RIGHTS FOR A COMMUNITY

1. RIGHTS FOR A COMMUNITY Pierre Foucher Professeur Faculté de droit Université de Moncton

2. FACTS • English is NOT threatened as a language in Quebec • There is a perception among some French speaking Quebeckers that French is in jeopardy and still has to be reinforced by law • Statistics are contradictory as to the place of French and English in Quebec • Anglophone COMMUNITIES are showing signs of declining vitality

3. LANGUAGE RIGHTS • Identity and language • Federalism and language • Human rights and language • Official languages • Language policies • Implementation

4. IDENTITY AND LANGUAGE • The SCOC has recognized the link between language, collective and individual identities • The SCOC has recognized that language rights have a dual nature : an individual right, but for the benefit of the communities • Some political scientists have tried to explain that collective language rights may mean curtailing individual human rights

5. HUMAN RIGHTS AND LANGUAGE • Many court challenges originating from Quebec have tried to invoke individual human rights to challenge Quebec’s linguistic policy • Courts are usually quick to accept that imposing a language and /or forbidding any other, will curtail freedom of expression or represent a form of discrimination • BUT individual human rights can be « subject to reasonable limits ».

6. Reasonable limits • It is reasonable for Quebec to impose the use of French in commercial signs, but unreasonable to forbid the use of any other language • Individual human rights cannot be used to curtail linguistic rights flowing from a policy of official languages

7. STRATEGY • Move away from individual human rights to vindicate a freedom of choice of language • Reason and argue in terms of collective rights and community protection

8. FEDERALISM AND LANGUAGE • Federalism means that jurisdiction is shared between two levels of government, each being sovereign in its sphere • In Canada courts have decreed that language is a divided subject matter : each level has jurisdiction over language, as accessory to its main jurisdiction • Subject to constitutional rights

9. CONSEQUENCE OF FEDERALISM ON LANGUAGE POLICIES • Federal and provincial language regimes will vary. Provincial language regimes will vary from one province to another • Quebec would like to have exclusive jurisdiction over language within its territory • The federal government is using its spending power to enhance and promote linguistic duality throughout the country

10. SUGGESTED STRATEGY • Devolution of powers from feds to provinces : linguistic clauses, floor of rights • Curtailing the federal spending power : not with regard to promotion of linguistic communities • Federal-provincial coordination and inter-provincial coordination mechanism: encourage and use

11. MODELS OF LANGUAGE POLICIES • Territorial model : assign one and only one language to a territory; impose its use; forbid the use of any other in the public sphere and civil society. Advantage : simple and efficient; inconvenient : not much room for minority rights • Personality model : grant individual language rights, transportable throughout the territory. Advantage : can lead to minority rights. Inconvenient : difficult to implement and does not stop assimilation

12. LANGUAGE POLICIES IN CANADA • The Quebec government has been pursuing an avowed policy of making French the common language throughout the whole territory • New Brunswick has recognized official bilingualism in public services, but also equality between the Acadian and Anglophone communities • Ontario offers French language public services in designated areas

13. LANGUAGE POLICIES IN CANADA (#2) • Nova Scotia, PEI, are moving towards offering some public services in French and recognizing some acadian institutions • The three territories proclaim to follow the federal policy of official bilingualism, to which they have added the protection of aboriginal languages • The federal government is pursuing a policy of official bilingualism

14. SUGGESTED STRATEGY • Accept a measure of territoriality for any language policy • Strive for linguistically homogeneous institutions offering services in both languages

15. OFFICIAL BILINGUALISM : SCOPE AND EXTENT • Official bilingualism does not mean that everyone has to become bilingual, nor that every business or organization has to offer services in both official languages • It means that the two languages have equal status, rights and privileges in their use in government institutions, or in private organizations acting on behalf of government

16. SOURCE OF LANGUAGE RIGHTS • In Canada, legal source for language rights are numerous: • the Constitution, • federal legislation, • provincial legislation, • policies, • implied rights

17. COLLECTIVE ASPECT OF LANGUAGE RIGHTS • Object of language rights : to preserve and maintain a linguistic community • To allow the community to express its culture • To ensure equal access to public services to a minority community

18. INDIVIDUAL ASPECT OF LANGUAGE RIGHTS • A person must still be free to choose to which linguistic community she wants to belong • Language rights are meaningless without a community : language rights are there for the whole community • Whereas language laws are there as a policy tool

19. OFFICIAL BILINGUALISM AND LANGUAGE RIGHTS • Language rights entail positive obligations for the state : the state must take steps to ensure institutions are in place to enable people to exercize their language rights • Language rights in Quebec : laws, access to justice, public service, education, immigration, medias • Collective rights : political representation, institutions, public defenders

