Language Rights

AuthorRobert J. Sharpe; Kent Roach
The appropriate status of the French and English lang uages 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 t he minority communitie s and their familie s,
in every province a nd territory, must be given the opportu nity to
achieve their pers onal aspirations. Second, on t he collective level,
these lang uage issues are related to the development and e xistence of
the English-sp eaking minorit y in Quebec and the French-spe aking
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 minorit y in Canada, and even more so in Nort h America as a
whole. To this picture must be added the ser ious diff‌iculties result ing
from the rate of assi milation of French-speak ing minority groups
outside Quebec, whose cur rent language rights were ac quired only
recently, at considerable expense a nd with great dif f‌iculty. Thus, in
interpreting t hese rights, the court s have a responsibility to reconcile
sometimes divergent intere sts and priorities, a nd to be sensitive to
the future of each la nguage community. Our country’s socia l context,
demographics and hi story will therefore nece ssarily compri se the
backdrop for the analy sis of language rights. Lang uage rights cannot
be analysed i n the abstract, without regar d for the historical context
of the recognition there of or for the concerns that the man ner 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 rea ff‌irmed and expanded in t he Charter of Rights
and Freedoms for specif‌ic remedial purposes.
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 identit y. In a federation, a
language group may form the majorit y in a province while representing
a minority in the countr y 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 sepa rate-school rights, access to broadcasting
outlets, or guarantees that government services wil l be provided in a
certain lang uage. Yet another device is protection against discrimin a-
tion on the basis of language or culture, preventing the majority from
disadvantagi ng the minority because of language or cultural practice.
As will be seen, all of these options have been resorted to i n the Can-
adian constitution.
The territorial principle, adopted in countries such as Belgium and
Switzerland, leaves the determination of language rights to e ach prov-
ince or territorial un it. The result is linguistic uniformity in most ter-
ritorial units. Wh ile Canada’s federal structure, with a f rancophone
majority in Quebec and anglophone majorities in the other provinces,
contains elements of the territorial principle, important feature s of the
Canadian const itution 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 minor ity in most provinces, and anglo-
phones are a minority in Quebec, both g roups 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].

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT