Language Rights

• Author: Robert J. Sharpe; Kent Roach
• Pages: 429-446

429

CH AP TER 16

L A NGUAGE RIGHTS

The appropriate status of the French and English lang uages has been an

ongoing source of debate throughout Canadian history i n both political

and legal spheres. The Supreme Court of Canada has recognized that

minority-language right s involve both the rights of individua ls and the

rights of communities and t hat language rights must be inter preted 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 opportun ity to

achieve their pers onal aspirations. Sec ond, on the 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 diculties resulti ng

from the rate of assi milation of French-speak ing minority groups

outside Quebec, whose cur rent language rights were acq uired only

recently, at considerable expense a nd with great dicu lty. Thus, in

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

sometimes divergent inter ests and prioritie s, and 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 compris e the

THE CHARTER OF R IGHTS AND FREEDOM S430

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

be analysed i n the abstract, without rega rd for the historical context

of the recognition ther eof or for the concerns that the ma nner in

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

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

lectivities and a cr ucial element of Canada’s complex social contract.

Minority-language right s have been part of Canada from the start and

were rearmed and ex panded in the Charter of Rights and Freedoms for

specif‌ic remedial pur poses.2

A. THE NATUR E OF LANGUAGE RIGHTS

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

those 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 dist inct identity. In a federation,

a language group may form the majority in a province while repre-

senting a minority in the country as a whole. Another option is to pro-

vide specif‌ic rights that permit groups to use their l anguage or express

their culture. Examples are separate-school rights, access to broadcast-

ing outlets, or guarantees t hat government services will be provided in

a certain language. Yet another device is protection against discrimi n-

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

disadvantaging the minority because of la nguage or cultural practice.

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

adian C onstitution.

The territorial pri nciple, adopted in countries such as Belgium and

Switzerland, leaves t he determination of language rights to e ach province

or territorial unit. The result is linguistic uniform ity in most territorial

units. Although Canad a’s federal structure, with a fr ancophone majority

in Quebec and anglophone majorities in the other provinces, contains

elements of the territoria l principle, important features of the Canadian

Constitution see language as an aspect of the individual’s personal ity,

which is to be respected wherever one lives in Can ada. Even though

francophones are a small minority in most provinces and anglophones

1 Solski (Tutor of) v Quebec (Attorne y General), 2005 SCC 13, [2005] 1 SCR 201 at

para 5 [Solski].

2 Conseil scolaire francophone de la Colombi e-Britannique v British Columbia, 2020

SCC 13 [Conseil scolaire francophone], oers a detailed hi storical account of the

evolution of language r ights in Canada.