Montfort Hospital - Factum of the Commissioner of Official Languages before the Ontario Court of Appeal
(C33807)ONTARIO COURT OF APPEAL
BETWEEN:
GISÈLE LALONDE, MICHELLE DE COURVILLE NICOL
AND HÔPITAL MONTFORT
Applicants
(Respondents in Appeal)
- and -
COMMISSION DE RESTRUCTURATION DES SERVICES DE SANTÉ
Respondent
(Appellant)
- and -
THE COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA
THE ATTORNEY GENERAL OF CANADA
LA FÉDÉRATION DES COMMUNAUTÉS FRANCOPHONES ET ACADIENNE DU CANADA
L'ASSOCIATION CANADIENNE FRANÇAISE DE L'ONTARIO
Interveners
APPLICATION UNDER THE Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 6(1).
FACTUM OF THE COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA
Ms Johane Tremblay
Per: Commissioner of Official Languages of Canada
Office of the Commissioner of Official Languages of Canada
344 Slater Street, 3rd Floor, Suite 342
Ottawa, Ontario
K1A 0T8
Per: René Cadieux
Fasken Martineau DuMoulin LLP
3400 Tour de la Bourse
800 Place Victoria
Montréal, Québec
PZ 1E9
Tel: (514) 397-7591
Fax: (514) 397-7600
Counsel for the Commissioner of the Official Languages of Canada
Note: Une version française de ce mémoire a également été remise.
A French version of this factum has also been delivered.
TO: Nelligan Power, LLP
Barristers and Solicitors
66 Slater Street, Suite 1900
Ottawa, Ontario
K1P 5H1
Tel: (613) 231-8290
Fax: (613) 788-3669
Ronald F. Caza
Pascale Guiguère
Counsel for the Applicants (Respondents in appeal)
AND TO:
Attorney General of Ontario
Constitutional Law Branch
8th Floor, 720 Bay Street
Toronto, Ontario
M5G 2K1
Tel: (416) 326-4137
Tel: (416) 326-4454
Fax: (416) 326-4015
Janet E. Minor
Michel Y. Hélie
Counsel for the Respondent (Appellant)
AND TO:
Leslie S. Holland, Q. C.
Senior General Counsel
Department of Justice
284 Wellington Street
East Memorial, Room 2246
Ottawa, Ontario
K1A 0H8
Tel: (613) 946-3815
Fax: (613) 954-1920
Alain Préfontaine
Warren J. Newman
Counsel for the Attorney General of Canada (Intervener)
AND TO:
FCFA du Canada - Québec
43, rue de Buade, bureau 460
Québec (Québec)
G1R 4A2
Tel: (418) 692-5752
Fax: (418) 692-5820
François Boileau
Counsel for the Fédération des communautés francophones et acadienne du Canada (Intervener)
AND TO:
Heenan Blaikie
Barristers and Solicitors
Royal Bank Plaza, Suite 2600
200 Bay Street, South Tower
Toronto, Ontario
M5J 2J4
Tel: (416) 360-2618
Fax: (416) 360-8425
Paul Rouleau
Counsel for the Association canadienne française de l'Ontario (Intervener)
TABLE OF CONTENTS
- Genesis of the written text of section 16 of the Canadian Charter
- Evolution of Supreme Court decisions reviewing the constitutional validity of legislative and governmental action
- Rationalization of the unwritten principles by the Reference re Secession of Quebec
- Scope and application of the unwritten principles in subsection 16(3) of the Canadian Charter
- The principle of "substantive equality" and "advancement"
- The principle of "respect" / "protection for minorities", a corollary of the principles of "substantive equality" and "advancement"
- The "ratchet" principle, which results from the application of the "substantive equality", "advancement" and "respect" / "protection for [linguistic] minorities" principles
- The principle of "substantive equality" and "advancement"
- Application of the unwritten principles of subsection 16(3) of the Canadian Charter to the case at bar
- The unwritten principles of subsection 16(3) of the Canadian Charter contemplate actions by both legislatures and governments
- Incompatibility of the governmental action in question with the unwritten principles of subsection 16(3) of the Canadian Charter
- The unwritten principles of subsection 16(3) of the Canadian Charter contemplate actions by both legislatures and governments
PART I: INTRODUCTORY REMARK
| "For better or for worse, language has always been a matter of concern in this country; for worse, because it has too often been the cause of deep and painful division; for better, because at times it has shown itself a source of richness and diversity that is the envy of other nations. It is precisely because of this symbolic dimension which will profoundly affect our national cohesiveness in the future, as it has in the past that we need to keep (...) the Confederation bargain by seeing to it that language rights are clearly and unequivocally recognized in our fundamental constitutional law." [Emphasis is ours] | "Pour le meilleur ou pour le pire, la langue a toujours préoccupé notre pays. Pour le pire, parce qu'elle a trop souvent été la cause de profondes et douloureuses divisions. Pour le meilleur, parce qu'elle s'est avérée à l'occasion une source féconde de diversités qui fait l'envie des autres nations. C'est précisément à cause de cette dimension symbolique, pivot de notre cohésion nationale, hier, aujourd'hui et demain, que nous devons maintenir (...) le pari de la Confédération, en veillant à ce que les droits linguistiques soient reconnus clairement et sans équivoque dans notre loi constitutionnelle fondamentale." [Nous soulignons] |
Mr. M. F. Yalden, former Commissioner of Official Languages.
Testimony of Mr. M.F. Yalden, Commissioner of Official Languages, before the Special Joint Committee on the Constitution of Canada House of Commons and Senate, 1st Session, 32nd Parliament, 17-11-1980, pp. 6:10 6:11.
Société des Acadiens du Nouveau-Brunswick v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549:
"Linguistic duality has been a longstanding concern in our nation. Canada is a country with both French and English solidly embedded in its history. The constitutional language protections reflect continued and renewed efforts in the direction of bilingualism. In my view, we must take special care to be faithful to the spirit and purpose of the guarantee of language rights enshrined in the Charter." (Dickson CJC, in the minority, at p. 564, letters d to f).
R. v. Mercure, [1988] 1 S.C.R. 234:
"(...) [R]ights concerning the English and French languages (...) are basic to the continued viability of the nation." (La Forest J., for the majority, just before citing with approval Dickson CJC, supra, at p. 269, letter g).
PART II: THE FACTS
1. On November 29, 1999, the Ontario Divisional Court allowed a motion on judicial review (the "Motion") in Gisèle Lalonde et al. v. Health Services Restructuring Commission, DV-244.
2. This Motion had been brought by the Respondents on appeal (the "Respondents") in opposition to Directions (the "Directions") issued by the Health Services Restructuring Commission (the "Commission") in regard to one of the Respondents, the Hôpital Montfort.
3. The Divisional Court held that the Commission, within the framework of its mandate to restructure health services, could not ignore the role played by the Hôpital Montfort "as a truly francophone centre, necessary to promote and enhance the Franco-Ontarian identity as a cultural / linguistic minority in Ontario, and to protect that culture from assimilation" (at p. 47). The Divisional Court therefore quashed the Commission's Directions as they applied to the Hôpital Montfort and remitted the question to the Commission for reconsideration and recommendation to the Minister, having regard to its reasons.
4. The Commission appealed this decision to this Court. On or about March 10, 2000, the Associate Chief Justice of Ontario substituted the Attorney General of Ontario for the Commission as the Appellant.
Factum of the Attorney General of Ontario, paragraphs 1 and 3.
5. On or about September 20, 2000, the Attorney General of Ontario filed his factum in this Court. The Attorney General of Ontario submits that the Divisional Court misdirected itself in law in ruling, inter alia, that the Directions "infringe unwritten constitutional protections said to be afforded to the francophone minority of Ontario".
Factum of the Attorney General of Ontario, paragraphs 4 to 18.
