Montpellier, France, June 30, 2000
Language Rights and Human Rights in Canada: Converging Values
International Conference of French-speaking Jurists
Dr. Dyane Adam - Commissioner of Official Languages
Check against delivery
Ladies and gentlemen,
In creating the position of Commissioner of Official Languages, an officer of Parliament appointed for a seven-year term during good behaviour, the Canadian legislature entrusted him or her with a complex mission. The Commissioner was to be at one and the same time an ombudsman, an auditor and the "linguistic conscience" of Canadians. Parliament gave him or her the rank and powers of a deputy minister and the salary of a Federal Court judge.
It is a curious fact - good or bad depending on your point of view - only one of the Commissioners (I am the fifth person to hold the position) has been a lawyer or jurist by profession. I am therefore obliged to approach the subject of this address from the standpoint of my own perspective. Essentially, this involves explaining the special features of the Canadian language planning model, without encroaching too much on the territory of my colleague Mr. Francoeur. Perhaps, nevertheless, in the name of national solidarity he will surrender a few small enclaves to me.
Canadian language planning model
In my opinion, the Canadian language planning model combines the advantages of the various solutions adopted in Europe, while taking on over time a specifically Canadian complexion or patina. What makes it unique is the connexion Canadians are increasingly establishing between the concepts of "language rights" and of "human rights".
In the Canadian Charter of Rights and Freedoms, which is one of the important bases of contemporary Canada, it is English and French first and foremost that enjoy equality of status and equal rights and privileges. It is their equality in practice that is sought in giving each of them rights as "official languages": (a) in allowing"any person" or "everyone" to use either language in the debates and other proceedings of Parliament and in the courts established by Parliament; (b) in allowing "any member of the public", regardless of mother tongue, to use either language when there is significant demand; and (c) in education, for Canadian citizens "whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside [...]". These rights are sacrosanct: they can only be altered by the unanimous consent of the federal government and the provinces.
The Charter has, as it were, modernized access to education in either official language by creating a right to instruction, and even management and control of school systems, for the francophone or anglophone minority of a province, where numbers warrant. This right is in addition to the right in certain provinces to denominational or separate schools, which was a feature of the Canadian Confederation from the outset. In fact, because of the increasing diversity of Canada, we are seeing a restructuring of these rights in several provinces, linguistic rights tending to take priority over rights to denominational or separate schools.
Moreover, following a significant number of cases in the courts, provincial legislatures, for reasons having to do with administrative simplicity as well as generosity, have tended to favour the creation of complete and independent minority-language education systems. As education in their language is the very basis of equal opportunity for linguistic minorities in Canada, it is hard to underestimate the importance of these ongoing educational reforms.
Canadian provinces and territories, most of which have adopted language legislation, have in varying degrees sought to reconcile equality and non-discrimination with factors relating to numbers, feasibility, cost and the distribution of powers and authority. To a common stock of fundamental linguistic rights, applicable in all circumstances, Canadian legislation on language in the aggregate consists in a sliding scale of rights affected by various demographic, political and practical factors. This partly explains the inequality in the treatment of our official languages - or to be precise, especially of French - at the provincial level. In fact, provincial legislatures are trying in most cases to strike a balance between the principle of personality and that of territoriality while adopting a more conciliatory approach to minority-language communities. The development of this model is being refined and accelerated to accommodate, first, the demographic weakening of minority communities, and second, the increasing pluralism and multiculturalism of Canadian society.
Following the adoption of the Canadian Charter of Rights and Freedoms in 1982, the updating of the Official Languages Act in 1988 was intended as the expression of a more open and generous approach to our language duality. It is no accident that the Act, which has quasi constitutional status, restates and explicates the official-language provisions in the Constitution, which are of necessity more general, namely the equality of both official languages in Parliament and in the administration of justice as well as the public's right to use English or French to communicate with federal institutions where there is significant demand or the nature of the office warrants it.
The Act further provides that English-speaking and French-speaking Canadians, without regard to their ethnic origin or first language learned, have equal opportunities to obtain employment and advancement in federal institutions. Finally, building on the Charter provisions dealing with minority language education, the Act seeks to enhance the vitality and support the development of English and French linguistic minorities in Canada and to foster the full recognition and use of English and French in Canadian society. The federal government undertakes to work with the provincial governments to this end, as authorized by the Charter, in order to advance "the equality of status or use of English and French".
Finally, we should note in passing that the Charter also guarantees preservation of the rights and freedoms of aboriginal peoples and the preservation and enhancement of the multicultural heritage of Canadians. These provisions may of course include the preservation and enhancement of the linguistic heritage of these communities. Obviously the question that immediately arises is how to reconcile these noble and sometimes conflicting ideals in everyday life.
Since the adoption of the Charter, the Supreme Court of Canada has on several occasions ruled on the nature of the relationship that exists between language rights and human rights. In the Reference Re Manitoba Language Rights, the Court stated:
The importance of language rights in 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.
Nonetheless, in Société des Acadiens, Beetz J. reminded us that language rights are founded on "political compromise" and that "the courts should pause before they decide to act as instruments of change with respect to language rights". The courts should therefore approach language rights "with more restraint that they would in construing legal rights".
At the same time La Forest J., also of the Supreme Court, defended another point of view in R. v. Mercure (1988) when he said: "It can hardly be gainsaid that language is profoundly anchored in the human condition. Not surprisingly, language rights are a well-known species of human rights and should be approached accordingly."
Recently, in Beaulac, Bastarache J., speaking for the seven majority judges, appears to have qualified the Court's position by noting that linguistic rights "must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada". He added that in so far as the rule stated in Société des Acadiens "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 geographic extension of those rights is inconsistent with the requirement that language rights be interpreted as a fundamental tool for the preservation of official language communities where they do apply".
