PART II: PRINCIPLES THAT SHOULD GUIDE THE INTERPRETATION OF LANGUAGE RIGHTS
People are often not aware of the determinant role that courts have played in the development of language rights in Canada. Indeed, it would not be wrong to say that it is the courts, more than governments, that have contributed to defining our language framework. It is therefore important, in this process of revising New Brunswick's Official Languages Act, to appreciate the evolution of the legal approach in order to understand the principles that should govern the interpretation of these rights.
In agreeing to entrench language rights in the Constitution and in legislation, the New Brunswick legislature also decided to entrust the judiciary with the delicate and pressing task of clarifying their legal scope and ensuring their enforcement. In this regard, in Reference re Manitoba Language Rights, the Supreme Court of Canada stated that "[i]t is the responsibility of the judiciary to ensure that the government complies with the Constitution" and of judges to "protect those whose constitutional rights are violated, whoever they may be and whatever the reasons for the violation".[1]
Thus, the role of the courts is to define, interpret, apply and enforce existing constitutional and legislative norms. For some, this process represents an ongoing dialogue between society and the judicial, legislative and executive branches of government.[2]
Many argue vehemently that it is undesirable for the courts to interfere with language rights in this way: such matters should be left to legislators alone. Indeed, hardly a day goes by without sharp commentary or criticism attacking the Charter as allowing unelected judges to usurp the role of legislators.
Yet, as former Chief Justice Dickson of the Supreme Court of Canada explains, the adoption of the Charter allowed Canada to move from a system of parliamentary supremacy to one of constitutional supremacy.[3] With the adoption of the Charter, New Brunswick citizens became, among other things, holders of language rights that no provincial government can challenge or attempt to limit. It is therefore inevitable that disputes will arise that will have to be resolved by the courts.
It is important to remember that it was the New Brunswick legislature that voluntarily decided, in endorsing the language provisions of the Charter, to entrust this role to the courts.[4] However, that fact has not stopped the debate surrounding the "legitimacy" of such an approach, which some describe as the "judicialization of the identity debate”. Those who view it that way argue that the involvement of the courts in the interpretation of these rights is illegitimate "because it allows unelected people (judges) to overrule the decisions of elected people (legislators), which is undemocratic".[5]
Justice Iacobucci responds fully to this argument in the following terms:
“it should be emphasized again that our Charter’s introduction and the consequential remedial role of the courts were choices of the Canadian people through their elected representatives as part of a redefinition of our democracy. Our constitutional design was refashioned to state that henceforth the legislatures and executive must perform their roles in conformity with the newly conferred constitutional rights and freedoms. That the courts were the trustees of these rights insofar as disputes arose concerning their interpretation was a necessary part of this new design.
So courts in their trustee or arbiter role must perforce scrutinize the work of the legislature and executive not in the name of the courts, but in the interests of the new social contract that was democratically chosen.”[6]
To fulfill this mandate, the courts do not have to substitute themselves for legislatures or governments. It is sufficient for them to ensure respect for the Constitution, and they "have been expressly invited to perform that role by the Constitution itself."[7] By ruling on the constitutional validity of laws and executive decisions, the courts facilitate and sustain dialogue with the other two levels of government. Such dialogue is vital: it holds them accountable to each other: "[t]his dialogue between and accountability of each of the branches have the effect of enhancing the democratic process, not denying it.”[8]
Former Chief Justice Dickson clarifies the spirit in which the judiciary conducts the conversation:
“The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.”[9]
With respect to the Charter in particular, the legislative and executive branches of government are required to uphold the values and principles set out in the Charter. If they fail to do so, the judiciary must be ready to intervene to ensure that these values and principles are adequately protected. In doing so, judges are not acting undemocratically, but rather fulfilling the role that elected officials have given them. By intervening to ensure that the language rights enacted by the legislator are respected, the courts set themselves up as guardians of public order against the arbitrary nature of the decisions before them, reminding the legislators of the principles that serve as a basis for implementing the values of the Charter.
Let us now turn to these principles, which should guide our approach to the revision of the Official Languages Act.
