A Brief History of the Evolution of Language Rights Before the Supreme Court of Canada

The year 2009 marks the fortieth anniversary of the first Official Languages Act. Since passage of the 1969 Act, the Supreme Court of Canada has released a number of landmark language rights decisions which demonstrate an important progression in the Court's approach to the subject.

This article provides a summary of that progression. It proceeds in three sections, corresponding to three eras in the evolution of language rights: 1969-1987; 1987-1999; and 1999-2009.

• 1. 1969-1987

  This era was marked by a number of important language rights decisions by the Supreme Court of Canada. The Court's record during this era, however, proved controversial.

  In a series of cases between 1975 and 1985, the Court took a forceful stance on language rights when interpreting the Constitution Act, 1867. The first of these cases, Jones v. Attorney General of New Brunswick et al.¹, involved a challenge to the constitutionality of the Official Languages Act itself, on the basis that it fell outside the jurisdiction of the federal government. In a unanimous decision, the Court upheld the Official Languages Act under section 91 of the Constitution Act, 1867, as falling within the federal residual power of "peace, order and good government". In so doing, the Court rejected the argument that section 133 of the Constitution Act, 1867 imposed a "ceiling" on federal official languages legislation; rather, the Court confirmed that section 133 established a minimum threshold that could be improved upon by federal legislation.

  Four years later, language rights were at issue in two cases before the Court -A.G. (Quebec) v. Blaikie et al.², and Attorney General of Manitoba v. Forest³. Blaikie involved a constitutional challenge to sections 7 to 13 of the Quebec Charter of the French Language, which required all provincial laws to be passed in French only. In a unanimous decision, the Court invalidated these sections, stating that Quebec lacked the jurisdiction to abolish its own obligations under section 133 of the Constitution Act, 1867. Forest concerned the 1890 abolition of Manitoba's French language obligations under the Manitoba Act, 1870. The Court unanimously ruled that this was unconstitutional, and could not be supported under section 92(1) of the Constitution Act, 1867.

  The Court was most assertive in Reference re Manitoba Language Rights⁴, which again addressed Manitoba's French language obligations. Here, the Court unanimously ruled that the linguistic requirements in section 133 of the Constitution Act, 1867, and in the Manitoba Act, 1870, were mandatory, and that any legislation passed in English only was unconstitutional. The impact was profound: Manitoba was required to re-enact all of its legislation in both official languages. The Court also set the following premium upon the value of language rights [at p. 729]:

  The importance of language rights is grounded in the essential role that language plays in human nature, development and dignity. It is through language that we are able to form concepts, to structure and order the world around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.

  Already, though, the Court was beginning to express a countervailing, narrower approach towards language rights. This position suggested that language rights should be interpreted with "restraint" - that is, as a strictly defined series of rights resulting from political compromise, rather than as fundamental rights deserving broad and purposive interpretation.

  The 1984 decision Attorney General of Quebec v. Quebec Association of Protestant School Boards et al.⁵ provided an initial expression of the restrictive approach. In its result, the decision marked a victory for advocates of minority language rights - the Court invalidated provisions in Quebec's Charter of the French language that violated section 23 of the Charter of Rights and Freedoms. Still, in its reasoning, the Court described section 23 rights as a constitutional idiosyncrasy. The restrictive approach was elaborated in a trilogy of decisions beginning in 1986. Bilodeau v. Attorney General of Manitoba⁶ and MacDonald v. City of Montreal⁷ concerned the issuance of unilingual speeding tickets in Manitoba and Quebec, respectively, and whether this violated section 23 of the Manitoba Act, 1870 or section 133 of the Constitution Act, 1867. The majority of the Court avoided a purposive approach to language rights, and instead interpreted these sections on their strict terms. By this interpretation, the State was not required to use both languages in court processes and documents, and had no duty to use the opposing party's own official language.

  The third case -Société des Acadiens v. Association of Parents⁸- most clearly expressed the restrictive approach. Here, the issue was whether section 19(2) of the Charter, which allows individuals to use either English or French before the courts, included the right to be understood directly by the judge in that language, without the use of an interpreter. The majority ruled that language rights under section 19(2) were different from most other rights, as they were the result of a political compromise. Speaking for the majority, Beetz J. concluded as follows [at para. 65]:

  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.

  At this point, then, the standing of language rights in Canada appeared somewhat equivocal. Notwithstanding their entrenchment in the Constitution, these rights were not being interpreted in the same broad and purposive manner as other rights.

• 2. 1987-1999

  This era was marked by significant evolution in the Court's approach, away from its narrow and restrictive approach as expressed in its 1986 decision of Société des Acadiens v. Association of Parents⁹, and towards a broad and purposive interpretation.

  Initial signs of such movement may be seen in the 1988 decision of R. v. Mercure¹⁰. Here, a Saskatchewan resident was charged with speeding under the Saskatchewan Vehicles Act, but sought a declaration that section 110 of the Northwest Territories Act, 1867, applied, requiring Saskatchewan's laws to be passed in French and court proceedings to be offered in French. Speaking for the majority, LaForest J. ruled that that the Northwest Territories Act did continue to apply, but was not entrenched in the constitution and therefore could be amended or abrogated by a specific legislative instrument. LaForest J. further endorsed the majority decision in Société des Acadiens¹¹, concerning the absence of a constitutional right to be understood in one's own language by the Courts without the aid of an interpreter. However, LaForest J. expressed the view that language rights are a well-known species of human rights and, as such, belong to the category of fundamental rights that must be respected by the courts. Language rights, he concluded, "are basic to the continued viability of the nation."

