Belfast, August 15, 2009
Access to Justice in Both Official Languages: The Canadian Experience
Notes for an address at the POBAL Conference:
Irish in the Courts: Justice and Equality—Examining Best Practices
Graham Fraser – Commissioner of Official Languages
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I am delighted to be here with you this morning. I am particularly thankful to Janet Muller and to the organizing committee for inviting me to address you in Belfast, on my way to Dublin where I will take part in the Canadian Bar Association’s Canadian Legal Conference over the next few days. I have very fond memories of my first visit here in November 2006 at POBAL’s invitation, shortly after I was appointed Commissioner of Official Languages for Canada.
Today, I have been asked to speak about Canadian best practices in terms of linguistic equality in the administration of justice. Access to justice in both official languages in Canada is indeed a matter of prime importance. The right to use English and French before the courts reflects the profound will of Canadians across the country to live in a society in which dignity and respect for one another are key values.
Before I talk about our Canadian experience, however, I would like to mention that I have read the recent High Court’s ruling denying the right to use the Irish language before the Courts. Mindful of the limits of my jurisdiction, I nevertheless wish to express that, on a personal level, I would have liked today’s meeting with you to have been under different circumstances—where I could have celebrated with you a ruling favouring and advancing the use of the Irish language in the administration of justice.
I certainly know from our experience in Canada that progress can sometimes be slow when trying to achieve such goals. This is particularly true in cases as fundamental and vital to a country as strengthening linguistic identity and defining rights for the use of minority languages in aspects of public life. I certainly appreciate the efforts of those who stood up to have their language rights recognized, and those who represented the Irish community as it took one step towards linguistic equality in the administration of justice in Northern Ireland.
I am also aware of the different interpretations of the Administration of Justice (Language) Act of 1737, particularly in the context of other relatively recent instruments crystallizing the UK Government’s commitment to promote the Irish language.1 It appears to me that dialogue is underway in Northern Ireland among the Courts, government and members of the linguistic minority—a dialogue that I hope will have a constructive impact on the vitality of the Irish community. Canadian history certainly suggests that the path to official recognition and acceptance of the status and use of a minority language can be a long and winding road—even when political will exists. However, every step taken is a step in the right direction.
In the case discussed by Mr. Flannigan earlier, I believe the issue was one of linguistic access to the Courts; of being able to file an application for an occasional liquor licence in the Irish language. The ability to use one’s language in the administration of justice in essence plays a very critical cultural role, which is recognized in Canadian jurisprudence. As the Supreme Court of Canada has held:
The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.2
Freedom of expression cannot truly exist in terms of language if a person is prohibited from using the language of his or her choice. In 1988, the year the Official Languages Act of Canada was amended for the first time, the Supreme Court of Canada also stated that:
[Language] is not merely a means or medium of expression; it colours the content and meaning of expression. It is […] a means by which a people may express its cultural identity. It is also the means by which the individual expresses his or her personal identity and sense of individuality.3
Parenthetically, as a non-lawyer, let me note that some of the most eloquent statements about the importance of language as a key to identity that I have ever read can be found in Supreme Court of Canada judgments.
In my opinion, language guarantees in the area of access to justice are an essential contributing factor to the continued vitality and development of minority communities. Canada’s model of linguistic duality is the unique product of its specific circumstances. It is therefore my hope that my remarks today will be useful and practical for you in your pursuit of justice and equality here in Northern Ireland.
The Canadian Experience
As some of you may know, 2009 marks the 40th anniversary of the Official Languages Act in Canada. The notion of Canada as a bilingual country is not a new one: we have had a bilingual and bijural regime in different forms for 250 years. However, our path toward legal recognition of language rights has not always been without its challenges.
Without going into detail, suffice to say that prior to Confederation in 1867, recognition of the French language and culture took several quick turns. As you know, the origins of Canada are based on not one, but two European influences: the English and the French. By the early 1700s, large populations of both English and French-speaking colonialists had been established. These groups differed significantly, both linguistically and culturally. Whereas one group spoke French, practiced Catholicism and followed its own legal system based on civil law, the other spoke English, practiced Protestantism and followed a legal system based on the common law tradition.
Following the British Conquest in 1759, French-speaking settlers were guaranteed the right to continue practising their religion, applying their laws and speaking their language. There was a practical reason for this: the colonial administration wanted to be sure that French-speaking settlers were not drawn into supporting the American colonies to the south. This strategic factor has not been an aspect of the situation of the Irish.
