Regina, February 19, 2010
The Role of Western Canada in the Evolution of Canada’s Linguistic Duality
Notes for an address at the Association des juristes d’expression française
de la Saskatchewan conference
‘‘The Caron Case: The Status of French in Western Canada”
Graham Fraser – Commissioner of Official Languages
Check against delivery
Ladies and gentlemen,
I would like to thank the conference organizers for bringing together this fine group of researchers, jurists, scholars and members of Saskatchewan’s Francophone and Métis communities to discuss the issues that have been raised in the course of the Caron case. I am aware of the recent ruling in this case and I share your disappointment that many of the conclusions reached by the trial judge were overruled. However, I am convinced that the dialogue you will be having today and tomorrow will help to enrich our common understanding of the legal, historical and sociological importance of French in Western Canada, and of the issues brought up by the Caron case. The outcome of this conference will no doubt fuel the legal debate that will continue in the court of appeal.
Yesterday, I also took advantage of my trip to Regina to release a study my office has conducted on the vitality of Saskatchewan’s rural Francophone communities. The results of this study are proof of the energy and innovation that the members of these communities have shown in ensuring their development and vitality. As I reflected on what I would say today, I came to recognize the extent to which the vitality of Saskatchewan’s Francophone communities—and of Francophone communities throughout the West—will be affected by the issues raised by the Caron case. This adds even more weight to the exchanges and discussions that will take place during this conference.
We can’t talk about language rights in Canada—especially in Western Canada—without talking about our history. And what really counts in the Caron case, regardless of the final outcome, is the fact that it has triggered major research and real debate on the history of language rights in Canada.
Whatever we may think about the very different rulings rendered by the two judges—the first one being the trial judge and the other representing the Alberta Court of Queen’s Bench—the fact remains that they took history seriously.
And when we look at the history of Canada’s linguistic duality, we see that language rights were introduced and have gradually progressed in large part thanks to what I would qualify as an ongoing three-way ‘‘conversation’’ between the courts; federal, provincial, and territorial legislators; and the Canadian population.
The dialogue that led to the adoption of a language regime in Canada was largely instigated by the language crisis of the 1960s. Faced with the rise of nationalism in Quebec, the federal government recognized the need to address Francophone language rights. In 1963, the Royal Commission on Bilingualism and Biculturalism was created. Among its recommendations, the Commission specified how to define, recognize and enforce respect for language rights.
As a follow up to the Commission’s report, Parliament introduced the first Official Languages Act in 1969.
The passing of this act, which I am responsible for upholding, illustrates the outcome of a conversation in which legislation-based language rights were developed by Parliament in response to a specific social and political dynamic. In the decades that have passed since this legislative framework was first introduced, courts have been called upon to define the extent of these rights in the context of remedies or referrals. The Canadian population contributed to this process by asking legislators to grant or recognize their language rights, and by claiming these rights in court.
Parliament, along with the provinces and territories, has also contributed to the process. I am referring, in particular, to the impact of adopting the Charterin 1982. When the Charter was adopted, Parliament amended the Official Languages Act, so that it would fully reflect the obligations that were now entrenched in the Charter. In addition, several provincial governments introduced language regimes that—to varying degrees—were aimed at meeting official language minority communities’ need for access to public services.
As for the courts, they were called upon—on a number of occasions—to interpret the language rights and obligations set out in the Charter. For example, the Supreme Court of Canada has made several important rulings with respect to language rights that helped to enforce the federal government’s official languages obligations. The court system has made an important contribution through broad and liberal interpretations of the language rights outlined in the Charter. The courts also contributed to this conversation by coming up with often innovative remedial measures to support the vitality of official language communities.
Francophone and Anglophone minority communities have also played an important role, most notably by filing numerous legal challenges in order to obtain recognition of the language rights set forth in the Charter. Community groups, associations and individuals have invested a great deal of time, energy and financial resources to follow through on courses of action that would make great strides in language rights. These individuals and community groups have also been participating in the dialogue by contributing to the development of their communities and implementing the mechanisms necessary for their vitality.
