Advent of language rights and laws

A Change in the Course of Language Rights (1963–1969)

Introduction

Although indigenous peoples had a foothold in North America prior to Europeans, it was the Anglophones and Francophones who gave birth to the Canada we know today. By the 1960s, the two major linguistic communities had still not managed to find common ground, but it had become obvious that it would be in Canada's best interest to acknowledge its linguistic minorities, and that it would take more than occasional concessions to allow all its citizens to live in harmony. The country was ripe for a profound change, as were many others in the world. During the 1960s, in fact, numerous countries witnessed substantial political change on the topic of the protection of languages. Many old British and French colonies became sovereign states and, simultaneously, minority groups were eager to improve their lot and accede to a more desirable and more equitable status. Canada too navigated its way toward national liberation, and toward the acquisition and advancement of language rights. The 1960s also marked a growing involvement by the state in the lives of citizens across the globe. Language would prove no exception.

The coming to power of Prime Minister Lester B. Pearson (from 1963 to 1968) signaled a certain will to change on the part of the Canadian government. Wishing to preserve national unity, Pearson devoted particular attention to bilingualism, establishing a royal commission charged with examining the state of bilingualism and biculturalism in Canada. This was also the era of the rise of the sovereigntist movement in Quebec; of the arrival on the federal political scene of Pierre Elliott Trudeau, who favoured individual rights; and of the passage of the Official Languages Act (1969), which would usher in the era of language laws in Canada, with the federal law followed by another on multiculturalism.

At the same time, in certain provinces, particularly in Ontario and New Brunswick, francophone minorities were demanding substantial, and not merely cosmetic, change. For its part, Quebec was going through an effervescent period known as the Quiet Revolution, a cathartic time characterized notably by the advent of a more modern state, socioeconomic action, the affirmation of a Quebec identity, and linguistic awareness. The courts would later intervene in certain recalcitrant provinces in order to have minority rights respected. The advent of language rights and laws was at hand.

Formed in 1962, The Royal Commission on Government Organization, the so-called "Glassco Commission," dealt with the question of bilingualism in governmental organization. That year the Glassco Commission tabled a report on the management of the public service. The following year the Canadian government authorized the Civil Service Commission to establish a language training centre. The annual cost was estimated at $900,000, but in 1970 the Language Training Centre had an available budget of $9 million. It was estimated that it would take 20 to 25 years of external recruitment to fulfill the bilingual needs of the public service.

Lester B. Pearson(1897-1972), André Laurendeau(1912-1968), Davidson Dunton(1912-1987))

Three months after his election (April 1963), Canadian Prime Minister Lester B. Pearson created a royal commission of inquiry mandated to examine the question of bilingualism and biculturalism in Canada. In a letter to all the provincial premiers in May 1963, Mr. Pearson wrote

In a speech I gave on December 17, 1962 in the House of Commons on the difficulties and advantages presented in our country by the duality of language and culture established by Confederation, I proposed that a vast inquiry be held on bilingualism and biculturalism in consultation with the provincial governments. This proposal was greeted very favourably in Parliament and also, I think, in the country.

The idea for such a commission had been proposed the year before by journalist André Laurendeau, who was very worried about the increasingly strident secessionist voices in Quebec and the indifference of English Canada. Mr. Pearson called upon Laurendeau to head the Royal Commission on Bilingualism and Biculturalism. As with many Canadian commissions, a co-chairman of English Canadian language and culture was called in: journalist Davidson Dunton (1912-1987). The Laurendeau-Dunton Commission became better known in English as the B & B Commission (for bilingualism and biculturalism) and in French as the familiar Commission BB. As stated in the mission of the Royal Commission of Inquiry on Bilingualism and Biculturalism, much was at stake:

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, taking into account the contribution made by the other ethnic groups to the cultural enrichment of Canada and the measures that should be taken to safeguard that contribution.

Laurendeau and Dunton first arranged to meet with all the provincial premiers to collect their opinions on the question. Next, they held regional meetings that further highlighted Canadians' profound ignorance of the problems the Commission was attempting to resolve. More than 400 briefs of every description were presented to the Commission, whose work no doubt went a long way to making Canadians aware of the importance of preserving and promoting not only cultural and linguistic duality, but diversity as well. Between 1964 and 1967, the Commission ordered at least 165 studies, 24 of which were published. This intense scientific activity yielded a better understanding of Canada's linguistic realities. Based on demographic, social, educational, economic, and legal data linked to language and minority communities, the government had the information it needed to pinpoint certain deficiencies and act accordingly. One could say that the Laurendeau-Dunton Commission left an important legacy of research. Following two years of work and meetings across the country, commissioners were unequivocal about the dangers facing the country:

Everything that we have seen and heard has convinced us that Canada is going through the most critical period in its history since Confederation. We believe that there is a crisis [...]. We do not know whether this crisis will be long or short. However, we are convinced that it exists. The danger signs are numerous and serious.

