Foreword
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This year marks the 25th anniversary of the Canadian Charter of Rights and Freedoms, which makes it a fitting time to reflect on the development and evolution of language rights. During the last quarter century, the Charter has been a driving force behind the judiciary’s interpretation and enforcement of rights and liberties, including language rights. The rights and constitutional principles enshrined in the Charter have also had an important effect on federal and provincial language legislation and on the quest of official language minority communities for substantive equality. This publication examines the legal landscape of language rights, as determined by recent court decisions. One must recognize, however, that any legal evolution of language rights must be understood as part of a larger national conversation between Parliament, the courts and the provinces, a dialogue that has helped shape official languages policy in our country.
The courts, as a crucial part of this dialogue, confirm the government’s responsibilities in regards to language rights. They are called upon to define and clarify various rights and obligations and also to craft remedies in cases of noncompliance. A good example of this is the landmark case of Doucet-Boudreau, in which the Supreme Court of Canada recognized the power of the courts in crafting creative remedies to ensure that governments fully and meaningfully carry out their language obligations. In the Fédération Franco-Ténoise case, the Northwest Territories Supreme Court relied on its remedial powers to grant, inter alia, mandatory orders requiring the territorial government to put into place a comprehensive plan for the implementation of the Northwest Territories Official Languages Act and to create a cooperation committee bringing together representatives of the territorial government and the French-speaking community in order to involve the community in the drafting, administration and promotion of the plan. Such a remedy confirms the essential role played by official language minority communities in the implementation of linguistic obligations by the governments and their institutions.
More recently, this dialogue has inspired legislative change in the form of amendments to the federal Official Languages Act in 2005. In its 2004 Forum des maires decision, the Federal Court of Appeal had to consider the issue of whether Part VII of the Official Languages Act imposed a legally enforceable duty on the federal government and indicated that this debate should take place in Parliament rather than in the courts. Parliament in turn responded by voting to strengthen the Act, reinforcing the Canadian government’s commitment to enhancing the vitality of official language minority communities. The amended Official Languages Act requires federal institutions to take “positive measures” to implement this commitment and attributes a right of action to aggrieved citizens or groups under Part VII. The measures adopted by Parliament are a shining example of the application of subsection 16(3) of the Charter, which allows Parliament and the legislatures to advance the equality of status or use of English and French and to build upon the constitutional language guarantees of the Charter and the Constitution Act, 1867.
Substantive equality continues to be the standard that underpins the dialogue on language rights in Canada. As stated by the Supreme Court of Canada in Beaulac, the principle of substantive equality “. . . provides in particular that language rights that are institutionally based require government action for their implementation and therefore create obligations for the State [...]. It also means that the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation.” The nature of such obligations was examined in Fédération franco-ténoise, and the Supreme Court of the Northwest Territories found that the territorial government had the duty not only to take measures towards implementing language rights, but also to provide a specific result, such as a service or communication of equal quality in the official language chosen by the member of the public.
Recent case law demonstrates a progression in the area of language rights. Whereas traditionally official language minority communities have had recourse to the courts to assert their rights, legal actions are increasingly being used to define the scope of those rights and to clarify their implementation. This, in turn, is helping to develop and shape Canadian language policy.
However, the equality of English and French and the vitality of official language minority communities cannot depend solely on the courts. All stakeholders must work together to further develop and consolidate Canada’s linguistic framework. To this end, my hope is that I can build bridges, between government and minority communities, between majority and minority communities, and, in some cases, between the minority communities themselves, to ensure that a meaningful dialogue can take place and shape the future of language rights in Canada.
Graham Fraser
Commissioner of Official Languages
