The Revision of the Official Languages Act: Thoughts and Avenues for Reform: Part I - Introduction

On August 4, 2002, a new Official Languages Act came into force in New Brunswick. It was a long-awaited response to the persistent demands of the Acadian community, demands which go back at least as far as the day after the adoption of the first Official Languages Act in 1969.

One objective of the new Act was to harmonize the province's laws with its constitutional obligations under the Canadian Charter of Rights and Freedoms’ sections 16 to 20. The Charter had come into effect after the 1969 Act, so the law no longer met the province’s constitutional obligations.

We have now had almost 20 years to assess the effectiveness of the 2002 law, and ten years to assess the 2012 amendments made to it. We can assess its strengths and weaknesses. I intend to provide an overview of the constitutional and legislative framework that should guide our thinking in this new round of reform.

The language provisions of the Canadian Charter of Rights and Freedoms, as well as the provisions of the Official Languages Act and the Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick,constitute the social contract on which the cohabitation of New Brunswick’s two official linguistic communities is based. They are a minimum, a bottom line, below which New Brunswick cannot go. No dialogue or negotiation can justify that a dilution or a reduction of the conditions of this social contract be accepted.

The terms of this contract have been accepted by the Legislative Assembly and, in the case of the Charterprovisions, by the Canadian Parliament, giving them political and legal legitimacy beyond any doubt. The terms list the fundamental values and principles that guide the cohabitation of New Brunswick’s two official language communities, values and principles that must not be abandoned no matter the opposition that is encountered. Compromising our values will always cost us more than respecting them. It is in this spirit that I approach this exercise.

1. Is it necessary in a democratic society to protect a language or languages?

Traditional fundamental rights - such as the freedoms of expression, of thought, of opinion and of religion, to name a few - remain an inevitable standard in our liberal democratic societies. They form the backbone of our democracies. We often tend to associate these fundamental rights with the individual, since by giving these rights legal protection, we are defending the dignity of the human person.

Linguistic rights, on the other hand, have the essential characteristic of being attributed to a group. And so, they are often misunderstood because they come in conflict with the majority's concept of fundamental rights. Take, for example, the debate on the language used in commercial signage. Under an orthodox fundamental rights approach, this issue is solely about freedom of expression: the right of the merchant to post signs in the language of his or her choice. However, for the linguistic minority, the obligation to post signs in both official languages is considered an essential step in the protection and development of their language and culture. How then can these two views of the same issue be reconciled? How then can the needs of a minority language community be met if the law only protects individual freedoms?

The organization of public space to accommodate the presence of a minority group is often in contradiction with the traditional vision of the democratic state, one of whose theoretical foundations is the uniformity of its individual components and the indivisibility of its sovereignty. This perception makes it impossible for the majority group to conceive linguistic minorities as a distinct group, since, according to its view, a democratic state has and should have only two types of interests: first, that of the individuals who operate in the private space, and second, that of the collectivity, represented in the public space by the sovereign state, i.e. the government and its institutions.

This view of the sovereign state does not provide for the existence of a language arrangement to meet the demands of the minority group. According to this view, since the state adopts linguistically and culturally neutral policies and norms, it cannot discriminate against any group. Only a uniform application of laws, policies and norms to all citizens can guarantee equality for all. If the linguistic specificity of a minority group is recognized, this recognition can only be symbolic and should not be seen as imposing a binding legal standard.

The minority community's desire to obtain legal recognition of its existence is unfortunately often misunderstood by the majority community. For the majority group, the very concept of "language rights" is difficult to understand, as the majority, except in special cases, does not need "rights" to protect its language and culture. The majority group, through the public institutions it controls, develops the rules and norms that will apply to all citizens. For the majority group, a democratic and egalitarian society is one that ensures that every citizen will have equal access to the decision-making process in the public space and that guarantees the existence of a private space within which everyone can exercise personal autonomy and make their own choices in accordance with their values. According to this view, the state should not jeopardize this balance. As we shall see, however, language rights have the effect of disrupting this balance.

