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"Language rights in
Canada: a
symmetrical and asymmetrical application"
Notes for an address
by the Honourable Stéphane Dion,
President of the Privy Council and
Minister of Intergovernmental Affairs
Speech delivered at the
Symposium on Language Rights
Law Faculty
Université de Moncton
Moncton, New Brunswick
February 15, 2002
Check against delivery
The title of today’s symposium – "Language rights in Canada: a
symmetrical or asymmetrical application?" – reflects one of the most
fundamental questions of life in society: what is equality?
For some, the asymmetrical treatment of rights is synonymous with inequality: it
means that some citizens will have less, that they will be "less
equal."
For others, it is the symmetrical treatment that is the source of inequality: by
giving the same thing to everyone, regardless of needs, the strong are made
stronger and the weak weaker.
For my part, I feel that this contradiction between symmetry and asymmetry is
quite reconcilable in practice. We need a symmetrical approach, for there are
universal rights tied to the human condition that must be granted to all without
exception; we also need an asymmetrical approach, for justice does not mean
offering one and all exactly the same thing regardless of the needs of each.
The term that best expresses what we need to aspire to is de Tocqueville’s
notion of equal consideration: all citizens have the right to be considered with
the same respect. The best way to achieve this is to start from the principle
that rights ought to be symmetrical unless the circumstances call for
asymmetrical treatment for reasons of fairness.
Allow me to examine with you how this notion of equal consideration can be
applied to the linguistic realities of Canada. I will do so from three angles:
by examining the issue first from the sociological viewpoint, then from the
legal viewpoint, and finally from that of the Government of Canada.
1. The asymmetry of languages in Canada
For practical reasons, a country cannot grant official status to all languages.
A legal asymmetry must be created between the official language or languages and
those that are not. In Canada, although some Aboriginal languages have special
status, and although our multicultural population comprises a very rich
linguistic diversity, English and French are our two official languages.
In this context where two languages are official, Canadians find themselves in
four different situations:
a) Anglophones outside
Quebec are in a triple majority. They are a majority within their province,
within their country, and their language dominates the continent. It has a
global influence like no other has ever had, not even Latin in Antiquity. They
have no need for special linguistic protection.
b) Francophones in
Quebec form a clear majority within their province, but find themselves, along
with other Francophones, in a minority within Canada, and are, so to speak, no
more than a drop in an Anglophone ocean, when considering the proximity of the
American giant. They feel the pressure of English, which exerts a strong
attraction, particularly among immigrants.
c) Anglophones in
Quebec speak the language of the majority in Canada and the continent, but are
in a minority within their province, in their day-to-day lives. They also
experience different situations depending on where they live, for example, in
Montreal, the Eastern Townships or the Gaspé Peninsula.
d) Francophones living
outside Quebec are in a triple minority linguistic situation: within their
province, within their country and on the continent. This is a condition they
all share, above and beyond very real differences of context. For example,
Francophones in New Brunswick are alone in forming one third of their province’s
population, while Francophones in the other provinces make up no more than 5%
of the population. Francophones in Manitoba are concentrated geographically in
a way that those in Saskatchewan are not. The situation of Francophones in the
Ottawa region is different from that of Francophones in Northern Ontario. But
these very real differences in no way alter the fact that this triple minority
condition of Francophones in all these provinces and territories exposes them
to assimilation in the absence of counter-measures.
So these are the four situations experienced by Canadians, which risk dividing
them in accordance with their own linguistic interests. The social cohesion of
the country calls for all to make the interests of each their own, and for the
Anglophone majority in particular, to take the cause of the Francophone minority
to heart and to see in French an opportunity to open themselves to a language
and to cultural expressions that enrich Canada and define its essence.
From this standpoint, Quebec’s situation presents a particular challenge.
Quebec obviously forms a distinct or unique society within Canada, whose
population is made up of two linguistic communities that can each claim a need
for protections as a minority. Quebec’s Anglophones cannot ignore the
vulnerability of French within North America, while Francophones must take into
account the legitimate concerns of their province’s Anglophone minority.