According to the commissioners, if this crisis were allowed to continue and to intensify, it could eventually lead to the destruction of Canada; however, if it were overcome, the crisis would contribute to the emergence of a more vibrant and richer Canada. The members of the Commission were not oblivious to the difficulties frequently encountered in countries where multiple cultures and languages coexisted, but solutions ensuring a viable social peace were nonetheless possible. One of them involved establishing an equitable policy for the country's major linguistic communities.

Federal Legislation on the official Languages (1969 and 1988)

In response to the numerous recommendations of the Laurendeau-Dunton Commission, the House of Commons passed the Official Languages Act in 1969. This act conferred co-official status on English and French, but only for bodies and institutions under federal jurisdiction. This was the first true language legislation passed by the federal Parliament. As Canada is a federation, the act had to respect the Canadian Constitution by not intruding on areas of jurisdiction belonging to the provinces. Briefly stated, the act could not dictate provincial language policies. In 1988, the Official Languages Act of 1969 would be repealed with the passage of a new Official Languages Act under then Prime Minister Brian Mulroney (1984-1993). The federal legislation grants personal rights to all Canadian citizens to communicate in the language of their choice with the federal government and to have their children educated in a minority language. It does not provide collective rights as defined by certain laws, for example in New Brunswick and in Quebec. The passage of the Official Languages Act, at last, put an end to the era of symbolic bilingualism (stamps, bank notes, etc.) and mere translation of laws and certain administrative documents.

The big innovation of the Official Languages Act was the introduction of official bilingualism in the federal government of Canada. For the first time in the history of Canada, at the instigation of Pierre Elliot Trudeau (1968-1979), a federal law defined the language rights of citizens in their relations with Parliament, the federal government, and federal institutions, and also defined the duties of these institutions toward citizens as far as language was concerned. This was a radical change in Canada's language situation.

Section 2 of the Official Languages Act of 1969 read as follows: ''The English and French languages are the official languages of Canada for all purposes of the Parliament and government of Canada, and possess and enjoy quality of status and equal rights and privileges as to their use in all the institutions of the Parliament and government of Canada.''

The act also stated (sec. 8) that "in construing an enactment, both its versions in the official languages are equally authentic." In the area of justice, the act supplemented the provisions of section 133 of the Constitution Act of 1867 in prescribing that federal court decisions be rendered in both languages (sec. 5) and interpretation services be available in the courts. However, where the Official Languages Act was truly innovative was in section 9, which required that ministries, departments, and other federal government bodies such as Crown corporations guarantee that the "members of the public can obtain available services from and communicate with them in both official languages." In reality, the act bound not only Parliament and the courts, but also the entire federal government.

From 1867 to 1969, most regulations and orders were drafted only in English, usually by the Governor in Council. These acts were then usually printed and published in the Canada Gazette in the two official languages. Prior to the Blaikie rulings (1979 and 1981), it was believed that the Constitution did not require the bilingual passage of "delegated legislation." Starting in 1969, the Official Languages Act required that rules, ordinances, orders, regulations, and proclamations whose publication was required in accordance with an act of the Parliament of Canada be drafted and published in the two official languages.

Sections 12 to 15 of the Official Languages Act dealt with the creation and management of "bilingual districts" in cases where less than 10% of the population spoke one of the official languages as a mother tongue (sec. 13). Sections 19 to 34 dealt with the role of the Official Languages Commissioner, whose duty was to ensure compliance with the act and investigate complaints from the general public. As for bilingual districts, they never materialized. There was an n attempt early on to have all of Quebec declared a "bilingual district," but when it met with indignation and protests in the province, the federal government thought it prudent to back down. The idea was then dropped.

The national policy of two official languages proved difficult to apply and had little impact on the daily lives of Canadians. It did have the advantage of guaranteeing services in French to minorities outside Quebec, forcing a certain number of federal civil servants to learn French. But the results were never very conclusive. For that matter, all official languages commissioners named by the federal government took turns denouncing the slowness in respecting the act, if not the outright refusal to do so. It is no surprise that the need was felt to pass a new law in 1988.