1. The Charter and the Interpretation of Language Rights
Before the adoption of the Charter, it was thought that courts would interpret language rights broadly and generously. However, in 1986, three decisions were rendered - MacDonald, SANB and Bilodeau – which produced the opposite effect. In those decisions, the Supreme Court of Canada said, and it is worth repeating, that the courts must exercise restraint in interpreting language rights, since these rights, unlike other fundamental rights, originated from a political compromise.
For example, in MacDonald, Beetz J. said that section 133 of the Constitution Act, 1867 did not introduce a program or system of official bilingualism at the federal level and in the province of Québec. Rather, that section provided for a limited form of mandatory bilingualism in the legislative branch, combined with an even more limited form of optional unilingualism, at the discretion of the person speaking in parliamentary debates or in a court proceeding, as well as the drafter or author of pleadings or court documents. He added that this system represents a constitutional minimum resulting from a historical compromise that can be supplemented by relevant federal and provincial legislation. But he said it is not the role of the courts to interpret, improve, modify, or add to this historic constitutional compromise.[10]
In the Société des Acadiens decision, the Supreme Court of Canada held that the rights guaranteed for New Brunswick courts by section 19 of the Charter are similar in nature and scope to those guaranteed by section 133 of the Constitution Act, 1867 for Canadian and Québec courts. In essence, the court said that language rights, being foreign to the requirements of natural justice, must not be confounded with them. The Court added that language rights are the same as those guaranteed by section 17 of the Charter with respect to the debates of Parliament. The speaker, drafter, or author of court proceedings has the constitutionally protected power to speak or write in the official language of their choice.[11] Thus, section 19 of the Charter does not guarantee that the speaker will be heard or understood in the language of their choice, nor does it confer a constitutional right to do so.
In the 1986 trilogy of decisions, the Supreme Court of Canada said that language rights are not truly fundamental rights, that they are the product of a political compromise that cannot be expanded through judicial interpretation. Oddly, the Supreme Court of Canada said that the State and its representatives, when acting in their official capacity, enjoy a linguistic freedom that is independent of that of citizens. One is left to wonder whether Premier Blaine Higgs may be drawing his logic regarding language rights from the narrow reasoning of that trilogy, which, as we shall see, has since been rejected.
But the Charter was designed precisely to recognize the rights and freedoms of citizens vis-à-vis the State. Consequently, in providing services to the community, the State and its representatives must fulfill certain obligations and responsibilities, including the obligation to give the public a real choice as to the language used. I find it shocking, to say the least, that representatives of the State could deny citizens their rights that were specifically designed for them.
2. A New Beginning
The restrictive approach to the interpretation of language rights proposed in the 1986 trilogy was nuanced in several subsequent decisions[12]. These decisions reaffirmed that language rights were an important means of supporting official language communities and their culture. They adopted a broad interpretation of these rights considering their purpose, though they did not go so far as to challenge the principles of political compromise and judicial restraint. That would happen a few years later in other Supreme Court of Canada decisions, Reference re Secession of Québec[13], R. v. Beaulac[14] and Arsenault-Cameron v. Prince Edward Island[15].
(a) The Reference re Secession of Québec and the Principle of the Protection of Minorities
Although not strictly a decision dealing with language rights, the Reference re Secession of Québec remains a key decision for anyone interested in the issue. In it, the Supreme Court of Canada stated that the Canadian Constitution is based on four fundamental guiding principles: federalism, democracy, constitutionalism and the rule of law and, finally, respect for minority rights. The Court said these guiding principles "inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based”.[16] It added that these principles have dictated major elements of our constitutional structure and are its lifeblood.[17] Furthermore, these principles "assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions”.[18] Just as important, it said, "respect for these principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a "living tree"”.[19] These principles are not merely descriptive. They have a powerful standard-setting force, and are binding on both courts and governments. They are not expressly stated in the Constitution, but they can, by virtue of a written provision, give rise to real legal obligations that set significant limits on government action.[20]
