The Impact of the Supreme Court of Canada on Bilingualism and Biculturalism

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada

2008 marks the 40^th anniversary of the final report of the Royal Commission on Bilingualism and Biculturalism. That you have chosen to focus on this anniversary as the topic for your Constitutional Law Week Speaker series shows the continued significance of the issues the report considered. In my remarks today, I will discuss the impact of the decisions rendered by the Supreme Court of Canada on bilingualism and biculturalism in Canada. It is fitting for me to speak on this topic in Montreal, one of the world’s largest bilingual cities, at a bilingual and bijuridical law school. McGill’s faculty of law has embraced not only Canada’s two official languages in its curriculum, but also its two legal traditions. This faculty has also produced many distinguished alumni, many of whom made important contributions to language rights in Canada. Among them, I note Arnold Heeney, an early advocate of bilingualism in the public service, John Peters Humphrey, a tireless advocate of human rights and minority rights, and F. R. Scott, the founder of an organization devoted to examining English/French-Canadian relations, a member of the Royal Commission on Bilingualism and Biculturalism, and a great advocate of French and English unity in Canada. It is therefore an honour for me to follow in their footsteps in discussing the critical issue of bilingualism and biculturalism, with a group who will, in a few years from now, stand ready to make further contributions to the Canadian legal system.

Before turning to the impact of the Supreme Court on bilingualism and biculturalism, I wish to spend a few moments on the relationship between language and culture. Language rights cannot be separated from the concern for the culture associated with the language. As Chief Justice Dickson acknowledged in the Mahe ^{Footnote 1} decision:

Language is more than a mere means of communication, it is part and parcel of the identity and culture of the people speaking it. It is the means by which individuals understand themselves and the world around them. ^{Footnote 2}

The cultural importance of language was also recognized by the Supreme Court in the case of Ford v. Quebec ^{Footnote 3} when it held that:

Language is not merely a means or medium of expression; it colors the content and meaning of expression. It is, as the preamble of the Charter of the French Language itself indicates, a means by which a people may express its cultural identity. ^{Footnote 4}

Similar recognition was granted by the Commission on Bilingualism and Biculturalism which affirmed that:

Language is also the key to cultural development. Language and culture are not synonymous, but the vitality of the language is a necessary condition for the complete preservation of a culture. ^{Footnote 5}

And in a comment on the role of minority language schools, the Commission added that “[t]he school is the basic agency for maintaining language and culture, and without this essential resource neither can remain strong.” ^{Footnote 6}

Clearly, language and culture are both symbols of identity for a community and are inextricably intertwined. Therefore, although I will refer mainly to language rights in my remarks, I am also referring to the recognition of the culture associated with that language.

Although many of you here are probably too young to remember it, it seems not too long ago that Quebec was in the midst of the Quiet Revolution, a process of questioning the existing social order which led to basic changes in Quebec society, and to a redefinition of the role and place of French Canadians in Canada. Demand for change was heard everywhere: for bilingualism, for biculturalism, for the respect of the autonomy of Quebec, for equal status in Confederation. The concept of “French Canadian” was replaced by that of the “Québécois”. There was no doubt that the Québécois had to become masters of their destiny, had to be “Maîtres chez-nous”.

The Quiet Revolution was significant in that it brought the issue of French cultural and language politics to the forefront of Canadian politics, confronting politicians and the Canadian public with the question of how to deal with cultural and language aspirations of French-speakers. So the Royal Commission on Bilingualism and Biculturalism was established on July 19, 1963, by the government of Prime Minister Lester B. Pearson, with a mandate to “inquire into and report upon the existing state of bilingualism and biculturalism in Canada and to recommend what steps should be taken to develop the Canadian Confederation on the basis of an equal partnership between the two founding races”. ^{Footnote 7}

The Commission found that French-speakers in Quebec were generally poorer and limited in their economic opportunities. Elsewhere in the country, the situation was not much better: Francophones outside Quebec tended to have a harder time of it, and minority language schooling was inadequate for their needs. The Commission recommended that the use of French be encouraged at the federal level as well as in certain provinces which had a higher French-speaking population, such as Ontario and New Brunswick. The Commission also suggested that better educational opportunities should be created in provinces that had a linguistic minority of 10 percent.

