LANGUAGE RIGHTS: LIBERTIES, CLAIMS AND A VERY CANADIAN CONVERSATION

Graham Fraser

Language rights are not only central to the cultural identity of Canada’s two founding language communities, they are central to both Canada’s constitutional traditions, with group freedoms and denominational schools initially guaranteed under the British North America Act, and individual rights entrenched in the Charter. “In considering the Charter,” writes Canada’s new Commissioner of Official Languages, “it is easy to think that rights and freedoms are almost synonyms. They aren’t.” Graham Fraser considers the BNA Act versus Charter status of language rights, and recounts the modern context, from the B&B Commission of the 1960s, to the Official Languages Act of 1969, to the entrenchment of minority language rights in the Charter.

Les droits linguistiques sont aussi indissociables de l’identité culturelle des deux communautés fondatrices du pays que de nos deux traditions constitutionnelles. En témoignent la garantie des libertés collectives et des écoles confessionnelles inscrite dès l’origine dans l’Acte de l’Amérique du Nord britannique, puis celle des droits individuels intégrée à la Charte des droits et libertés. En vertu de celle-ci, écrit le nouveau commissaire aux langues officielles Graham Fraser, on peut d’ailleurs « imaginer que droits et libertés sont quasi synonymes, mais il n’en est rien ». L’auteur examine les statuts respectifs de l’Acte de l’Amérique du Nord britannique et de la Charte des droits et libertés à la lumière de l’histoire récente, depuis la Commission royale sur le bilinguisme et le biculturalisme des années 1960 jusqu’à la Loi sur les langues officielles de 1969 en passant par l’inscription dans la Charte des droits linguistiques des minorités linguistiques.

hen the Charter of Rights and Freedoms became have started a process of restoring language rights, changing part of Canada’s constitution in 1982, language the behaviour of governments and creating a new dynamic W rights were enshrined in section 16. So what are for linguistic minorities in Canada. English and French are language rights, anyway? Are they individual rights? Collective Canadian languages that belong to all Canadians; the Charter rights? What do they actually mean? What is intriguing about has accelerated a process to make this claim a reality. language rights as defined in the Charter is that they are both In an international and historical context, language has a freedom and a right: a kind of personal armour to fend off been included in treaties and covenants since the 1516 interference, and an engine for social change. In part because Treaty of Perpetual Union between the King of France and of the Charter, and the Supreme Court’s decisions on language the Helvetic state, and has involved various protections of cases, Canada’s language disputes have become part of a con- minority groups to maintain and use their language. temporary international discussion on language. For, as Hong However, in many discussions of rights over the cen- Kong jurist Phil C. W. Chan wrote in 2002, “language is essen- turies — including language rights — there has been a kind tial to one’s identity.” of dualism. In considering the Charter, it is easy to think that rights Roman law made a distinction between rights in rem and freedoms are almost synonyms. They aren’t. Rights (rights attached to a place, or property rights) and rights in require a change in behaviour. And language rights are no personam (rights of the individual). In 1774, during the exception. For most of Canada’s first century, language rights debate on the Quebec Act in the British House of Commons, were at best limited and constrained and at worst eliminated. Edmund Burke referred to two categories of rights: the rights Since 1982, building on a conversation on language that of human conquest and the rights of human nature. began with the Royal Commission on Bilingualism and In a contemporary context, Peter Jones, in his 1994 Biculturalism, the Charter has set off a chain of events that book Rights, distinguishes between “claim rights” — rights

