ARCHIVED - Dublin, August 17, 2009

WarningThe Standard on Web Usability replaces this content. This content is archived because Common Look and Feel 2.0 Standards have been rescinded.

Archived Content

Information identified as archived is provided for reference, research or recordkeeping purposes. It is not subject to the Government of Canada Web Standards and has not been altered or updated since it was archived. Please contact us to request a format other than those available.

Language Rights and the Canadian Model:
Four Decades, Four Cycles of Change

Notes for an address at the Canadian Bar Association’s
Canadian Legal Conference


Graham Fraser – Commissioner of Official Languages

Check against delivery

I am pleased to be with you today, in the historic city of Dublin, to take part in the Canadian Bar Association’s Canadian Legal Conference. I am particularly honoured to be sharing this panel with my colleague, An Coimisinéir Teanga Seán Ó Cuirreáin, who will speak about the language regime in Ireland.

I would first like to thank the Organizing Committee, as well as the Conférence des juristes d’expression française de common law, for taking the initiative to put together this workshop on language rights.

The timing for a discussion on the federal language regime in Canada could not be more appropriate as this year marks the 40th anniversary of the Official Languages Act in Canada.

For most people, forty years is considered a milestone. Some say that life begins at 40. However, in the life of a country, 40 years is not that long. But I believe that the 40th anniversary of our official languages policy marks an important milestone: the end of a cycle. Indeed, it is possible to see the four decades of the Official Languages Act as four distinct cycles.

While much progress has already been made over the past four decades, I believe that we can reach new heights—politically, legally and socially—during the next cycle, in order to fully realize the promise of Canadian linguistic duality.

Today, I have been invited to discuss Canada’s federal language regime, whose history is rich and constantly evolving.

Structure of Canada’s language regime

As lawyers, you don’t need me to tell you that Canada has lived for 250 years under both a bilingual and bijural regime. Although the Official Languages Act is celebrating its 40th anniversary, the regime itself is much older. Only between 1840 and 1848 did French not have official status.

In 1867, this status was enshrined in the Constitution under Section 133 of the British North America Act, which meant that all federal laws had to be written in both languages. “Canada is a bilingual country, and British Columbia can truthfully be called a bilingual province,” wrote constitutionalist F.R. Scott in 1947. “...(T)he actions, rights and duties of all Canadians, in British Columbia as elsewhere, are just as much governed by the French version of the federal law as they are by the English.”1

However, this legal bilingualism remained quite abstract and theoretic until the Quebec nationalist movement came to life in full force at the beginning of the 1960s.

Partly in response to this turn of events, in 1963, Prime Minister Lester B. Pearson established the Royal Commission on Bilingualism and Biculturalism in order to re-examine the linguistic duality instituted by the federal pact of 1867. Starting in 1965, the Commission provided a stark assessment of the crisis in which Canada found itself. It shocked many Canadians when it stated in its preliminary report that Canada was going through the greatest crisis in its history.

In 1967, Pierre Elliott Trudeau, then Minister of Justice, defined language rights as two-fold: the right to use and the right to learn. Our concept of linguistic rights, developed over the next four decades, is based on these two pillars.

The federal government’s first Official Languages Act came into effect in 1969. The Act set out that English and French had equal status and that they were the official languages of the federal Canadian state. It thereby granted equal status to English and French not only in Parliament and before federal courts, but also across the federal administration. The Act stipulated, moreover, that the public was entitled to receive services from federal institutions in the official language of their choice depending on certain demographic criteria. It also created the position of Commissioner of Official Languages, a non-partisan ombudsman who was to be the “active conscience” of Canadians in official language matters. I am the sixth person to hold this position, which was created in April 1970. Despite all the efforts, the Act was still inadequate on a number of aspects.

In 1982, the advent of a new constitutional document, the Canadian Charter of Rights and Freedoms, breathed new life into the language debate.

The Charter reinforced equality and language rights. In terms of education, it introduced a new dimension to language rights by recognizing that English-speaking and French-speaking Canadians in minority communities in a province have the right to have their children receive instruction in their own language at the primary and secondary level. It also recognized that they have the right to manage their education system, where numbers warrant.

Following the adoption of the Charter, the Act was once again amended in 1988 so the two documents would support their respective objectives. Although many parliamentarians criticized the government for having delayed too long in taking such action, the announcement was well received by the majority.

The new Official Languages Act of 1988 sets out the three main objectives of the Government of Canada:

  • To ensure respect for English and French as the official languages of Canada and to ensure equal status and equal rights and privileges as to their use in all federal institutions;
  • To support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within the Canadian society;
  • To set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.

In 2005, the Official Languages Act was once again amended in order to strengthen the government’s commitment to linguistic minorities. In fact, the government and federal institutions now have a legal obligation to take positive measures to support the development of linguistic minority communities and promote the use of English and French in Canada. In addition, this provision gives rise to the right to turn to the courts in the event of inaction or failure to meet the stipulated obligations. This provides minority communities with a tool to ensure their rights are respected.

Interpretation of the language regime in Canada

The linguistic equality of English and French is a fundamental value and a pillar upon which our 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.

I would argue that the primary value underpinning the Official Languages Act is respect. The Act implies respect not only for both official languages, but also for unilingual Canadians, official language minority communities, the public as a whole, parliamentarians and public servants. After all, the Act requires that federal institutions be bilingual so that individuals do not have to be.