Incoming Prime Minister Pierre Trudeau made the implementation of the Commission’s recommendations one of his highest priorities. The most important of the changes was the introduction in 1969 of the Official Languages Act, ^{Footnote 8} which officially made Canada a bilingual nation.

Despite the fundamental role of language in shaping Canadian society, at the time of the Bilingualism and Biculturalism Commission report, courts had little experience in the field of language rights. Until the late 1970s, the Supreme Court of Canada, for example, dealt with very few language cases. This, despite the fact that the Constitution Act, 1867 was founded upon the principles of bilingualism and biculturalism. Section 133, the sole provision on language, accords public recognition to both the English and French languages, and it imposes a mandatory requirement regarding their use in the records and legislation of the federal Parliament and the Quebec legislature. ^{Footnote 9}

Nor had the other linguistically relevant section of the Constitution Act, 1867, s. 93, been subjected to significant judicial interpretation in the context of language rights. Section 93 provides that provinces were prohibited from passing laws that would “prejudicially affect” the rights and privileges of previously established denominational schools. This section was not on its face directed at schools aimed at the preservation of a particular language or culture. In many places, however, this hardly mattered since it was widely understood at the time that language, culture, religion and education were intrinsically related. Due to the statistical reality of the population, it was acknowledged that Roman Catholic meant French schools and that Protestant implied English.

From the lack of judicial activity in the area of language rights, at least one jurist surmised that the Constitution Act, 1867, for almost 100 years, provided a vehicle of necessary autonomy for the two dominant populations, particularly for the French in Quebec, so as to protect their respective cultures. ^{Footnote 10}

All this was to change in the 1970s and 1980s, an era marked by major constitutional reform initiatives that culminated in the adoption of the Canadian Charter of Rights and Freedoms. The Charter considerably expanded the scope of language rights. It recognized English and French as the official languages of Canada and accorded equal rights and privileges in all the institutions of the federal government and the provincial government of New Brunswick ^{Footnote 11}, including the courts. ^{Footnote 12} The Charter also recognizes individual rights to the use of either official language on an expanded basis. This includes the right to receive available government services from head offices of the Federal government and other offices where there was “significant demand.” ^{Footnote 13} Finally, the Charter includes the right to education in the language of the minority where numbers warrant. ^{Footnote 14}

The inclusion of language rights within the Charter created expectations that it would have a substantial impact upon the status of language rights in Canadian society. One observer described the Charter language rights as “Canada’s first attempt to provide comprehensive constitutional guarantees to protect the English and French languages,” but also noted that they were nevertheless “marvelously ambiguous.” ^{Footnote 15} Inevitably, the courts were asked to play a role in defining the content of language rights in Canada.

The path of Supreme Court interpretation of the Charter’s language guarantees can be seen as an evolution marked by two phases: initially there was a cautious, and somewhat narrow approach to language rights. However, in the 1990’s, the Court developed a more generous and purposive approach to language rights, which prevails today.

Let me turn first to the initial narrow approach to the Charter’s language rights.

Curiously, the introduction of the Charter coincided with a retreat by the courts to a narrow interpretation of language rights. Curiously, I say because in the 1970s, the Supreme Court had embarked on a more expansive reading of s. 133 of the Constitution Act, 1867, a process that reached its peak in the Manitoba Language Reference. ^{Footnote 16}

Language rights were judged to be foundational elements of self-identity, citizenship and community, and thus worthy of substantive interpretation. This ringing endorsement led some to believe that such rhetoric could provide a basis for an expansive approach to the interpretation of language rights.

Yet this is what happened. In reviewing decisions involving language rights, one legal scholar described a pattern of narrow interpretation whereby the courts “uphold rights where their existence is unquestionable in the Charter or other parts of the constitution,” but otherwise “interpret language rights narrowly.” ^{Footnote 17}

Consider Société des Acadiens ^{Footnote 18} and MacDonald. ^{Footnote 19} The question in Société des Acadiens was whether the right to use either official language in judicial proceedings, as protected in s. 19(2) of the Charter, included the right to be understood by the judge in that language. The majority held that it did not. Language rights, it said, were of a distinct character. “Legal rights,” Justice Beetz wrote, “tend to be seminal in nature because they are rooted in principle […] Language rights, on the other hand, although some of them have been enlarged and incorporated into the Charter, remain nonetheless founded on political compromise.” ^{Footnote 20} For this reason, he maintained that:

courts should pause before they decide to act as instruments of change with respect to language rights. This is not to say that language rights provisions are cast in stone and should remain immune altogether from judicial interpretation. But, in my opinion, the courts should approach them with more restraint than they would in construing legal rights. ^{Footnote 21}

Another case, MacDonald, concerned the issuing of a speeding ticket in Quebec in French only, which the plaintiff challenged as a violation of Quebec’s obligations under s. 133 of the Constitution Act, 1867. The majority maintained that although s. 133 permitted the use of either official language in court proceedings, it did not require the use of both.

