Language Rights

• Author: Robert J. Sharpe; Kent Roach
• Pages: 407-423

407

CHAPTER 16

LANGUAGE RIGHTS

The appropriate status of the French and English languages has been

an ongoing source of debate throughout Canadian history, both in the

political and in the legal spheres. The Supreme Court has recognized

that minority la nguage rights involve both the rights of individual s and

the rights of communities a nd that language rights must be interpreted

in the context of Canada’s history. The Court has commented:

First, the members of the minority communities and their families,

in every province and territory, must be given the opportunity to

achieve their personal aspirations. Second, on the collective level,

these lang uage issues are related to the development and e xistence of

the English-speaking minority in Quebec and the French-speaking

minorities el sewhere in Canada. They also inev itably have an impact

on how Quebec’s French-speaki ng community perceives its future in

Canada, since t hat community, which is in the majority in Q uebec, is

in the minority in Canada, and even more so in North America as a

whole. To this picture must be added the ser ious diff‌iculties result ing

from the rate of assimilation of French-speaking minority groups

outside Quebec, whose current language rights were acquired only

recently, at considerable expense and with great diff‌iculty. Thus, in

interpreting t hese rights, the court s have a responsibility to reconcile

sometimes divergent interests and priorities, and to be sensitive to

the future of each la nguage community. Our country’s socia l context,

demographics and history will therefore necessarily comprise the

THE

CHARTER OF R IGHTS AND FREEDOM S

408

backdrop for the analy sis of language rights. Lang uage rights cannot

be analysed in the abstract, without regard for the historical context

of the recognition thereof or for the concerns that the manner in

which they are cur rently applied is meant to address.1

In other words, language rights are both rights for individuals and for

collectivities, and they are a c rucial element of Canada’s complex social

contract. Minority lang uage rights have been a part of Canada from the

start, and they were reaff‌irmed and expanded in the Charter of Rights

and Freedoms for specif‌ic remedial purposes.

A. THE NATURE OF LANGUAGE RIGHTS

There is a range of options to protect ethnic communities, including t hose

who share a common language. One possibility is to provide a degree

of self-government for an ethnic or language community, giving it the

powers to preserve and promote a distinct identity. In a federation, a

language group may form the majorit y in a province while representing

a minority in the country as a whole. Another option is to provide

specif‌ic rights t hat permit groups to use their language or expre ss their

culture. Examples are separate-school rights, access to broadcasting

outlets, or guarantees that government services will be provided in a

certain language. Yet another device is protection against discrimina-

tion on the basis of language or culture, preventing the majority from

disadvantaging the minority because of language or cultural practice.

As will be seen, all of these options have been resorted to in the Can-

adian constitution.

The territorial principle, adopted in countries such as Belgium and

Switzerland, leaves the determination of language rights to each prov-

ince or territorial unit. The result is linguistic uniformity in most ter-

ritorial units. While Canada’s federal structure, with a francophone

majority in Quebec and anglophone majorities in the other provinces,

contains elements of the territorial principle, important features of the

Canadian constitution see language as an aspect of the individual’s per-

sonality, which is to be respected wherever one lives in Canada. Even

though francophones are a small minority in most provinces, and anglo-

phones are a minority in Quebec, both groups are given constitutional

rights that limit the ability of provinces to impose linguistic uniformity.

1 Solski (Tutor of) v Quebec (Attorn ey General),[2005] 1 SCR 201 at para 5 [Solski].