For the purposes of this paper, we will focus on the principle of minority rights, without wishing to diminish the importance of the other three principles. According to the Supreme Court of Canada, the principle of minority rights has its origins in the protection of the educational rights of religious minorities guaranteed by section 93 of the Constitution Act, 1867, and the provisions of the Charter relating to the protection of minority language and educational rights.[21] With respect to the Charter, the Court stated that "[u]ndoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minorities”.[22] It recognized that "a constitution may seek to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority”.[23]
The Supreme Court of Canada stated that the constitutional provisions protecting minority language rights, religious rights and educational rights are also the result of a historical compromise. And contrary to what was stated in the 1986 trilogy, these provisions are based on principles, even if they are the result of political negotiations and compromises, said the Court.[24] The protection of minorities is part of our history, not just a principle invented by the Charter in 1982.[25]
The Supreme Court did not specify the nature and scope of guiding principles such as the protection of minorities. However, in the Reference re Provincial Court Judges[26], speaking about the significance of constitutional principles, it did give a serious warning and a reminder that these principles are not an invitation to disregard the written Constitution.[27] It emphasized the importance of the written text of the Constitution and stated that a written constitution promotes legal certainty and predictability, provides "a foundation and a touchstone for the exercise of constitutional judicial review".[28] The Supreme Court added that constitutional principles can guide the courts in interpreting constitutional texts and fill in gaps or deficiencies in those texts.[29]
The fact that these principles may be useful in governing the interpretation of the written text of the Constitution is consistent with the traditional role of the courts. However, allowing courts to invoke these principles to fill in gaps in constitutional texts raises a different set of problems. Firstly, it becomes necessary to demonstrate that gaps exist in the language of the constitutional text and, secondly, that it is necessary to fill those gaps to support the logic behind the text. The next question is whether this confers on judges the power to engage in drafting text, where the legislature left off.[30] The Court set a clear limit to the legal scope of these principles when it stated they are not an invitation to disregard the written text of the Constitution.[31]
There is a significant difference between the use of unwritten principles as stand-alone grounds to strike down a law, and their use as an interpretive tool in the discussion of constitutional issues. When a court bases itself on unwritten principles to strike down a law or government action, it is reasonable to think that the ruling flows from the text of the Constitution. So, when unwritten principles give rise to rights that challenge the validity of a law, they can be said to flow from the text of the Constitution. Even if they are not expressly set out in the text, these rights arise from it when they are understood and interpreted in their full and proper legal, historical, and political contexts. That is how unwritten or structural principles assist the courts in revealing the full meaning of the Constitution, and in fleshing out its provisions.[32]
That said, what is the scope of the constitutional principle of the protection of minorities with respect to language rights? In Lalonde et al. v. Health Services Restructuring Commission,[33] the Ontario Court of Appeal used this principle as a key factor in the protection and development of language rights in Canada. In its view, the constitutional principle of the protection of minorities was a shield against any attempt to revert to a restrictive interpretation of language rights. Moreover, the Ontario Court of Appeal concluded that the interpretation rule flowing from this principle applies not only to constitutional guarantees, but also to language rights set out in laws. Those principles enabled it to rule on the validity of a discretionary decision relating to the role and function of an existing institution, in this case the Montfort Hospital.
The New Brunswick Court of Appeal, in Charlebois v. City of Moncton,[34] took a more traditional approach to the role that these guiding principles can play. The Court recognized that the underlying principles have dictated major aspects of Canada's constitutional structure and are its lifeblood.[35] However, it also stated that these principles cannot be used to overturn government action, [36] but they will be useful in interpreting existing language rights and in clarifying the meaning of the written text of the Constitution.[37]
In light of these decisions, we can conclude that the use to which these principles may be put has yet to be determined.
