Moncton, May 4, 2010
Notes for an address at the Symposium on the Contribution of the
Honourable Michel Bastarache
Graham Fraser - Commissioner of Official Languages
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I am honoured to be participating in this symposium on the contribution of Michel Bastarache. I am neither a lawyer nor a specialist in his areas of expertise, so I thought I could say a few words about Michel Bastarache, the author.
My interest in Michel Bastarache’s writings began a year-and-a-half ago. In October 2008, I had to give a luncheon talk at a forum on language rights in Manitoba and that morning, I was listening to Justice Bastarache’s presentation along with my colleague, François Boileau, Ontario’s French Language Services Commissioner.
In his presentation, Justice Bastarache clearly explained the fundamentals of his thinking: “The more rights are unstable, the more insecurity is present, and this insecurity is experienced as a feeling of being excluded, marginalized [translation],”1 he said. Later he added: “Why, then, do we need a law? Isn’t it enough to have services [translation]?”2
He answered these questions by stating that:
First of all, we want recognition, status. Then we want a legal framework to access public services. We’re not seeking tolerance; we want inclusion. We don’t want acts of generosity toward marginal individuals who are asking for exceptional services. We want to be treated as a normal, ordinary clientele [translation].3
Later, he said: “You don’t need to ban the use of French to threaten it. Even a bilingual school is a threat. We don’t have the luxury of sitting back and doing nothing [translation].”4
Then he added:
The use of French is a social necessity that has a very significant impact. It drives collective memory, and influences social relations. It changes political conduct, involvement in public affairs and the economy. They say that we are now living in “a world with a culture of rights”. That needs to be more than just a slogan [translation].5
If we look at his writings, the message is simple, direct, clear and lucid. It contains no jargon and no legal terms.
François and I looked at each other, and we both had the same thought: What could we possibly say after such a powerful presentation, which had moved us with its passion, clarity and finesse? I made a note to myself that in the future, I would make sure to never give a speech right after Justice Bastarache. I could perhaps introduce him, but never follow him. Too nerve-wracking.
The only thing that was lacking in his presentation—and it was a big thing—was the use of the first person. When he talked about the Mahé case, he should have added “that I pleaded,” and when he mentioned the Arsenault-Cameron and Beaulac decisions, he should have said “which I authored.”
Whenever we speak of linguistic jurisprudence in Canada, we automatically end up talking about the writings of Michel Bastarache—a law professor, author, lawyer and judge.
According to his colleagues, he writes quickly, with confidence. If you ask me, I’d say that he writes with originality, precision and passion.
Sometimes, he writes with astonishing candour, as in his comment in Honda Canada Inc. v. Keays: “What matters here is that there was no basis for the judge’s decision on the facts.”6 So, tell us what you really think, Justice Bastarache!
I’ve noticed that we can expect him to reveal an original and exceptional idea whenever he writes “selon moi,” “à mon avis” or “in my opinion.”
While reading the work of Michel Bastarache, I noticed three fundamental elements that stand out in his writing.
First off, Justice Bastarache identifies as a minority. He often quotes his father, who used to say: “We’ll never stop being a minority.”7 This idea clearly comes across in everything that he writes. We can see it in his sensitivity, his vision of the relationship between individual rights and community needs, and his awareness of the fragility of linguistic minorities.
It also affected his personal experience. As he has already explained, he became personally interested in language rights in the late 1960s, during controversies in Moncton. Here is how he describes his experience of the events:
Some students put a pig’s head on the doorstep of Leonard Jones, the mayor of the city. Criminal charges were laid against them. On the day of the trial, the presiding judge refused to proceed in French. The Court of Appeal confirmed that Acadians were not entitled to justice in their own language, referring to the incorporation into our law of an Act of the English Parliament which dates back to 1650 and was designed to put an end to pleadings being filed in the courts in Latin. This time, it was too much. The Acadian population mobilized to demand that an official languages act be enacted [translation].8
It was in this context that Michel Bastarache became aware of the notion of language rights. He said:
This account explains why I think all language legislation refers to a socio-linguistic context and must be interpreted accordingly. The scope of the right to one’s language cannot be analysed in the abstract, in a purely formal way. At the federal level, language legislation exists only to support the use of a minority language, French, across Canada. It also takes into account the particular context regarding the use of English in Quebec [translation].9
Sometimes it is useful to take a look at what a judge has said before he rose to the bench. I read some of Justice Bastarache’s comments in 1988 when he spoke as an expert witness to the Legislative Committee on Bill C-72, An Act respecting the status and use of the official languages of Canada.
