Language Rights 2003-2004
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Foreword
This is a good time for taking stock, as we are celebrating the 35th anniversary of the adoption of the first Official Languages Act. The implementation of that legislation has transformed the linguistic landscape. In 1982, the Canadian Charter of Rights and Freedoms consolidated the progress made.
Since that time, the courts have played an essential part in interpreting the language rights guaranteed in the Constitution and in federal and provincial legislation. Not only have they helped to clarify the scope of the rights and obligations to which governments and their institutions are subject, but also in many cases they have been the guardians of the fundamental principles underlying language rights.
In the last two years, as illustrated by the judgments analysed in this report, there have been many new developments in the courts. Thus, they have had to rule on the right to education in the minority language, the Government of Canada’s obligations in providing services to the public and the rights of litigants to be heard by the courts in the official language of their choice. In most cases, the landmark judgment rendered by the Supreme Court in Beaulac has guided the courts in their interpretation of the rights in question.
The judgment rendered by the Supreme Court in Beaulac in 1999 was certainly a turning point in the way we view language rights. It resolved the difference between two schools of interpretation. The first favoured a restrictive interpretation of language rights, based on the fact that they result from a political compromise. The second, which the Court adopted, wished to see a liberal interpretation based on the purpose of the language rights. Noting that in all cases language rights should be interpreted "purposively, in a manner consistent with the preservation and development of official language communities in Canada", the Supreme Court opened the way to a more generous approach to language rights.
The judgment handed down by the Supreme Court more recently in Doucet-Boudreau is another landmark that will help to clarify the approach the courts must take in awarding just and appropriate remedies. The Court confirmed that courts have the power to devise novel solutions to ensure that language rights are effectively implemented. They can also order a non-compliant government to take the necessary positive action, especially where—as with obligations contained in section 23—the language obligations of governments depend on "number". The Supreme Court properly observed that "the affirmative promise contained in s. 23 of the Charter and the critical need for timely compliance will sometimes require courts to order affirmative remedies to guarantee that language rights are meaningfully, and therefore necessarily promptly, protected".
Of special note among the other judgments mentioned in this report are Donnie Doucet and Tremblay v. Town of Lakeshore. They raise the important and still unresolved question of the scope of the courts’ power to control governmental action.
In Donnie Doucet, the Federal Court had to determine the constitutionality of the Official Languages Regulations defining the obligation of the RCMP to provide services based on the "significant demand" test rather than in accordance with the "nature of the office" test. The Court concluded that Parliament had given the Governor in Council the choice of deciding which institutions would be covered by the concept of "nature of the office", and it was not for the judiciary to make any ruling on that choice.
In Tremblay, also known as "SOS Église", a decision of the town council of the Town of Lakeshore was the subject of an application for judicial review because it had not taken the unwritten constitutional principle of minority protection into account. Although the case could be decided on other grounds, the Ontario Superior Court noted that there were limits to discretion and it had to be exercised in accordance with the fundamental values and principles of Canadian society, including the respect of the linguistic duality.
The question of judicial review of the government’s discretion was also discussed by the Federal Court in Raîche. A challenge was made to a decision of the New Brunswick Electoral Boundaries Commission, in particular because it had not taken into account commitment mentioned in Part VII regarding the development of the Francophone community. Ruling on the legal scope of section 41 of the Official Languages Act, the Federal Court held that it was only declaratory and imposed no duty on federal institutions. In Forum des Maires, the Federal Court of Appeal came to the same conclusion and also noted that the way in which that commitment was given effect could not be the subject of judicial review. The Supreme Court has agreed to hear the latter case in order to rule on this fundamental point.
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. Additionally, the federal Parliament will have an opportunity to exercise its leadership in this regard, since a bill aimed at removing, once and for all, the ambiguities in the interpretation of Part VII of the Act has been tabled.
Finally, we should not forget that the judgments analysed in this report are the result of actions by individuals and communities who have devoted time and money to defending their linguistic and cultural heritage. These judgments also confirm that governments have a responsibility to take positive steps to smooth the long road that must still be travelled in order to attain equal status and use of English and French.
Though reference to the courts may sometimes be necessary, even inevitable, it is to be hoped that the direction indicated by court judgments will encourage political leaders to give more attention to dialogue with individuals. True equality of English and French can best be achieved by this kind of leadership and joint effort.
Dyane Adam
Commissioner of Official Languages