In the wake of the 1837 Rebellion, the British abolished the use of French in the newly established Province of Canada, which encompassed both language groups. However, this proved to be politically untenable. After eight years, in 1848, the use of French was restored, as a result of a critical coalition between English-speaking and French-speaking leaders Robert Baldwin and Louis-Hippolyte Lafontaine.
With Confederation in 1867 came a certain level of stability. Concern for the protection of linguistic and religious communities, and fear of assimilation were critical issues in the negotiations at the time. The protection of language and religion was a precondition demanded by these communities for entering into the Canadian federation. The preservation of these rights was an essential feature of Canada’s first Constitution.
Being aware of this part of our history is key to understanding where Canada comes from linguistically and culturally.
Our country is also based on a constitutional division of power between the federal and the provincial governments. Interestingly enough, language is not a recognized constitutional field of jurisdiction clearly attributed to one level of government or another. While the federal government has exclusive jurisdiction to legislate in some areas (such as criminal law), administration of justice is a matter of provincial jurisdiction. However, both the federal and the various provincial governments can legislate in matters relating to language.
Because both levels of government have such authority, various regimes have been established throughout Canada’s provinces. Ontario, Nova Scotia and Prince Edward Island have adopted French language services acts. Manitoba has a French language service policy. New Brunswick is the only officially bilingual province in the country. Quebec is unique—it is the sole province where the French language predominates, and a strong English minority is present, mainly concentrated in Montreal, a major city. Some provinces have no officially recognized language regime, thus perpetuating the status quo, which is detrimental to its linguistic minority. Finally, all three territories are moving at a different pace and in different directions trying to reinstate Aboriginal languages to their rightful place in society, while preserving the rights of both English- and French-speaking citizens.
Such variety makes for a very interesting situation through which citizens, governments and the courts must navigate. Although universal rights exist at the federal level, our system is characterized by diversity, energy, inclusiveness and creative asymmetry. Like a quilt, it is a patchwork—reflecting extraordinary vitality.
In terms of best practices, some rights are recognized throughout the country, notably those provided at the federal level. The Canadian Charter of Rights and Freedoms, the Official Languages Act and the Criminal Code all set out specific language guarantees that seek to ensure that members of both official language communities have access to justice in the official language of their choice at the federal level and in criminal cases.
More specifically, the Official Languages Act grants a party appearing before a federal court or tribunal the right to be heard by a judge who understands his or her official language without the need for translation. New Brunswick’s Official Languages Act grants similar rights in matters before its courts.
In addition, the Criminal Code grants an accused person the right to a trial in the official language of his or her choice, regardless of where the trial is held. The provisions of the Code also require such a trial to be held before a judge or jury who understands the official language of the accused without the use of translation or simultaneous interpretation services. Any criminal lawyer will attest to the importance of an accused being able to understand first hand—and not via translation—the legal proceedings likely to determine his or her fate or future.
Although some basic rights exist at the federal level and in the criminal context, asymmetry in the language regimes of the various provinces has created language tensions in the past—and continues to do so to this day.
For example, in Ontario, many Francophones can recall a time when the provincial government restricted the use of French as the language of instruction after the first year of school. It also banned the teaching of French to anybody after the fourth year of school. This regulation was eventually repealed, but the damages it did to that community have not been forgotten. As an example, in some areas of the province, it is not uncommon to come across families bearing French names who can no longer speak French because past generations were deprived of access to their culture and their heritage.
In 1979, the Supreme Court of Canada was called upon to resolve two cases, one in Manitoba and one in Quebec, where the constitutionality of provincial language regimes was contested. In the Forest case,4 the contested legislation was the Manitoba Act, 1870, which abolished the status of the French language as a language of the legislature and the courts in that province. The Act was declared unconstitutional by the Supreme Court of Canada. The very same day, in the Blaikie case,5 the Supreme Court also overturned the provisions of Quebec’s Charter of the French Language that provided that only the French content of statutes and court judgments was official.
While some of these cases relied on the provisions of the Constitution and the Canadian Charter of Rights and Freedoms to resolve the issues involved, others had to rely on the unwritten principle of minority protection, a principle only recently officially recognized, and yet not spelled out in any text of law, but flowing from the Confederation Pact of 1867.
Indeed, it was just over 10 years ago that the Supreme Court of Canada confirmed the existence of four unwritten constitutional rules not expressly dealt with by the text of the Constitution, but which nevertheless have normative force and effect. One of them, the principle of respect for and protection of minorities, is a fundamental structural feature of the Canadian Constitution. Not only is it reflected in the specific guarantees in favour of minorities, but it also infuses the entire text and plays a vital role in shaping the content and contours of the Constitution's other structural features: federalism, constitutionalism and the rule of law and democracy.