So the solidarity of all Canadians, when it comes to their country’s official
languages, must be based on a real understanding of the differences among these
four situations. A growing majority of Canadians are feeling this solidarity.
For example, a public opinion poll1 reveals 69% support for official
bilingualism among young Anglophones (age 18 - 29) outside Quebec,
compared with only 27% among those 60 and older.
The vitality of minorities depends in large part on the minorities themselves,
notably the will of parents to pass their linguistic and cultural heritage on to
their children. But here again, the resources must be available.
Official-language communities need the help of all Canadians. To encourage
Canadians to further strengthen this necessary linguistic solidarity, laws,
courts and governments must support them. Let us look at the legal aspect
together.
2. Symmetry and asymmetry of rights
If our two official languages in Canada were symmetrical in practice, that is,
if each were spoken as much as the other and had the same force of attraction,
it would not be necessary to extend legal provisions very far in order to
establish the languages’ statutory equality. At most, it would be enough to
recognize them as the official languages of the federal Parliament and courts, a
provision already contained in section 133 of the Constitution Act, 1867.
But everyone knows that French is vulnerable in North America. Linguistic laisser-faire
can only increase this vulnerability in practice. This vulnerable situation for
French thus requires the advancement of the legal symmetry between the two
languages.
Since 1969, there has been a real language rights revolution in Canada, which
has clearly advanced the symmetrical treatment of the two official languages
under the law. Among the most significant changes, we must note: the Official
Languages Act of 1969 and that of 1988 at the federal level, the linguistic
provisions added to the Criminal Code in 1978 and those contained in the Canadian
Charter of Rights and Freedoms, the Official Languages of New Brunswick
Act of 1969 and the Act Recognizing the Equality of the Two Official
Linguistic Communities in New Brunswick of 1981 (entrenched in the
Constitution in 1993), Ontario’s French Language Services Act, Manitoba’s
French Language Services Policy, and Prince Edward Island’s French Language
Services Act.
There is still much to be done, and the symmetrical treatment of the two
official languages has not advanced equally throughout Canada. For example, it
would be desirable for minorities in all provinces to have the constitutional
protections afforded Quebec Anglophones and Franco-Manitobans, or the official
bilingualism of New Brunswick.
Official-language communities would benefit if the ambit of our law and its
application broadened the scope of the symmetrical status of French and English.
I know that some demographic limitations can be cited: it is felt that in some
situations it would be unreasonable to establish a legal symmetry of the
languages when minority-language speakers are so few in number. The standard
example is of course section 23 of the Canadian Charter of Rights and
Freedoms, which gives parents who are members of the linguistic minority a
right of management and control over their own educational institutions, but
this section explicitly specifies that its application is modulated according to
"the number of [...] children." Fortunately, the Court
has ensured, as we have seen in Mahe2 and Arsenault-Cameron3,
that this limitation in number is not an undue requirement when it comes to
warranting the right to a school or a management structure such as a school
board.
In addition to the legal advancement of symmetrical treatment of the two
official languages, two forms of asymmetrical law have appeared in recent
decades with the objective of compensating for the vulnerability of French or
official-language minorities.
The first form has the objective of protecting French in Quebec, given that
Quebec Francophones, while a majority within their province, are a linguistic
minority in Canada and on the continent. Quebec’s Charter of the French
Language makes French the only official language of Quebec, while granting
the Anglophone minority guarantees that are in many ways lacking for the
Francophone minorities in some other provinces.
The Canadian Charter of Rights and Freedoms, as well, provides for an
asymmetrical framework for Quebec with respect to the key issue of choice of
language of instruction. Indeed, section 59 of the Charter specifies that
paragraph 23(1)a) shall come into force in the province only when authorized by
the legislative assembly or government of Quebec. The application of this
paragraph would give Anglophone parents who were not born in Canada the right to
have their children receive instruction in English schools in Quebec.