6. The Commissioner of Official Languages of Canada (the "Commissioner") requested leave to intervene in this matter in order to assist the Court in its assessment of the issues raised by this appeal. This intervention was granted on December 21, 2000.
Notice of Motion, December 15, 2000.
7. Because one of the terms of the intervention was that the Commissioner would accept the appeal record as is, the Commissioner refers to the Court record, while drawing attention to the following aspects of the evidence.
8. At first instance, Dr. Victor Goldbloom was examined on October 21, 1998.
Transcripts submitted at first instance by the Respondents,
Volume 2, Tab 3.
9. As this examination indicates, Dr. Goldbloom was the Commissioner of Official Languages of Canada at the time of the hearing of the case at first instance and, as such, "[Translation] an officer of the Parliament of Canada".
Transcripts submitted at first instance by the Respondents,
Volume 2, Tab 3, pp. 2-3.
10. By referring to his experience as Commissioner and to his professional training as a physician, Dr. Goldbloom was able to assess the need to maintain the Hôpital Montfort, as an institution.
11. In this regard, Commissioner Goldbloom was able to observe that in the area of health and in the context of minority communities, one of the "[Translation] major problems is the shortage of Francophone health professionals".
Transcripts submitted at first instance by the Respondents,
Volume 2, Tab 3, p. 7 and p. 75.
12. This problem must be understood in the more general context in which Commissioner Goldbloom noted that there is a certain degree of assimilation occurring within the Francophone community of Ontario, the number of persons saying they have French as their mother tongue exceeding the number of those who say they still use this language as their principal language in the home.
Transcripts submitted at first instance by the Respondents,
Volume 2, Tab 3, p. 12.
13. Commissioner Goldbloom recalled that if he had accorded such importance to obtaining school governance for parents entitled to it [under section 23 of the Canadian Charter of Rights and Freedoms], it was because he had been able to observe that school governance is one of the most important instruments in fighting assimilation. Moreover, Commissioner Goldbloom stated that it is not only the school that participates in this fight, but also the community centre that is attached to the school in which the children and parents interact with each other. The school and the community centre are therefore the product of "[Translation] a willingness to do something to help the community to strengthen itself".
Transcripts submitted at first instance by the Respondents,
Volume 2, Tab 3, p. 13 and pp. 22-25.
14. It is the context of his work in the educational field that Commissioner Goldbloom was able to assess the importance of homogeneous institutions for official language minority communities. In his opinion, the "[Translation] notion of homogeneity ... is of prime importance". Explaining that a homogeneous institution functions entirely in the language in question, in this case French, the Commissioner noted that in a homogeneous institution such as a school, all subjects are taught in the language of the minority. The institution's language of work is French. Meetings and discussions are held in French. In the school yard, French is spoken. In the schools in which English and French classes cohabit, however, it is almost always English that is the institution's language of work if French is in a minority situation. Since the commencement of school governance, the French-speaking parents generally consider the homogeneous school as a resource that encourages them to contemplate a future for their children in French.
Transcripts submitted at first instance by the Respondents,
Volume 2, Tab 3, pp. 22-25.
15. The importance that Commissioner Goldbloom attaches to the presence of homogeneous institutions in the area of minority language education leads him to then draw a parallel with the importance of maintaining the Hôpital Montfort as a homogeneous teaching institution.
16. More particularly, Dr. Goldbloom was in a position to note that the Hôpital Montfort is the primary resource in the field of health for the Franco-Ontarian community of the national capital region, which includes a catchment population of 198,000, of which 28,000 identify themselves as unilingual Francophones. The average age of these 28,000 individuals is rather high: "[Translation] So these are people who are relatively vulnerable physically and psychologically".
Transcripts submitted at first instance by the Respondents,
Volume 2, Tab 3, pp. 15-16.
17. Stressing the linguistic dimension of health services and the importance of the linguistic component of the reception given to someone who attends at a hospital, Dr. Goldbloom explained that this person is in most cases in a situation in which he/she does not feel well; he/she is then in a state of anxiety. He/she wants to explain to the doctor the nature of his/her symptoms, so the doctor can clearly understand and make a reliable diagnosis. To do so, the doctor must understand very clearly what the patient is telling him/her. Thus, in Dr. Goldbloom's view, there is "[Translation] a significant linguistic aspect in this communication between health professionals and [the] patient." Once the doctor has drawn his/her conclusions, he/she has a duty to explain in a comprehensible way to the patient the nature of the problem and what he/she intends to do to treat the problem. This must be perfectly understood by the patient because, at the end of the explanations, the doctor is going to ask the patient to sign a consent. This consent must be informed and be signed with full knowledge of the facts. It must therefore be understood that "[Translation] in all of this, the linguistic dimension is absolutely essential." While it is true that 1.4% of the population understands neither French nor English, according to the Commissioner, a French-speaking person, like an English-speaking person, should be able to explain himself/herself in his/her own language and in return receive any and all care in that language, especially in the national capital region. There are around 7.5 million people who speak French. No other language (except for English) exceeds the million mark: "[O]ne does not have the same obligation as a country, as one does with respect to English and French."
Transcripts submitted at first instance by the Respondents,
Volume 2, Tab 3, at pp. 16-18, pp. 69-72 and pp. 76-77.
18. According to Dr. Goldbloom, a person reporting to the hospital must feel at ease: the linguistic component of his/her reception is important. Referring to his experience in the evaluation of the services provided by federal institutions and in the legal field, Commissioner Goldbloom stated that he had found how important it is to have in place a system of active offer of services in order to secure respect for language rights and that, absent such a system, a person in a minority situation is discouraged from requesting services in French and will opt for English, as those are the services that are immediately available.
Transcripts submitted at first instance by the Respondents,
Volume 2, Tab 3, at pp. 18-19 and p. 72.
19. Describing, then, what constituted linguistically adequate health services for a minority group, Dr. Goldbloom emphasized that the institution, in this instance the Hôpital Montfort, should not be a mere triage operation. Care must really be available, on a fairly substantial scale, with a fairly extensive range of specialized services, and these services must be available 24 hours a day, 7 days a week, 365 days a year, since one does not elect to be ill or choose the time when one becomes sick.
Transcripts submitted at first instance by the Respondents,
Volume 2, Tab 3, pp. 25-26.
20. Dr. Goldbloom also pointed out that, if a community hospital like the Hôpital Montfort is to be maintained, there must at the very least be a good department of family medicine; this is the basis of medical care and the basis of medical training.
Transcripts submitted at first instance by the Respondents,
Volume 2, Tab 3, p. 25.
21. In a homogeneous institution, all of the professional staff and the personnel as a whole must be able to communicate with patients in their language. There must be a critical mass of people capable of dealing with the patients who belong to the minority community. If the services are to be guaranteed, it is necessary to carefully analyze the language skills of the staff as a whole, to ensure that there are people on all shifts who will be genuinely available to look after the patients.
Transcripts submitted at first instance by the Respondents,
Volume 2, Tab 3, pp. 27-28.
22. Concerning the importance of French-language medical training, Dr. Goldbloom explained that when a person acquires such medical training in French, he acquires a specialized vocabulary. If one's training is taken in an institution that is in the majority English-speaking, one will learn English vocabulary primarily. Likewise, if a person is trained in his own language but everything else goes on in the language of the majority, he is not really in a setting of his own language, and this means that the meetings of the professional staff, minutes, other documents and records will be in the majority language. Thus, in the opinion of Commissioner Goldbloom, having a minority language homogeneous institution means that all of its activities will be managed, meetings will be held and records will be kept in the staff's minority language.
Transcripts submitted at first instance by the Respondents,
Volume 2, Tab 3, p. 41 and pp. 75-76.
23. As a homogeneous institution, the Hôpital Montfort is the only one in a position to guarantee adequate service in the French language in the Ottawa area.