Overall, in these two cases - Société des Acadiens and MacDonald - the Court was disinclined to adopt a “broad and generous” approach to the interpretation of the content of language rights as it had in relation to other legal rights. ^{Footnote 22} The perception that language rights were a product of political compromise led the majority of the Court to hold that the wording of the language rights sections precisely reflected the framers’ intent, and thus to adopt a narrow reading of their content. The majority reasoned that the absence of wording specifying the right to be understood in the official language of one’s choice was grounds to conclude that it was not part of the right. The choice of the verb “use” rather than the verb “communicate” was taken to be indicative of a restrictive intent.

A notable exception to a narrow interpretation of language rights in this early Charter period was Justice Wilson’s stance. In minority opinions in both cases, she argued that the language rights guaranteed by the Charter necessarily impose duties on governments to implement those rights. The right to speak a language in the courts, she believed, implies a right to be understood, and therefore places a corresponding obligation on the government to ensure that the court can understand. ^{Footnote 23} Justice Wilson urged the Court to adopt a “progressively expansive” interpretation of this language right that would embrace a right to be understood by the court directly in the official language of one’s choice. ^{Footnote 24}

Minority language education rights are the major exception to the relatively cool reception of language rights by the courts, in this early period. For example, s. 23 of the Charter was used to overturn s. 73 of Quebec’s Bill 101, which limited access to its English education system to those whose parents or siblings were educated in English in Quebec. ^{Footnote 25} Still, the Court was inclined to view s. 23 rights as something less than fundamental rights. The prevailing judicial view was reflected in the following comment made by the Court:

Section 23 of the Charter […] is not a codification of essential, pre-existing and more or less universal rights that are being confirmed and perhaps clarified, extended or amended, and which, most importantly, are being given a new primacy and inviolability by their entrenchment in the supreme law of the land. The special provisions of s. 23 of the Charter make it a unique set of constitutional provisions, quite peculiar to Canada. ^{Footnote 26}

This comment underscores the ambiguous status of language rights at the time. Despite being constitutionally entrenched, they were considered to lack the weighty history and established legitimacy of traditional civil rights, and thus were not given the same type of generous and purposive interpretation as more traditional civil rights.

This brings me to the second phase of the approach to language rights under the Charter. In the wake of the 1990s, the Court moved from a narrow approach to language rights, Société des Acadiens-and MacDonald, to a more generous and purposive interpretation. A new line of cases reaffirmed the importance of language rights as supporting official language communities and their cultures.

In Mahe, Chief Justice Dickson, after noting the caution of Justice Beetz in Société des Acadiens, acknowledged that “careful interpretation of [s. 23] is wise.” However, he continued:

this does not mean that courts should not “breathe life” into the expressed purpose of the section, or avoid implementing the possibly novel remedies needed to achieve that purpose. ^{Footnote 27}

In Mahe, the Court held that where numbers warranted, the s. 23 entitlement to minority language education could extend beyond the provision of the physical facility of the school, to include a degree of management and control by minority language citizens over the minority school system.

The trend continued in 1998 with the Reference re Secession of Quebec. ^{Footnote 28} Although this decision did not relate directly to language rights, its relevance emerges from the four key constitutional principles identified by the Court: federalism, democracy, the rule of law, and respect of minorities. The last of these is particularly important: given Canada’s bilingual and bicultural nature, the Court considered it inevitable that our country’s founders sought to ensure the survival of the francophone minority:

The delegates [at the 1884 Charlottetown meeting] approved 72 resolutions, addressing almost all of what subsequently made its way into the final text of the Constitution Act, 1867. These included guarantees to protect French language and culture, both directly (by making French an official language in Quebec and Canada as a whole) and indirectly (by allocating jurisdiction over education and “Property and Civil Rights in the Province” to the provinces). The protection of minorities was thus reaffirmed. ^{Footnote 29}