2. A Journey to the Heart of Language Rights: The Concept of Substantive Equality?

On May 1, 1986, the Supreme Court of Canada handed down three decisions that have had an impact on many people's conception of language rights. Known as the 1986 trilogy, the three decisions in MacDonald, Bilodeau and Société des Acadiens[1], allowed the Supreme Court to develop a theory inviting us to consider language rights differently from other fundamental rights. According to these decisions, it was not up to the courts, through interpretation, to improve, add to or modify the historical constitutional compromise that gave rise to these rights.[2] Indeed, the courts should be reluctant to be instruments of change in this area and they should approach these rights with great restraint. These decisions suggested that it was more appropriate that the legislative process, being a democratic process unlike the judicial sphere, be the one to advance language rights based on political compromise. [3]

Therefore, according to this approach, the evolution of language rights will depend on the political climate of the moment and on the balance of power that the minority has with the majority and the political authorities. However, such an approach fails to recognize the collective dimension of language rights, thus depriving them of their most important feature. It has the effect of artificially narrowing the scope of these rights: language is seen only as a tool for communication, not for social and cultural development and growth. Language rights are, at most, only a form of accommodation allowing the individual to communicate, under specific conditions, with the state.

But shouldn't language rights aim to protect what Hon. Michel Bastarache defines as "a sign of belonging, a cultural heritage [and] a concrete expression of a community identity"[4]? The importance of a country's language framework is not based on the sum of individual interests, but rather on the community aspect of those interests which places more emphasis on the collective interests of those rights. [5] According to this approach, language is seen also as cultural heritage and a vehicle of identity.

The thesis expressed in the 1986 trilogy stands in the way of this concept of language rights. Their individual-centered and political compromise approach excludes any collective recognition of the minority community.

In 1999, the Supreme Court of Canada rejected this negative interpretation. In a majority judgment in the Beaulac decision, the Court found that the existence of a political compromise should have no impact on the scope of language rights.[6] It stated that where the 1986 trilogy of judgments advocate a restrictive interpretation of these rights, they should be set aside.[7] This means that language rights must be interpreted broadly and generously and in a purposive manner consistent with the preservation and development of official language communities.[8]

For language rights to be effective, the state must take positive measures to implement them. The state must also take note that the principle of equality does not have a more limited sense when applied to language rights, but must be given its true meaning, which is of substantive equality. [9] Equality is an idea that refers to a concrete reality. Therefore, we must remember that there is often a significant gap between formal equality and substantive equality.

Formal equality is achieved when members of the official language minority and those of the majority community are treated identically by offering them identical services in French and English, with no regard to the possible differences between the two communities.

Substantive equality, on the other hand, is achieved when differences in the characteristics and circumstances of the minority community are taken into account, where necessary, by offering services with distinct content or through a different mode of delivery, in order to ensure that the minority receives services of the same quality as the majority. This is the norm in Canadian law.

It is therefore not sufficient to treat all persons or language communities in the same way to ensure equality. To the extent that members of a minority community may have different needs, treating them in the same way as members of the majority community can cause greater inequality. Nowhere has this principle of substantive equality been better expressed than in the words of the American judge Frankfurter:

“He was a wise man who said that there is no greater inequality than the equal treatment of unequal individuals.” [10]

We could rephrase this and say that there is no greater inequality than the equal treatment of two unequal official language communities. In this context, the state must therefore ensure equal access to services of equal quality for members of both official language communities, taking into account the needs of the minority community. [11]

There is therefore a constitutional obligation to make services of equal quality available to the public in both official languages, and substantive equality must be the norm. While it may sometimes be sufficient to offer identical services to both official language communities to comply with the principle of linguistic equality, this may not always achieve substantive equality, depending on the nature of the service in question. It is therefore essential that the government adopt a method to evaluate how it should provide provincial services and programs in order to comply with substantive equality.