(b) Beaulac or the End of the 1986 Trilogy
The Beaulac case was a major turning point in language rights. With that decision, the Supreme Court of Canada seized the opportunity to restore order to the interpretation of principles that should guide language rights. The majority decision, rendered by Bastarache J., stated that with respect to the principle of progression towards language equality:
“The principle of advancement does not exhaust section 16 which formally recognizes the principle of equality of the two official languages of Canada. [...] I agree that the existence of a political compromise is without consequence with regard to the scope of language rights. The idea that s. 16(3) of the Charter, which formalized the notion of advancement of the objective of equality of the official languages of Canada in the Jones case, supra, limits the scope of s. 16(1) must also be rejected. This subsection affirms the substantive equality of those constitutional language rights that are in existence at a given time.”[38]
The Court added that, to the extent that it advocated a restrictive interpretation of language rights, the judgment re Société des Acadiens must be overruled.[39]
“Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada. … To the extent that Société des Acadiens du Nouveau-Brunswick … stands for a restrictive interpretation of language rights, it is to be rejected. The fear that a liberal interpretation of language rights will make provinces less willing to become involved in the geographical extension of those rights is inconsistent with the requirement that language rights be interpreted as a fundamental tool for the preservation and protection of official language communities where they do apply. It is also useful to re-affirm here that language rights are a particular kind of right, distinct from the principles of fundamental justice. They have a different purpose and a different origin.”[40]
The Supreme Court of Canada also stated that language rights are intended "to protect the country's official language minorities and to ensure the equality of status of English and French...”[41] The Court also emphasized that the principle of equality in language law is not limited in meaning, but must be given its true meaning: "This Court has recognized that substantive equality is the correct norm to apply in Canadian law”.[42] Therefore, when establishing institutional bilingualism, the government must ensure equal access to services of equal quality for members of both official language communities. The State must take into account the specific needs of the minority community. The exercise of language rights is not exceptional and cannot be considered as a simple request for accommodation.[43] They require government action for their implementation and therefore create obligations for the State.
With respect to the argument that language rights are the result of political compromise, the Supreme Court of Canada noted that sections 7 to 15 of the Charter are also the result of political compromise. However, there is no reason in Canada's constitutional history to apply a restrictive interpretation to these rights. The Court concluded that the existence of a political compromise has no bearing on the scope of language rights.[44] There is no contradiction, it said, between the protection of individual liberty and personal dignity, and the broader objective of recognizing the rights of official language communities. The objective of protecting official language minorities is achieved by the fact that all members of the minority community can exercise independent and individual rights, rights that are justified by the very existence of the community. Language rights are neither negative nor passive rights; they are rights that can only be exercised if the means are provided.[45] In other words, the reason for their protection is no different from that of other fundamental rights recognized by the Charter, and they should therefore not be treated differently.
(c) Arseneault-Cameron or the Consolidation of Beaulac
Although the Arsenault-Cameron decision dealt with the right to minority language education, guaranteed by section 23 of the Charter, the Supreme Court of Canada took the opportunity to consolidate the new approach to the interpretation of language rights set out in Beaulac. Speaking for a unanimous Court, Major and Bastarache JJ. reiterated the conclusion reached in Beaulac, reaffirming that language rights being the result of a political compromise is not unique to them and does not affect their scope.[46] This served to confirm the principle expressed in that case: that language rights must always be interpreted in a way that is consistent with the preservation and development of official language communities in Canada.
The Supreme Court of Canada also noted that language rights also serve to redress past injustices suffered by the minority community. In exercising their discretionary power, government authorities must consider the requirements of the Charter and give sufficient weight to the promotion and preservation of the minority language culture.[47] The Court also emphasized that substantive equality requires that official language minorities be treated differently from the majority, when necessary, because of their particular circumstances and needs.[48] Accordingly, in order to move closer to actual, substantive equality, the governments must take into account the context and the effect of each measure on the minority group and ensure that it does not have a negative impact on the group.
(d) The decisions that followed
We will now consider three other decisions of the Supreme Court of Canada: Doucet-Boudreau v. Nova Scotia (Minister of Education)[49], Solski (Tutor of) v. Québec (Attorney General)[50], and DesRochers v. Canada (Industry)[51]and also look at some New Brunswick decisions.
(i) The Doucet-Boudreau decision or the extension of the new trilogy
The main issue in Doucet-Boudreau was whether, after finding that section 23 of the Charter had been violated and then ordering the province to make efforts to establish homogeneous French-language educational facilities and programs within a specified period, the Nova Scotia Supreme Court had jurisdiction under section 24(1) of the Charter to hold the province accountable.
In answering the question, Justices Iacobucci and Arbour, who wrote the Court’s 5-4 majority decision,[52] focused on the principles that should guide courts in interpreting language rights guaranteed by the Charter. They reconfirmed that the Charter must be given a broad and liberal interpretation, not a narrow or formalistic one.[53] This broad and liberal interpretation applies as much to remedies under the Charter as to the rights guaranteed in it.
