Official Languages

‘Official language(s)’ refer to the language(s) in which states normally conduct their business and communicate with their citizens. Many of the world’s constitutions privilege particular languages as ‘official’ by so declaring them. Some go on to designate their official languages as the languages of use in the legislatures, courts, civil administration, schools and other public emanations of the state.[1] Commonly, states affirmatively promote their official languages with state power. This, however, is not invariably so. Some states, like the United States, have not constitutionalized an official language.[2]

Language is a badge of identity for national communities. Nationalist movements often occasion a conflict between language communities. Some countries recognize two or more languages as official, but promote only one as its national language. This is the case with Israel, where Hebrew and Arabic are official languages of the state, but where Hebrew alone is strongly promoted as the Israeli national language.[3]

Canada’s Constitution declares English and French as the official languages of Canada and provides that these languages have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.[4] Canada’s constitution also creates rights to use either language in Parliamentary and court proceedings and to communicate with or be served by institutions of the federal government in either language.[5] Under certain conditions French or English language minorities in the provinces have a constitutionally guaranteed right to receive minority language instruction in educational structures appertaining to their communities.[6]

Language rights provided for in Canada’s Constitution are deepened and detailed in the federal Official Languages Act.[7] The Official Languages Act guarantees as well that all federal employees have the right to use either English or French in the workplace.[8] Importantly, the Act commits the federal government to supporting, enhancing and assisting Canada’s minority official language communities.[9] A ‘Commissioner of Official Languages’ supported by a permanent staff monitors implementation of these rights.[10]

[1] Meital Pinto, "Taking Language Rights Seriously" (2014) 25:2 KLJ 231 at 232–233.

[2] Antoni Abat i Ninet, "Constitutionalising Language: A Dialogue" (2014) 25:2 KLJ 255 at 259–260.

[3] Pinto, supra note 1 at 237–238; Mohammed S Wattad, “The Nation State Law and the Arabic Language in Israel: Downgrading, Replicating or Upgrading?” (2021) 54:2 Israel LR 263 at 263–266, 268–273, 281–284.

[4] Canadian Charter of Rights and Freedoms, s 16, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 .

[5] Charter, supra note 4 ss 17, 19–20; Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 133.

[6] Charter, supra note 4 s 23.

[7] Official Languages Act, RSC 1985, c 31 (4th Supp).

[8] Ibid s 34.

[9] Ibid s 41.

[10] Ibid ss 49–51, 55–69.

Are Canada’s ‘Official Languages’ Still Relevant in Canada Today?

This article was written by a law student for the general public.

Introduction

Language is more than just a communication tool. While speech is indeed a means to exchange thoughts, it is also deeply tied to concepts of identity, culture, and nationalism. Today, Canadian citizens speak a multitude of languages, yet English and French are the only two that are constitutionally protected.

Recent cases challenge the status quo. For instance, organizations in Nunavut have expressed dissatisfaction over the lack of federal funding for Indigenous language studies[1] Additionally, the Truth and Reconciliation Commission released its report on June 2, 2015, which called for the acknowledgement of Aboriginal language rights, the adoption of an Aboriginal Languages Act, and the appointment of an Aboriginal Languages Commissioner.[2] Many Indigenous communities recognize a different local vernacular, such as Inuktituk or Ojibway. Moreover, immigration has introduced new and diverse languages into Canadian communities. This begs the question: do Canada’s official languages still matter in 2015?

The Development of Canadian Bilingualism

Bilingualism is defined as the ability to communicate in two languages. Fluency means to read, write, and speak in both languages with ease. In Canada, bilingualism refers to English and French, recognizing that equal usage fluctuates across the country. According to the latest census data, Statistics Canada reports a total of 5.8 million Canadians speak English and French.[3] While this may seem like a large number, from 2001 to 2011 the number of dual language speakers in Canada decreased after four consecutive decades of growth.[4] Although the number is still sizeable, data shows the proportion of individuals who speak both languages to be falling. So, why are English and French prioritized above other languages?