Transcripts submitted at first instance by the Respondents,
Volume 2, Tab 3, p. 31.
24. In Commissioner Goldbloom's opinion, the fact that some bilingual health facilities would be able to serve the public well in the language of one's choice "[Translation] does not allow me to jump to the conclusion that therefore we don't need to guarantee the community a resource that is rightfully its own". The record at first instance indicates that the Commissioner of Official Languages of Canada clearly defined what is at stake in this case: "[Translation] The issue here is not the creation of an institution, but rather the preservation of an institution that exists and for a long time has been serving the community well." It is important to the Franco-Ontarian community to have institutions that are designed to enhance its vitality and ensure its development.
Transcripts submitted at first instance by the Respondents,
Volume 2, Tab 3, p. 16 and p. 43.
PART III: QUESTION IN ISSUE
25. According to the Attorney General of Ontario:
"This case raises the issue of whether the Directions for the restructuring of health services issued to Montfort are unconstitutional on the basis that they infringe unwritten constitutional protections said to be afforded to the francophone minority."
Factum of the Attorney General of Ontario, p. 1; ¶ 4.
26. It is also the submission of the Attorney General of Ontario that this case raises a host of further considerations; however, the Commissioner proposes to confine herself to the following issue in dispute, which she would express as follows:
| One of the essential issues in this case is whether the Directions of the Commission affecting the nature and maintenance of the Hôpital Montfort as a homogeneous institution are compatible with section 16 of the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, being itself Schedule B to the Canada Act, 1982, (U.K.) 1982, c. 11) (the "Canadian Charter" or the "Charter")). The Commissioner's intervention is intended to demonstrate that the Directions are not compatible with:
|
PART IV: ARGUMENT
27. The Commissioner intends to submit the following points:
28. First, the Commissioner intends to examine the written text of section 16 of the Canadian Charter and the genesis of this provision, to determine the intention of those who framed the 1982 Constitution and the choice of society that Canada made for itself at that time.
29. Second, it will be necessary to analyze the evolution in the case law of the Supreme Court of Canada reviewing the constitutional validity of legislative and governmental action in the area of human rights and language rights, as well as in related contexts. This analysis will demonstrate on the one hand the importance the Supreme Court attaches to unwritten constitutional principles and, on the other hand, the increasing tendency of the Court to use those principles to define the scope of the written text of the Constitution, in order to breathe life into it.
30. Third, it will be necessary to examine how the Supreme Court has expressed these unwritten Constitutional principles in the form of norms and the binding effect it attributes to those norms as they pertain to governments and courts.
31. Finally, from this more general context, the Commissioner will develop and apply the unwritten principles anchored in subsection 16(3) of the Canadian Charter to the situation in the case at bar. In view of the evidence accepted by the Divisional Court and the testimony of Commissioner Goldbloom at trial, the Commission's Directions infringe the unwritten principles of subsection 16(3) of the Charter and, not having been justified in any way by the governmental authorities concerned, must accordingly be declared invalid.
A. Genesis of the written text of section 16 of the Canadian Charter
32. It is therefore necessary to begin by examining section 16 of the Charter, which states:
| Official languages of Canada 16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada. Official languages of New Brunswick (2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick. Advancement of status and use (3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French. | Langues officielles du Canada 16. (1) Le français et l'anglais sont les langues officielles du Canada; ils ont un statut et des droits et privilèges égaux quant à leur usage dans les institutions du Parlement et du gouvernement du Canada. Langues officielles du Nouveau-Brunswick (2) Le français et l'anglais sont les langues officielles du Nouveau-Brunswick; ils ont un statut et des droits et privilèges égaux quant à leur usage dans les institutions de la Législature et du gouvernement du Nouveau-Brunswick. Progression vers l'égalité (3) La présente charte ne limite pas le pouvoir du Parlement et des législatures de favoriser la progression vers l'égalité de statut ou d'usage du français et de l'anglais. |
33. The Commissioner submits that this written text discloses a principle of "substantive equality" entrenched in section 16 as well as a principle of "advancement" entrenched in subsection 16(3). Let us note forthwith in this regard the marginal annotation at subsection 16(3) ("Advancement of status and use").
R. v. Lucas, [1998] 1 S.C.R. 439, at p. 463; ¶ 47 (marginal notes in a statute can properly be taken into account in determining the intentions of the legislature);
34. To understand these two principles, it is important to examine the genesis of the written texts of the Constitution and then to extract the purpose that should inform the principles emanating therefrom.
35. The various drafts and debates that preceded the adoption of this provision themselves constitute an "advancement" in sofar as the substance of the principles of "substantive equality" and "advancement" is concerned. More particularly, we draw the Court's attention to the following two resolutions that are inventoried in the book by Anne F. Bayefsky, Canada's Constitution Act 1982 & Amendments - A Documentary History (Toronto: McGraw-Hill Ryerson Limited, 1989):
- Proposed Resolution for Joint Address to Her Majesty the Queen Respecting the Constitution of Canada, Tabled in the House of Commons and Senate, October 6, 1980, pp. 743-749.In this version, subsection 16(2) (later subsection 16(3)) reads as follows:"16(2) Nothing in this Charter limits the authority of Parliament or a legislature to extend the status or use of English and French or either of those languages" [Emphasis added];
- Consolidation of Proposed Resolution and Possible Amendments as Placed Before the Special Joint Committee by the Minister of Justice, January 12, 1981, pp. 765-769.In this version, the principle of equality echoed in subsection 16(1) was formally added to subsection 16(3), as well as subsection 16(2) covering New Brunswick:"16(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French." [Underlining appears in the comparative version];
Special Joint Committee on the Constitution of Canada House of Commons and Senate, 1st Session, 32nd Parliament, 29-1-1981, pp. 4:60-4:80, adoption at p. 4:81;
36. We submit that this change in the articulation of the written text of subsection 16(3) of the Canadian Charter, through the passage from "extend the status or use of English and French or either of those languages" to "advance the equality of status or use of English and French", are indications of the framers' particular intention to adhere to an objective of advancement toward substantive equality of the two official languages.
37. A review of the other resolutions, or draft resolutions, discloses no further changes:
Anne F. Bayefsky, Canada's Constitution Act 1982 & Amendments - A Documentary History (Toronto: McGraw-Hill Ryerson Limited, 1989), pp. 673-676; pp. 678-680; pp. 680-682; pp. 704-706; pp. 787-790; pp. 820-823; pp. 906-910; pp. 924-928.
38. Even though the Province of Ontario, unlike New Brunswick, has not explicitly entrenched the principle of equality of the two official languages in sofar as their equality of status and equal rights and privileges as to their use in all institutions of its legislature and government are concerned, it is subject to subsection 16(3) of the Canadian Charter and, thus, to the obligation to adhere to the objective of advancement toward equality of the two official languages.
39. It should be recalled in this regard that at the time of the adoption of Canada's official language provisions in the Charter, the federal Minister of Justice explained that the federal government did not wish to "impose" on the provinces obligations similar to those prescribed in section 133 of the Constitution Act, 1867, 30 & 31 Vic., c. 3 (U.K.) (the "Constitution Act, 1867").
Testimony of the Minister of Justice, the Honourable Jean Chrétien, before the Special Joint Committee on the Constitution of Canada House of Commons and Senate, 1st Session, 32nd Parliament, 7-11-1980, pp. 2:26 et seq.
40. However, the then Minister of Justice also stated that "both official languages are being entrenched in the constitution through this charter".
Testimony of the Minister of Justice, the Honourable Jean Chrétien, before the Special Joint Committee on the Constitution of Canada House of Commons and Senate, 1st Session, 32nd Parliament, 7-11-1980, pp. 2:26-2:29, p. 3:56 and p. 4:32.