Justice Bastarache made it clear that it is naïve not to think that language laws will be disturbing for some people.
Some people think that the official languages policy can be implemented without disturbing anyone in the system. That is not possible, he said. I do not think that this committee or the government should give in to this idea. If you want a real official languages policy that is implemented effectively, some people will be inconvenienced. They will not lose their rights, but some people will lose privileges, such as the absolute privilege unilingual Anglophones enjoyed before the Official Languages Act was implemented of occupying any position in the public service of Canada. That was not a right, but a privilege, and the persons who enjoyed that privilege will be inconvenienced. But those persons represent a very small percentage of Canadians [translation].10
That comment was relevant in 1988—and it is just as relevant today.
Shortly after he was appointed to the Supreme Court in 1997, the Court heard the reference regarding the secession of Quebec. In its decision, the Court defined four principles as the pillars of the Canadian Constitution: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities.
The justices also concluded that “a constitution may seek to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority.”11
Marc Cousineau, professor of Constitutional Law at the University of Ottawa, told me that “there was clearly some Bastarache influence at hand.” He could see that the appointment of Justice Bastarache, known as an ardent defender of minority rights, to the Supreme Court, would mark a new era in Court decisions on matters pertaining to language rights.12
How right he was! We saw it in the Beaulac and Arsenault-Cameron decisions, and many others.
This minority sensibility emerged not only in his decisions on language rights. Consider his decision in Dunmore v. Ontario (Attorney General). The case considers a challenge to the exclusion of agricultural workers from Ontario’s labour relations regime. In paragraph 16, he notes that “individuals associate not simply because there is strength in numbers, but because communities can embody objectives that individuals cannot.”13
He then expands on this theme.
“As I see it, the very notion of ‘association’ recognizes the qualitative differences between individuals and collectivities,” he writes. “It recognizes that the press differs qualitatively from the journalist, the language community from the language speaker, the union from the worker. In all cases, the community assumes a life of its own and develops needs and priorities that differ from those of its individual members. Thus, for example, a language community cannot be nurtured if the law protects only the individual’s right to speak.”14
He argued that the law must recognize that certain union activities may be central to freedom of association even if they are inconceivable on a personal level. But this does not mean that every activity is protected or that all groups deserve constitutional protection.
“It is to say, simply, that certain collective activities must be recognized if the freedom to form and maintain an association is to have any meaning.”15
Secondly, Michel Bastarache is concerned with the precise meaning of words—in both languages. He began his career as a legal translator, and his most recent book, published two years ago, just before he retired from the Supreme Court, is entitled The Law of Bilingual Interpretation. In the preface, Dean Nicholas Kasirer jokingly ponders: How would Justice Bastarache translate the title of his own book?
We can also see evidence of his experience as a legal translator in the article that he penned in 1991 with Andréa Ouellet, on the legal scope of Part VII of the Official Languages Act of Canada.
To determine whether the 1988 Act was enforceable, Justice Bastarache and his colleague wrote an eight-page article on the meaning of the expression “is committed to,” then compared this meaning with that of the word “undertaking.” Finally, they analyzed the fine distinctions in meaning between these two expressions and the French words s’engager and engagement.
After this arduous task, Michel Bastarache concluded, in explicit terms: “One thing is clear, however, in both the English and French versions [of 1988 Act]: A commitment looks towards the future. It is not designed to enforce what has already been established, but rather to ‘promote’ and therefore build on it [translation].”16
The debate over whether the legislator intended to make Part VII enforceable or not became a moot point once the Official Languages Act was amended in December 2005, but Justice Bastarache’s analysis remains revealing and relevant: his minority perspective helped him to see the Act as a tool for promotion and social change rather than a neutral measure with no impact.