Canada became a country as a result of a “compact” between two groups: the English and the French.[5] A federal system of government allowed for a compromise between these two groups, as they sought to balance uniqueness with the need for unity. Language was a seminal theme and, as such, section 133 of the British North America Act referred to dual languages in legislative institutions as a means of preserving French culture. [6]

Movement to further enshrine Canada’s official languages emerged in the 1960s. From 1967 to 1970, a royal commission held public consultations concerning bilingualism and biculturalism.[7] The authors of this report recommended that English and French be declared the official languages of the country.[8] From here, official bilingualism was made law through the Official Languages Act.[9] This policy was then further entrenched in the Charter of Rights and Freedoms.[10] Sections 16 through 22 of the Charter state that English and French are Canada’s official languages, making it a right to use French or English in Parliament, courts, or governmental offices. Section 23 provides minority language rights to linguistic minorities in a given province or territory. In essence, the use of both languages must be allowed. However, neither statute nor practice mandates that every person speak both languages across Canada.

Where Does Canadian Bilingualism Stand Today?

There are at least two perspectives on Canada’s official languages. One view seeks to preserve existing English and French language practices. For example, in April 2015, the Supreme Court released a decision concerning section 23 minority language rights. The justices ruled in favour of a parental association in Vancouver that claimed the French educational services being provided were not equivalent to those in English.[11] In this decision, it was unanimously agreed that the school was not doing enough to equate French and English education services. They determined that minority language education is a “sliding scale,” with those in a minority situation being put at a disadvantage compared to the majority.[12] Therefore, French and English education should be given equal priority.

R v Caron, a case that has been heard by the Supreme Court of Canada, also tests minority language rights under section 23 of the Charter.[13] This case deals with the use of French in Alberta courts. Mr. Caron and Mr. Boutet were issued multiple traffic violations and claimed that the court documents were invalid because they were printed in English. Mr. Caron further argued for his right to use French in Alberta courts. This raises the question of whether, in a province such as Alberta where the majority of people speak English, it is necessary for all public information to be printed in both French and English. In February 2014, the Alberta Court of Appeal ruled that the Alberta Languages Act, which stipulates the rules and procedures for English and French usage in provincial institutions, is constitutional.[14] The Supreme Court of Canada heard this case in February 2015 and a decision is expected fall 2015.

Another perspective prioritizes alternative languages. Recently, organizations such as the Nunavut Tunngavik Inc. advocated for greater federal funding of local dialects. According to one individual, "we all know that English and French are the official languages of Canada … Don't forget the Inuktitut language is one of the official languages recognized in our area."[15] In these communities, there is a tension between legal language requirements and day-to-day life. Neither English nor French fits the needs of this specialized population. This complicates the notion of official language application in Canada.

Further, the Truth and Reconciliation Commission released its findings on June 2, 2015. The commission recommended the federal government prioritize traditional languages as a step towards reconciliation. In particular, action items 13 to 17 call on the federal government to: recognize Aboriginal language as part of a broader Aboriginal right; to pass new language legislation; to appoint an Aboriginal Languages Commissioner in consultation with Aboriginal groups; to institute post-secondary education in Aboriginal languages; and to support the reclamation of family names compromised by residential schools. These proposals effectively raise the question of the appropriateness of English and French across the country today, not to mention the assumption of two founding nations.

Conclusion

There is no clear answer whether English and French are appropriate official languages in Canada today. This article only begins to scratch the surface of the modern relevance of Canada’s official languages. For some, French and English are integral to the foundation of this country and must be preserved for future generations. For others, given the increasing awareness of Canada’s Aboriginal history, and the changing demographic of the country with immigration, other languages require equal if not greater attention.

[1] "Nunavut Tunngavik wants more federal funding for Inuktituk" CBC News Online (11 May 2015).

[2] Truth and Reconciliation Commission of Canada: Calls to Action (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) at 13 to 15.

[3] “Study: The evolution of English-French bilingualism in Canada from 1961 to 2011” Statistics Canada (28 May 2013).

[4] Ibid.

[5] For a more in-depth discussion on ‘compact theory’ between the English and French, see Peter H Russell, “Provincial Rights” in Christian Leuprecht & Peter H Russell, eds, Essential Readings in Canadian Constitutional Politics (Toronto: University of Toronto Press, 2011) 159.

[6] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5 at s 133.

[7] Canada, Report of the Royal Commission on Bilingualism and Biculturalism, (Ottawa, 1967-70) (Chairs: A Davidson Dunton, André Laurendeau, Jean-Louis Gagnon).

[8] Ibid.

<[9] Official Languages Act, RSC 1985, c C-31.

[10] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c 11.

[11] See Association des parents de l’école Rose-des-vents v British Columbia (Education), 2015 SCC 2.