These remarks by Bastarache J. seem to echo the provisions of Part VII of the Official Languages Act, which commits the federal government to advance English and French in Canadian society and enhance the vitality of English and French linguistic minority communities in Canada. This judgment will have a definite impact on cases involving these communities which may be brought before the courts.
What is less clear is how to continue ensuring progress towards equality of status and rights or use of English and French in Canadian society without in the medium term contemplating a wider recognition of the equality of the two linguistic communities. We may recall that in 1993, by a constitutional amendment, New Brunswick and the federal government entrenched in the Charter recognition of the equal status of the English and French linguistic communities in that province and the right of each to distinct educational and cultural institutions.
However, the other provinces are not very likely to follow New Brunswick's example, as most of the existing constitutional provisions regarding their respective language regimes are the result of historical political compromises dating back to the 19th century. They are accordingly not likely to be altered in the near future, especially in view of the limited demographic weight of the minorities in question. The only thing that could change the present state of things is a new round of constitutional negotiations aimed among other things at recognizing and defining the status, special nature and particular features of Quebec as the principal centre of life in French in North America.
Quebec's situation
For historical and practical reasons Quebec has for several decades been claiming special or additional powers so it can better defend its linguistic and cultural identity on a continent very largely dominated by English. As you know, the nature of this protection which has been considered necessary has been the subject of agonizing debates about proposed constitutional amendments which came to nought. In fact, the solution to what might be called "the Canadian malaise" may well lie less in changing existing constitutional provisions than in developing new practical arrangements.
Canadians perhaps do not need a new constitutional proposal to recognize the asymmetry of the actual positions of our two official languages or to be aware of the fundamental demographic imbalance between our two major linguistic communities. In the last decade the Government of Canada has worked with Quebec to defend French language and culture, among other things, by signing agreements on immigration and manpower training. It may well be possible to find other areas of agreement. It seems to me that what is important is for the federal government and the provinces with English-speaking majorities to agree on the need to provide specific and generous support to the French language and to recognize, as the Supreme Court in any case has done, the legitimacy of its marked predominance in Quebec.
As we have noted, the Official Languages Act commits the federal government, first, to fostering the vitality of English-speaking and French-speaking minorities in Canada, and second, to promoting full recognition and use of English and French in Canadian society. It is hard to see how such a commitment could be inconsistent with recognition of the linguistic and cultural situation of Quebec as one of the two "majorities" (while at the same time forming part of the linguistic minority in Canada).
It seems to me that it should be possible to describe this paradoxical historical and sociological situation without infringing on the linguistic rights of anyone, as the fundamental objective of this part of the Act is to arrive at a linguistic balance which is just. Clearly true equality can never be a bed of Procrustes in which the rights of some are abridged to satisfy the needs of others. In any event, if the existing wording of the provisions of the Official Languages Act on the promotion of English and French in Canadian society does not seem sufficiently explicit, there is nothing to prevent it being amended to remove any ambiguity about the need to guarantee Quebec the linguistic protection it needs as the principal, though not exclusive, locus of French in Canada.
In fact, in their day-to-day application, the purposes of Part VII of the Act as applied in Quebec and in the other Canadian jurisdictions are rarely inconsistent with the major directions of provincial or local government policy. These are primarily objectives of economic, social, educational and cultural development, and the language is strengthened by the increased vitality of the communities in question. Support for the provision of provincial and local services in the minority language is always the subject of a formal agreement between the federal government and the jurisdictions in question.
In a federation as diverse as Canada, it would be surprising if the objectives of our linguistic duality did not have different meanings for the individuals and communities that make up our society. Our judicial precedents on linguistic rights, firmly based in Canada's demography and history, have gone well beyond the concept of non-discrimination to examine the role and capacity of government to guarantee equitable treatment for English and French and the communities speaking those languages. In this context, government's fundamental commitment has been to promote equality of opportunity while seeking to provide to all Canadians, in their preferred official language, essential public services of reasonable quality, subject to the legislative powers of the provincial legislatures.
At the theoretical level, the relationships between linguistic rights, minority language education rights and equality rights - all rights guaranteed in the Charter - have not yet been fully clarified. In practice, the federal government's commitment to promote English and French in Canadian society has involved massive support for French because of the erosion of its demographic foundations. This support has taken the concrete form of a multitude of legislative and administrative measures, both federal and provincial, adopted over the last two decades to strengthen the provision of services in French in the public, private and voluntary sectors. There has also been very significant progress in teaching French as a first language and as a second language.
We should be pleased that despite occasional negative outbursts the Canadian public has demonstrated continuing support for this linguistic reform. What creates a problem and continues to fuel debate is the need which Quebec has long felt to obtain more important powers in the economic and social areas in order to defend its particular linguistic and cultural nature. The majority of voters, though recognizing the legitimacy of the concerns of their Quebec fellow citizens, have hesitated to solve the problem of the relative fragility of French by adopting measures that would give one province powers which the others do not have, or by a more territorial definition of linguistic rights.
Conclusion
Fortified by the significant progress made over the last thirty years in achieving formal and practical recognition of linguistic rights, Canadian citizens remain convinced that the best prospects in this area lie in the further improvement of the existing legislative and legal system. They feel that the symbiosis of two national languages and many cultures not only enriches Canada but also that its bilingual identity gives it a status in the family of nations which it would not otherwise enjoy.
I am not sure, however, that the Canadian model of language planning is an exportable model, any more than the Belgian, Swiss, Spanish or Finnish models are. To paraphrase Montesquieu, Canadians like their language legislation because it is in keeping with their customs. I have no doubt that each of our panelists will be able to show how the solutions their respective countries have found to the language planning problems in their land best correspond to the expectations of their fellow citizens and to their customs, while ensuring greater respect for human rights.
