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          The Prime Minister of Canada, the Right Honourable Jean Chrétien, believes in balance. It is through a balanced approach, in all areas, that he has restored to Canada the momentum it needs to rise to the challenges of the century we enter. Balance between market forces and the role of the state, balance between the role of the federal government and that of the provinces, balance as well between political power and judicial power.

          And there are few fields in which the balance between political will and judicial recourse is more important to preserve than the area that brings us together today, that of the promotion of official languages. Canada’s two official languages must be linked to rights. But these rights must also be exercised in concrete terms, and this is very difficult to do without strong political will. This is what I intend to illustrate today, and I thank you for this opportunity to do so before such a prestigious assembly as the Ontario Bar Association and the Association des juristes d’expression française de l’Ontario.

          We are living in an exciting period in terms of the advancement of language rights, a period where decisions rendered following litigation often yield important victories for minority official-language communities.

          In the face of such success, it is understandable that many voices have been raised in support of ‘ratcheting’, a concept whereby every policy or service targeting a linguistic minority becomes a kind of acquired right. This concept has recently been rejected by the courts. The ratcheting thesis would have disturbed the needed balance between the field of political initiative and that of legal guarantees. Such an abrupt shift in this balance would have been prejudicial to the cause of bilingualism and official-language minorities.

          I would like to explain today why the Government of Canada, while resolute in its desire to serve bilingualism and official-language minorities with strength and determination, and while committed to supporting recourse to the courts, if well-founded, would not support the ratcheting argument and sees its rejection by the courts as a positive development.

1. The revolution in language rights

          It is quite understandable that the champions of Canadian bilingualism place such hope on the continual strengthening of court remedy that some of them go so far as to subscribe to a concept such as ratcheting. Our freedoms are fragile, to use the expression of the great Canadian legal scholar 
Thomas Berger¹; they must be protected by rights firmly entrenched in our Constitution and our laws. The dangers to which inadequate legal protection can expose a minority are painfully fixed in the memories of Franco-Ontarians.

          At the time of Confederation, the only explicit linguistic provision contained in the British North America Act was section 133, which made English and French the official languages of Parliament and the federal courts. Similarly, English and French were the official languages of the legislature and courts of Quebec.

          Section 133 provided no protection for minority-language schools. That protection might have come from section 93, but the courts ruled that this section pertained to the right to denominational schools, Catholic or Protestant, and not to language rights. Francophone minorities invoked section 93 in vain to guarantee public funding for their schools, be they Franco-Manitobans, or even Franco-Ontarians when subjected to Regulation 17, of grievous memory.

          We can only imagine what the situation of French in Canada might be like today if section 133 had been accompanied at the time of Confederation by the framework of language rights we now enjoy: the Official Languages Act of 1969 and of 1988, the linguistic provisions added to the Criminal Code in 1978, the Canadian Charter of Rights and Freedoms of 1982, not to mention some 400 federal, provincial and territorial laws, including the French Language Services Act in Ontario, which pertain in whole or in part to the use of languages within government institutions.

          On the basis of these recognized rights, the courts have been able to play a positive role, and we now have a body of case law that serves the cause of Canadian bilingualism. Before the 1970s, one finds very few important decisions in the area of bilingualism. Starting in the late 1970s, the courts have been more active.

          The turning point first came about in the area of legislative bilingualism, when the Supreme Court of Canada opted without exception for a generous interpretation. In the Blaikie case in 1979 and 1981², it extended the scope of section 133 by ruling that laws must be passed in both official languages and by expanding the definition of what constitutes a law and a court to include administrative regulations and tribunals and paragovernmental bodies. And in the Reference Re Manitoba Language Rights³ in 1985, the Court stated that the purpose of section 23 of the Manitoba Act, 1870 was to "ensure full and equal access to the legislatures, the laws and the courts for Francophones and Anglophones alike."

          In the field of education, since the coming into force of the Constitution Act, 1982, notably with section 23 of the Canadian Charter of Rights and Freedoms, which pertains to minority-language education rights, the Supreme Court of Canada has made a liberal and dynamic interpretation of language rights. In the very first case where the Court was asked to rule on section 23, A.G. of Quebec v. Quebec Association of Protestant School Boards⁴, in 1984, it stated that language rights must not be interpreted solely on the basis of the wording of the provisions, but also in accordance with the intention of the legislator, the context in which they were adopted and, in the case of section 23 in particular, the wrong for which a remedy was sought.

          In 1990, in the Mahe⁵ case, the Court stated that the purpose of section 23 "is to preserve and promote the two official languages of Canada, and their respective cultures, by ensuring that each language flourishes, as far as possible, in provinces where it is not spoken by the majority."  History reveals, the Court tells us, that Section 23 is designed to correct, on a national scale, the progressive erosion of minority official-language groups and to give effect to the concept of the "equal partnership" of the two official-language groups in the context of education.