41. But above all, a further objective of the federal government's language policy at the time when language rights were being entrenched in the Constitution was as follows:
| "Third, the policy of the government is to encourage and expand the protection of both official languages in every province, with the support of provincial governments." (Emphasis added; this third policy was consistent with the first two: the entrenchment of the Official Languages Act in the Charter, and minority language education in all provinces; and with the fourth: grandfathering of language of education rights). | "Troisièmement, cette politique tend à encourager puis a mieux assurer la protection des deux langues officielles dans toutes les provinces et en collaboration avec les gouvernements provinciaux." (Nous soulignons; cette troisième politique s'inscrivait avec les deux premières, soit l'enchâssement de la Loi sur les langues officielles dans la Charte, et l'école pour les minorités linguistiques dans toutes les provinces, et avec la quatrième, soit les droits acquis en matière d'instruction). |
Testimony of the Minister of Justice, the Honourable Jean Chrétien, before the Special Joint Committee on the Constitution of Canada House of Commons and Senate, 1st Session, 32nd Parliament, 12-1-1981, pp. 36:15 - 36:16.
42. In light of the foregoing, to understand the scope of the obligation to adhere to the objective of advancement toward substantive equality of the two official languages that is written into subsection 16(3) of the Charter, it follows, at minimum, that:
- The two official languages have been given constitutional status through the entrenchment of language rights. But this entrenchment is incomplete and is part of a broader process that is still unfinished; indeed
- The written text of subsection 16(3) reveals that it contemplates much more than the extension of the status and use of the two official languages; it is intended to advance the principle of "equality" of the official languages that is entrenched in section 16. It also contains, it seems, an objective of protection.
43. Moreover, it is clear that subsection 16(3) of the Charter, as it was initially conceived, was intended at minimum to codify the ratio of the judgment in Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182: the constitutional provisions of the Constitution Act, 1867 are a floor and not a ceiling, and Parliament and the provincial legislatures, within their respective legislative spheres, may add to these rights. But, as we will be in a position to note later, subsection 16(3) was subsequently interpreted as also containing a principle of "advancement" toward equality of status or use of the two official languages, as is indicated by the evolution of the draft written texts of subsection 16(3) and the marginal note disclosing the intention of the framers, with resulting obligations pertaining to the objective of "substantive equality" of Canada's two official languages. Once embarked on the advancement process, certain responsibilities follow and these have legal consequences.
44. Finally, as the foregoing indicates, it is an inescapable historical fact that Canada has elected, as a society, to guarantee the «substantive equality» of the two official languages. This decision has a national dimension that goes beyond regional interests, considered individually, albeit not in disregard for such interests, which play a role in the achievement of the ultimate objective. The objective of «substantive equality», since beyond debate, must accordingly be fulfilled.
B. Evolution of Supreme Court decisions reviewing the constitutional validity of legislative and governmental action
45. To grasp the full implications of subsection 16(3) of the Canadian Charter and the nature of the principles inherent therein as well as to their application to Canada and the provinces, it is important to review the evolution in the case law of the Supreme Court of Canada in the field of constitutional review. This evolution confirms the importance of unwritten principles.
46. With the entrenchment of the Canadian Charter, the Canadian constitutional regime underwent a profound alteration that has had an impact not only on the so-called "fundamental" laws (being nevertheless straightforward legislation) but also in the very conception of Canada's constitutional structure as it is understood by the courts, which are now required to play a more significant role in reviewing the constitutional validity of legislative and governmental action. The consequences are still being felt to this day.
47. Prior to the enactment of the Charter, the Canadian Bill of Rights, 8-9 Elizabeth II, c. 44 (Canada) (in R.S.C. 1985, App. III: the "Canadian Bill of Rights") had drawn fire for the "austerity of tabulated legalism" characteristic of the courts' restrictive "manner and form" interpretation, and the Supreme Court was quick to take the alternative path when the time came to apply to the Canadian Charter the principles that had emerged from the earlier legislation.
See generally: W.S. Tarnopolsky, The Canadian Bill of Rights (Ottawa: Carleton Library, Number 83, Second Revised Edition), passim;
P.W. Hogg, Constitutional Law of Canada (Toronto: Carswell, 3rd Edition, 1992), pp. 793 et seq.;
Hunter v. Southam, [1984] 2 S.C.R. 145, at p. 156, letter d; and
Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 509-511.
48. This new enthusiasm for the protection of fundamental rights even came to exceed the initial intentions of those who drafted the Canadian Charter.
See in particular Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 505-509, per Lamer J., dismissing the interpretation of the "principles of fundamental justice" in section 7 of the Canadian Charter that had been advanced by the federal Deputy Minister of Justice, Mr. Strayer, and by the federal Minister of Justice Jean Chrétien, when they held their respective duties at the time of the debates surrounding the adoption of the Charter.
49. Similarly, some new principles were articulated to give "quasi-constitutional" value to human rights legislation; there was now a hierarchy of norms among the various laws, a hierarchy dictated by the relative importance of the principles they espoused. Madam Justice L'Heureux-Dubé synthesized these principles in the quite recent judgment Quebec (C.D.P.D.J.) v. Montréal (City), [2000] 1 S.C.R. 665 (at pp. 683-685); 2000 SCC 27, which we take the liberty of summarizing:
| – | Given its fundamental and quasi-constitutional status, human rights legislation prevails ["suprématie de principe"] over other legislation; |
| – | Because of its quasi-constitutional status, the Charter must be interpreted in light of both its context and objectives, in a large and liberal way that allows its objectives to be achieved as far as possible; exceptions and defences are narrowly construed; |
| – | The context of a law includes the other provisions of the law, related statutes, the objective of both the law and the specific provision, as well as the circumstances which led to the drafting of the text; and |
| – | In responding to general terms and concepts, the approach is organic and flexible. The key provisions of the legislation are adapted not only to changing social conditions but also to evolving conceptions of human rights; it is inappropriate to rely solely on a strictly grammatical analysis. |
50. As will become apparent, these principles will judicially be made applicable to language rights. As for these rights in particular, the Supreme Court's decisions on language rights have evolved over time, resulting in some new and important principles. Let us note some of these developments that witness a certain amount of «rebondissements», but from which a new trend now clearly emerges:
Purposive Interpretation
Attorney General of Quebec v. Blaikie et al., [1979] 2 S.C.R. 1016 ("Blaikie No. 1"): Adoption of the Charter of the French Language, R.S.Q. c. 11 in Quebec. Addition by the Court to the actual wording of the written text of section 133 of the Constitution Act, 1867, through the use of the unwritten constitutional principle of the "living tree" (Edwards v. Attorney General of Canada, [1930] A.C. 124 (P.C.), at p. 136), to extend the provision to all "regulations" (at pp. 1027-29);
A.G. of Manitoba v. Forest, [1979] 2 S.C.R. 1032: Extension of the principle of Blaikie No. 1 to section 23 of The Manitoba Act, 1870, 33 Vic., c. 3 (Canada), notwithstanding the fact that this legislation could be considered the "constitution of the province" and thus not imposing any reciprocal obligations between the province and the federal government, as in the case of section 133 of the Constitution Act, 1867 in relation to Quebec, and thereby apparently allowing Manitoba to amend the provision unilaterally. According to the Court, however, "It [was] enough to note that on any view it certainly cannot result in Manitoba's Legislature having towards s. 23 of The Manitoba Act an amending power which Quebec does not have towards s. 133" (at p. 1039);
Re Manitoba Language Rights, [1985] 1 S.C.R. 721: Application of the unwritten principle of the Rule of Law to temporarily validate Manitoba's unconstitutional unilingual statutes. Confirmation of the extension of the written text of s. 23 to cover "simultaneity" (p. 775, letter c) in the entire enactment process, an implicit requirement (p. 774, letter e), and not simply "printing" and "publishing" of "Acts" of the Legislature, which, strictly speaking, when read literally, is what is only required by the written text of the provision itself. This latter case, in our opinion, produces an unwritten principle of extensive implementation of rights recorded by the written text;