As the Treasury Board of Canada has indicated, to achieve substantive equality Government officials must first determine whether the service or program they are putting in place:

a) is aimed at community development, as opposed to a service or program provided to individual members of the public

b) requires consideration of regional, cultural or linguistic characteristics

c) aims to provide medium or long-term benefits and involves an ongoing relationship with the beneficiaries of the service (as opposed to a one-off service)

d) whether the participation of the target population is required in the development or implementation of the service or program in order to achieve its objectives.

If the answer to any of these questions is yes, then, in a second step, government officials will need to determine whether a uniform service is appropriate, taking into account the target population and the nature of the service or program. They will have to ask, among other things, whether it is a service or program for which a uniform service (the same delivery method and content) would provide the same benefit to members of both official language communities.

If the answer to this question is no, then they will have to proceed to a third step to determine how to adapt the service or program to the needs of the official language minority community:

a) Is it necessary to adapt the content to take into account the specific needs of the linguistic minority?

b) Is it necessary to adapt the method of service delivery to take into account the particular needs of the linguistic minority?

If the answer to any of these questions is "Yes", then the service or program will have to be adapted to the needs of the minority to ensure that the content or mode of delivery takes into account the particular needs of the minority community. This is how the concept of substantive equality works.

It is therefore clear that the exercise of language rights cannot be seen simply as a response to a request for accommodation. [12] Rather, it requires a real commitment on the part of the government apparatus and the recognition of the specificity of the minority group.

3. Language Rights in New Brunswick: The Quest for the Holy Grail?

When the state recognizes the rights of a minority language group, it is admitting, at least implicitly, that majority rule cannot always guarantee respect for the specificity of that minority. Indeed, asking persons who are members of a minority community to submit to the choices of the majority on matters relating to education, for example, amounts to forcing them to accept the values of the majority and to renounce their own identity. Linguistic minorities cannot be sure that the majority will take their linguistic and cultural concerns into account, or even that it understands their needs.

An individual member of a minority group cannot be required to give up his or her identity as a result of a choice made by the majority. There can be no 'general will' on matters of identity, i.e. language or culture. The language and culture of a community are part of the history and way of life of a community. They define how people live together, how they express themselves and how they perceive things. They are the anchor for each person in a community.[13] The state is no longer, in this case, the central vehicle for the attachment of identity, although it can play a significant role.

When the state decides to recognize that a minority group has rights, it must rethink the comprehensive approach that is part of the logic of traditional fundamental rights, i.e. that rights should apply uniformly to all without distinction. It must also pay particular attention to its own context and find solutions that are appropriate to it. These solutions will have to meet the needs of the minority group and may therefore vary from province to province and from state to state, since the demands of minority groups will not always be the same. Language rights can only be asymmetrical in their conception and application, as they are embedded in different contexts that have been shaped by a distinct combination of historical, social and political factors.

In the case of New Brunswick, sections 16 and 16.1 of the Charter of Rights and Freedoms are the essential starting points for any legal analysis of language planning. [14] These provisions recognize the equality of official languages and the equality of official linguistic communities, respectively.

Section 16(2) of the Charter provides that:

"English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick."

Nearly 40 years after its adoption, this provision still remains controversial as to its actual scope. Is the section merely a symbolic principle or does it confer tangible rights? According to the first view, the provision is purely declaratory, a symbolic provision that is not enforceable. Article 16 would, in other words, be a "preamble" announcing the rule that should govern the interpretation of the articles that follow. It would contain an ideal rather than describe a reality. It reminds us of a paradise that we would like to achieve, without constituting a constitutional requirement to attain it.

Since the decision in Beaulac, [15] such a restrictive interpretation of the scope of section 16 can no longer be upheld. The equality recognized in this section creates specific obligations [16]. The section imposes on government the obligation to pay particular attention to the notion of linguistic duality. It also imposes on government the obligation to apply this notion with rigorous and unwavering logic in the definition and implementation of positive rights. [17]

Section 16.1 is unique to New Brunswick. It provides:

"(1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to such distinct educational and cultural institutions as are necessary for the preservation and promotion of those communities.

(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to section (1) is affirmed."

