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Liberties, Claims and a Very Canadian Conversation

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Liberties, Claims and a Very Canadian Conversation 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 POLICY OPTIONS 85 FEBRUARY 2007 Graham Fraser 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.
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