In the Secession Reference, the Court also addressed the argument raised in Société des Acadiens that linguistic rights, being the result of a political compromise, must be interpreted restrictively:

The fourth underlying constitutional principle we address here concerns the protection of minorities. There are a number of specific constitutional provisions protecting minority language, religion and education rights. Some of those provisions are, as we have recognized on a number of occasions, the product of historical compromises. […]

However, we highlight that even though those provisions were the product of negotiation and political compromise, that does not render them unprincipled. Rather, such a concern reflects a broader principle related to the protection of minority rights. Undoubtedly, the three other constitutional principles inform the scope and operation of the specific provisions that protect the rights of minorities. We emphasize that the protection of minority rights is itself an independent principle underlying our constitutional order. ^{Footnote 30}

The same theme was picked-up a few months later, when the Supreme Court rendered its decision in Beaulac, ^{Footnote 31} a case dealing with the right to be tried by judge and jury who speak both official languages pursuant to s. 530 of the Criminal Code. In its decision, the Court established a much needed unified approach to the interpretation of language rights generally.

Justice Bastarache, writing for the majority, made it clear that the restrictive approach employed in Société des Acadiens must be rejected:

Though constitutional language rights result from a political compromise, this is not a characteristic that uniquely applies to such rights. […] [A] political compromise also led to the adoption of ss. 7 and 15 of the Charter and […] there is no basis in the constitutional history of Canada for holding that any such political compromises require a restrictive interpretation of constitutional guarantees. […]

Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada […]. To the extent that Société des Acadiens, […] stands for a restrictive interpretation of language rights, it is to be rejected. ^{Footnote 32}

Justice Bastarache went on to say that language rights, like all other constitutional rights, impose on the state the responsibility of ensuring that these rights are respected, which imposes in turn certain obligations. He explains it as follows:

Language rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided. This is consistent with the notion favoured in the area of international law that the freedom to choose is meaningless in the absence of a duty of the State to take positive steps to implement language guarantees. ^{Footnote 33}

The shift to a broader and more purposive interpretation of language rights was confirmed with the case of Arsenault-Cameron, ^{Footnote 34} which originated in a dispute about the lack of minority language education opportunities in local communities. In that case, a number of Francophone families living in Summerside, P.E.I., made a request to the French Language Board to build a French language school in the community rather than bus the children to the closest French school almost an hour away. The Board made a proposal to the Minister of Education, which was rejected.

In Arsenault-Cameron, the Supreme Court returned to basic principles of interpretation that must be borne in mind when dealing with s. 23 cases. First, s. 23 is remedial in nature and “was designed to correct, on a national scale, the historically progressive erosion of official language groups and to give effect to the equal partnership of the two official language groups in the context of education.” ^{Footnote 35} Language rights must also be understood as intertwined with concerns for the culture associated with the use of language. It is therefore important to carefully consider, the historical and social context of any given group of s. 23 rights holders, and to recognize the importance of official minority language schools to the development of official language communities.

In the context of these basic principles of interpretation, the Supreme Court concluded that the Minister of Education had failed, in reaching his decision regarding the proposed offer of French language instruction in Summerside, “to give proper weight to the preservation of minority language culture.” ^{Footnote 36}

The generous and purposive approach to language rights developed in the more recent Supreme Court of Canada decisions ensures that language rights provide meaningful protection, in particular by recognizing that these rights impose corollary duties of implementation on government. As one scholar indicated, “court action has made it possible to reorient government action that had not always been favourable to minorities or to compel government action outright. […] Court action has also made it possible to overcome the political weakness of linguistic minorities in their relations with both the majority and the government.” ^{Footnote 37}

History - and perhaps you in the audience - will judge whether the balance achieved by the Supreme Court in the field of language rights has been the appropriate one. Nevertheless, the recognition and protection of language rights is not a task left solely in the hands of courts. In a constitutional democracy such as Canada, the protection of language rights, like other constitutional rights, is a responsibility shared by governments and the courts.

A study released in 2001 by the Office of the Commissioner of Official Languages found that 12 years after the decision in Mahe, a significant proportion of Francophone children outside Quebec were not attending French schools, which erodes the vitality of Francophone communities in a minority setting. ^{Footnote 38} In 2007, the new Commissioner of Official Languages, Graham Fraser, voiced a similar concern, noting that many francophone children outside Quebec still attend English schools, despite the fact that their parents would prefer a French school, because there is no French language school near their home. ^{Footnote 39} This is an indication that the development of official-language communities in a minority setting does not depend on the judicial system alone.