This sense of precision about the meaning of words emerged in his concurring reasons in the case of Canadian Western Bank v. Alberta (2007). Justice Bastarache agreed with the decision written by his colleagues Binnie and LeBel, in which they upheld a decision by the Alberta Court of Appeal and concluded that the banks have to comply with both federal and provincial laws when they enter a provincially regulated line of business, such as insurance. (The banks argued they were immune from provincial regulations.)
But he disagreed with his fellow judges’ reasoning. The solution, he argued, hinged on the meaning of one word.
“I concluded that the best way to address this concern was to clarify the meaning of ‘affects’ in the ‘affects a vital part’ test to require a sufficiently severe impact by the impugned provincial law on the core of a federal head of legislative power in order to justify a finding of immunity,” he writes.17
We see this same preoccupation with the meaning of words in another case that had nothing to do with official languages or minority rights. In Honda Canada Inc. v. Keays, Justice Bastarache considered whether an employer was being unfair in challenging an employee’s claim regarding a medical condition. The trial judge had concluded that the employee had been “set up” to fail the medical test and that the doctor had taken a “hardball” attitude.
The use of these two terms clearly provoked Justice Bastarache.
“First, I think it is important to note that there is no evidence that Dr. Brennan took on a ‘hardball’ attitude,” he writes. “A careful analysis of the record shows that Dr. Brennan simply could not, with the information that was provided to him, accept a diagnosis of [Chronic Fatigue Syndrome] without first meeting Keays.”18
Like a classical composer returning to a major chord sequence or a songwriter to a guitar riff, he comes back again and again to the phrase “hardball”—and entitles the section “No ‘Set-Up’; no ‘Hardball.’”
(Justice Bastarache wrote the decision in English, and the French translation does not match the colloquial punch of “set-up” and “hardball”; Ni leurre ni intransigeance simply doesn’t have the same impact.)
Thirdly, Michel Bastarache is the product of our two legal traditions: civil law and common law. His extensive knowledge of both systems makes him both Cartesian and, dare I say, Newtonian; highly theoretical and deeply pragmatic; a practical idealist. It is an approach based on a theoretical and intellectual framework, tempered with a good dose of common sense.
As Dean Nicholas Kasirer has written, “Michel Bastarache seems to evince multiple identities in law, and have the necessary dexterity of mind, to read and understand the English and French [texts] at once, and the common law and civil law in unison.”
Calling him “a model of…cross-pollination,” Justice Kasirer concludes “Because who else, in Canada, is so trans-systematically a civilian and a common lawyer, and so dialogically sensitive to French and English in law, all at once?”19
Michel Bastarache does not seem to share this vision. Or, perhaps even better, he transcends it.
In a speech he gave in 2000 on bijuralism in Canada, he said that he did not consider it correct to speak of a “common law” or a “civil law” per se: “Rather, in my opinion, there is one legal family in Canada which contains the common law systems, and another legal family which contains the civil law systems.”20
As expected, he followed this statement with a clear and concise description of both traditions: the first based on an inductive process and an accumulation of experiences, which constitute jurisprudence, and the other, based on the primacy of written laws, which constitute a codified law.
According to Bastarache, language is an integral element in both systems: “One integral issue relating to Canada’s bijuralism is that of ’language.’ It is very important for me to stress that I consider language to play a crucial role in the evolution of law. Linguistic duality has been a constant concern in our country.”21
He therefore emphasizes how important it is for justices to be able to function in both languages. In his opinion, the situation has greatly improved. But he also downplays the progress made:
To attain a high level of interaction between Canada’s two legal systems, a high degree of individual bilingualism must be attained within the legal profession. Indeed, the history of Canadian bijuralism supposes an ability to function in the two languages. At present, there is still reason to fear that we are less than well equipped to meet this challenge.22
As always, his analysis is balanced and considers the complexity of things. He points out that there are actually four legal languages in Canada, and federal legislation must be not only bilingual, but also bijural, since it speaks to four different groups of lawyers: common law Anglophones, common law Francophones, civil law Anglophones and civil law Francophones.