This section essentially restates certain provisions of the Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick. [18] The section’s recognition of the principle of equality of the official language communities clarifies the purpose of the language guarantees. It reflects Parliament's commitment to the equality of official language communities. It serves to promote the two official languages and the cultures they represent, and to support the continued vitality and development of both official language communities. It imposes an obligation on the provincial government to take positive measures to ensure that the minority official language community has equal status and equal rights and privileges with the majority official language community, thus making the principle of equality of the two linguistic communities a dynamic concept. [19]

The purpose of the constitutional language provisions is, in my view, clear: they are intended to preserve the two official languages and the cultures they represent and to enhance the vitality and support the development of both official language communities. This entails concrete legal consequences and imposes an obligation on the provincial government to take positive steps to ensure that the minority official language community has status, rights and privileges equal to those of the majority official language community. These rights are dynamic. They involve provincial government intervention to ensure, as a minimum, equal treatment of both communities and, where necessary, differential treatment in favour of the linguistic minority in order to achieve the collective as well as the individual dimension of the substantive equality of status, right and privilege. The principles of equality of the official languages and of the two official linguistic communities therefore require that the provincial government adopt positive measures to ensure the implementation of these rights. They also create obligations for provincial institutions.

It is within this theoretical framework that we must begin our reflection on the revision of the Official Languages Act.

The next section will deal with the principles that must guide the interpretation of these rights.

[1] MacDonald v. City Montréal, 1986, 1 SCR 460 [MacDonald]; Bilodeau v. A.G. (Man.), 1986, 1 SCR 449; Société des Acadiens du Nouveau-Brunswick v. Association of Parents for Fairness in Education, 1986, 1 SCR 549.

[2] MacDonald, ibid. para. 61, 103-104.

[3] Société des Acadiens, supra para. 65 and 68.

[4] Michel Bastarache, « Introduction » in Michel Bastarache, ed., Les droits linguistiques au Canada, 2nd ed., Cowansville (Qc), Yvon Blais, 2004, p. 6 [Les droits linguistiques au Canada].

[5] D. G. Réaume, « Official Language Rights: Intrinsic Value and the Protection of Difference » in W. Kymlicka and W. Norman, ed., Citizenship and Diverse Societies, Oxford, Oxford University Press, 2000, 245.

[6] R. v. Beaulac, [1999] 1 SCR 768, para. 22 and 24 [Beaulac].

[7] Ibid. para. 25.

[8] Ibid.

[9] Ibid. para. 22.

[10] 339 U.S. 162 (1950), p. 184

[11] DesRochers v. Canada (Industry), [2009] 1 SCR 194

[12] Ibid. para. 24.

[13] A. Margalit and J. Raz, « National Self-Determination » (1990) 87/9 Journal of Philosophy 439, pp. 447-49: « cultural identity provides an anchor for [people’s] self-identification and the safety of effortless secure belonging ».

[14] The other provisions of the Charter that affect language rights in New Brunswick are sections 17 to 20 and section 23. Sections 17, 18 and 19 guarantee the equality of English and French in the debates and proceedings of the Legislative Assembly, in court proceedings and in the laws and regulations of the province. Section 20 guarantees the public the right to receive services from provincial institutions in the official language of their choice. Section 23 deals with the right to minority language education, the only provision, perhaps along with subsection 16(3), that grants rights to minorities in all Canadian provinces and territories, i.e. French outside Quebec and English in Quebec.

[15] [1999] 1 SCR 768.

[16] N. Vaz and P. Foucher, « Le droit à la prestation des services publics dans les langues officielles » in Les droits linguistiques au Canada, supra p. 318; Charles N. Weber, « The Promise of Canada’s Official Language Declaration » in J. E. Manget, ed., Official Languages of Canada, LexisNexis, 2008, pp. 131-170.

[17] J. Magnet, « The Charter’s Official Languages Provision: The Implementation of Entrenched Bilingualism » (1982) 2 Sup. Ct. L. Rev. 163, p. 182.

[18] SNB 1981, c O-1.1

[19] Charlebois v. City of Moncton (2001), 242 NBR (2d) 259, para. 80 [Charlebois].