Quebec.
And when the children attend French school, they sit beside immigrant and refugee children from the Congo, Mali, Ivory Coast, Benin, Algeria, Tunisia, Belgium and France who do not have the same language rights they do.
The divide between Canada’s two linguistic communities has been a source of strife in this country for far too long. The time has come to bring people together, not push them apart, and think carefully about who benefits when language rights are expanded: Canadian society as a whole, not just the official language communities.
In 2017, the festivities organized as part of the 150th anniversary of Confederation will provide a unique opportunity to show Canadians and the rest of the world that, a century and a half after this historic agreement, linguistic duality continues to be one of the pillars of Canada’s identity.
Thank you. I would be happy to answer any questions you may have.
- Footnote 1
Address before the Canadian Bar Association, September 1967, in Pierre Elliott Trudeau, Federalism and the French Canadians, Toronto, Macmillan of Canada, 1968, p. 55–56.