84 OPTIONS POLITIQUES FÉVRIER 2007 Language rights: liberties, claims and a very Canadian conversation which require a duty to be performed, been before. It was not until the years anthem which would, he said, leave no and “liberty rights” — actions one is that followed the Second World War, doubt about the sovereignty of the not prohibited from performing. In the years when the Universal country. “Finally, all federal institu- terms of language rights, linguist Heinz Declaration of Human Rights at the tions must become bilingual and be the Kloss made a distinction between “tol- United Nations was introduced, ratified concrete demonstration of our bilin- erance-oriented” language rights and and debated, that the idea of a bill of gualism,” he wrote. “These three objec- “promotion-oriented” language rights rights began to be seriously considered tives will constitute the immediate — a slightly different, more generous in Canada. But while the subject was goals for the next Liberal government. version of Burke’s dichotomy between debated in Parliament, considered in If we want to maintain the integrity of rights of conquest and rights of human committee and made the subject of sev- Canada and assure our life together, nature and Jones’s categories of liberty eral legal analyses like Scott’s, there was the federal government must become rights and claim rights. little reference to language rights. But as soon as possible and as completely Jones’s distinction between liberty there was certainly an awareness of the as possible the synthesis and the sym- rights and claim rights is a particularly difference between granting a freedom bol of a truly bicultural Canadianism.” useful one in looking at language and acknowledging a right. rights, for they are clearly in both cate- he process was neither as quick nor gories. F.R. Scott wrote in 1949 that “a arliament, beginning in the early T as complete as Lamontagne had Bill of Rights, of any kind, is a shield for P 1960s, began to respond to the hoped. In fact, it can be argued that a defence,” and language rights represent obvious disparities, political, economic whole series of unanticipated and unin- the protection of a liberty to speak a and social, between English-speaking tended consequences from political acts language. These are passive, protective and French-speaking Canada. In 1962, led to the creation of a new dynamic. rights to be, in effect, left alone. But Créditiste MPs — many of whom spoke The FLQ bombings in the spring of they are also “claim rights”: the right to no English — complained that the 1963 accelerated the creation of the be responded to by the state and pro- Parliament of Canada was an over- Royal Commission on Bilingualism and vided services in one’s language. whelmingly English-speaking institu- Biculturalism; General de Gaulle’s “Vive tion: the orders of the day were in le Québec libre!” speech in 1967 and he British North America [BNA] Act English only, the rules of procedure the repercussions laid the groundwork T had very limited rights but, as were in English only, the menus in the for widespread acceptance of its recom- Frank Scott pointed out, there were parliamentary restaurant were in mendations; those recommendations more definite protections included for English only, and the security guards led to the Official Languages Act in 1969 groups — minorities — than for individ- spoke no French. and the creation of the position of com- uals. “The guarantee for the use of two In 1962, in an extraordinary missioner of official languages in 1970; languages, for instance, and for denom- memo, Maurice Lamontagne, then an the election of the Parti Québécois in inational schools are group freedoms,” economic adviser to Lester Pearson, 1976 and the failure of the Quebec ref- Scott wrote. Indeed, some of the parlia- laid out his recommendations for the erendum on sovereignty-association in mentarians who debated the BNA Act next Liberal government. Lamontagne 1980 made it possible for Pierre Trudeau realized that even those limited rights argued that it was up to the Liberal to patriate the Constitution with the would have some long-term effects. Party to set out — and achieve — three Charter of Rights in 1982; the Charter It took a while; in the decades fol- concrete objectives. First, the patriation led to the amendment of the Official lowing Confederation, language rights of the Constitution — and he added, Languages Act in 1988; the failure in Manitoba, Alberta, Saskatchewan and “And it must include a declaration of of the Quebec referendum in 1995 resulted in the Quebec The British North America [BNA] Act had very limited rights Secession Reference to the but, as Frank Scott pointed out, there were more definite Supreme Court. protections included for groups — minorities — than for In 1963, almost imme- diately after becoming prime individuals. “The guarantee for the use of two languages, for minister, Lester Pearson instance, and for denominational schools are group appointed the Royal Com- freedoms,” Scott wrote. Indeed, some of the parliamentarians mission on Bilingualism and who debated the BNA Act realized that even those limited Biculturalism, which told Canadians in 1965 that rights would have some long-term effects. Canada was passing through Ontario were abolished before there was human rights covering federal and the greatest crisis in its history. any thought of their being “propagated provincial areas.” Secondly, the cre- The commission, famously co- and engrafted” where they had never ation of a national flag and a national chaired by André Laurendeau and

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Montreal Gazette archives André Laurendeau and Davidson Dunton at the release of the final report of their landmark Royal Commission on Bilingualism and Biculturalism in 1967. The rights of Canada’s two founding language communities were legislated in the Official Languages Act of 1969, and later entrenched in the Charter of Rights and Freedoms in 1982.