          In 2000, the Supreme Court of Canada rendered its decision in the Arsenault-Cameron⁶ case. The Court affirmed that section 23 is based on the premise that substantive equality requires that official-language minorities be treated differently, if necessary, according to their particular circumstances and needs, in order to provide a standard of education equivalent to that of the official-language majority.

          In other areas, the interpretation of the courts has been less liberal and less dynamic until recently. But to all indications, since the Beaulac⁷ decision in 1999, the dynamic, liberal approach has been extended to these areas as well. The Supreme Court used this case, which pertained to sections 530 and 530.1 of the Criminal Code, to rule that language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official-language communities in Canada. The Court also confirmed the existence of the principle of substantive equality of the two official languages, a principle that applies to all existing constitutional or legislative measures. The importance of this principle lies in the conclusion that language rights that are institutionally based require government action in order to be implemented, and thus create obligations on the state.

          When we look at how far we have come, we can only conclude that the late 20th century gave rise to a real revolution in language rights in Canada.

2. The importance of preserving the balance between the area of political initiative and that of legal guarantees

          Again last December, language rights benefited from the decisions in the Montfort case in the health care field and in Charlebois in the municipal field. Court remedy will remain an essential lever for official-language communities.

          The Government will continue to analyse carefully any situation where its intervention before the courts is likely to be helpful, especially when such intervention has the effect of supporting claims by linguistic minorities, as it did notably in the Mahe, Arsenault-Cameron, Beaulac and Montfort cases. On the financial side, Canada’s Court Challenges Program, which has the objective of providing financial assistance for test cases, will continue to ease the financial burden often entailed by such cases.

          And yet it would be much more desirable for government and legislators to show leadership and henceforth themselves adopt, without being driven by the courts, the dynamic and liberal approach that is clearly indicated in case law. Recourse to the courts is very demanding on citizens and communities, in terms of costs and energy. When considering time alone, it is noteworthy that, for example, the Arsenault-Cameron case lasted 10 years: Ms. Arsenault’s own children were unable to benefit from access to French school, as they had gone on to university by the time the Supreme Court rendered its judgment.

          Legal battles consume resources, wear down litigants, and sometimes create divisions within communities, as some members feel that the time and energy devoted to these legal challenges should instead be used to establish other projects for the community.

          Until governments themselves assume their constitutional and legal responsibilities for Canadian bilingualism, citizens and communities will be justified in turning to the courts. At the same time, it is important that court remedy be used advisedly. It must stimulate and encourage governments to move in the right direction, and do nothing that would dissuade them from doing so.

          In this sense, the so-called ratcheting concept would be counterproductive. It would undoubtedly have a chilling effect on governments. Whenever a government was called on to establish a new service for its linguistic minority – a university faculty, a cultural centre and so on – it would be afraid that this new public spending would automatically become an untouchable right which would subsequently be impossible to reverse, regardless of evolving needs and priorities.

          Since ratcheting applies only to the linguistic minority, it would limit the government’s freedom of action only when it is acting for the benefit of that minority. Ratcheting thus paradoxically encourages the government to favour the majority language and to do for the minority only the bare minimum required by law.

          Thus, by wanting to extend legal guarantees too much, one ends up defeating political initiative.

          As I said, the Government of Canada sees as a positive development that the courts have rejected this ratcheting concept. In the Hôpital Montfort and Quebec municipal amalgamations⁸ cases, they ruled that subsection 16(3) of the Charter, which states that "Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French," does not endorse the ratcheting principle. In the Montfort case, the Ontario Court of Appeal notes that subsection 16(3) does not attribute new rights, but "reflects an aspirational element of advancement toward substantive equality."⁹ Subsection 16(3) is thus fully compatible with the flexibility governments need to advance language rights in accordance with their priorities.

          Indeed, I would like to talk about those very priorities. It is more important than ever to make the right decisions, in the context in which linguistic communities are evolving at the beginning of this new century. Setting priorities means choosing between a number of desirable measures. We do not have the resources to immediately do everything that would be ideally required. These priorities have to be set very carefully. There is a serious risk of letting them fluctuate randomly as cases make their way through the courts.

          Take the example of federal budget discussions last fall. The process was difficult, because the Government had few additional resources available in this period of economic slowdown and because a large portion of those resources had to be devoted to security measures, for reasons we all know. When I appeared before the Finance Minister I was informed that before considering any new investment for official languages, the costs entailed in implementing the Contraventions Act following the Blais decision in 2001 had to be taken into account. Without downplaying the importance for Franco-Ontarians who drive too fast of receiving bilingual speeding tickets, how many of you would have made that a budget priority from among all the needs there are to be filled?

