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ARCHIVED - Building a Just Society:
A Retrospective of Canadian Rights and Freedoms

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The Honourable Mr. Justice Michel Bastarache

Establishing Official Languages in the Canadian Charter of Rights and Freedoms

Translated by Library and Archives Canada

The basic principles underlying the constitutional provisions of 1867 "inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based… Observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a 'living tree'" (Reference re secession of Quebec, [1998] 2 S.C.R. 217, sections 49 and 52). One of these principles is the protection of minorities. The Supreme Court of Canada has stated that this principle "both explains and transcends the minority rights that are specifically guaranteed in the constitutional text" (section 114). This is critical to understanding the place of language rights in Canada's constitutional framework and the contribution of the Canadian Charter of Rights and Freedoms in this regard since it was adopted in 1982.

Photograph of the Supreme Court building under construction, Ottawa, August 11, 1939
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Supreme Court building under construction, Ottawa, August 11, 1939

The power struggles between Canada's two main language groups have influenced Canadian society more than any other social factor. The opinions of these groups have shaped our national political life since the early days of Confederation, and have played a major role in our constitutional history. Canada is a bilingual country as a result of a political compromise reached in 1867 that is highly imperfect and inequitable with regard to rights. Section 133 of the Constitution Act, 1867, imposed institutional bilingualism on Parliament and the federal government, and initially on one province only -- Quebec. The Catholic minorities believed that the guarantee of denominational schools would safeguard French-language education; in fact, this rather limited guarantee was an illusion. French-language education was abolished, at least officially, everywhere outside Quebec. Manitoba was declared bilingual when it became a province in 1870, but this lasted only 20 years. It took the Forest case in 1979 and the Reference re Manitoba Language Rights in 1985 to re-establish the constitutional order. The political compromise of 1867 was also weakened by the lack of official bilingualism in New Brunswick, where more than one-third of the population was French-speaking, and the fact that the Northwest Territories, the Yukon Territory, Saskatchewan and Alberta did not comply with linguistic requirements, the latter two having inherited the requirements of the federal territories when they were created in 1905. In addition, the Quebec National Assembly adopted the Charter of the French Language in 1977, which ran contrary to section 133 of the Constitution Act, 1867. By 1981, it was clear that the Canadian political compromise regarding official languages had to be strengthened in the name of national unity. That was to become one of the most important objectives of the 1982 Canadian Charter of Rights and Freedoms. Its significance cannot be underestimated: it restored language rights to the same status as fundamental rights, making them civil and political rather than social rights.

Cover of a book edited by Michel Bastarache entitled LES DROITS LINGUISTIQUES AU CANADA, 1986

Cover of a book edited by Michel Bastarache entitled Les droits linguistiques au Canada, 1986
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Cover of a book by Michael E. Manley-Casimir and Terri A. Sussel entitled COURTS IN THE CLASSROOM: EDUCATION AND THE CHARTER OF RIGHTS AND FREEDOMS, 1986

Cover of a book by Michael E. Manley-Casimir and Terri A. Sussel entitled Courts in the Classroom: Education and the Charter of Rights and Freedoms, 1986
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Sections 16 to 23 of the Charter confirmed that the two official languages have equal status in Canada, extended constitutional requirements to New Brunswick and, most notably, established minority language educational rights in each province and territory. Sections 24(1) and 52 of the Constitution Act, 1982, also established an effective remedy for enforcement of Charter rights. In 2003, the Supreme Court interpreted this remedy in a very broad sense in Doucet-Boudreau. The Charter has had a dramatic impact when considered in terms of the changes that official language minorities have seen over the past 20 years. Education systems have changed in all the provinces and territories; the number of French-language schools outside Quebec has increased by 47 percent; dual-stream and bilingual schools have disappeared; and the distinction between minority-language and French-immersion schools has taken root everywhere. There has also been an increase in the development of educational programs for minority groups. To get to this stage, however, we have had to turn language into a major legal issue.

Postage stamp (1975) depicting a statue entitled JUSTITIA, in commemoration of the centennial of the Supreme Court of Canada, 1875-1975

Postage stamp (1975) depicting a statue entitled Justitia, in commemoration of the centennial of the Supreme Court of Canada, 1875-1975
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Before 1982, the Jones judgment of 1975 confirmed that section 133 established a minimum requirement that could be improved upon by standard legislation. It should be remembered that the first federal and provincial language laws go back only as far as 1969. The 1979 Forest judgment declared that abolishing the status of the French language in Manitoba in 1890 was unconstitutional. In 1979, the Blaikie judgment invalidated sections 7 to 13 of the Quebec Charter of the French Language, and stated that Quebec lacked the jurisdiction to abolish its obligations ensuing from section 133 of the Constitution Act. Following 1982, the Supreme Court affirmed in the 1985 Reference re Manitoba Language Rights that linguistic requirements were mandatory and that any legislation passed in English only is unconstitutional, but would be deemed temporarily valid for several years to enable Manitoba to re-enact its legislation simultaneously in both official languages. In the 1988 Mercure case, the Supreme Court ruled that Saskatchewan and Alberta are still governed by section 110 of the North-West Territories Act, which echoes the requirements in section 133 of the Constitution Act, 1867, but that these requirements are not entrenched in the Constitution. The two provinces subsequently passed language laws to evade most of their previous requirements. In the Ford case of 1988, the Supreme Court declared that a Quebec statute which imposed unilingual French signage was invalid due to the linguistic aspect of freedom of expression. In the Beaulac case of 1999, the Supreme Court specified the rules of interpretation that apply to official languages and confirmed the collective nature of rights with regard to law. In its 1990 judgment in the Mahé case, the Supreme Court interpreted section 23 of the Charter concerning minority official language instruction and affirmed the right of minority language representatives to manage and control the educational institutions that their children attended. In 2000, with regard to the Arsenault-Cameron case, the Supreme Court reaffirmed the collective nature of educational rights and their remedial purpose, and limited the government's right to restrict the management and establishment of educational facilities by representatives of the province's linguistic minority.

Cover of a book entitled L'ASSOCIATION: DU CONTRÔLE À LA LIBERTÉ?, 2001

Cover of a book entitled L'association: du contrôle à la liberté?, 2001
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Cover of a book by Alan C. Cairns entitled DISRUPTIONS: CONSTITUTIONAL STRUGGLES, FROM THE CHARTER TO MEECH LAKE, 1991

Cover of a book by Alan C. Cairns entitled Disruptions: Constitutional Struggles, from the Charter to Meech Lake, 1991
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The history of language rights in Canada shows us that, in a modern democracy, the concept of majority rule does not apply to language; instead, language reflects citizens' shared values and their understanding of the requirements of a diverse society. The message of the Canadian Charter of Rights and Freedoms is that respect and equality are at the core of Canada's system of common values. We therefore have a commitment to promote the linguistic and cultural safeguards that minority groups require and that history and demographics have shown to be necessary.
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Further Research

The Honourable Mr. Justice Michel Bastarache was appointed to the New Brunswick Court of Appeal in 1995, and to the Supreme Court of Canada on September 30, 1997.

"Michel Bastarache." Supreme Court of Canada.
www.scc-csc.gc.ca/court-cour/ju/bastarache/index-eng.asp
(accessed October 24, 2006).