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].
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