[12] Ibid.

[13] R v Caron, 2011 SCC 5.

[14] Languages Act, RSA2000,c L-6.

[15] Supra, note 1.

Court Challenges Program Makes Partial Comeback

Prime Minister Stephen Harper has decided to restore parts of the court challenges program, eighteen months after the Conservative government originally scrapped it. [1] The new “Program to Support Linguistic Rights” will help Anglophones in Quebec and Francophones in the rest of Canada to defend their language rights under the Charter [2]. The new program puts more emphasis on mediation and alternative dispute resolution, and still does not fund challenges to provincial laws, unless it can be shown that the law violates the Charter .[3] The program will be granted a $1.5 billion budget per year, and will begin in 2009. [4]

In 2006, the Fédération des communautés francophones et acadienne (FCFA) du Canada sued federal government when it first dropped the court challenges program. Heritage Minister Josée Verner announced that an agreement was reached between the two parties, although details have not yet surfaced. [5]

Official Languages Commissioner Graham Fraser believes the restoration of the program is a “huge victory for the minority language communities.” [6] Reactions are not entirely positive; Liberal Heritage critic Denis Coderre laments that other minorities, including gays and lesbians, or those with disabilities, have been left out of the program. [7] New Democrat MP Yvon Godin agrees with Coderre, stating that “ there is nothing for a person with a handicap, nothing for women, nothing for minorities in our country. It is a big loss.” [8]

The news came on the same day the Tories announced their action plan relating to linguistic duality. The plan, which spans 2008-2013 and has a budget of $1.1 billion, aims to support minority language groups in a variety of settings, such as justice, health and immigration. [9] The plan follows the recommendations of Bernard Lord’s report on linguistic duality.

The Infamous $54 Traffic Ticket

Gilles Caron, the Francophone truck driver who has [been] pleading his cause in Alberta courts since 2006, received a favourable ruling from Provincial Court Judge Leo Wenden recently. In 2003, Caron received a $54 traffic ticket for making an unsafe left turn. He proceeded to ask for a French hearing, but was denied under the Languages Act [1] that revoked these rights in Alberta.[2]Judge Wenden found the law unconstitutional, and Caron was cleared of the traffic offence. According to defence lawyer Rupert Beaudais, “the case was never about a minor traffic offence. This case was about challenging the constitutional validity of Alberta’s language laws, which abolished all French language rights.” [3]Lise Routhier Boudreau, the President of the Fédération des communautés francophones et acadienne du Canada, believes that the Caron decision is a step in the right direction for minority language rights in the country, adding to the recent victories of Justin Bell in Saskatchewan and Marie-Claire Paulin of New Brunswick against the RCMP.[4]

Edmund Aunger, a University of Alberta political science professor, was a key witness in the trial. He paid particular attention to new records showing that, in 1870, Rupert’s Land as the western region was then known, only agreed to join the confederation if protection of French language rights was guaranteed.[5]Relations between the province of Alberta and its French-speaking citizens have historically been complicated, leading former premier Don Getty to famously announce that “Albertans believed in bilingualism by choice, not by law.” [6]

Crown Prosecutor Teresa Haykowsky won a three-month stay, which gives the government the option of either appealing the case, or taking action. It is possible that if Caron is successful in higher levels of court, including the Supreme Court of Canada, Alberta could be forced to translate all the laws of the province into French, and make every service available in both official languages.[7] Many language rights advocates in the province are asking that serious consideration be given to renegotiating the Act, including Léo Piquette, the former MLA who is most remembered for the event in 1987 where he was told to stop speaking French in the legislature by the Speaker. [8] Greg Clarke, the Executive Director of the Centre for Constitutional Studies, sums up the decision that the government of Alberta is now faced with: “if the government chooses to appeal the case it will be years before we have a clear decision about what this means. If the government accepts the decision and decides to do what they have to do, presumably that means: start translating.” [9]

Of note this may have been the longest trial in Alberta Court history.

[1] Languages Act, R.S.A. 2000, c. L-6 [Act].

[2] Karen Kleiss, Edmonton Case Tests Language Law, Edmonton Journal, 3 July 2008.

[3] Ibid.

[4] Radio-Canada, “Décision saluée par la FCFA” (3 July 2008).

[5] Karen Kleiss, English-Only Laws Violate Historical Commitments, Expert Says, Edmonton Journal, 3 July 2008.

