Ottawa, July 1, 2005
Notes for an address at the 26th Annual Congress of the Association of French Speaking Jurists of Ontario
Language management: The contribution of the Office of the Commissioner of Official Languages to the development of language management models outside Canada
Dr. Dyane Adam - Commissioner of Official Languages
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Introduction
I want to thank you for inviting me to speak about the role of my office in developing and implementing language management models outside Canada.
As you surely know, my work deals with language management within Canada and with the promotion of our linguistic duality abroad. In that context, I have had the opportunity over the last six years to discuss with representatives of other countries the affinities between the Canadian system and other language management systems. I am pleased to share some of my thoughts on this subject with you this morning.
Whatever the country concerned, to speak of language management is to speak of the overall organization of language in a specific area. In Canada, this is also one of the cornerstones of a vast society-building project, conceived for the long term and erected one brick at a time by the various partners involved.
With that in mind, it is with great interest that I note that the AJEFO is celebrating its 25th anniversary today in Paris. The Office of the Commissioner of Official Languages is also celebrating an important anniversary, its 35th. In addition to these two players, many of you, as jurists, have also made a significant contribution by bringing the courts to rule on the scope and implementation of language rights.
Today, I would like to speak first about language management in Canada and review with you the changes that have occurred over the past 35 years to highlight some of our accomplishments. Secondly, I will discuss the international scope of the Canadian system, before concluding on the future of official languages in Canada.
I. Language management: the Canadian experience
In a way, Canada was born bilingual. Our founders rejected the traditional model of the nation state, which still governed France, England and almost all of Europe in the 19th century. The model that was proposed represented a break with the past, an important leap of faith toward a federation built on respect for diversity and accommodation of differences.
An undeniable sign of this desire to live our duality to the fullest is the fact that we have preserved in one country two legal systems—common law and civil law—eventually providing each with a vocabulary in the other official language.
That is not to say that language rights have evolved naturally and harmoniously throughout our history. As recounted in our 35th anniversary report, there have been many episodes of popular resistance or political indifference, and even setbacks when established rights have been withdrawn in certain provinces. Major disputes such as Regulation 17 in Ontario have shaped our Canadian landscape and marked our collective identity.
In fact, 100 years after Confederation, the Royal Commission on Bilingualism and Biculturalism found that our Canadian pact was out of joint and we were on the verge of break-up. It was in response to this crisis that the government passed the first Official Languages Act in 1969. This Act was designed to change the linguistic status quo. It also established the Office of the Commissioner to oversee the implementation of real equality between the English and French languages and to preserve the linguistic and cultural duality that formed the basis of our Canadian identity.
In 35 years, there has been great progress in the language rights of Canadians:
- In 1982, the Canadian Charter of Rights and Freedoms was enacted, which grants linguistic minorities additional guarantees and provides them with new advocacy tools.
- In 1988, the present Official Languages Act was passed, to consolidate the linguistic system and ensure full implementation of all the language rights guaranteed by the Charter.
While the Canadian linguistic system rests on strong constitutional and statutory foundations, it is a fact that the courts have had to intervene, too often in my opinion, to clarify the scope of language rights and the obligations of governments to ensure they are implemented.
Language management is also defined by the legal interpretation these tools have been given by the courts. For the last 35 years, our linguistic system has evolved in response to the disputes it has raised and the principles of interpretation that have emerged from the courts.
While the texts of laws are important, it is mainly the objectives they serve and their underlying principles that must guide their interpretation. That is why my predecessors and myself have participated fully in certain important debates before the courts.
For example, since 1988 we have encountered numerous legal challenges related to every aspect of life in society: culture, education, language of work, health, and more recently, economic development. Some of the many cases in which the Office of the Commissioner has intervened include Mahé, Arsenault-Cameron, Doucet-Boudreau, Casimir, Gosselin, Montfort and CALDECH, to name just a few. Thanks to them, there is a better understanding today of how language is involved in every facet of individual and community development.
The changes brought about by judgments in Canadian courts show that the courts are embracing the role with which they were clearly entrusted, namely to guarantee the exercise of language rights.
Two examples here:
The Supreme Court of Canada explicitly stated in the Reference re secession of Quebec1 that one of the basic underlying principles of the Canadian legal order is respect for and protection of minorities. This guiding principle has an impact on the scope and application of the rights specifically protecting official language minorities.
In Beaulac, the Supreme Court put an end to the controversy over the method of interpretation that is applicable in language law by stating that such laws, both statutory and constitutional, must be given large, liberal and purposive interpretation, in a manner consistent with the preservation and development of official language communities in Canada.2
These court cases illustrate the continual evolution that shapes our language management. Linguistic guarantees are not confined to recognizing the language rights of Canadians and official language minorities. Their aim is to remedy the wrongs of the past. In the end, these guarantees are an explicit entrenchment of the government’s commitment to advance the equality of status and use of French and English.