Davidson Dunton, addressed the para- we cannot assure every Canadian of an Freedoms (1982), the amended ver- dox of official bilingualism: a paradox equal opportunity to participate in the sions of the Act (1988 and 2005) — all that is still widely misunderstood. An political, cultural, economic and social rest on those two, very simple but official languages policy does not exist life of this country.” quite sweeping principles: the right to to require everyone to learn two lan- learn, and the right to use. It would guages — although obviously, if no here are two extraordinary things take another 15 years, however, one is bilingual, the policy cannot suc- T about this passage. The first is that before those rights were enshrined in ceed. Forty years ago this fall, Pierre Trudeau neatly blurs the definition of the Charter. Trudeau, then minister of justice, laid language rights, establishing them first out the fundamental principles of lan- as collective rights (“the basic instru- hen Trudeau delivered that guage rights. It was in September 1967, ment for preserving and developing W speech to the bar association, and Trudeau was speaking to the Cana- the cultural integrity of a people”) and he was already working on a White dian Bar Association. “While language then describing them as individual Paper that emerged in January 1968: A is the basic instrument for preserving rights (“Without this, we cannot Canadian Charter of Human Rights. In and developing the cultural integrity assure every Canadian of an equal that document, the rights were clari- of a people, the language provisions of opportunity to participate in the polit- fied — a bit: “guaranteeing the right of the British North America Act are very ical, cultural, economic and social life the individual to deal with agencies of limited,” he said. “I believe that we of this country”). Secondly, Trudeau government in either official language” require a broader definition and more defines language rights quite narrowly: and “guaranteeing the right of the indi- extensive guarantees in the matter of the right to learn, and the right to use. vidual to education in institutions recognition of the two official lan- The entire edifice of language using as a medium of instruction the guages. The right to learn and to use rights in Canada that has been creat- official language of his choice.” A lot of either of the two official languages ed since then — the Official Languages detail remained to be filled in, as the should be recognized. Without this, Act (1969), the Charter of Rights and White Paper acknowledged.