[6] Supra note 2.

[7] Ibid.

[8] Karen Kleiss, Ruling Reopens Language Act Debate, Edmonton Journal, 4 July 2008.

[9] Ibid.

Je Ne Speak Pas French: RCMP Faces Tougher Language Obligations in New Brunswick

Marie-Claire Paulin was issued a speeding ticket in April 26, 2000 by a unilingual RCMP officer in the Woodstock, New Brunswick.[1] While she paid the fine that day, Paulin later started a lawsuit against the Crown stating her right to receive police services in her native tongue of French were denied, breaching section 20(2) of the Canadian Charter of Rights and Freedoms [2]. Her action was joined by the Société des Acadiens et Acadiennes du Nouveau Brunswick (SAANB) at the Federal Court level. The SAANB’s motive stems from a report recommending that the RCMP’s that the requirement to speak in French should be reduced in the region.[3] If sections16.1, 16(2) and 20(2) of the Charter apply in the case at hand, the report could not be implemented as is.

An earlier ruling by the Federal Court held that since the RCMP was serving as a provincial police in New Brunswick, making it a provincial institution for the purposes of section 20(2) of the Charter, the officers are required to provide police services in both French and English.[4] The government’s argument was that the RCMP is a federal institution, not a provincial body, and is therefore not subject to section 20 (2), which only applies to New Brunswick institutions. The debated section of the Charter reads as follows:

20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where

a) there is significant demand for communications with and services from that office in such language; or

b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.[5]

The decision was set aside by the Federal Court of Appeal, rejecting the argument that the RCMP is akin to a New Brunswick institution for the purposes of section 20 (2).[6]Chief Justice Richard was clear in his statement that the RCMP cannot assume New Brunswick’s constitutional language obligations, that only the province was responsible to discharge this obligation. Both the Federal Court and the Federal Court of Appeal were in agreement that the RCMP is “at all times subject to the minimum obligations imposed on it by section 20 (1) of the Charter and by federal official languages legislation, regardless of whether it is acting as the federal police force or as a provincial or municipal force under an agreement.”[7]

The legal issue was whether RCMP officers are required to follow the language obligations of section 20(2) of the Charter imposed on provincial institutions, or simply the federal language obligations in the first subsection.[8] While the RCMP is a federal institution, created by section 20 of the Royal Canadian Mounted Police Act[9], it has been in a contract with the province 1992, to act as its police force. Under section 2 (2) of the New Brunswick Police Act[10], each RCMP member has the “attributes of a provincial peace officer and is authorized by that province to administer justice there, he or she performs the role of an ‘institution of the legislature or government’.”[11]

The province’s argument concentrated on the principle of constitutional accountability of governments- New Brunswick is constitutionally responsible for administering justice and is also accountable for the action of its enforcement.[12] Eldridge v. British Columbia (Attorney General)[13]was relied on to try and prove that the RCMP cannot be both a federal and provincial institution at the same time. The province was saying that the only legal recourse in this case for Ms. Paulin was a lawsuit for breach of contract where she would have to prove that she had suffered economic damages (as opposed to hurt feelings), and not the type of lawsuit she had started - which would require that the Province provide bilingual police officers if she won the case.[14]

The unanimous verdict, penned by Justice Bastarache allowed the appeal and declared that RCMP members, acting as police officers in New Brunswick, are bound by section 20(2) of the Charter. He relied on a rule from Slaight Communications Inc. v. Davidson[15], where imprecise discretions could not be seen as a carte blanche to make an order that would infringe the Charter. The court clearly stated that the Charterwould apply to people enforcing the law. The SCC agreed with Gauthier J’s reasoning that when the RCMP officer handed Marie-Claire Paulin a ticket that day, he was performing a function of the Government of New Brunswick.[16] As a resident of Canada’s only officially bilingual province, Mrs. Paulin had a constitutional right to receive police services in French.

[1]Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, 2008 SCC 15 (CanLII).

[2]Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[3] Supra note 1 at para.4.

[4] Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, 2005 FC 1172 (CanLII)

[5] Supra note 3.

[6] Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, 2006 FCA 196 (CanLII)

[7] Supra note 1 at para.7.

[8] Ibid.

[9] Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10.

[10] Police Act, S.N.B. 1977, c. P-9.2, s.2.

[11] Supra note 1.

[12] Ibid. at para.10.