The former Commissioner of Official Languages, Dyane Adam, has also recognized that the courts cannot provide all of the solutions to the problem of implementing language rights:

Although the courts have an essential part to play in clarifying the language rights guaranteed, our parliamentary representatives have the primary responsibility for acting when an ambiguity in legislation leads to inaction by the governmental and administrative structure. This responsibility results from the constitutional undertaking by Parliament and provincial legislatures to promote progress towards equal status and use of English and French. ^{Footnote 40}

Let me conclude with a few comments on our challenges for the future on the linguistic front. Every country looks to its history as a reference point for its identity. Canada’s history has often been characterized, admittedly in a very simplified form, as a pact between two nations, between Canadians of English origin and Canadians of French origin. According to that version of our history, Canada is the product of a union between those two founding peoples and of their wish to live together, a wish that was expressed in the federal political structures that were adopted, and the guarantee that was given of respect for minority interests within the federation.

Linguistic and cultural duality was the result. It is part of the Canadian identity, and it is rooted in our history. Faced with this reality, and the constitutional provisions dealing with language rights, the Supreme Court has been tasked with the challenge of working out the proper balance between competing interests. In fulfilling this obligation, the Court’s approach has undergone a significant shift: beginning with narrow and literal approach to Charter language rights, the Court has, in more recent cases, interpreted these rights with the same broad and generous approach it applies in relation to other constitutional rights.

At the same time, the conception of Canada as a bilingual and bicultural country, of Canada as a pact between two founding people, must also take into account other important aspects of our society: first, the presence of the First Nations in North America and the historical significance of the relationship between the European settlers and the Aboriginal people in the construction of a uniquely Canadian identity; second, the contribution made by successive generations of immigrants who have constantly broadened the diversity of Canadian society.

What emerges is a Canada that belongs to all Canadians, not just to those whose ancestors came here in the seventeenth and eighteenth centuries. If we are to have a national identity, it has to have meaning for newcomers. The 2006 Census enumerated over six million foreign-born people in Canada. They accounted for virtually 20 per cent of the total population, the highest proportion in 75 years. ^{Footnote 41}

The challenge of integrating the multiculturalism that characterizes Canada within the framework of bilingualism and biculturalism is not an easy task. Efforts to accomplish this goal date back to 1971, when the federal government adopted the world’s first national Multiculturalism Policy: a policy built on recognition of our country’s Aboriginal population, French and English linguistic duality, and ethnic, racial and religious diversity. Since then, much more has been done. Section 15 of the Charter makes it clear that every individual in Canada, regardless of race, religion, national or ethnic origin, colour, sex, age or physical or mental disability, is to be considered equal. Moreover, s. 27 of the Charter provides that it is to be “interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians”.

A variety of other laws, regulations and policies have been introduced. All aim to ensure that all Canadians are not only able to enjoy access to formal equality but are made to feel equal in their everyday lives. These include the Canadian Human Rights Act ^{Footnote 42}, the Employment Equity Act ^{Footnote 43}, the Citizenship Act ^{Footnote 44}, the Multiculturalism Act ^{Footnote 45}, the Official Languages Act ^{Footnote 46}, and the federal plan for gender equity. ^{Footnote 47} In this province, the deliberations of the Bouchard-Taylor Commission have provoked a public dialogue about accommodation of differences, including language. ^{Footnote 48}

These are not always easy issues to discuss, as they deal with sensitive issues of individual and group identity. But the discussion is fundamentally important. It is one thing to state rights on paper. The more difficult problem is to move them off the sterile page and into the reality of people’s lives. The creation of a harmonious society where every individual feels not only accepted but truly welcome is the responsibility of all citizens, including yourselves.

As Michaëlle Jean, the Governor General of Canada, recognized in her inauguration speech in September of 2005, “the time of the “two solitudes” that for too long described the character of this country is past. […] [W]e must eliminate the spectre of all the solitudes and promote solidarity among all the citizens who make up the Canada of today.” ^{Footnote 49}

I thank you for your attention and would be happy to answer any questions you may have.

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
Constitutional Law Week Speaker Series
McGill University
Montreal, Quebec
February 6, 2008