Restrictive Interpretation
Société des Acadiens du Nouveau-Brunswick v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549: Restrictive interpretation of language rights, these being based on a "political compromise". The three judges who wrote the reasons nevertheless agree that subsection 16(3) of the Charter contains a principle of advancement (Dickson C.J.C., p. 565, letters f to h; Beetz J., p. 579, letter a; and Wilson J., pp. 618-19). Note, however, the strong dissent by Madam Justice Wilson, to which we will return later;
Return to Purposive Interpretation
R. v. Mercure, [1988] 1 S.C.R. 234: Vigorous application of the "manner and form" principle in language rights through the extension of the principle of parliamentary supremacy to the horizontal invalidation of subsequent statutory provisions;
Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 ("Ford"): Extension of freedom of expression protected in a "quasi-constitutional" law to include commercial expression ("Bravo! price"; p. 722, letter e), freedom of expression protecting "listeners as well as speakers" (p. 767, letter b), there being "no sound basis on which commercial expression can be excluded from the protection of s. 2(b) of the Charter" (at p. 767, letter a). Application of a quasi-constitutional law to invalidate the incompatible provisions of another law and the regulations pursuant thereto. Interpretation of the wording of section 9.1 of the Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (the "Quebec Charter") so that it be made equivalent to section 1 of the Canadian Charter, notwithstanding the written text of section 9.1 to the direct contrary effect (p. 769, letter h). Application of the "necessity" test to section 9.1 of the Quebec Charter (p. 779, letter b), notwithstanding the absence of an absolute ban (p. 779, letters g to i);
Mahe v. Alberta, [1990] 1 S.C.R. 342: It is appropriate to "breathe life" into the expressed purpose of section 23 of the Canadian Charter (p. 365), a remedial provision (p. 363);
R. v. Beaulac, [1999] 1 S.C.R. 768 ("Beaulac"): formal recognition of the principle of "advancement" in subsection 16(3) of the Canadian Charter, which applies not only to the federal level of government but to the provincial legislatures as well. Statement of the requirement of obligations that results from the principle of advancement. We will return to this judgment below;
Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3. Confirmation of the principles of the Beaulac decision, in sofar as an attempt is still being made to minimize the importance of language rights as rights issuing from a "political compromise". We will return to this judgment below;
For an analysis of the evolution of the Supreme Court of Canada's interpretation of language rights, see André Braën, "L'interprétation judiciaire des droits linguistiques au Canada et l'affaire Beaulac", [1998] 29 R.G.D. 379.
51. While the initial intention of those who framed them is important in grasping the nature and scope of the written text of constitutional provisions (or statutory provisions referred to by the courts as "quasi-constitutional") and thus of the general meaning that must be accorded to such documents, this overview of the evolution in the cases dealing with human rights legislation and language rights clearly shows an increasing tendency on the part of the courts to use unwritten constitutional principles to define the parameters of their generality, and thus to "breathe life" into them juridically.
52. This approach, which the courts adopt in constitutional review of legislative and governmental action, and which some will characterize as "judicial activism", must nevertheless be understood in the context of the ongoing debate between the courts and the legislatures. This important "dialogue" enriches our society.
Vriend v. Alberta, [1998] 1 S.C.R. 493, at pp. 562-567;
53. The use of unwritten principles produced by an interaction within the interstices of the Constitution in the interpretation of «law» for the purpose of adapting the constitutional structure to new situations deserving a "judicial response" in the ongoing "dialogue" is not new law, although historically, prior to the enactment of the Charter, their use was infrequent and sporadic.
54. The Respondents have cited, at pp. 38 and 39 of their factum (¶ 150), the historical application of unwritten principles in other fields and on other occasions. We are compelled to add to this list the case of Hunt v. T&N PLC, [1993] 4 S.C.R. 289 (the "Hunt" case).
55. In that case, the Court invalidated the Business Concerns Records Act, R.S.Q. c. D-12, which initially had been enacted, like its statutory counterpart in Ontario, to counter the harsh extraterritorial effect of U.S. antitrust laws (p. 328, letter c), on the ground that it infringed the constitutional principle (p. 321, letter d) of creating "a single country" (p. 322, letter b).
56. In the Court's opinion, the Act infringed in particular the principle of common citizenship, interprovincial mobility of citizens and the common market created by the union as "reflected" in the written texts of sections 91(2) and 91(10) and section 121 of the Constitution Act, 1867 (p. 322, letter d). But, more importantly, the Court, having anchored itself to the written text of the Constitution, was also of the opinion that the unwritten constitutional imperatives that had led to the necessary judicial modifications to the common law rules on the mobility of jurisprudence should now be applied "to the provincial legislatures as well as to the courts" (p. 324, letter e): the unwritten constitutional imperatives were now elevated to the level of the written Constitution itself. As the Court held, "it was sufficient ... to infuse the constitutional considerations" into the common law rules (p. 324, letter c). The Court added that the "integrating character of our constitutional arrangements" effectively elevated an "inherent" (and therefore unwritten) characteristic of the Canadian federation to a position beyond the power of provincial legislatures to override (p. 324, letter h): the Quebec legislation in this case, having exceeded the "inherent" characteristic of the Canadian federation, offended the "basic structure" of the federation (p. 328, letter a) and had to consequently be declared unconstitutional to the extent of its inconsistency on the inter-provincial level (p. 331, letter c).
57. Hunt stands for the proposition that unwritten principles of the Constitution are clearly part of Canadian constitutional law: when they are anchored to a written text, they acquire the force of the written text itself to which they are attached and invalidate any incompatible provisions.
C. Rationalization of the unwritten principles by the Reference re Secession of Quebec
58. At the time the Canadian Charter was adopted, the Constitution of Canada could be summarized as follows:
Re: Resolution to Amend the Constitution, [1981] 1 S.C.R. 753, at pp. 883-884:
"[C]onstitutional conventions plus constitutional law equal the total constitution of the country."
59. As indicated earlier, however, Canadian constitutional law has been profoundly altered by the evolution in constitutional principles since the adoption of the Charter.
60. The major contribution to the edification of these principles has doubtless been the evolution in the case law on human rights legislation and language rights, but the introduction and formal entrenchment of the unwritten principles of the Constitution in the constitutional law itself can be found in the judgment in Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice), [1997] 3 S.C.R. 3 (at pp. 63 to 78; the "Provincial Judges Reference"), through the operation of subsection 52(2) of the Constitution Act, 1982 (Schedule B to the Canada Act, 1982, (U.K.) 1982, c. 11) and the preamble to the Constitution Act, 1867, the veritable "grand entrance hall to the castle of the Constitution" (at pp. 77-78, ¶ 109) and, in Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (the "Secession Reference") these principles were erected into four major classes of norms - the four great keystones of the entrance hall to the castle of the Constitution: federalism, democracy, constitutionalism and the rule of law, and the "respect" (p. 240; ¶ 32) for / "protection" (pp. 261 ss.; ¶¶ 79 ss.) of the minorities.
61. To relegate these "principles" to the attic of the constitutional castle is to lock them away in dust and darkness. The importance of these principles, both to courts and governments, is undeniable: the Court itself could not be more clear on this:
"¶ 54 Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have "full legal force", as we described it in the Patriation Reference, supra, at p. 845), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments." [Emphasis added; at pp. 249-250]
62. To the degree that the "principles" are not simply descriptive but "are binding upon both courts and governments", they cannot be other than "constitutional law" as opposed to "constitutional conventions", which are not binding on the courts. See Reference re Resolution to amend the Constitution, [1981] 1 S.C.R. 753, at pp. 877-883, and especially at p. 880. Unlike constitutional conventions, the "principles" are administered by the courts, having crystallized into law solely by virtue of the courts' expression and approval of their existence: Re Manitoba Language Rights, [1985] 1 S.C.R. 721 and the Hunt case are some of the most remarkable examples.
