Toronto, October 10, 2002
Linguistic equality in Canada: The role of governments in the next decade"
Notes for a presentation to the Charter Conference:
Law and Practice 2002 of the Ontario Bar Association
Dr. Dyane Adam – Commissioner of Official Languages
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Ladies and Gentlemen:
I am very pleased to be able to participate in this conference on recent developments in the area of language rights. Moreover, I could not be in better company, since Mr. Newman and Mr. Caza have distinguished themselves before the courts in the defence of language rights. Finally, you may not be aware that these two gentlemen have had the pleasure-at least I hope it was a pleasure-of spending several months working at the Office of the Commissioner of Official Languages. I like to think they came to the right school!
I would like to speak to you today about the role of governments in achieving linguistic equality in Canada in the next decade. Before getting to my topic, however, I think it is important to place linguistic duality in the context of our fundamental values and to briefly outline the road we have travelled in the past ten years.
I. Languages and values
A few days ago I tabled my Annual Report in Parliament. I dedicated an entire chapter to the 20th anniversary of the Canadian Charter of Rights and Freedoms and to the values upon which Canada was founded. Madame Justice Abella, during her presentation on the Charter last April, rightly stated that "our constitutional entrenchment of the Charter was designed to both represent and create shared, unifying national values of compassion, generosity and tolerance."1
There is no doubt that linguistic duality is one of these values. An Environics poll taken in January 2002 showed that three out of four Canadians (including four out of five young people between 18 and 29) believe that English and French should be Canada's official languages. For them, it is above all a question of equity and respect.
A large majority of Canadians now see in the Charter not only the legal expression of rights and values that they hold dear, but also their setting in a specific social context, that of the interdependence of the two great linguistic communities. The Charter has, in effect, created a space for mutual recognition and dialogue or, to use an expression of the federal Minister of Justice, Martin Cauchon, a space for "important societal conversation." This developing conversation allows for the involvement of all the players in our society and promotes creative reflection on rights and values, with a focus on tangible results and, ultimately, on the achievement of substantive equality. It amounts, in fact, to an ambitious societal agenda.
The challenge today then is not to gain acceptance for the transformations of our linguistic landscape that were undertaken after the adoption of the first Official Languages Act in 1969, but to find practical means of giving new impetus to this linguistic reform by adapting it to the current needs of Canadians.
II. The road travelled in the last decade
The English and French minorities have played an important role in this linguistic reform by repeatedly mounting legal challenges to have their constitutional rights recognized, particularly their education rights. Each of these communities has had to deal with major challenges in this regard. The past decade has been particularly fertile in terms of key Supreme Court decisions that clarified the linguistic obligations of governments by firmly reminding them of their responsibilities.
In Mahé, for example, the Supreme Court emphasized the remedial character of section 23 of the Charter. This section is intended to rectify, on a national scale, the progressive erosion of the official language minorities and to give effect to the concept of the "equal partnership" of the two linguistic groups in the field of education. In Arsenault-Cameron, the Court also stressed that section 23 "is premised on the fact that substantive equality requires that official language minorities be treated differently, if necessary, according to their particular circumstances and needs, in order to provide them with a standard of education equivalent to that of the official language majority."2
Finally, I must say something about the decision handed down by the Ontario Court of Appeal in the Montfort- case, especially in the presence of Messrs. Caza and Newman, who so ably pleaded before that Court. In Montfort-, the Court clearly stated that the government of this province must take into account the principle of respect for the official language minority when it acts in the public interest. All too often, governments show caution, timidity and even negligence in implementing language rights.
In making their decisions, however, judges are increasingly emphasizing the urgency and the remedial nature of the measures to be taken with respect to language rights. The protection of minority language institutions is a matter not only for the communities themselves or for the courts, but also for governments.
III. Dynamic leadership and concerted action by governments
This being said, it must nevertheless be acknowledged that a number of governments and local administrations have adopted laws or policies guaranteeing services to their English or French linguistic minority. The province of New Brunswick is the most striking example of this. Following the New Brunswick Court of Appeal's decision in Charlebois , which involved the constitutionality of unilingual municipal bylaws in the city of Moncton, the government had the courage to proceed with a major revision of its Official Languages Act. We applaud the enlightened leadership of the majority of that province's political class, because the Act was revised in a very positive spirit guided by the desire to seek the equality of the English and French communities of New Brunswick. This new Act will enable administrators to better provide service in English and in French in various sectors that directly affect the life of New Brunswickers: municipal services, police services, health care services and the administration of justice. The Act also creates a position of Commissioner of Official Languages, the fourth such position in Canada.