          I will not say which initiatives we have had to abandon for the current fiscal year in order to fund these bilingual tickets, but I will say that it is fortunate that we were able nevertheless to release in the last budget, for example, an additional $5 million a year for a program that is very useful for promoting bilingualism: youth language exchanges. Exchange programs, however crucial they may be to the future of Canadian bilingualism, cannot be mandated by a legal obligation. They will always depend upon the will and initiative of governments.

          Political initiative must be preserved, because there are limits to what the law alone can achieve to advance the priorities that confront us. The Société franco-manitobaine recently published an excellent document in that respect, which I encourage you to read, entitled "Agrandir l’espace francophone"¹⁰, or ‘Expanding the Francophone Space’[translation]. Effectively gauging the progress that the strengthening of language rights has enabled it to achieve, the Société pointed out that the biggest challenge it faces pertains to a reality that the law is powerless to regulate: the choice of a spouse. More and more young Franco-Manitobans are marrying Anglophones.

          All indications are that such a trend will become more pronounced in the future. In the past, linguistic isolation and religious barriers were obstacles to such inter-linguistic marriages. When the Anglophone spouse is unilingual, only 13% of children in Canadian Francophone communities outside of Quebec learn French. When he or she is bilingual, that proportion increases to 47%. On that basis, the authors recommend a whole series of tangible measures: hospitality, assistance for parents, inter-linguistic exchanges, and so on, which have very little to do with the courts but which call on community initiative and political will.

          These priorities, which have been well identified by the Société franco-manitobaine, are valid for all official-language communities. They will be at the core of the action plan the Government of Canada is now preparing.

Conclusion

          In 1982, there were no Francophone schools in half of the provinces. Today, 150,000 Francophones outside Quebec attend some 679 schools providing education in their language. The right of Francophone minorities to manage their own schools has today been generally exercised in all provinces.

          Until the mid-1970s, Francophones were under-represented within the federal public service. They now make up 27% of the work force when including all organizations subject to the Official Languages Act. They are a strong presence, including in senior management positions.

          If such progress has been possible, it is because we have been able to strike and maintain the proper balance between the field of political initiative and that of legal guarantees. It is this balance that must be preserved to better address the challenges facing us at the beginning of this century.

          While supporting the legal guarantees acquired so far, and extending them whenever it is right and proper to do so, we need to preserve governments’ capacity for initiative, their ability to set effective priorities in consultation with communities.

          The type of assimilation currently threatening the French cause has less to do with past legal battles than with today’s lifestyle choices: a lifestyle which leads to a person marrying the one they love even if their religion is different, to breaking ties with the extended family, to moving to large, cosmopolitan cities rather than staying in the community, to having fewer children, and being increasingly confronted with the importance of English in this era of globalization.

          Ladies and gentlemen, as jurists I know you will agree with me, as a political scientist, that legal claim will not be enough. We also need to mobilize all of the vitality of communities, all of the good will of the country’s Francophones and Francophiles, and all of governments’ capacity for initiative. All governments, especially the Government of Canada, must show political leadership. You can count on the leadership of the government of Jean Chrétien, on the Prime Minister’s determination to respect the commitment he made in the last Throne Speech to support official-language communities and the French culture and language, and to mobilize the efforts of all to ensure that all Canadians can interact with the Government of Canada in the official language of their choice.

NOTES

1. Thomas Berger. Fragile Freedoms, Human Rights and Dissent in Canada. Toronto-Vancouver: Clarke, Irwin & Company Limited, 1981, 298 pages.
   
   
2. Attorney General of Quebec v. Blaikie et al, [1979] 2 S.C.R. 1016.
   Attorney General of Quebec v. Blaikie et al, [1981] 2 S.C.R. 312.
   
   
3. Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721, p. 744.
   
   
4. A.G. of Quebec v. Quebec Association of Protestant School Boards [1984] 2. S.C.R. 66
   
   
5. Mahe v. Alberta, [1990] 1 S.C.R. 342
   
   
6. Arsenault-Cameron et al. v. the Government of Prince Edward Island, [2000] 1 S.C.R.3
   .
   
7. R.v. Beaulac [1999] 1 S.C.R. 768.
   
   
8. Westmount et al v. A.G. of Quebec, October 16, 2001, (leave to appeal to the Supreme Court refused on December 7, 2001).
   
   
9. Lalonde v. Commission de restructuration des services de santé.(December 7, 2001), Court of Appeal for Ontario.  
   
   
10. Société franco-manitobaine. De génération en génération : agrandir l’espace francophone au Manitoba. October 2001, 11 pages.