63. To sum up: the unwritten constitutional "principles" are included in constitutional "law" («droit») and consequently must be applied by the courts in the exercise of their power of constitutional review of government and legislative action, since only "law" can "bind the courts".
D. Scope and application of the unwritten principles in subsection 16(3) of the Canadian Charter
1. The principle of "substantive equality" and "advancement"
64. In R. v. Beaulac, [1999] 1 S.C.R. 768, Mr. Justice Bastarache, on behalf of the Court's majority, formulated the principles of "substantive equality" and "advancement", and the obligations resulting therefrom, by anchoring them to the written text of subsection 16(3) of the Canadian Charter as follows:
"¶ 24 Though constitutional language rights result from a political compromise, this is not a characteristic that uniquely applies to such rights. A. Riddell, in "À la recherche du temps perdu: la Cour suprême et l'interprétation des droits linguistiques constitutionnels dans les années 80" (1988), 29 C. de D. 829, at p. 846, underlines that a political compromise also led to the adoption of ss. 7 and 15 of the Charter and argues, at p. 848, that there is no basis in the constitutional history of Canada for holding that any such political compromises require a restrictive interpretation of constitutional guarantees. I agree that the existence of a political compromise is without consequence with regard to the scope of language rights. The idea that s. 16(3) of the Charter, which has formalized the notion of advancement of the objective of equality of the official languages of Canada in the Jones case, supra, limits the scope of s. 16(1) must also be rejected. This subsection affirms the substantive equality of those constitutional language rights that are in existence at a given time. Section 2 of the Official Languages Act has the same effect with regard to rights recognized under that Act. 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; see McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at p. 412; Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1038; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 73; Mahe, supra, at p. 365. 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. (...).
¶ 25 Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada; see Reference re Public Schools Act (Man.), supra, at p. 850. To the extent that Société des Acadiens du Nouveau-Brunswick, supra, at pp. 579-80, stands for a restrictive interpretation of language rights, it is to be rejected. The fear that a liberal interpretation of language rights will make provinces less willing to become involved in the geographical extension of those rights is inconsistent with the requirement that language rights be interpreted as a fundamental tool for the preservation and protection of official language communities where they do apply. (...)" [Underlining added, as is boldface type where the words "in all cases" had been initially underlined by the Court; at pp. 790-92].
65. This decisive passage in Beaulac contains the following central principles:
- Subsection 16(3) has formalized the notion of "advancement" toward the objective of equality of the official languages of Canada;
- Subsection 16(3) affirms "the substantive equality" of those constitutional language rights that are in existence at a given time;
- 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;
- The exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation; and
- Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada. This approach echoes the principle of extensive implementation in Re Manitoba Language Rights, [1985] 1 S.C.R. 721.
66. To the extent that this might not yet be completely obvious, and to preclude any doubt about the further possibility of resorting to the "political compromise" theory to deny the application of language rights, Major and Bastarache JJ., this time writing on behalf of an unanimous Supreme Court in Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3 ("Arsenault-Cameron"), note:
"¶ 27 As this Court recently observed in R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 24, the fact that constitutional language rights resulted from a political compromise is not unique to language rights and does not affect their scope. Like other provisions of the Charter, s. 23 has a remedial aspect; see Mahe, supra, at p. 364. It is therefore important to understand the historical and social context of the situation to be redressed, including the reasons why the system of education was not responsive to the actual needs of the official language minority in 1982 and why it may still not be responsive today. It is clearly necessary to take into account the importance of language and culture in the context of instruction as well as the importance of official language minority schools to the development of the official language community when examining the actions of the government in dealing with the request for services in Summerside. As this Court recently explained in Beaulac, at para. 25, "[l]anguage rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada" (emphasis in original). A purposive interpretation of s. 23 rights is based on the true purpose of redressing past injustices and providing the official language minority with equal access to high quality education in its own language, in circumstances where community development will be enhanced." [Underlining added, as is the boldface and italic type; at p. 25]
2. The principle of "respect" / "protection for minorities", a corollary of the principles of "substantive equality" and "advancement"
67. To the extent that subsection 16(3) of the Canadian Charter affirms "the substantive equality" of those constitutional language rights that are in existence at a given time, the "affirmation" of this "substantive equality" clearly requires that it be buttressed by the principle of "respect" / "protection for [linguistic] minorities" of the Secession Reference, a true corollary of the "advancement" principle.
68. The Oxford English Dictionary (2nd ed.) defines "respect" in part as: "Discrimination, partiality, or favour in regard of persons or things"; "Deferential regard or esteem felt or shown towards a person or thing"; "The condition or state of being esteemed or honoured". To the extent that one should refer to the principle of the "protection" of minorities, the Oxford English Dictionary (2nd ed.) defines "protection" in part as: "The action of protecting; the fact or condition of being protected; shelter, defence, or preservation from harm, danger, or evil; patronage, tutelage." In the principle of "respect" / "protection", therefore, there is a discernible idea of "preservation" and "development", as was noted in Beaulac and followed shortly after in Arsenault-Cameron. Please see the French version of this factum for a discussion of the terms "respect" / "protection" in the French language (at ¶ 68).
69. This preservation and development of the linguistic communities can be achieved only if governments, both federal and provincial, commit themselves to adopting measures to protect them:
| "The fate of minority communities, present in all of Canada, is often related to political developments and the opportunities they afford, as well as those they deny. The future of these communities also depends on measures the provincial governments take to preserve their existence, in particular in the areas of instruction and provincial and municipal services in the minority language, and on measures the Government of Canada takes to promote their vitality, an objective now firmly rooted in the Official Languages Act." (Emphasis is ours, at p. 171). | "Le sort des communautés minoritaires, présentes dans tout le pays, est bien sûr souvent lié à l'évolution de la conjoncture politique, et occasions qu'elle leur offre comme à celles dont elle les prive. Leur avenir dépend aussi des mesures de «protection» que leur offre leur gouvernement provincial, notamment l'instruction, les services provinciaux et municipaux dans leur langue, de même que de celles que prend le gouvernement du Canada pour favoriser leur épanouissement, un objectif désormais consacré dans le Loi sur les langues officielles." (Nous soulignons et ajoutons le caractère gras; à la p. 191). |
Commissioner of Official Languages, Annual Report 1989 (Ottawa: Department of Supplies and Services Canada, 1990), as tabled in the House under section 66 of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.);
70. The addition of the principle of "respect" / "protection for [linguistic] minorities" to subsection 16(3) of the Canadian Charter is therefore a legal imperative that is patently necessary in order to ensure the advancement of substantive equality of the official languages.
3. The "ratchet" principle, which results from the application of the "substantive equality", "advancement" and "respect" / "protection for [linguistic] minorities" principles
71. To the extent that the "respect" or "protection" principle is a corollary of the "substantive equality" and "advancement" principles, it follows that any retreat from "advancement" toward "substantive equality" of Canada's two official languages that affects this "substantive equality" of the constitutional language rights that are in existence at a given time runs counter to the obligations resulting from adherence to the objective of achieving "advancement" toward "substantive equality" of both official languages and to the efforts that have already been deployed to achieve that objective.