20. LAWS AND PARLIAMENT • Laws have to be adopted in both languages • Either English or French may be used in the federal Parliament and in the National Assembly • Same rule in New Brunswick (Charter), Manitoba (1870 Constitution), Ontario (prov. law), territories (territorial laws) • NS, PEI, Sask : right to use, translation of some laws • Extend bilingualism to all Canadian legislatures • Entrench in the Constitution (Victoria 1971)

21. LANGUAGE OF CRIMINAL TRIALS • An accused person can have a criminal trial in her official language of choice • Judges and prosecutors must speak the language of trial • Evidence is given in any language but trnslated in the language of trial • Entrench in the Charter

22. LANGUAGE OF CIVIL TRIALS • There is a right to use one’s language but not the right to a trial in one’s official language of choice nor a right to be heard by a bilingual judge • Should be recognized by legislation (as in NB, Ontario, 3 territories, federal courts) • Should be entrenched in the Charter

23. GOVERNMENT SERVICES • There is a right to federal services where numbers warrant (threshold is low) • There is a limited right to provincial communications in English for physical persons • French is the language of Qc administration • Could leave more room for English in designated offices

24. A NEW FEDERAL OBLIGATION • Part VII OLA : Federal institutions have a legal duty to promote duality and help linguistic communities to develop (by using federal spending power) • Subject to not encroaching on provincial power and jurisdiction • CAUTION : not to be watered down further

25. EDUCATION • Very contentious in Quebec • S. 23 of the Charter grants classes of persons the right of access to English education • English education should not be confused with immersion, nor presented as a way to learn English, but as what it has been described as by the courts : a mean to transmit a language and culture • Community is the beneficiary

26. ACCESS TO ENGLISH PUBLIC SCHOOLS • Where numbers warrant • Normally 3 categories : mother tongue clause (23(1)a); Canada clause (23(1)b); linguistic continuity clause (23(2)) • 2 categories in Quebec : Canada clause + linguistic continuity • Reopen s. 23? Exchange 23(2) for mother tongue clause? Abolish the numbers test? • Francophones in Qc cannot gain access to English schooling : s. 23 is for minorities.

27. MANAGEMENT AND CONTROL OF EDUCATION • Fundamental aspect of s. 23 • School boards cannot be abolished without replacing them with some sort of governance structure for the English minorities • Exclusive powers over : hiring and firing; programs AS LINKED TO LANGUAGE AND CULTURE; spending money devoted to minority language education • Does not include taxation powers, but government duty to finance properly

28. DESIGNATED INSTITUTIONS • Mechanism to authorize service delivery in English • Treshold is high in CFL compared to other jurisdictions • Possibilities should be enlarged to adapt to modern forms of government interventions : institutions acting « on behalf of » government, or designate more institutions • Law should impose a justification for any proposal to undo a designation (Montfort)

29. IMMIGRATION • Federal immigration act has now an objective of reinforcing Canada’s linguistic duality • Agreements with Quebec : devolution to the province • Should have some concern for immigration from English-speaking countries : proportionality?

30. MEDIAS AND CULTURAL INDUSTRY • Cultural industry : north american market, very heathy in English • Medias : right to local medias; community radios; local cultural institutions • Support Canadian and Quebec’s efforts with UNESCO convention on cultural diversity and a possible convention on linguistic diversity

31. PRIVATE SECTOR • Quebec has strong legislation to enhance and promote French, while permitting use of other languages; will not change • Federal legislation either impose bilingualism in some circumstances, or leave the choice • Could federal undertakings be subject to OLA?

32. POLITICAL REPRESENTATION • Senate : elected senate? Change the nomination process? • House of Commons : effect of redistricting? • National Assembly : electoral districts? Proportional representation? • Federal government in Qc : Part VI OLA • Provincial government : have equivalent • Other institutions ?

33. implementation • Federal, NB, Ontario, NWT : Commissionner • Provincial : NADA. Only recourse : courts • Have a linguistic ombudsman; or a Commissioner for services in English language; or a Qc Council for minorities with a special mandate towards the anglophone community • Court challenges program

34. NEW RIGHTS? • Right to homogeneous institutions? • An English language services act for Quebec? • Right to civil trials and access to justice in English • Right to fair representation within civil service • Ombudsman for the community

35. CONCLUSION • Language rights are political as much as legal • Quebec government’s approval is important • Courts have recognized the place of linguistic duality as a founding principle for Canada • In times of tension, some leaders have risen above partizanship (Manitoba 1983-1984; New-Brunswick 1984; Saskatchewan & Alberta 1988; Quebec 1988).

36. LANGUAGE RIGHTS AND POLITICS • Language rights are used by politicians for partisan purposes • Should remain a non partisan issue • Nation-building, part of what defines Canada • Part of our identity

37. QUESTIONS AND COMMENTS • Delicate balance to be achieved between the fact that English retains its attraction force, rendering protection of French necessary; to balance with the fact that Anglo-quebeckers are one of the national minorities, but not a minority within Canada.