In the Court’s view, the purpose of language rights 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 of the population".[54] The Court was reiterating the view it had taken in the Mahé decision, that any guarantee of language rights cannot be separated from concern for the culture conveyed by the language in question.[55] The Court then referred to the remedial nature of language rights, which has been confirmed in numerous decisions.[56] The purpose of language rights is to redress past injustices, not only by halting the gradual erosion of official language minority cultures in Canada, but also by actively promoting their development. For this reason, language rights must be interpreted in recognition of "previous injustices that have gone unredressed and which have required the entrenchment of protection of minority language rights”.[57]
The Court also points out that the fact that language rights are the result of a political compromise does not affect their nature or their importance.[58] Another characteristic of language rights, wrote the majority, is that they are particularly vulnerable to government inaction or procrastination.[59] As a result, the risk of assimilation increases as governments fail to meet their language obligations. If delay, procrastination, or hesitation is tolerated, it will allow governments to eventually evade their obligations since the communities for which these rights were adopted will disappear or become so weakened that the exercise of these rights will become futile or their implementation pointless.
(ii) The Solski decision and the principle of cultural and linguistic security of minority communities
In Solski, the Supreme Court of Canada reviewed the history of language rights in Canada. Among other things, it pointed out that, even before sections 16 to 23 of the Charter came into force, section 133 of the Constitution Act, 1867 contained an embryonic language framework.[60] Moreover, laws of considerable scope had been implemented at the federal level and in several provinces to recognize the language rights of minority communities, such as the Official Languages Act[61] adopted by the Parliament of Canada in 1969, or the Official Languages Act of New Brunswick[62] adopted the same year by that province. These laws deal with situations that involve not only individual rights, but the very existence of linguistic communities and their perception of their future.[63]
The Court also recognized that accommodating language rights is challenging given the fact that there are two levels of social and legal relationships in Canadian society. On the one hand, the personal development of each member of the minorities and their families that must be ensured, while on the other hand, language questions affect the development and presence of English-speaking minorities in Québec and of French-speaking minorities elsewhere in Canada. Language rights also raise the issue of the perception that Québec’s francophone community has of their future in Canada given that, while it is a majority in Québec, it is a minority in Canada and even more so in North America. Add to this already complex picture the serious difficulties caused by the rate of assimilation of francophone minorities outside Québec, whose hard-fought language rights have only recently been won.[64]
The Supreme Court of Canada thus highlights the issues involved in the linguistic framework of Canadian society, the objective of which is to protect minority communities at the provincial level, while recognizing the vulnerability of the French language, both nationally and in the province of Québec. These sometimes-conflicting challenges underscore the urgency of engaging in a frank and open dialogue on these issues. For the minority community, language remains central to its sense of belonging, and, while they are personally important, language rights are also essential to ensuring the linguistic and cultural security of this community. The collective dimension of language rights thus becomes a determining factor in the achievement of the purpose of these rights, which is to ensure the survival and development of linguistic communities. Judicial interpretation thus has the responsibility of reconciling sometimes divergent perceptions and interests. Therefore, the social, demographic, and historical contexts are the necessary backdrop for the analysis of language rights.[65]
(iii) The Desrochers decision and the concept of substantive equality
In Desrochers, the Supreme Court of Canada reiterated that courts are required to interpret language rights liberally and purposefully and that the relevant provisions must be interpreted in a manner consistent with the preservation and development of official language communities in Canada. The Court noted that it has repeatedly reaffirmed that the concept of equality of language rights must be given its true meaning, that substantive, as opposed to formal, equality must be the norm, and that the exercise of language rights must not be viewed as a mere request for accommodation.[66]