Constitution Act of 1982 and charter of rights and freedoms

In 1982, Canada adopted an additional piece of constitutional legislation: the 1882 Constitution Act. This act did not replace the constitutional texts than in use, including the Constitution Act of 1867, but rather added to them. This new constitution entrenched the Charter of Rights and Freedoms, and the circumstances under which it was adopted have been perceived by some as somewhat murky. The Constitution was approved by the nine majority-Anglophone provinces and by the federal government, but without the consent of Quebec, the only predominantly Francophone province. And yet, compared to the constitutional text of 1867, the Constitution Act of 1982 was highly innovative in linguistic matters. For instance, it provided a procedure for modifying language legislation depending on whether the change related to a provision affecting some provinces only, all provinces, or the federal government.

In matters of language, most of the constitutional provisions concern only the bilingualism of federal institutions and those of New Brunswick, with the exception of Section 14 (courts) and Section 23 (minority language education rights). Section 14 reads as follows:

A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

Sections 16 to 22 constitutionalize the provisions of the Official Languages Act of 1969 concerning the languages of the Federal Parliament, federal courts, and services offered by the central government; such is also the case for the Official Languages of New Brunswick Act of 1969:

Section 16

1) English and French are the official languages of Canada and have equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.

3) Nothing in this Charter limits the Authority of Parliament or a legislature to advance the equality of status or use of English and French.

Section 17

1) Has the right to use English or French in any debates or other proceedings of Parliament.

2) Everyone has the right to use English or French in any debate and other proceedings of the legislature of New Brunswick.

Section 18

1) The Statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.

2) The Statutes, records and journals of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.

Section 19

1) Either English or French may be used by any person in, or in any pleading in or process issuing from any court established by Parliament.

2) Either English or French may be used by any person in, or in any pleading in or process issuing from any court of New Brunswick.

Section 20

1) Any member of the public of Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where

a) There is significant demand for communications with and services from that office in such language; or

b) Due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

Section 21

Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada.

Section 22

Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.

In 1993, a constitutional amendment was passed by insertion of section 16.1 regarding New Brunswick:

Section 16.1

1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.

2) The role of the legislature and the government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection 1) is affirmed.

The Constitution enshrines the concept of the legal equality of languages in Parliament and in the federal government, but not for the country as a whole. Strictly speaking, Canada is not an officially bilingual country. It is a bilingual federal state, for, aside from the provisions relative to New Brunswick, the Constitution Act of 1982 deals only with areas under federal jurisdiction. Provinces, municipalities, and private bodies are not subject to institutional bilingualism. The federal government cannot invoke the Constitution to interfere in provincial language policies without the consent of the province. This was the case for New Brunswick, the only constitutionally bilingual province.

The sections cited deal only with the federal government, aside from the additional subsections that apply solely to New Brunswick, added at the request of that province. So obviously, the Constitution's language provisions bind only the Government of Canada, not the provincial governments (with the exception of New Brunswick).

Shortcomings

Desired linguistic equality has not been fully realized. This right to the "language of one's choice" is difficult to achieve everywhere, since, as numbers do not always justify it, active offerings in French (or in English in certain regions of Quebec) are often deficient, if not non-existent. It is easier to extend this right to symbols (eg, bilingual signage for federal buildings, currency, postage stamps) and to real services to the public.There are currently 55 bilingual sovereign States around the world. With the exception of Belgium, none of the 54 other States has successfully implemented an equality bilingualism between languages. The reason is obvious: it is difficult to grant equal rights to numerically unequal groups.

Conclusion

In Canada, the conception of language rights is to promote a symmetrical view of official languages; this vision assumes that Francophones and Anglophones are considered equal groups. On the one hand, there are "French-speaking Canadians, concentrated in Quebec but present in the rest of Canada", on the other hand, "English-speaking Canadians, concentrated in the rest of the country but also present in Quebec". As a result, Canada would have two majorities within which minorities are identified that need to be protected. The application of this principle consists in taking measures to protect only the francophone minorities in the English provinces and the Anglophone minority in Quebec. This concept of the two equal majorities makes it possible to better accept bilingualism in the nine Anglophone provinces. Such a language policy is based on the premise that Quebec's Francophones form a majority that does not need protection and that Anglophones constitute a minority that must be protected. But it is not English that is threatened in Canada, but French, including Quebec. From a legal point of view, according to the interpretation of the Supreme Court of Canada, there are no "Canadian" linguistic minorities, but only "provincial" linguistic minorities over which the federal government exercises very little jurisdiction If not through the Canadian Constitution.

