Language Rights

• Author: Hon. Robert J. Sharpe, Kent Roach
• Pages: 384-399

384

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, both in the

political and in the legal spheres. The Supreme Court has recog nized

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

the rights of communities and t hat 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 ex istence 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 wer e acquired only

recently, at considerable expense a nd with great diff‌ic ulty. 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 compris e the

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

Language R ights 385

be analysed i n the abstract, without rega rd 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 reaff‌irmed and expanded in t he Charter of Rights

and Freedoms for specif‌ic remedial purposes.

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 pos sibility is to provide a

degree of self-government for an ethnic or language communit y, giv-

ing it the powers to preserve and promote a distinct identity. In a fed-

eration, a language group may form the majority 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

express their culture. Examples are separate-school right s, access to

broadcasting outlets, or guarantees that government service s will be

provided in a certain l anguage. Yet another device is protection against

discrimination on the basis of language or culture, preventi ng the ma-

jority from disadvantaging the minority because of language or cul-

tural practice. As w ill be seen, all of these options h ave been resorted

to in the Canadian 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 major ities in the othe r 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 Can ada. 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.

Language rights in Canada are disti nctive because they are “posi-

tive” in nature. They entitle an individual to certain action on the part

of government, such as funding for schools, printing of bilingual stat-

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