Also, notwithstanding that language rights are described as individual rights, they are also collective rights. It is evident that an individual needs a community in order to fully exercise his or her rights. This aspect has been reinforced through the adoption of the Canadian Charter of Rights and Freedoms. Their purpose is to ensure Canada’s official language communities are supported and continue to develop. Because certain rights (such as the right to communicate with and obtain services from federal institutions in both official languages) only apply when “significant demand” has been established, it can be said that the rights of individuals depend on the very existence of linguistic minority communities. Without such communities, individuals may lose some of their rights. Hence the importance of ensuring that language rights are in all cases interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada.

Of course, one cannot describe language rights in Canada without mentioning the influential role that the Supreme Court of Canada has played in their interpretation.

In the past four decades, the Supreme Court has rendered many important judgments in regard to the scope and application of language rights.

In fact, as I reflect on the many judgments, it appears to me that each turn of a decade constitutes a particular defining moment.

First of all, it was in 1969 that the Official Languages Act came into effect. The Act was controversial, but this first decade was relatively calm in terms of legal challenges. One exception remains, however: the Court’s decision that dismissed the Mayor of Moncton Leonard Jones’ appeal and that upheld the federal government’s right to go above and beyond Section 133 and to legislate in regard to language issues. As such, the first cycle was one of acceptance and validation.

Ten years later, on December 13, 1979, the Supreme Court of Canada issued two judgments dealing with the constitutionality of provincial language regimes. In the Forest case,2 the Manitoba Act, 1870—which abolished the status of the French language as a language of the legislature and the courts in Manitoba—was declared unconstitutional by the Supreme Court of Canada. The same day, in the Blaikie case,3 the Supreme Court also overturned the provisions of Quebec’s Charter of the French Language that provided that only the French content of statutes and court judgments was official.

The next decade began with an important case being heard by the Supreme Court in June of 1989, culminating in the landmark decision in the Mahe case,4 which is frequently cited in language rights cases. This decision is instructive in many respects. However, its importance lies in the Court’s definition of the purpose of our language regime, which is to give effect to the concept of the “equal partnership” of the two official language groups in Canada.

Exactly 10 years later, in 1999, another important case went before the Supreme Court: the Beaulac case,5 which again gave rise to a landmark decision in the history of language rights. Under the pen of then Justice Bastarache, the Supreme Court issued a particularly instructive judgment that paved the way for new principles governing the interpretation of all language rights. According to the judgement, language rights are not negative or passive rights; they can only be enjoyed if the means are provided.

In the fall of 1999, the Supreme Court of Canada also heard the Arsenault-Cameron case.6 In its decision a few months later, the Court set out the principle that “substantive equality requires that official language minorities be treated differently, if necessary, according to their particular circumstances and needs, in order to provide them with a treatment equivalent to that of the official language majority.”

Finally, the year 1999 was also the year Ottawa’s Montfort Hospital won its historic battle before the Ontario Divisional Court, which was later upheld by the Court of Appeal. This case not only illustrated the potential strength of a minority-language community, it also crystallized the weight and the application of the unwritten fundamental principle of protection of minorities in language rights cases.

Exactly 10 years later, in 2009, came another precedent-setting decision from the Supreme Court of Canada: the recent unanimous decision in the Desrochers7 case. In my view, this judgment marks another defining moment in the interpretation of language rights. It is the first decision from the Supreme Court of Canada to interpret the scope of the right to receive services from federal institutions in both official languages pursuant to Part IV of the Official Languages Act. In this case, the Court clarifies that, in order to achieve substantive equality, it may not be sufficient to provide identical services for each language community. The content of the principle of linguistic equality in government services is not necessarily uniform. It must be defined in light of the nature and purpose of the service in question and may require access to services with distinct content in certain circumstances.

Obviously, this brief overview has skipped over many other important decisions. But, in looking back over the past four decades, I am struck by the fact that each decade seems to carry us yet another step forward in our interpretation of the language regime in Canada. I am already looking forward to the next decade, when we will celebrate the Official Languages Act’s 50th anniversary and, hopefully, another defining moment in the interpretation of language rights.

Conclusion

On this 40th anniversary of the Act, the time is right to reflect on the federal language regime, look back at the progress made by Canadian society and attempt to identify future challenges.

For my part, I believe that Canada has put in place a robust language regime and that we are well on the way to achieving substantive equality. Our goal is within sight.

From the last four decades of judicial interpretations, the following four principles have emerged that could serve as an interpretive framework for analyzing rights: the remedial aspect of language rights, the cultural objectives of rights, the principle of substantive equality of the two official languages and the unwritten constitutional principle of protection of minorities.

These four principles, which underlie the broad and liberal interpretation of language rights in Canada, will serve as our guide over the next 40 years. As Canadians, we are proud of our constitutional and legislative foundations, which make our language regime an essential component of social cohesiveness. Because of this, it is apparent that the Supreme Court of Canada will continue to play a key role in the interpretation of language rights and that it will continue to lead the way towards substantive equality.

Thank you.



1.  “Canada, Quebec and Bilingualism”, Queen's Quarterly, 54, 1947, included in Essays on the Constitution: Aspects of Canadian law and politics, University of Toronto Press, Toronto, 1977, p. 197

2. Attorney General of Manitoba v. ForestExternal site, [1979] 2 S.C.R. 1032; (December 13, 1979)

3. Att. Gen. of Quebec v. Blaikie et al.External site, [1979] 2 S.C.R. 1016; (December 13, 1979)

4. Mahe v. Alberta, [1990] 1 S.C.R. 342 (heard June 14, 1989)

5. R. v. Beaulac, [1999] 1 S.C.R. 768 (heard February 24, 1999; judgment rendered on May 20, 1999)

6. Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3 (heard November 4, 1999)

7. DesRochers v. Canada (Industry), 2009 SCC 8 (judgment delivered on February 5, 2009)