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In 1982, the Charter of Rights and eral reasons. I was deeply troubled by tionship between Canada’s English- Freedoms consolidated equality and the fact that it was introduced over the speaking and French-speaking com- language rights. It also recognized that objections of the Quebec National munities that has defined our past, the English or French linguistic minor- Assembly, whose continued refusal to underpins our present and will con- ity communities of a province have a sign the Constitution has left a long tinue to shape our future. right to primary and secondary instruc- shadow over Canadian political life for tion in their language and to the man- the last quarter-century; I was con- n official languages A policy exists for two When the Charter was introduced, I confess that I was a skeptic fundamental reasons: to — for several reasons. I was deeply troubled by the fact that it protect the unilingual, and to protect minority lan- was introduced over the objections of the Quebec National guage communities. There Assembly, whose continued refusal to sign the Constitution has are 4 million unilingual left a long shadow over Canadian political life for the last quarter- French-speaking Canadians century; I was concerned about the relationship between the in Canada, and one of the key reasons for the Official courts and Parliament; and I shared the view, expressed most Languages Act to exist is to cogently by the late Seymour Martin Lipset in 1990, that the ensure that they get the Charter would lead to the Americanization of Canada. same level of service from the federal government as agement of their school systems, where cerned about the relationship between the 20 million unilingual English- numbers warrant. Language rights were the courts and Parliament; and I shared speaking Canadians. There are also a central to the Charter, and enshrined the view, expressed most cogently by million French-speaking Canadians in section 16. the late Seymour Martin Lipset in 1990, who live in minority communities Recently, I found out how that that the Charter would lead to the across Canada, and almost a million occurred. Senator Serge Joyal, then a Americanization of Canada. “Although English-speaking Canadians living in member of Parliament, was asked by the principles of parliamentary minority communities in Quebec. then-Prime Minister Pierre Trudeau to supremacy and consideration for group Those communities deserve not be the co-chair of the parliamentary rights are retained, the Charter makes only to survive, but to thrive — and in committee examining the Charter. He Canada a more individualistic and liti- 2005, the Parliament of Canada agreed — but on the condition that the gious culture, one that will place more amended the Official Languages Act for principles of the Official Languages Act stress on the enforcement of personal only the second time to require the be included. rights through adversary procedures government to take positive measures rather than government adjudication,” to help those communities develop. he reason, he told me recently, was Lipset wrote. The Charter came about as a series T an experience he had had in 1976. My view has changed, particularly of political compromises —and even At that time, there was an intense con- with regard to language, and language though the Quebec National Assembly troversy over the right of French-speak- rights. The Charter has introduced a refused to sign the Constitution, sec- ing pilots to speak to French-speaking critical voice, but not the only voice, tion 23 was drawn up in a way that air controllers in French: what became in a Canadian conversation about lan- took account of the language debate known as the Gens de l’Air Affair. Joyal guage that has gone on for the last 45 that had been going on in Quebec. But took the Department of Transport and years. Language rights have developed the fact that compromises occurred as Air Canada to court — ultimately and advanced in Canada over the last a result of the three-way dialogue I unsuccessfully — at his own expense. quarter-century through an elaborate referred to earlier has not diluted the During the controversy, he was a guest three-way discussion between the nature of those rights. on a popular television program, and Canadian Parliament — often engaged In fact, a series of decisions by the the host, Lise Payette (later a Parti in its own dialogue with first the Supreme Court laid out, in eloquent Québécois cabinet minister), welcomed Royal Commission on Bilingualism terms, the way in which language rights him with the words “Now, our next and Biculturalism and then the com- in Canada were not merely protective, guest, Serge Joyal — our hero!” Joyal missioner of official languages — the but transformative. In those judgments, told me that he decided then that a cit- provinces and the Canadian courts. It and many others, one can see how the izen should never have to be a hero to is a conversation in which the Supreme Court has used the dynamic defend his or her language rights. Charter, far from Americanizing relationship between liberties and When the Charter was introduced, Canada, has created a new jurispru- claims, and built on the federal Official I confess that I was a skeptic — for sev- dence, building on the critical rela- Languages Act and Quebec’s Charter of

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the French Language to strengthen ed “as to advance the broad poli- It is that national conversation, both the liberties and the claims that cy considerations underlying it.” that interaction of liberties and claims, are so interwoven in language rights. The judges drew on not simply the rights and obligations, rights and the The conversation between judges Charter, but also the Charter of the delivery of services, that has made sec- and parliamentarians has continued French Language; more recently, in tion 16, the language provisions in the over the last 25 years. As a result of sec- 2005, parliamentarians from every Charter of Rights and Freedoms, and tion 16 in the Charter, the Official party but the Bloc Québécois voted to the Official Languages Act of 1988 so Languages Act was amended and strengthen the Official Languages Act dynamic and transformative. In 25 strengthened by the Mulroney govern- by giving minority communities the years, that conversation has changed ment in 1988, leading the Federal right to legal recourse to ensure that the linguistic landscape of the country. Court of Appeal to observe: the federal government takes positive It will continue to do so. The 1988 Official Languages measures to help their development. Act is not an ordinary statute. It This was a change in the Act driven by On October 17, 2006, after a career in reflects both the Constitution of parliamentarians, not the courts or the journalism that began in 1968, Graham the country and the social and government. It renders the Official Fraser became the sixth Commissioner of political compromise out of Languages Act an even more important Official Languages. The author of PQ: which it arose...[I]t belongs to lever to improve the status of French René Lévesque and the Parti that privileged category of quasi- and English minority communities in Québécois in Power (1984), he most constitutional legislation which Canada, and to help them achieve sub- recently published: Sorry, I Don’t Speak reflects “certain basic goals of our stantial equality with the majority French: Confronting the Canadian society” and must be so interpret- communities. Crisis That Won’t Go Away (2006).

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