II. Interpreting Language Rights: A New Orientation
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The interpretation of language rights through more than twenty years of litigation produced diverging approaches to the way judges should determine their scope and meaning. A series of Supreme Court decisions took a narrow and cautious view regarding the manner in which the constitutional right to use either English or French before the courts of Quebec, Manitoba and New Brunswick should be construed.1 This right is phrased in permissive terms only and gives no explicit guidance as to what obligations it might impose on the State to ensure an institutional framework that facilitates the use of either English or French.2
In the three cases just mentioned, the Supreme Court considered the possible collateral state duties that might arise from the constitutional right to use either official language in court processes.3 It found that the State was in no way obliged to ensure that a sufficient number of judges, crown attorneys or other employees working within the court system could function in the minority official language; nor was the State under any obligation to issue subpoenas, summonses or other court documents in bilingual format in order to respect the language choice of individuals to whom they were directed.
The Court concluded that the right to use either language before specified courts was based upon an historic compromise regulating the use of English and French to a minimal degree only. It further characterized the language regime thus established as a “constitutional minimum, not a maximum” and one that could be “complemented by federal and provincial legislation.”4 It also cautioned that the courts should “pause before they decide to act as instruments of change with respect to language rights” and that restraint should be used in their interpretation.5
This narrow approach to the interpretation of language rights was a departure from previous decisions (dealing with the mandatory use of English and French in the legislative process) that had sought to apply language guarantees broadly and as a function of their underlying purpose. Soon after issuing its restrictive interpretation of language rights in the judicial process, however, the Court returned to its earlier liberal and purposive approach in decisions dealing again with the mandatory use of both official languages in the legislative process and the constitutional right to minority official language education.6 These decisions stressed the role language rights play in the preservation and development of minority official language communities, affirmed the principle that language rights in the area of education were intended to give effect to the equal partnership of Canada’s official language communities, and emphasized the need to fashion innovative remedies to correct past injustices.
The existence of these two divergent lines of jurisprudence introduced uncertainty into the process of determining the scope and meaning of language rights generally. Moreover, the narrow approach and the reasoning associated with it were frequently invoked to limit the effective implementation of various language rights subject to litigation.
