Language Rights 2001-2002
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Acknowledgments
The Commissioner would like to acknowledge the important contribution of Richard Goreham who wrote the text of the Report.
© Minister of Public Works and Government Services Canada 2003
Cat. No. SF31-34/2002
ISBN : 0-662-67119-8
Foreword
Our courts have played an important role in clarifying the meaning and scope of language rights in Canada, some of which date from the time of Confederation. While this process is far from over, we reached a noteworthy moment in 2002, namely the twentieth anniversary of the adoption of the Canadian Charter of Rights and Freedoms. I say noteworthy, because within the sweep of those twenty years more language rights cases were heard by our courts than in all the preceding decades leading back to 1867. Indeed, few would contest the proposition that the advent of the Charter provided a new and important impetus to the role of the judiciary in both interpreting language rights and ensuring their proper respect and implementation.
The set of interpretive rules that guide our understanding of what language rights mean and how they should be applied owes much to the Supreme Court of Canada. Recent developments in Supreme Court jurisprudence include rulings of the Court that reinforce and elaborate upon the principle of equality of the two official languages. This principle set out explicitly in section 16 of the Charter, has been found to underpin the original constitutional language guarantees applicable to various legislatures, statutory enactments and the courts. The Supreme Court has also determined that the principle of linguistic equality has substantive effects giving rise to positive State obligations to provide the institutional means to implement language rights effectively (Beaulac decision).
Equality means more of course than just treating everyone exactly the same. In this regard, the Supreme Court has stressed that a proper understanding of official language equality may require differential treatment where factual realities impose unique burdens upon the minority. In the area of education, for example, equality so understood obliges government to provide whatever resources and institutional framework are necessary to ensure that minority language education is substantively equivalent to that of the majority (Arsenault-Cameron decision).
The importance of positive government action to implement language rights is clearly reflected in many of the decisions reviewed in this Report. Only by remaining alert to the needs of minority official language communities will governments be able to contribute, as they must, to their development and vitality. At times, significant policy initiatives emerge as an immediate consequence of successful court action, as happened in New Brunswick following a court judgment invalidating the unilingual operation of the city of Moncton (Charlebois decision). Not only did the government of New Brunswick accept the decision and effectively waive any right of appeal, it also undertook to review in its entirety the provincial Official Languages Act. The resultant changes in the form of a new Official Languages Act went far beyond the particulars of the original court decision. To ensure compliance with the new Act, the government of New Brunswick has created the position of Commissioner of Official Languages, the forth such position in Canada. This is the type of government initiative that seeks to achieve a greater degree substantive equality.
Remaining attentive to the challenges faced by minority official language communities is clearly necessary to fully respect the unwritten constitutional principle of the protection of minorities. The Ontario Court of Appeal decision in Montfort, regarding Ontario's only French-speaking community teaching hospital, aptly illustrates that administrative decisions taken without consideration of the impact on minority language communities are constitutionally flawed. Montfort Hospital has an important role to play in sustaining the health and vitality of Franco-Ontarian communities. As the court ruled, that role must be fully assessed and given appropriate weight in decisions relevant to the reorganization of hospitals in the province. In accepting the verdict of the Ontario Court of Appeal, the government of Ontario acted in an appropriate and responsible manner. It also signaled that the needs of French-speaking communities in the province must be seriously and adequately assessed in determining public policies.
The importance of schools to the vitality of minority official language communities is reflected here, as in past reports, by the number of decisions reviewed. Whether the issues highlighted in the various cases concern administrative rules governing access to minority official language education or the need for effective court remedies to enforce existing rights, it is abundantly clear that barriers to full implementation of section 23 of the Charter seriously compromise the continued health and development of minority communities. Our courts have often stressed that section 23 rights are remedial in nature and meant to correct past injustices. They have therefore recognized that innovative remedies should be developed that go beyond a mere declaration that section 23 has been breached. As reviewed in this Report, the role of our courts in supervising the implementation of such remedies is an important issue now in the process of being resolved by the Supreme Court of Canada (Doucet-Boudreau case).
The number of decisions reviewed in this Report testifies to the continued importance of our courts in ensuring language rights are better understood and fully implemented. As numerous judgments have stressed, past and current injustices require effective remedies now. But finding solutions to persistent inequalities also involves the active participation of governments, through the allocation of sufficient resources and the maintenance and development of key institutional frameworks. The initiatives of federal, provincial and territorial governments, when combined with the efforts of many associations that promote language rights in areas such as our system of justice, in education, health, economic development and communications, as well as the commitment of individual citizens, provide us with the means to meet our collective responsibility to achieve substantive linguistic equality.
Dyane Adam
Commissioner of Official Languages
