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It has been 40 years since the enactment of the original Official Languages Act, which makes it an appropriate time to reflect on the development and evolution of language rights in Canada. The courts, like Parliament and the provinces and territories, have played a key role in the evolution of language rights in our country, and serve as an important indicator as to what has been achieved and what remains to be done in order to reach the objective of linguistic equality.
Canada’s linguistic duality was recognized by the Constitution Act, 1867, but the language guarantees that the Act provides are limited to the right to use English and French in the Parliament of Canada and in the Quebec legislature, as well as before federal and Quebec courts. Apart from these guarantees and a few examples that were by and large symbolic (such as the presence of both official languages on postage stamps and bank notes as well as the simultaneous interpretation of parliamentary debates), the predominant language of the Canadian state was English.
To remedy this situation, the Royal Commission on Bilingualism and Biculturalism (the Laurendeau-Dunton Commission) recommended, among other things, that English and French be formally declared the official languages of the Parliament of Canada, as well as the federal administration and federal courts. The Commission’s vision of linguistic duality was based on the notion of two founding peoples, with a view to ensuring equality across the country. In the wake of the Commission’s recommendations, the Parliament of Canada adopted the first Official Languages Act in July 1969, giving English and French the status of official languages of Canada.
In 1974, the Supreme Court of Canada confirmed the constitutionality of the Official Languages Act in response to an objection raised by the mayor of Moncton, Leonard Jones. In the Jones case, the highest court in the country established that the language guarantees set forth in the Constitution represented a minimum protection and did not stop Parliament or the provincial legislatures from adopting more generous language regimes. In doing so, the Court introduced the notion of advancement of the equality of the official languages of Canada. The notion of advancement would later be entrenched with the adoption of section 16 of the Canadian Charter of Rights and Freedoms in 1982, which formally recognizes the principle of equality of the two official languages.
In 1999, the Supreme Court of Canada issued its ruling in the Beaulac case in what was to become a turning point in the interpretation of language rights. In a decision written by Justice Bastarache, the Court confirmed that language rights should always be interpreted in light of their purpose and in a manner compatible with the maintenance and development of official language minority communities in Canada. The Court held that equality does not have a lesser meaning in matters of language, and that substantive equality, the correct norm to be applied in Canadian law, requires the government to take positive measures to ensure the implementation of language rights.
More recently, the objective of linguistic equality has taken an important step forward with the Supreme Court of Canada decision in the DesRochers case. The Court established that substantive equality with respect to the delivery of services may require distinct content if this is necessary for meeting the needs of minority-language communities. As stated by Justice Charron, "[i]t is possible that substantive equality will not result from the development and implementation of 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." What ultimately matters, according to the Supreme Court, "is that the services provided be of equal quality in both languages."1
Arguably, the role of the courts in the progression towards the objective of linguistic equality has been most remarkable in the area of minority-language education rights. In 1982, the right of parents from official language minority communities to have their children educated in their language was entrenched in section 23 of the Charter. This was an important advance in achieving linguistic duality: education is at the very heart of the development and self-identification of official language communities. The courts have not hesitated to breathe life into the express purpose of that section, nor to implement the possibly novel remedies needed to achieve that purpose.
In 1990, the Supreme Court of Canada determined in the Mahe case that the general purpose of section 23 of the Charter is to preserve and promote the two official languages of Canada, and their respective cultures, and that section 23 is "designed to correct, on a national scale, the progressive erosion of minority official language groups and to give effect to the concept of the ‘equal partnership’ of the two official language groups in the context of education."2 In order to achieve this purpose, the Court held that it is essential that parents belonging to a minority-language community have a certain amount of management and control over the educational facilities in which their children are taught.
In the 2005 Solski decision, where the issue was one of access to minority-language instruction in the province of Quebec, the Supreme Court of Canada described section 23 as an example of the means to achieve substantive equality in the specific context of minority-language communities. The implementation of section 23 is therefore contextual: it must take into account the differences between the situations of the minority-language community in Quebec and the minority-language communities of the other provinces and territories. What is important, according to the Court, is that the admission criteria established by the province must be consistent with the purpose of section 23 and "capable of ensuring that the children meant to be protected will actually be admitted to minority language schools."3 As such, all of the circumstances of a child must be considered.
More recently, in the Nguyen and Bindra cases, the Court of Appeal of Quebec applied the principles enunciated in the Solski decision and determined that legislation adopted by the Quebec National Assembly limiting access to English-language instruction was unconstitutional.
Whether it be in government services, minority-language education rights or in other areas of Canada’s official languages policy, recent case law demonstrates a progression towards the objective of linguistic equality. However, members of minority-language communities all too often have to turn to the courts to have their rights asserted. While the courts have increasingly helped to define the scope of language rights and to clarify their implementation, the equality of English and French cannot depend on them alone. Key progress in language reform over the past 40 years has coincided with periods of strong leadership, and thanks to the efforts of a great many people (political leaders, representatives from both the majority and the minority communities, educators, federal employees, etc.) and to the investment of resources, significant progress has been made. However, there still remains much to be done before the equality of status of Canada’s two official languages is achieved.
Graham Fraser
Commissioner of Official Languages