  Two years later, the Court distanced itself further. Mahe v. Alberta¹² involved an action against the government of Alberta under section 23 of the Charter, for failing to institute a francophone school board. In a unanimous decision, the Court held that, where numbers warranted, the section 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. Speaking for the Court, Dickson J. accepted that "… careful interpretation of [section 23] is wise … "; however, "… 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."

  In 1998, the Courts moved further, in Reference re Secession of Quebec¹³. Identifying the respect of minorities as one of the nation's four key constitutional principles, the Court addressed the argument raised in Société des Acadiens that language rights, being the result of a political compromise, must be interpreted restrictively [at para. 80]:

  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.

  Finally, in 1999, the Court moved most authoritatively to reject its prior restrictive approach. R. v. Beaulac¹⁴ involved the right of an accused, under section 530 of the Criminal Code, to be tried by a judge and jury who speak both official languages. Writing for the majority, Justice Bastarache reiterated the Court's reasoning from the Reference re Secession, and refuted the approach taken in Société des Acadiens [at para.  25]:

  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.

  With a new purposive approach to language rights, the Court was equipped to deal with a surge in language litigation arising from 1999 and onwards.

• 3. 1999-2009

  Since 1999, the Court has extended the scope of language rights, and has dealt with a dramatic increase in language rights cases. To illustrate this upsurge, between 1992 and the Beaulac case in 1999, the Court had dealt with no language rights cases; since then, the Court has rendered nearly a dozen language rights decisions. In that time, the Court has confirmed and expanded upon its broad and purposive approach to language rights, in areas ranging from minority language education rights, to investigations under the Official Languages Act, to the provision of services by the federal government under Part IV of the Official Languages Act.

  In Arsenault-Cameron v. Prince Edward Island¹⁵, the Court considered Francophone families living in Summerside, P.E.I., and their right, under section 23 of the Charter, to local access to minority language education opportunities. The Court upheld a broad interpretation of section 23, stating that it "… 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." Taking into account the historical and social context, the Court concluded that the Minister of Education had failed "to give proper weight to the preservation of minority language culture."

  Two years later, in Lavigne v. Office of the Commissioner of Official Languages¹⁶, the Court reviewed the private nature of investigations conducted under the Official Languages Act. In so doing, it reconfirmed the importance of the Official Languages Act as a quasi-constitutional statute [at para. 23]:

  The importance of these objectives and of the constitutional values embodied in the Official Languages Act gives the latter a special status in the Canadian legal framework. Its quasi-constitutional status has been recognized by the Canadian courts. […] The constitutional roots of that Act, and its crucial role in relation to bilingualism, justify that interpretation.

  Minority language education issues arose again in Doucet-Boudreau v. Nova Scotia (Minister of Education)¹⁷, where the majority of the Supreme Court examined a delay by the Nova Scotia Minister of Education in building minority language school facilities. The Court approved creative approaches for enforcing section 23 of the Charter, on the basis that section 23 was always meant to be an enforceable right. Section 23, they wrote, has a "remedial nature... designed to correct past injustices not only by halting the progressive erosion of minority official language cultures across Canada, but also by actively promoting their flourishing."

  In 2005, the Court reemphasized a creative approach to the interpretation of minority education rights, in Solski (Tutor of) v. Quebec (Attorney General)¹⁸. Here, the Court dealt with provisions of Quebec's Charter of the French Language, which provide that a child of a Canadian citizen may attend a public English school provided that child has received "the major part" of his or her elementary or secondary instruction in English in Canada. The Quebec government had interpreted this section in a mathematical fashion, adding the amount of time spent by the child in English instruction, and calculating whether it constituted the majority of the child's education. The Court rejected that approach and ruled that, in order to comply with section 23 of the Charter, the notion of &"major part&"

  Most recently, in Desrochers v. Canada (Industry)¹⁹, the Court was asked to examine whether the provision of French language services to the minority language community in North Simcoe, Ontario, violated section 20 of the Charter or Part IV of the Official Languages Act. Based on the facts at hand, the Court did not find any such violation. The Court found, however, that the principle of equality may require, in some circumstances and for some types of services, that federal institutions provide access to services that are adapted to the specific needs of the linguistic minority. In other words, linguistic equality in government services is not necessarily defined in terms of uniform treatment, but must be defined in light of the nature and purpose of the service in question.

  In sum, the present trend of the Court is towards an open and flexible approach to the interpretation of language rights, particularly in the area of minority education rights.

• [1] [1975] 2 S.C.R. 182
• [2] [1979] 2 S.C.R. 1016
• [3] [1979] 2 S.C.R. 1032
• [4] [1985] 1 S.C.R. 721
• [5] [1984] 2 S.C.R. 66
• [6] [1986] 1 S.C.R. 449
• [7] [1986] 1 S.C.R. 460
• [8] [1986] 1 S.C.R. 549
• [9] Id.
• [10] [1988] 1 S.C.R. 234
• [11] V. supra, at note 8.
• [12] [1990] 1 S.C.R. 342
• [13] [1998] 2 S.C.R. 217
• [14] [1999] 1 S.C.R. 768
• [15] [2000] 1 S.C.R. 3
• [16] [2002] 2 S.C.R. 773
• [17] [2003] 3 S.C.R. 3
• [18] [2005] 1 S.C.R. 201
• [19] 2009 SCC 8