Another legal advance resulting from this conversation is the addition, in 2005, of binding obligations under Part VII of the Official Languages Act. This amendment was no doubt the result of initiatives by a great parliamentarian, the late former senator Jean-Robert Gauthier; however, it was also a step toward recognizing recent jurisprudence. When the bill was passed, the Supreme Court of Canada was preparing to hear an appeal by the Forum des maires, based on a ruling by the Federal Court of Appeal that Parliament must determine whether Part VII of the Act was an enforceable obligation. Parliament in turn responded by strengthening the Act and giving official language communities a means of legal recourse for defending their rights. Despite this progress, I would say that we can expect to find ourselves before the courts once again. They will be called upon to interpret and define the obligations stated in this part of the Act.
Every stakeholder has played, and will continue to play, an essential role in defining and defending language rights in Canada. However, I recognize that, in some Canadian provinces and territories, ‘‘conversations’’ along the lines of what I have just described might seem difficult to imagine.
The history of Canada’s western provinces shows that advances in language rights have not always been easy, and that they stem from the courage and perseverance of individuals and communities who share a deep conviction about the value and role of their official language. Still, advances that can be attributed to legal recourse by individuals or groups have not only benefited Francophone communities in the West, but also official language minority communities elsewhere in Canada.
Indeed, taking matters to the courts has sometimes had the effect of halting exchanges between citizens and the state. However, legislators have too often been merely reactive or defensive, only improving their language policy when forced to do so by the courts.
When Father Mercure challenged the constitutional validity of Saskatchewan laws by claiming that language rights were protected under the Northwest Territories Act, he entered a battle that is still being fought today. The Caron case is proof of that.
In the Mercure case, the courts, through the Supreme Court of Canada, were called upon to define and interpret the nature of the language rights of Francophones living in Western Canada. Ruling that Francophones in Manitoba were entitled to the language rights entrenched in the Constitution, but that those living in Alberta and Saskatchewan were not, the Court passed the ball to the legislators. Following this ruling, provincial legislators reacted in different ways.
The actions that the province of Manitoba could take were largely dictated by the Supreme Court. Legislators in this province complied. In Alberta, however, legislators introduced the Languages Act in order to ensure that its laws, ordinances and regulations remained valid, even though they had been adopted, printed and published in English only. In Saskatchewan, provincial legislators reacted differently. They introduced and published certain laws and statutory instruments in English and in French. They also granted their citizens certain language rights in terms of access to justice.
The Caron case takes us back to an important part of our past. It is important to revisit the guarantees that were given to Francophones and Métis under the Northwest Territories Act at the time of Confederation. All too often, these guarantees were forgotten. This case also exemplifies that when legislators do not take sufficient concrete measures to address their citizens’ linguistic claims, the citizens will turn to the courts. This is what happened when Mr. Caron opposed a measure taken by the Albertan legislators and claimed his language rights. Now, the courts—in other words, the Alberta Court of Queen’s Bench and, most likely, the Supreme Court of Canada—will once again be called upon to define and interpret the language rights of Francophones living in Western Canada.
Legal battles that have been won by Francophone communities in the West have not come without a cost. Individuals and groups who have fought for their rights in the court system have done so at a very high personal and financial cost. Time and again, major legal recourses dealing with official languages issues pit members of the community, who lack financial and human resources, against a State whose resources are seemingly endless.
As long as communities need to turn to the court system to gain full recognition of their language rights, they should have the resources they need to help see them through their long and complex constitutional battles. That is why I recently submitted a request that I be considered as an intervener in the Caron case, which is now being heard by the Supreme Court of Canada. This course of action is based on the need to cover interim costs of individuals who are fighting language battles of such public importance.
I want you to know that I support you in your efforts to have both legislators and courts recognize the constitutional status of French in Western Canada. As Mr. Caron continues his battle in the courts, I will continue to encourage provinces and territories to work with the federal government and official language communities, and to actively participate in the conversation on official languages. Once this happens, they will be able to avoid further legal battles of this nature.
Thank you for your attention.