If the principle of linguistic equality in the delivery of services set out in section 20 of the Charter entails an obligation to provide services of equal quality to the public in both official languages, the question arises as to what is meant by “equal quality”? To provide a service of equal quality, it will be sufficient for the government, as a rule, to communicate and provide the same service equally in both official languages. On the other hand, it will sometimes be necessary to go further and take into account the specific needs of the language community receiving the services and adapt these services to its needs and cultural reality. A service that is adapted to the needs of the majority and is simply offered to the minority in its language constitutes, at best, an accommodation and might not meet the requirement of equal quality of service.[67] The Supreme Court of Canada stated that "it is not entirely accurate to say that linguistic equality in the provision of services cannot include access to services with distinct content. Depending on the nature of the service in question, it is possible that substantive equality will not result from the development and implementation of identical services for each language community. The content of the principle of linguistic equality in government services is not necessarily uniform. It must be defined in light of the nature and purpose of the service in question”.[68]
(v) New Brunswick decisions
New Brunswick is the only officially bilingual province in Canada. While other provinces recognize certain language rights and are subject to obligations under legislation or constitutional enactments, none has declared itself officially bilingual. As the New Brunswick Court of Appeal noted in Charlebois v. City of Moncton:
“the recent history of the last thirty years shows that successive New Brunswick governments have, on four separate occasions during that period, enacted language rights legislation or have entrenched language rights in the Canadian Constitution which collectively provide the province with a constitutional language regime quite particular to New Brunswick and unique in the country. Obviously, these legislative and constitutional provisions impose obligations on the province which are also particular to New Brunswick.”[69]
The Court of Appeal noted that the bilingualism framework established by the Act in New Brunswick is not personal bilingualism, since it does not require individuals to acquire both official languages. Rather, it is an institutional bilingualism which is intended to promote the use of two languages by the province and its institutions in the delivery of public services. Under such a regime, individuals have the choice of using either English or French in their dealings with government institutions.[70]
The Court stated:
“Given the significant role played in the history of this province by the law and the Constitution in matters of language rights as I have just described, I think it is quite appropriate to recall, as recognized by Canadian language rights case law, that the recognition of the status of official languages is both a legal and a political act. Politically, the recognition of the constitutional principle of the equality of official languages in New Brunswick is the manifestation of a fundamental political choice based on a compromise between the two recognized official linguistic communities of our province. Legally, it is incumbent upon the courts to interpret the scope of Charter-guaranteed language rights not only by referencing the history and sources of these rights to determine their purpose and scope but also by referencing the constitutional documents themselves. A consideration of the historical evolution of minority rights in New Brunswick is one of the requirements that flows from the broad and liberal interpretation that should be adopted in this matter.”[71]
The Court of Appeal found that it was impossible to understand the scope of language guarantees without considering the fundamental principle that embodies both the language policy implemented in New Brunswick and the government's commitment to bilingualism and biculturalism. It added that "[t]he constitutional principle of the equality of official languages and the equality of the two official linguistic communities and of their right to distinct institutions is the linchpin of New Brunswick's language guarantees regime”.[72]
Referring to the principles of interpretation set out in Beaulac, the Court of Appeal concluded that the purpose of language rights is to preserve the two official languages and the cultures they represent and to enhance the vitality and development of the two official language communities. It added that language rights are remedial in nature and have concrete consequences. They impose an obligation on the provincial government to take positive measures to ensure that the minority official language community enjoys equal status and equal rights and privileges with the majority official language community. The principle of equality is a dynamic concept which requires as a minimum measure the equal treatment of both language communities, but in certain circumstances where necessary to achieve equality, differential treatment in favour of a linguistic minority to achieve the collective as well as the individual dimension of substantive equality of status.[73]
In Gautreau v. New Brunswick,[74] Richard J. noted that equality is " [Translation] a question of dignity, pride and mutual respect of individuals in society. We cannot accept and justify different standards from one language to another " [75] In R. v. Gaudet,[76] Lavigne J. stated: " [Translation] It is not sufficient that a linguistic guarantee is granted on paper; it still has to be used or implemented to make sense " [77] The special linguistic status that the province of New Brunswick has given itself distinguishes it from other Canadian jurisdictions: "[Translation] [this status] testifies to the importance of New Brunswickers' commitment to language rights and therefore requires increased respect that is not found in other Canadian jurisdictions." [78] The interpretation of language rights must therefore be responsive to context, and the interpretation process must be consistent with the need to take into account the purpose of the guarantee in question and the preservation and development of official language communities.
