II. Interpreting Language Rights: A New Orientation
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1. R. v. Beaulac
It was against this background that the Supreme Court rendered its recent decision in R. v. Beaulac.7 While the facts of the case pertain to provisions in the Criminal Code governing the language of trial, the Court’s decision transcends specific statutory provisions and establishes a much needed unified approach to the interpretation of official language rights generally. The divergence in the case law clearly called for a new orientation based upon principles and norms applicable to all language rights cases. To establish these principles and norms, the Court first considered previous decisions that had stressed that a true understanding of a constitutional language guarantee is arrived at only by considering the purpose for which it was enacted. It pointed out that authority existed for the proposition that the original language guarantees in the Constitution were intended to ensure full and equal access to the legislatures, the laws and the courts for francophones and anglophones alike.8 In more recent times, the principle of equality of our official languages has been entrenched in section 16 of the Charter. The Court concluded that section 16 entrenches a notion of substantive equality that gives rise to positive obligations on government to provide the institutional means to implement effectively any given language right.
The Court also returned to its previous decisions concerning minority language education rights in order to reinforce the conclusion that language rights must be interpreted with a view to achieving the purposes for which they were enacted. This means that language rights should be understood and applied in ways that will most effectively encourage the flourishing and preservation of minority official language communities. In addition, such rights should be construed remedially “in recognition of previous injustices that have gone unredressed and which have required the entrenchment of protection for minority language rights.”9 Again, these basic principles underscore the active role that government must take in providing resources and institutional structures necessary to the effective exercise of language rights.
The idea that language rights are based on political compromise and should therefore be construed narrowly was rejected unequivocally by the Court. It found that political compromise was not unique to language rights and should not be used to justify a restrictive interpretation of them.10 The guiding principle should be substantive equality, as found in subsection 16(1) of the Charter. While the political process is implicit in subsection 16(3), which declares that nothing in the Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French, this declaration does not limit the scope of the principle of equality under subsection 16(1).11
The Court went on to say: “This principle of substantive equality has meaning. It 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.”12
The principles of interpretation that emerge from Beaulac apply to language rights rooted in either constitutional or statutory law. As the Court declared: “Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada.”13 To this the Court added the remedial nature of language rights, and hence the need to ensure that appropriate remedies are fashioned to meet past injustices.
The language right at issue in the case before it concerned language of trial provisions in the Criminal Code (which will be discussed in detail in Part IV of this review). Even so, the Court emphasized that the interpretation of language rights based on statute had also suffered from the conflicting lines of jurisprudence, one narrow and cautious, the other liberal and purposive. In opting for the latter and articulating an interpretive framework that can apply to all cases, the Supreme Court has provided the tools for a more coherent and just implementation of language rights in the future.