The Court itself has acknowledged that protection of French could serve as
justification for asymmetrical treatment in some circumstances and under certain
conditions. In the Ford4 judgement, the Supreme Court of
Canada indicated that the protection of French in Quebec could justify the
predominance of French on commercial signage, but did not by the same token
justify the prohibition of English or other languages. Quebec’s distinct
character is thus taken into account by the courts, as confirmed by two former
chief justices of the Supreme Court, the late Brian Dickson5 and the
Right Honourable Antonio Lamer6, as well as the current Chief
Justice, the Right Honourable Beverley McLachlin, who has stated:
"I think it is clear, from a number of our decisions, that we try to be
sensitive to all regions of Canada, but of course Quebec has a very unique
history [...]" [translation]7
The second form of legal asymmetry that I want to highlight is designed to
compensate for the vulnerability of a number of our linguistic communities and
of French in general. Over time, the Supreme Court has established a dynamic and
liberal case law in this respect.
Thus, in the Mahe case, the Court ruled that, under special
circumstances, minority-language schools could be justified in receiving a
greater amount, per student, than that allocated to majority schools, given the
additional constraints they face. It ruled that section 23 "confers upon
a group a right which places positive obligations on government to alter or
develop major institutional structures."8
In the Arsenault-Cameron9 case, it specified that section 23
is not meant to reinforce the status quo by adopting a formal vision of equality
that would focus principally on treating the majority and minority official
language groups alike. On the contrary, it ruled that this section is based on
the premise that real equality requires that official-language minorities be
treated differently, if necessary.
In the Beaulac decision, a criminal law case, the Court found that the
dynamic and liberal approach is valid not only for education rights in the
minority language: "Language rights must in all cases be
interpreted purposively, in a manner consistent with the preservation and
development of official language communities in Canada."10
[Emphasis added.]
"The art of judging lies in understanding the context of every problem,"11
the Supreme Court’s Chief Justice McLachlin has summarized so
eloquently.
3. Symmetry and asymmetry of federal policies
At the very moment the Supreme Court of Canada is taking into account the
vulnerability of French, could it be possible that the Government of Canada is
favouring a strictly symmetrical language policy that is blind to the
circumstances? It is sometimes reproached with that. For example, the Commission
des États généraux sur la situation et l’avenir de la langue française au
Québec accuses the Government of Canada of wanting to impose "the
supposedly equal treatment of English and French, regardless of the actual
asymmetry of the groups concerned and, in particular, Québec’s specific
nature, which has resulted in the illusion that English and French exert the
same power of attraction. As we know, this is far from true."12
Yes, we do know. The Government of Canada knows that full well, which is why it
is undertaking special efforts for the cause of French.
To be sure, the Government of Canada is aware of its responsibilities toward
Quebec’s Anglophone minority and is working to fulfil them as best it can. And
to be sure, the Government of Canada has no intention of establishing an
abstract legal asymmetry which would mean that, a priori, even before
considering the needs, the Anglophone minority communities would be relegated to
second place. That would be unfair, and I can tell you that this is not what the
representatives of the Francophone and Acadian communities are asking us to do.
But what the Government of Canada is in fact doing, is to act as the Court
suggests: it is adapting its policies and programs in accordance with the needs
of each. For example, if it transfers some $153 million a year to the provincial
governments to help fund minority-language schools, it is because these schools,
as pointed out by the Court in the Mahe case, must assume additional
costs because they are in a minority situation.
Every policy is developed on the basis of the needs that emerge from the
context, be it Canada-Community agreements or every
federal-provincial-territorial agreement for minority-language education, or for
second-language instruction, or the promotion of official languages, or for the
delivery of public services relating notably to the arts and culture, health,
translation, language training, economic development and legal services.
If, in the final analysis, the amounts for the different programs Canadian
Heritage provides for official-language minorities are such that Francophones
living outside Quebec receive per-capita funding that is more than twice that
given to Anglophones in Quebec, it is not because of a desire to give precedence
to French a priori, but rather because the needs are not the same.