72. Since Ontario has already taken steps in advancement toward and achievement of "substantive equality" of the two official languages through the adoption of such measures as the French Language Services Act, R.S.O. 1990, c. F-27, judicial review of the situation in the case at bar must necessarily comprehend and grasp the responsibilities that flow from such an action. These responsibilities entail an evaluation and application of a principle that can be characterized as a "ratchet", the embryo of which is found in the following passage from the reasons of Madam Justice Wilson in Société des Acadiens v. Association of Parents, [1986] 1 S.C.R. 549 ("Société des Acadiens"), at pp. 618-19:
"In my view, the difficulty in characterizing s. 16 of the Charter stems in large part from the problems of construction inherent in s. 16(1). I would read the opening statement "English and French are the official languages of Canada" as declaratory and the balance of the section as identifying the main consequence in the federal context of the official status which has been declared, namely that the two languages have equality of status and have the same rights and privileges as to their use in all institutions of the Parliament and government of Canada. Subsection (3) of s. 16 makes it clear, however, that these consequences represent the goal rather than the present reality; they are something that has to be "advanced" by Parliament and the legislatures. This would seem to be in the spirit of Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182, namely that legislatures cannot derogate from already declared rights but they may add to them. Provided their legislation "advances" the cause of equality of status of the two official languages it will survive judicial scrutiny; otherwise not. I do not believe, however, that any falling short of the goal at any given point of time necessarily gives a right to relief. I agree with those who see a principle of growth or development in s. 16, a progression towards an ultimate goal. Accordingly the question, in my view, will always be -- where are we currently on the road to bilingualism and is the impugned conduct in keeping with that stage of development? If it is, then even if it does not represent full equality of status and equal rights of usage, it will not be contrary to the spirit of s. 16." [Underlining, bold and italic typeface added; at pp. 618-19]
The "ratchet" concept is not without precedent in public law. See in this regard Katzenbach v. Morgan, 384 U.S. 641 (1966), a decision that gave rise to the doctrine in constitutional law better known under the name of "Brennan's Ratchet".
The use of the concept of "underlying principles" which are more important than the "precise terms" of a written text in order to preserve a language, being at the "core" of a culture, is also not without precedent also: New Zealand Maori Council and others v. Attorney General of New Zealand and others, [1994] 1 All E.R. 623 (P.C. (N.Z.)).
73. Although the quoted passage occurs in the dissenting portion of the decision of Wilson J. in this judgment, we submit that, following the Beaulac decision, the "mere sapling" planted in that judgment by Wilson J. (R. v. Mercure, [1988] 1 S.C.R. 234, p. 252, letter e, by analogy) must now be made to grow like a true "living tree".
74. In the case at bar, this Court must determine whether, in applying the so-called "ratchet" principle, the evidence accepted by the Divisional Court shows that the situation that would result from the Commission's Directions "advances" the "substantive equality" of status of the two official languages, according to the judgment in Société des Acadiens. If not, this situation cannot "survive judicial review" within the meaning of that judgment, since it conflicts with the ratchet principle.
E. Application of the unwritten principles of subsection 16(3) of the Canadian Charter to the case at bar
75. It is our submission that the evidence accepted by the Divisional Court clearly shows that the situation covered by the appeal is not a "ratchet up", as the Attorney General of Ontario suggests (Factum, p. 99), but rather a situation that must withstand a "ratchet down". The testimony at trial of the Official Languages Commissioner on the importance of homogenous institutions for minority official language communities can only support this proposition.
1. The unwritten principles of subsection 16(3) of the Canadian Charter contemplate actions by both legislatures and governments
76. In this regard, it should be noted, first, that the unwritten principles anchored in the written text of subsection 16(3) of the Canadian Charter cover not only "legislative" action, but "governmental" action also. It is not necessary or logical that the advancement be registered solely through legislative action. This is especially true given the presence of such legislation as the French Language Services Act, R.S.O. 1990, c. F-27, which clearly indicates the "progressive" direction already taken by the legislative process in this regard and which necessarily must guide the government in future.
Government is "an extension of the legislative power of the Legislature" (A.G. of Quebec v. Blaikie et al., [1981] 1 S.C.R. 312, at p. 320) and the executive frequently and de facto controls the legislature (the relationship between the two branches is therefore bi-directional: Wells v. Newfoundland, [1999] 3 S.C.R. 199, at p. 221, ¶¶ 53-54); as a result, the progress achieved through government action and the "vested" or "acquired" rights resulting therefrom or existing already is thus equally protected by the principles of advancement, protection and ratcheting. See also in this respect Beaulac (¶ 24) and the imposition of obligations on the "State" [«État»].
77. Second, to the extent that one would still be inclined to promote a dialogue of legislative progression ("political compromise") only as opposed to a dialogue based on constitutional principles, the purpose of legislative progression is to promote the maturing of conditions capable of ultimately securing the formal entrenchment of language rights. A step backward in terms of legislative or governmental action takes us further from this objective, not closer. Clearly, the concern with determining "with relative precision what it was that they [the provinces] were opting into" (Société des Acadiens, per Beetz J., p. 579, letter j) is therefore inapplicable. What one must highlight, therefore, is that "even though [language rights provisions are] the product of negotiation and political compromise, that does not render them unprincipled." (Secession Reference, p. 261; ¶ 80).
78. Third, the evolution in the human and language rights cases completely negates any argument that language rights guarantees and protections are exhaustively and definitively covered by the written text of the Constitution alone (Provincial Judges Reference, pp. 66-67, ¶ 89, by analogy). Given the fact that section 16 is immune from derogation (section 33 of the Canadian Charter), language rights undeniably occupy a central position in the Canadian Constitution, analogous with that of the courts within Canada's system of government. Consequently, by implication, the jurisdiction of the legislatures, governments and courts contains an implicit limitation, namely, that they may not undermine language rights (Provincial Judges Reference, p. 77, ¶ 108, by analogy).
79. Fourth, and contrary to the submission of the Attorney General of Ontario (Factum, p. 72, ¶ 216 and p. 99, ¶ 289), the anchoring of the unwritten principles of "progression", "protection" and "ratcheting" in subsection 16(3) of the Canadian Charter is a legal interpretation that the provision can "reasonably bear" (MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, at p. 487, letter f) and subsection 16(3) does not "expressly provides [for] otherwise" (id., p. 490, letter i) to the contrary, particularly in light of the fact that the Secession Reference clearly indicates that the written provisions of the Constitution dealing with languages rights merely "reflect[...] a broader principle related to the protection of minority rights" and that the "protection of minority rights is itself an independent [«distinct»] principle underlying our constitutional order" (p. 261; ¶¶ 79-80).
80. Finally, while section 21 of the Charter does not otherwise itself entrench language rights, it is neither the purpose nor the effect of this provision or of section 26 (in relation to human rights) to deny the fundamental status of such rights or the constitutional principles pertaining thereto.
Singh et al v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 224 (per Beetz J., letters b to f).
81. In view of the foregoing, it is now necessary to apply these principles to the case at bar.
2. Incompatibility of the governmental action in question with the unwritten principles of subsection 16(3) of the Canadian Charter
82. Pursuant to section 1 of the Ontario Regulations 87/96, in force when the Directions were issued, "The Health Services Restructuring Commission established under section 8 of the Ministry of Health Act may issue directions under section 6 of the Act [Public Hospitals Act] or under subsection 9(10) of the Act [Public Hospitals Act] in the place of the Minister".
Factum of the Attorney General of Ontario, Tab E;
83. Pursuant to section 8 of the Ministry of Health Act, R.S.O. 1990, c. M.26, "The Commission shall be a corporation without share capital composed of the members of the Commission from time to time" (subsection 8(3)); "The Commission has all the capacity and powers of a natural person necessary for carrying out the Commission's duties except as provided by the regulations" (subsection 8(6)); and "The Commission shall perform any duties, and may exercise any powers, assigned to it by or under this or any other Act" (subsection 8(7)). As a result, the Commission derives all of its powers from the enabling legislation.
Factum of the Attorney General of Ontario, Tab B;
84. Pursuant to section 6 of the Public Hospitals Act, R.S.O. 1990, c. P-40, "The Minister may direct the board of a hospital ... to cease operating as a public hospital ... where the Minister considers it in the public interest to do so." (subsection 6(1)) or "The Minister may direct the board of a hospital ... to do any of the following ... where the Minister considers it in the public interest to do so: 1. To provide specified services to a specified extent or of a specified volume; 2. To cease to provide specified services; 3. To increase or decrease the extent or volume of specified services" (subsection 6(2)). (Emphasis added).