Broad-based language policy in the provinces: New Brunswick, Ontario, and Quebec

Provincial autonomy being what it is, the various language policies of the provinces may seem like an ill-coordinated jumble. Canadian provinces are distinct legal entities whose policies may differ from each other’s. It’s as if there were one federal language policy (including federal territories) and ten provincial language policies.

Provincial autonomy being what it is, the various language policies of the provinces may seem like an ill-coordinated jumble. Canadian provinces are distinct legal entities whose policies may differ from each other’s. It’s as if there were one federal language policy (including federal territories) and ten provincial language policies.

Map of Canada showing the Broad-Based Provinces : New Brunswick, Ontario, Quebec

Nevertheless, although the language policies adopted in Canada by different governments are distinct and autonomous, they are still subject to certain provisions of the Canadian Constitution. Not only must the federal government and the provincial governments submit to the Canadian Constitution, but so must citizens and public and private concerns. This means that in language matters all provinces must submit to the provisions of the Constitution Act of 1982 with regard to school rights, that is to say, section 23. Furthermore, certain clauses concern only the federal government, while others deal only with the New Brunswick government (at its request).

Among the ten Canadian provinces, one can distinguish three different approaches:

1.Broad-based language policies dealing in principle with all aspects of society: legislation, justice, public services, education, etc.

2.Sector-based language policies dealing with education or law, for example

3.Non-interventionist policies whereby a Canadian province merely complies with constitutional constraints or decisions of the courts

A policy is considered broad-based when it concerns the principal spheres of social life. Moreover, this policy must be supported by interventionist measures, generally laws or regulations. In short, such a policy requires that a government anticipate difficulties and plan its interventions. Only three provinces fulfill these criteria: New Brunswick, Ontario, and Quebec.

Ontario and Quebec are officially unilingual, but this in no way prevents these provinces from granting extensive rights to their linguistic minority in almost all major walks of life. In fact, some sectors are officially bilingual, such as the legislature, the courts, government services or education. This is all to the credit of the provinces, but in practice, the rights of the linguistic minority are no more widespread in one (Ontario) than in the other (Quebec). Roughly speaking, one might say that the linguistic minorities of these three provinces enjoy relatively similar rights. Of course, there are differences, but the similarities are striking.

Sector-Based language policy in the provinces: Prince Edward Island, Nova Scotia and Manitoba

Provinces that have developed sector-based languages policies generally focus on a single aspect of the language in question, or no more than two or three. More specifically, this approach consists of adopting relatively detailed legislative measures in one, two, or three sectors as they relate to the use of minority languages. Education appears to be a popular sector in this regard, but certain policies address other areas such as legislation, justice, or government services.

flags of Manitoba, Nova Scotia, Prince Edward Island

As a rule, the provinces that adopt this approach have regulated problems as they have arisen, particularly in the wake of court rulings. Three provinces stand out in this regard: Manitoba, Nova Scotia and Prince Edward Island.

Linguistic policies of Non-Intervention: Alberta, British Columbia, Saskatchewan, and Newfoundland

A policy of non-intervention consists of adopting a laissez-faire approach, ignoring any problems that arise and allowing language situations to work themselves out according to the forces at play. Such policies are deliberate, planned choices that generally work to the benefit of the dominant or official language.

flags of Alberta, British Columbia, Saskatchewan, and Newfoundland

In principle, a non-interventionist policy is unwritten and unofficial, although the government can decide to state its intent, further its actions through administrative means, or even enact regulations, Orders in Council, or vague constitutional or legislative provisions. However, a non-interventionist government refrains from acting as arbitrator and is careful not to adopt specific legislative provisions. The principles of freedom of choice, tolerance, and the acceptance of differences are often invoked to justify such policies.

In practice, the term "non-interventionist policy" can be misleading, because a state or province may practice both intervention and non-intervention simultaneously, for example, by taking no action with regard to the official language but protecting minority languages, or, conversely, by promoting the official language while making no provision for minority languages.

In the Canadian context, non-interventionist policies generally consist of abiding by constitutional obligations and court rulings or orders. Instead of imposing a ban, as has been done in the past, a province merely has to grant the rights recognized by the Canadian Constitution or enforced by the court, generally a Court of Appeal or the Supreme Court of Canada. Technically, this amounts to non-intervention on the part of the province.

map of Canada showing the provinces that adapted the Linguistic Policies of Non-Intervention