Language rights must be interpreted in a context-sensitive manner. They must remain living rights and not be frozen by past political arrangements. In the words of Michel Bastarache [...]: "[Translation] The judicial work is not the work of an archaeologist tending to specify what the founders of the Constitution had exactly envisaged at the outset, but rather an effort to ascertain what the text conceived at that time may mean to us now". An analysis of the history of language rights in Canada, and more specifically in New Brunswick, reveals a subtle but steady evolution in the language situation in New Brunswick. The linguistic situation in New Brunswick is in a state of constant change and the gains made by the linguistic minority today are the result of a long evolution.[79]
In a relatively recent decision[80], which unfortunately has not received the attention it deserves, Justice Denise A. LeBlanc wrote, after reviewing the principles that should guide the interpretation of language rights:
“The New Brunswick government and its institutions cannot, by contract or in a collective agreement repeal, limit or contravene the provisions of OLA, or the Charter for that matter, and, in case of conflict, the OLA prevails.”[81]
This is a warning that should not need to be given, but unfortunately the history of New Brunswick in matters of official languages reminds us that it is sometimes necessary to repeat the obvious several times before it is finally, hopefully, understood.
Finally, Chief Justice Drapeau of the Court of Appeal, after indicating that the courts must avoid giving a restrictive interpretation to statutory and constitutional provisions dealing with language rights, adds that the interpretation most likely to reflect the application of the following principles should be favoured:
(1) the right to use one or the other official language requires acknowledgement of a duty on the part of the state to take positive steps to promote the exercise of that right;
(2) the objective of the entrenchment of this right in the Charter was none other than to contribute to “the preservation and protection of official language communities”.[82]
It is these principles that must guide us in the present review of the Official Languages Act.
In the next section, I will discuss the proposed changes that I believe should be part of this review if we are still aiming to achieve substantive equality.
[1] Reference Re Manitoba Language Rights, 1985, 1 SCR 721, p 744, 19 DLR (e) 1. See also, Re B.C. Motor Vehicle Act, 1985 2 SCR 486, para 16, 24 DLR (4) 536.
[2] See F. Larocque, «Les recours en droits linguistiques» in M. Bastarache et M. Doucet, dir, Les droits linguistiques au Canada, 3rd ed, Cowansville (QC), Yvon Blais, 2013, 993, p 1001; P. Hogg et A. Bushell, «The Charter Dialogue Between Courts and Legislatures», 1997, 35 Osgoode Hall LJ 75. For a critique of the "dialogue" theory, see J. Baron and G. Sigalet, «The “Charter Party’sˮ new dance with the judiciary», online: Policy Options Politiques <http://policyoptions.irpp.org/magazines/september-2016/the-charter-partys-new-dance-with-the-judiciary/>.
[3] B. Dickson, «Keynote Address» in The Cambridge Lectures 1985, pp 3-4, quoted in Vriend v Alberta, 1998 1 SCR 493, para 131, 156 DLR (4) 385 [Vriend]. See also Reference re Secession of Québec supra note 2, para 72.
[4] Vriend, ibid. para 132.
[5] Ibid. para 133.
[6] Ibid. para 134-35.
[7] Ibid. para 136.
[8] Ibid. para 139.
[9] R v. Oakes, 1986 1 SCR 103, para 64, 26 DLR (4) 200.
[10] MacDonald v. City of Montréal, 1986 1 SCR 460 [MacDonald], para 103-04. See also Société des Acadiens du Nouveau-Brunswick v Association of Parents for Fairness in Education. 1986 1 SCR 549, para 65 and 68.
[11] Société des Acadiens, ibid. para 53.
[12] See Reference re Bill 30, An Act to Amend the Education Act (Ont.) 1987 1 SCR 1148, 40 DLR (4) 18; Ford v Québec (Attorney General), 1988 2 SCR 712, 54 DLR (4) 577; Mahé, supra note 1; Reference re Manitoba Language Rights, 1992 1 SCR 212, 88 DRL (4) 385; and Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), 1993 1 SCR 839, 100 DLR (4) 723 [Reference re Public Schools Act].
[13] Reference re Secession of Québec, supra.
[14] Beaulac, supra.
[15] Arsenault-Cameron, supra.
[16] Reference re Secession of Québec, supra at para 49.
[17] Ibid. para 51.
[18] Ibid. para 52.
[19] Ibid.
[20] Ibid. para 54.
[21] Ibid. para 79.
[22] Ibid. para 81.
[23] Ibid. para 74.
[24] Ibid. para 80-81.
[25] Ibid.
[26] Reference re Remuneration of Judges of the Prov. Court of P.E.I.; Reference re Independence and Impartiality of Judges of the Prov. Court of P.E.I., 1997, 3 SCR 3, 150 DLR (4) 577 [Reference re Judges of the Prov. Court].