Take another example: that of cultural policies, since it is so true that a
language flourishes through culture. If the Government of Canada allocates to
French culture a share of its investments that clearly exceeds Francophones’
demographic weight, it is because the needs are often more pressing in that
quarter. Thus, while Francophones make up one quarter of Canada’s population,
look at the percentage of federal funding allocated to the French language and
to French-speaking cultures:
- Canadian Broadcasting Corporation
(Radio-Canada): 40%
- Canada Council for the Arts funding for artists
and theatre: 34%
- Canada Council for the Arts funding for writers
and publishers: 34%
- National Film Board film productions and
co-productions: 34%
- Telefilm Canada film, television and multimedia
products: 34%
- book publishing program: 48%; and sound
recording program: 40%
This additional assistance is fully warranted by the additional risks and costs
facing French-speaking cultures in North America: lesser economies of scale,
smaller markets, and so on. Some of these cultural activities are at times
perceived to be too focussed on Montreal, but I can assure you that the
Government of Canada is sparing no effort to ensure that its linguistic and
cultural policies take into account the specific circumstances of each province
and each community.
As my colleague the Minister of Canadian Heritage, the Honourable Sheila Copps,
who does so much for the promotion of French in Canada, has noted, our policies
for French, over and above their great diversity, are designed "to take
into consideration the uniqueness and distinct character of Quebec culture and
the needs and circumstances of French-language communities in other parts of
Canada."13
Conclusion
We need a symmetrical application of language rights that gives equal
consideration to all Canadians, and recourse to asymmetrical treatment when
necessary. This demands of us both a will and generosity. I know that Canadians
are capable of this.
Canada has inherited from its history the opportunity, the privilege and the
obligation to promote the French language and French-speaking cultures here in
New Brunswick, throughout Acadia, in Quebec, in all of Canada and throughout the
world, and to make that heritage accessible to Canadians of every origin. This
is a formidable challenge in this massively English-speaking North America, at a
time when the forces of assimilation are such that for the first time in human
history, the number of languages spoken in the world is decreasing rather than
increasing. But we Canadians will rise to this challenge if we stay united and
resolute, and if we draw on the full vitality of our official-language
communities.
The government of Jean Chrétien is more determined than ever to exercise
leadership to promote Canada’s linguistic duality. Last Tuesday, the Human
Resources Development Minister, the Honourable Jane Stewart, proposed as an
objective that Canada double the percentage of high-school graduates who have a
practical knowledge of both official languages.
Yesterday, here in Moncton, I had the pleasure of confirming the Government of
Canada’s participation in the Government of New Brunswick’s endeavours to
translate municipal by-laws through $1 million in financial support for the
province.
And just today, I announced a $10 million investment to help establish a
National Research Institute on Linguistic Minorities, here at the Université de
Moncton, which will greatly help us to gain a better understanding, by pursuing
the important work begun here at your symposium, of the whole complexity of the
symmetrical and asymmetrical dimensions of our linguistic duality.
Ladies and gentlemen, there is much to be done, but we have the momentum, so let
us move forward for the development of our official-language communities, for
Canada’s linguistic duality.
NOTES
- Environics, Focus Canada, 2000
- Mahe v. Alberta, [1990] 1 S.C.R. 342.
- Arsenault-Cameron v. Prince Edward Island,
[2000] 1 S.C.R. 3.
- Ford v. Quebec (Attorney General),
[1988] 2 S.C.R., 712, at 778 - 780.
- During a speech delivered on June 1, 1996 to
the members of the Military and Hospitaller Order of Saint Lazarus of
Jerusalem, Grand Priory of Canada, Winnipeg, Manitoba.
- In an interview with the Toronto Star,
August 28, 1999.
- La Presse, November 6, 1999, p. B12.
- Mahe v. Alberta, [1990] 1 S.C.R. 342,
at 365.
- Arsenault-Cameron v. Prince Edward Island,
[2000] 1 S.C.R. 3, at 31.
- R. v. Beaulac, [1999] 1 S.C.R. 768, at
25.
- La Presse, November 6, 1999, p. B2.
- French, a language for everyone - Summary
of the Final Report. Commission des États généraux sur la situation
et l’avenir de la langue française au Québec, Government of Quebec,
2001, p. 4.
- Minister’s transmittal letter for the
tabling of the report: Connecting to the Canadian Experience: Diversity,
Creativity and Choice. Government of Canada’s response to A Sense
of Place, A Sense of Being, Ninth Report of the Standing Committee on
Canadian Heritage, tabled June 10th, 1999.
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