These principles are of prime importance when Courts are called upon to interpret the meaning of the law taking into account competing interests. These unwritten principles represent the Constitution's "internal architecture" and "infuse our Constitution and breathe life into it."6
Those words from the Supreme Court played a pivotal role in a key decision by the Ontario Court of Appeal. In the Montfort decision, the Ontario government had to preserve the province’s only French-language teaching hospital. The ruling confirmed that the provincial government had to take into account the unwritten constitutional principle of the protection of minorities when making decisions affecting the official language minority. Administrative expediency could not trump the rights of the minority. This case demonstrates that constitutional values are relevant in the assessment of the validity of actions taken by a government, even if the right in question is not explicitly included in the text of our Constitution.
In other cases, representatives of the minority have had to invoke history to assert their rights successfully. For example, Gilles Caron, a citizen from one of the Western provinces, contested the constitutionality of the Alberta Languages Act and was successful in obtaining a ruling that the Alberta law revoking French language rights in the province was unconstitutional. In arguing his case, Mr. Caron relied on expert historic analysis going back to the roots of Confederation and to the establishment of the first non-Aboriginal settlements in the region. The Government of Alberta appealed the decision and a judgment is expected in the next few months. Many hope that this judgment will confirm the provincial court’s decision that language rights were a condition for the admission of the Northwest Territories into Confederation. Recently, a number of court decisions have upheld the language rights of Francophones in Western Canada. These are long-term struggles that are imperative to the recognition of the equality of English and French throughout Canada.
There have been many other cases involving language-related challenges in Canada. Along with those I have presented to you today, they demonstrate that linguistic minorities in Canada have also had to assert their language rights before the courts in novel ways. This has not been easy at times. There is, however, a general feeling that things have been moving forward, especially over the last 40 years.
The adoption of an official languages act at the federal level and in New Brunswick in 1969 and the adoption of the Canadian Charter of Rights and Freedoms in 1982 are obvious milestones. Nevertheless, each challenge has been a defining moment and has contributed to a deeper understanding of the scope and application of language rights. Canada is now stronger and more united as a result. Recent statistics show strong support for linguistic duality.
We have created a unique country where language is at the centre of our Constitution, and many important advances have been made through ongoing dialogue involving the population, Parliament and the courts. But the greatest challenge of all remains yet—to instil a sense of belonging; a sense that French and English are Canadian languages, central to everyone’s sense of what the country represents and values. To achieve full recognition of language as a vital Canadian value, Canadians must stop perceiving linguistic duality as an obligation or a burden, and regard it as an asset that can enrich all of us in Canada and perhaps inspire others.
Of course, every country and every regime have their particular challenges. Canada has learned from the successes of others. It has been a pleasure for me to share with you some of our challenges and accomplishments. But in the end, each regime must be moulded from a unique cast, taking into account the concerns, needs and particular expectations of its linguistic minorities.
In Canada, I believe more than ever that we are on the way to achieving new heights, and that our trajectory is aligned to achieve true linguistic equality. But our work is not yet done and we must continue to have a constructive national dialogue on language issues.
There are still many areas for improvement, including access to justice in both official languages. For example, the issue of the linguistic abilities of judges appointed to the Supreme Court of Canada has been a matter of recent discussion. Because laws in Canada are jointly drafted and not simply translated, it is being argued that judges sitting on the highest court of the country should have the language abilities to understand both English and French versions of the laws without relying on translations. This is an issue that will be addressed in Canada, one which I will continue to follow closely.
In the meantime, I wish you all good luck in your pursuit towards linguistic equality.
Thank you. I would be pleased to answer any questions you may have.
1. In the Belfast Agreement (also known as the “Good Friday Agreement”) concluded in 1998, the UK Government made a number of commitments to promote the Irish language. The Irish language was also recognized by the UK Government as a regional or minority language for the purposes of the Council of Europe Charter for Regional or Minority Languages at the time of ratification by the UK Government on March 27, 2001.
2. Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, p. 744.
3. Ford vs. Quebec (Attorney General), [1988] 2 S.C.R. 712, pp. 748-49.
4. Attorney General of Manitoba vs. Forest, [1979] 2 S.C.R. 1032; (December 13, 1979)
5. Att. Gen. of Quebec vs. Blaikie et al., [1979] 2 S.C.R. 1016; (December 13, 1979)
6. Reference re Secession of Quebec [1998, 2 S.C.R. 217] at pages 248 and 249 of the opinion of the Court