He concludes by observing that there are not enough points of contact between the two systems, “which is an obstacle to the harmonious development of law in Canada.”23
How often have we seen Michel Bastarache, the music lover, use the word “harmonious” to qualify contacts or relationships between minority and majority language groups in Canada?
“I consider it to be so important to make an effort to bring the legal community of Quebec closer to the communities of the common law provinces and territories,” he says. “A sense of belonging and a desire to make a positive original contribution to the development of the system must be instilled if we want to benefit fully from the extraordinary treasure of ‘bijuralism’ in Canada.”24
Michel Bastarache himself is a point of contact, an essential link, an indispensable interpreter of linguistic duality in all of its complexity. He will leave his imprint on the rights of minorities far beyond our borders. His duties as a judge on the Kenya Constitutional Court will enable him to continue to write judgments just as inspiring and remarkable as the ones that have shaped the country’s language rights over the past 10 years.
I hope that this symposium will give us the opportunity to fully benefit from the extraordinary treasure of Michel Bastarache’s writings.
Thank you, Michel.
1 Michel Bastarache, Comment se donner plus de droits en matière de droits linguistiques? (French only), notes for an address at the Forum on Language Rights in Manitoba, Saint-Boniface, October 18, 2008, p. 3. on-line version
(http://fft.franco-nord.com/documents/Allocution_de_Me_Michel_Bastarache_au_Forum_sur_
les_droits_linguistiques_18_oct_2008.pdf) consulted April 28, 2010.
2 Ibid.
3 Ibid.
4 Ibid.
5 Ibid.
6 Honda Canada Inc. v. Keays (2008) 2 S.C.R. 362 2008 SCC 39, para 62.
7 Michel Bastarache, ‘‘Discours de clôture/Closing Address’’ in Braën, Foucher and Le Bouthillier, dir. Languages, Constitutionalism and Minorities / Langues, constitutionnalisme et minorités, Markham, LexisNexis Butterworths, 2006, p. 701.
8 Michel Bastarache, Protection des langues et protection des minorités linguistiques : deux objectifs distincts faisant appel à des moyens différents, address at the Symposium for the 10th Anniversary of the Official Languages Act of 1988, Ottawa, September 17, 1998.
9 Ibid.
10 House of Commons, Legislative Committee on C-72, An Act respecting the status and use of the official languages of Canada, Minutes of Proceedings, 2nd Session, 33rd Parliament, 28 April 1988, p. 7:32.
11 Reference re Secession of Quebec, [1998] 2 S.C.R. 217, para. 74.
12 Graham Fraser, ‘‘Les retombées de l’avis de la Cour suprême’’, Le Devoir, September 10, 1998.
13 Dunmore v. Ontario (Attorney General), (2001) 3 S.C. R. 1016, 2001 SCC94, para 16.
14 Ibid, para 17.
15 Ibid.
16 Michel Bastarache and Andréa Ouellet, La portée juridique de la partie VII de la Loi sur les langues officielles du Canada, Ottawa, publisher not available, September 1991, p. 32.
17 Canadian Western Bank v. Alberta (2007) 2 S.C.R.; para 111.
18 Honda Canada Inc. v. Keays, (2008) 2. S.C. R. 362, 2008, SCC 39; para 43.
19 Nicholas Kasirer, “Foreword,” in Michel Bastarache, The Law of Bilingual Interpretation, Markham, LexisNexis Canada Inc., 2008, p. ix.
20 Michel Bastarache, Bijuralism and Harmonization: Genesis, at a lunch-and-learn workshop on bijuralism and judicial authority at the Department of Justice, Ottawa, February 4, 2000.
21 Ibid.
22 Ibid.
23 Ibid.
24 Ibid.