The federal government, for its part, was quick to lend its assistance in translating unilingual municipal bylaws, Finally, in August, the city of Moncton officially declared itself bilingual.
Precisely because this province of relatively modest resources has successfully carried out this reform I venture to think that other jurisdictions might show the same enlightened leadership. The Government of Ontario, for example, could update its French Language Services Act to better promote the development of the Franco-Ontarian community. It could also formally recognize the equality of status of English and French in the National Capital. This would, after all, only be a recognition of the reality, and this commitment could be followed by practical improvements in the provision of services.
By taking such positive actions, the Ontario government could serve as a beacon to its neighbours. I am thinking in particular of the Northwest Territories, which is currently reviewing its Official Languages Act; of Manitoba, which is continuing the implementation of its 1999 policy on services in French; and of Nunavut, which is reviewing its school legislation.
In short, I am still hopeful that the provinces and territories, working together with the federal government, will actively strive to avoid legal challenges by ending the linguistic double standard that has poisoned relations between Anglophones and Francophones for over a century.
One method that I find very well adapted to ensuring greater linguistic equality is the development of new models for providing essential services in the language of the minority, models that include measurable objectives and specific deadlines. In developing such models, it would be advantageous for governments to make use of new technologies that could, for example, promote the introduction of one-stop service windows combining federal, provincial and municipal services in community service centres. The tripartite bilingual service centre in St. Boniface that opened in the spring of 2002 is a good example of co-operation between the various levels of government.
The basic challenge, it seems to me, is to break down the bureaucratic, hierarchical and jurisdictional walls that hinder the development of our minority official language communities. A co-operative and concerted effort is required to better define, consolidate and harmonize federal, provincial and territorial laws with the aim of improving their complementarity, effectiveness and strength. Only by recognizing the horizontal character of linguistic duality will it be possible to institute a new form of linguistic governance that is more effective and more humane. What is vital is to foster a constructive climate based on a common vision.
As an example of such a concerted and horizontal approach, I would like to cite the initiative taken by the Department of Justice in establishing a federal-provincial/territorial task force to look at the solutions suggested in Environmental Scan, which was published last spring. This study accurately identified the barriers to the availability of legal and judicial services in the minority official language everywhere in Canada. Better still, it proposed practical solutions. What is needed now is action. Justice Canada must at last assume its rightful leadership role. Together with its provincial and territorial counterparts, the Department must develop models for the provision of services that respond effectively to the needs of official language communities. This obviously assumes a good, strong dose of leadership on the part of the players involved.
The Minister of Intergovernmental Affairs, Stéphane Dion , for his part, last June unveiled the outlines of a federal government action plan to give new impetus to its official languages policy. This plan, which has three focuses--education, community development and the Public Service-- will include an accountability framework that is yet to be defined. The development of such a framework is, I admit, no easy task, but it is vital to the successful implementation of the action plan. I am encouraged by the fact that Mr. Dion is working with the communities to define it. We are now waiting to see the concrete form this plan will take. Its implementation will confirm the federal Parliament's intention to once again assume its role as a leader in promoting linguistic equality in Canadian society.
Conclusion
The vitality of our official language minority communities is important in itself and also constitutes a test of our ability to live together. I firmly believe that if we make progress toward linguistic equality we will also be building a country that is enriched by the harmonious coexistence of two great linguistic communities. A majority of Canadians supports linguistic duality and subscribes to the Charter. The convergence of their thinking about our fundamental values represents a real opportunity for outdoing ourselves. The government must seize this golden opportunity.
Canada will be strong when our minorities are strong, and our minorities will be strong when they can rely fully on the generous support and concerted action of the federal government and its provincial and territorial partners. Finally, we must never lose sight of the fact that French is the language of a minority on a nation-wide scale. All progress toward equality of our two official languages also requires the taking of effective measures supporting the development of French in Quebec while respecting the rights of that province's English-speaking citizens.
In the current world context, too many nations lack civil liberties and exist in a state of insecurity because of intercultural conflicts and an inequitable distribution of wealth. Canada is a good country in which to live because it enjoys social peace and security. In terms of its language legislation, among other things, it can serve as a beacon and show the rest of the world that, despite differences, solidarity and respect are possible in a modern society. With the recognition of our two official languages, Canada is on solid foundations. We must pursue dialogue and encourage greater rapprochement between diverse cultures and beliefs. It is on these common values that we must base our hopes for the future.
Thank you.
Notes
1 Rosalie Silberman Abella, "The Future after Twenty Years under the Charter," presentation on April 20, 2002 to a conference marking the 20th anniversary of the Canadian Charter of Rights and Freedoms, organized by the Association for Canadian Studies, p. 1.
2 Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3, at para. 31.