Factum of the Attorney General of Ontario, Tab C;
85. Under section 9.1 of the Public Hospitals Act, R.S.O. 1990, c. P-40, the Minister "may consider any matter [he regards] as relevant".
Factum of the Attorney General of Ontario, Tab D.
86. The powers allocated under these enabling statutory and regulatory provisions must be exercised in a manner consistent with the Canadian Charter: a statutory provision conferring an imprecise discretion on an entity that derives all of its powers from the statute must not be so interpreted as to allow an infringement of Charter-protected rights.
Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at pp. 1077-1078;
Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, at pp. 850-851;
Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, at pp. 611-612; ¶ 67;
Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at p. 660; ¶ 48;
New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, at p. 91; ¶ 97;
87. Considering the determinative evidence accepted by the Court below as well as the testimony of Commissioner Goldbloom, it is our respectful submission that the Commission's Directions, whether by purpose or effect, adversely affect the principles of advancement toward substantive equality of the language rights of Franco-Ontarians and the protection of the Franco-Ontarian community, and thereby constitute a step back from the ratchet principle.
88. The Franco-Ontarian community is a group obviously contemplated by subsection 16(3) of the Canadian Charter, as a group that one seeks to advance toward equality in the status and use of the French language in relation to the English language, with the ultimate purpose of achieving substantive equality of Canada's two official languages in accordance with section 16 of the Charter.
89. The Franco-Ontarian community, like the situation of the French language in Canada generally, is subject to undeniable assimilative pressures.
90. To the extent that the Commission's Directions adversely affect the language rights of the Franco-Ontarians, as was held by the Court below as a finding of fact and of law, they do not fulfil the "condition" of "promoting advancement" toward equality of status of the two official languages, they undermine the "respect" and "protection" that must be given to this minority and cannot, therefore, survive judicial scrutiny, which necessarily includes an evaluation and application of the ratchet principle.
91. In view of the foregoing as a whole, we submit that this government action cannot be considered "in keeping with that stage of development" in the province of Ontario's progression toward substantive equality of French and English (Société des Acadiens, p. 619, letter g). This action is therefore contrary to section 16 of the Canadian Charter.
PART V: CONCLUSION
92. In conclusion, the Commission's Directions are constitutionally invalid and should receive the appropriate and just remedy in the circumstances (section 24 of the Canadian Charter).
93. The Commissioner supports the argument of the Association canadienne-française de l'Ontario that the onus is on the governmental authorities concerned to justify the Directions, including more particularly, by way of discharge of the "necessity" test (see in this respect: Ford, p. 779, letter b).
94. Because no such justification was sustained in this case, the Directions should be quashed in accordance with the conclusions of the Divisional Court.
Corporation professionnelle des médecins du Québec v. Thibault, [1988] 1 S.C.R. 1033, at pp. 1045-1046.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
MONTRÉAL, January 8, 2001
____________________________________
Fasken Martineau DuMoulin LLP, Montréal
Mtre René Cadieux
Counsel for the Commissioner Official Languages of Canada
SCHEDULE A: LIST OF AUTHORITIES
PARAGRAPHS IN THE FACTUM
CASES
- Société des Acadiens du Nouveau-Brunswick v.
- Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549 -- Part I, 50. 72, 77
- R. v. Mercure, [1988] 1 S.C.R. 234 -- Part I, 50, 73
- R. v. Lucas, [1998] 1 S.C.R. 439 -- 33
- Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182 -- 43
- Hunter v. Southam, [1984] 2 S.C.R. 145. -- 47
- Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486. -- 47, 48
- Quebec (C.D.P.D.J.) v. Montréal (City), [2000] 1 S.C.R. 665; 2000 SCC 27 -- 49
- Attorney General of Quebec v. Blaikie et al., [1979] 2 S.C.R. 1016 -- 50
- Edwards v. Attorney General of Canada, [1930] A.C. 124 (P.C.) -- 50
- A.G. of Manitoba v. Forest, [1979] 2 S.C.R. 1032 -- 50
- Re Manitoba Language Rights, [1985] 1 S.C.R. 721 -- 50, 62
- Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 -- 50, 93
- Mahe v. Alberta, [1990] 1 S.C.R. 342 -- 50<
- R. v. Beaulac, [1999] 1 S.C.R. 768 -- 50, 64, 73
- Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3 -- 50, 66
- Vriend v. Alberta, [1998] 1 S.C.R. 493 -- 52
- Hunt v. T&N PLC, [1993] 4 S.C.R. 289 -- 54, 55, 56, 57, 62
- Re: Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 -- 58, 62
- Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice), [1997] 3 S.C.R. 3 -- 60, 78
- Reference re Secession of Quebec, [1998] 2 S.C.R. 217 -- 60, 61, 77, 79
- Katzenbach v. Morgan, 384 U.S. 641 (1966) -- 72
- New Zealand Maori Council and others v. Attorney General of New Zealand and others, [1994] 1 All E.R. 623 (P.C. (N.Z.)) -- 72
- A.G. of Quebec v. Blaikie et al., [1981] 1 S.C.R. 312 -- 76
- Wells v. Newfoundland, [1999] 3 S.C.R. 199 -- 76
- MacDonald v. City of Montreal, [1986] 1 S.C.R. 460 -- 79
- Singh et al v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 -- 80
- Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 -- 86
- Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 -- 86
- Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569 -- 86
- Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 -- 86
- New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 -- 86
- Corporation professionnelle des médecins du Québec v. Thibault, [1988] 1 S.C.R. 1033 94
OTHER MATERIALS
- Testimony of Mr. M.F. Yalden, Commissioner of Official Languages, before the Special Joint Committee on the Constitution of Canada House of Commons and Senate, 1st Session, 32nd Parliament, 17-11-1980, pp. 6:10 6:11. -- Part I
- Anne F. Bayefsky, Canada's Constitution Act 1982 & Amendments
- - A Documentary History (Toronto: McGraw-Hill Ryerson Limited, 1989). -- 35, 37
- Special Joint Committee on the Constitution of Canada House of Commons and Senate, 1st Session, 32nd Parliament, 29-1-1981, pp. 4:60-4:80, adoption at p. 4:81. -- 35
- Testimony of the Minister of Justice, the Honourable Jean Chrétien, before the Special Joint Committee on the Constitution of Canada House of Commons and Senate, 1st Session, 32nd Parliament, 7-11-1980, pp. 2:26 et seq. -- 39
- Testimony of the Minister of Justice, the Honourable Jean Chrétien, before the Special Joint Committee on the Constitution of Canada House of Commons and Senate, 1st Session, 32nd Parliament, 7-11-1980, pp. 2:26-2:29, p. 3:56 and p. 4:32. -- 40
- Testimony of the Minister of Justice, the Honourable Jean Chrétien, before the Special Joint Committee on the Constitution of Canada House of Commons and Senate, 1st Session, 32nd Parliament, 12-1-1981, pp. 36:15 - 36:16. -- 41
- W.S. Tarnopolsky, The Canadian Bill of Rights (Ottawa: Carleton Library, Number 83, Second Revised Edition). -- 47
- P.W. Hogg, Constitutional Law of Canada (Toronto: Carswell, 3rd Edition, 1992). -- 47
- André Braën, "L'interprétation judiciaire des droits linguistiques au Canada et l'affaire Beaulac", [1998] 29 R.G.D. 379 -- 50
- Oxford English Dictionary (2nd ed.) -- 68
- Commissioner of Official Languages, Annual Report 1989 (Ottawa: Department of Supplies and Services Canada, 1990) -- 69
