Introduction
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This report summarizes and analyzes the principal decisions on language rights rendered by Canadian courts in 2005 and 2006. While not exhaustive, this document is intended as a reference tool for people directly or indirectly interested in these rights.
The cases considered in this report illustrate the variety of areas affected by language rights. Judgments have dealt inter alia with minority language education, use of the two official languages before Parliament, language rights in the courts, public access to government services in the official language of choice and the vitality and development of official language minority communities.
Several judgments examined in this report reaffirm the method for interpreting language rights set out in Beaulac,1 which states that language rights must be interpreted purposively and in a manner that is consistent with the preservation and development of official language communities. However, the split decision of the Supreme Court of Canada in Charlebois v. Saint John (City) 2 qualifies the role of the courts that are called upon to interpret legislation whose constitutionality is not being challenged.
Other judgments confirm the relationship between the language used by the government and the vitality of official language minority communities. Accordingly, in Fédération francoténoise,3 the Supreme Court of the Northwest Territories recognized the important influence of government actions on “the life experience and perceptions of the members of a language group but also on the very legitimacy of the group’s language.” Various other judgments have once again affirmed the role of certain minority institutions in the vitality of official language minority communities, thereby following the Ontario Court of Appeal judgment in Lalonde4 and relying on the unwritten constitutional principle of respect for and protection of minority rights.
The right to minority language education continues to be a topic of discussion. The Supreme Court of Canada’s judgments in Solski and Gosselin,5 which clarify eligibility rules for English schooling in Quebec, illustrate the importance of the particular context of each province in implementing this right. While Solski dealt with the right of Anglophone parents in Quebec to have their children educated in the minority language, Gosselin concerned a claim by Francophone parents who cited the right to equality in order to obtain access to English schools in Quebec.
At the same time, a number of judgments analyzed in this report have introduced a new concept in the application of language rights: that of the obligation of result.6 Under this concept, derived from civil law, it is not enough for a government institution to simply take measures to ensure certain language obligations are respected. Accordingly, in Thibodeau v. Air Canada,7 the Federal Court concluded that Air Canada was subject to an obligation of result and had to ensure that its subsidiaries complied with their language obligations, which consist of providing services and communications of equal quality in both official languages. The measures taken by Air Canada to comply with its language obligations could not exempt it from all liability when the result intended by the language obligation in question had not been achieved.
In addition, some new questions arose on the nature of the constitutional language obligations that are the responsibility of federal institutions when acting on behalf of a province. In Canada v. Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc.,8 he F tederal Court of Appeal held that Royal Canadian Mounted Police members acting as New Brunswick provincial police are required to comply with the constitutional language obligations that are the responsibility of federal institutions, and not those particular to the province of New Brunswick. However, the debate on this issue is not over, since the case has been appealed to the Supreme Court of Canada.
Finally, though no decision has been rendered on the nature of the obligations of federal institutions with regard to the development and vitality of official language minority communities, it is important to note that Parliament has adopted amendments to Part VII of the Official Languages Act to clarify its meaning and scope. By imposing on federal institutions the obligation to take positive measures to promote linguistic duality in Canadian society and offering complainants the right to file a court action if such obligations are not respected, the new Part VII will henceforth be an essential tool for the promotion and development of official language minority communities.