In the course of my duties, it has been brought home to me that there is still too often a gap between the large and liberal interpretation of the courts and the literal approach taken by the Government of Canada. The implementation of the Act "in the field" by federal institutions continues to be half-hearted, for they are hesitant—and wrongly so—to act in accordance with the spirit and purpose of the Official Languages Act. Yet in my view, real equality has to be achieved by establishing the institutional network necessary to enhance the vitality of official language communities. This is our real destination; this is where we are going.
Beyond its impact on Canadian society, what is the international significance of the Canadian language management system? Is it "exportable" to Europe or elsewhere? An excellent question!
II. International scope of the Canadian system
There is certainly a connection to be made between our linguistic system and other European systems. It should be remembered that at the time when our country needed a solution, the B&B Commission turned to the Finnish linguistic system as a model for our own.
Can we truly say that our system is unique? I think we can. In my opinion, the Canadian language management system upon which we embarked combines the advantages of the various solutions adopted in Europe, while taking on, over time, a distinct and very Canadian personality. The federal system is one that is based at once on "personality" (language rights conferred on individuals regardless of where they live) and on "territoriality" (for example, Part V - Language of Work). Furthermore, our system simultaneously confers individual and collective language rights, notably those based on membership in an official language minority community. In my view, what makes our language management system unique is the fact that it gives a voice and rights to the official language minorities, which would otherwise be too easily pushed aside by the majority.
So can it truly be said that Canadian language management expertise is exportable?
For some years, certain multilingual countries have been inspired by the way that Canada ensures respect for language rights through its linguistic system and the ombudsman’s role in Canada. Hence the Office of the Commissioner has often been consulted because of its experience, for example, by China, Russia, Wales, Sri Lanka, Spain, Mali and South Africa.
Also, Ireland—whose Constitution prescribes that Irish is "the first official language"—adopted an Official Languages Act in 2003. This act has an objective similar to ours, namely to permit and promote use of the official languages in Parliament, in legislation, in the administration of justice and the delivery of services to the public. The Irish Official Languages Act also establishes a commissioner of official languages with much the same role as my own, as well as certain mechanisms of reparation and compensation. Of course, this law also has certain unique features, such as provisions governing the use of Irish place names.
This international interest would suggest that the expertise we have developed is highly valued on world markets. Without claiming that the Canadian linguistic system is directly exportable, it seems to be of great interest to certain nations, as we have seen. If Canada can have an impact abroad, it is by testifying to its experience, that is, how it has succeeded in finding a formula that permits this expression of principles in tangible achievements.
I believe that Canada is indeed a source of inspiration for its commitment to diversity and to respect for difference. However, I also believe that Canada itself has not yet sufficiently incorporated linguistic duality in its own foreign policies. As a result, under the attentive eyes of its peers on the world stage, I feel that Canada must still further promote our values and the importance we ascribe to our diversity. I have presented my thoughts on this subject to the government in the study I conducted last year on linguistic duality in Canada’s international relations.3
Even though Canada is proving its active support for linguistic duality in its activities at UNESCO, in la Francophonie and in the Commonwealth, the government will still have to adopt a common vision that is clearly communicated to all the institutions and missions working in the field, and ensure that they act on it in an ongoing and consistent manner.
Conclusion
You have surely noted that language management is not static: by dint of certain political initiatives, the demands of various stakeholders and the interpretation of the courts, our management is constantly being renewed. I believe that, on the strength of the progress made over the last 35 years, the evolving implementation of our linguistic duality has shaped the ways in which Canadians recognize each other and are recognized in the world.
Rich in its harmonious diversity, Canada is regarded abroad as a country that has been able to value its diversity by guaranteeing respect for its minorities directly in its constitution, while providing governance that encourages all of its citizens to participate in the issues of society. We have an excellent user’s manual, but it is not enough to apply it to the letter. To be successful in our task, which is to enhance the vitality of our official language minorities, we must also take the prevailing conditions into account, and make use of our know-how.
Our linguistic system has enriched the lives of all Canadians. Of course, there is still a lot to do. For example, it would be desirable to reassess and modernize the regulatory framework of the Official Languages Act so as to make more progress toward achieving real equality between the language groups. It is also necessary for international policy to work in concert with domestic policy where linguistic duality is concerned, for it is an element of the particular brand image that the Canadian population likes to see projected in our international affairs.
Finally, I hope to see all of this taking concrete form in the years ahead. We will have to show evidence of not just competency, but also imagination, if we are to give new momentum to Canada’s linguistic duality.
Thank you.
2 R v. Beaulac, [1999] 1 S.C.R. 768 at para. 25.
3 Doorway to the world: Linguistic duality in Canada’s international relations.