[27] Ibid. para 93.
[28] Reference re Secession of Québec, supra at para 53.
[29] Reference re Judges of the Prov. Court, supra at para 95.
[30] See J. LeClair, «Canada’s Unfathomable Unwritten Constitutional Principles» 2002, Queen’s LJ 389; R. Elliott, «References, Structural Argumentation and the Organizing Principles of Canada’s Constitution», 2001, 80 CBR 67 [«Organizing Principles of Canada’s Constitution»]; M. Walters, «The Common Law Constitution of Canada: Return to Lex non Scripta as Fundamental Law», 2001, 51 UTLJ 91; S. Choudry, «Unwritten Constitutionalism in Canada: Where do Things Stand?», 2001, 35 CBLJ 113; P. Monahan, «The Public Policy Role of the Supreme Court of Canada in The Secession Reference», 1999 11 NJCL 65.
[31] Reference re Secession of Québec, supra note 175. See also, Eurig Estate (Re), 1998 2 SCR 565, 165 DLR (4) 1, para 66: implicit principles can and should be used to expound the Constitution, but they cannot alter the thrust of its explicit text»; and Reference re Judges of the Prov. Court, supra, para 93.
[32] See «Organizing Principles of Canada’s Constitution», supra.
[33] Lalonde v. Ontario (Commission de restructuration des services de santé), 56 O.R. (3) 577, [2001] O.J. No. 4767 (QL) (CA) [Lalonde].
[34] Charlebois v. Moncton (City). 2001 NBCA 117.
[35] Ibid. para 54.
[36] Ibid. para 58.
[37] Ibid. para 56.
[38] Beaulac, supra, para 22 and 24.
[39] Beaulac, ibid. para 25.
[40] Ibid.
[41] Ibid. para 41.
[42] Ibid. para 22.
[43] Ibid. para 24.
[44] Ibid.
[45] Ibid. para 20.
[46] Arsenault-Cameron, supra, para 27.
[47] Ibid. para 30.
[48] Ibid. para 31.
[49] Doucet-Boudreau v. Nouvelle-Écosse (Minister of Education), 2003 SCC 62, [2003] 3 SCR 3 [Doucet-Boudreau].
[50] Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, [2005] 1 SCR 201 [Solski].
[51] DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 SCR 194 [DesRochers].
[52] While the Court was divided on the issue of the interpretation of subsection 24(1), no judge questioned the principles enunciated by the majority regarding the interpretation of language rights.
[53] Doucet-Boudreau, supra note 230, para 23.
[54] Ibid. para 26.
[55] Mahé, supra note 1, p 362.
[56] Doucet-Boudreau, supra para 27.
[57] Doucet-Boudreau, ibid. para 27 and Reference re Public Schools Act, ibid. p 850.
[58] Doucet-Boudreau, ibid. See also Beaulac, supra, para 25, and Arsenault-Cameron, supra, para 27.
[59] Doucet-Boudreau, ibid. para 29.
[60] Solski, supra, para 4.
[61] LC 1969, c 54.
[62] LNB 1969, c 14.
[63] Solski, supra.
[64] Ibid. para 5.
[65] Ibid.
[66] DesRochers, supra, para 44.
[67] Ibid. para 47.
[68] Ibid. para 51.
[69] Charlebois v. Moncton, supra, para 8.
[70] Ibid. para 10.
[71] Ibid. para 11.
[72] Ibid. para 62.
[73] Ibid. para 80.
[74] Gautreau v. New Brunswick (1989), 101 NBR (2) 1, overturned by the Court of Appeal on another issue (1990), 109 NBR (e) 54, and leave to appeal to the Supreme Court of Canada denied, [1991] 3 SCR viii.
[75] Ibid. p 28.
[76] R v. Gaudet, 2010 NBQB 27, 355 NBR (2) 277.
[77] Ibid. para 24.
[78] Ibid. para 28.
[79] Ibid. para 39-40.
[80] Her Majesty the Queen v. Canadian Union of Public Employees, Local 4848, 2019 NBQB 097.
[81] Ibid. para 95.
[82] R v. Losier, 2011 NBCA 102, 380 NBR (2) 115, para 10.