SECTIONS 16, 20 AND 23 OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS :UNANSWERED QUESTIONS.

Prepared by:

Richard Tardif

For:

The Court Challenges Program of Canada
616 - 294 Portage Avenue
Winnipeg, Manitoba R3C 0B9
Phone: (204) 942-0022 Fax: (204) 946-0669


1999 Language Conference

Aussi disponible en français

Sections 16, 20 and 23 of the Canadian Charter of Rights and Freedoms : Unanswered questions.I

As a contribution to the discussions to be held at its general meeting on September 18 and 19, 1999, the Court Challenges Program has asked me to prepare a fourteen-page review of unanswered questions arising out of Sections 16, 20 and 23 of the Canadian Charter of Rights and Freedoms (‘the Charter’).

Bearing in mind this limitation and the complexity of the subject, I have attempted, based on my experience in such matters, the decisions of the Supreme Court of Canada, academic articles and studies prepared by the Commissioner of Official Languages, to give you a complete picture of the situation. I am sure you will understand that this working paper makes no claims to deal exhaustively with all the questions relating to Sections 16, 20 and 23 of the Charter. I trust that it will be useful to you nevertheless in your discussions and your work.

 

1 Richard L. Tardif, Director, Legal Services, Office of the Commissioner of Official Languages. This document contains the views of the author and does not necessarily represent the position of the Commissioner of Official Languages.

 

 

 

[TRANSLATION]

The language provisions of Sections 16 to 22 of the Charter are part of a continuing constitutional process, at least so far as the fèderal level is concerned. What is new is that these provisions expressly reflect the evolution of language guarantees in Canada: the principle of equality of the status and use of official languages is entrenched and must exist as a matter of fact, in a concrete and effective way. In order to achieve this effective implementation measures are required and certain practices will have to be abandoned or replaced. Everyone agrees that equality does not exist at present, but it also is not something static which can be fixed once and for

all: it must dépend on the facts and develop in response to needs and circumstances.1

 

Introduction

The coming into force of Sections 16 to 23 of the Charter in April 1982 was a turning-point in Canadian linguistic reform. These constitutional language guarantees are the corollary of the other provisions of the Constitution on the use of English and French, provisions of the Official Languages Act ("OLA ") and precedents on this question which have accumulated over the years.

The entrenchment of these language guarantees in the Constitution makes it clear that they are fundamental in nature. First, Parliament and the legislature cannot render them inapplicable, as the exception (or "notwithstanding") clause which permits the application of Charter provisions to be suspended under certain circumstances does not apply to these rights. Second, many writers consider that Sections 16 to 23 (except for the provisions regarding New Brunswick) can only be amended with the unanimous consent of Parliament and the provincial legislatures. However, these provisions are subject to the limiting clause in Section 1 of the Charter, which allows the courts to consider reasonable limits on these rights if they can be demonstrably justified in a free and democratic society. The interaction between Section 1 and Sections 16 to 23 of the Charter has still not been completely classified by the courts.

The history of the development of language rights shows the key part played by the courts in implementing constitutional guarantees, especially where Section 23 of the Charter is concerned. The conduct of such litigation requires an enormous amount of time, energy and expertise as well as large sums of money which are not available to just anyone.

As Madam Justice Bertha Wilson put it so well in her letter to the Attorney General and Minister of Justice of Canada (March 1992),2 "It is totally illusory to confer rights on people who do not have the means to enforce them". The Court Challenges Program continues to play a leading role not only by making possible the preparation of studies and analyses of these constitutional provisions but also by providing the sizable financial support needed if important questions relating to the implementation of these rights - which have a major impact on the vitality and the development of official language communities - are to be determined by the courts.

An analysis of the case law on language rights over the last 17 years indicates that many questions have still not been dealt with. Others may be seen from a different standpoint as the case law evolves. A momentum is currently under way in the field of language rights. Cases coming before the Supreme Court of Canada will allow it to give up-to-date rulings on the evolution and also the interpretation of language rights. Consistent with the Reference Re Secession of Quebec,3 in which it recognized the importance of respecting minority rights, the Supreme Court of Canada last May delivered a key judgment in Beaulac4 which will have a significant influence on the interpretation of language rights. In a few weeks the Court will be hearing Arsenault-Cameron,5 which raises important questions affecting Section 23 of the Charter.

Background

When we speak of official languages it is important to remember that in Canada the power to legislate on matters of "language" does not belong to a single jurisdiction exclusively.6 The power to legislate on language is shared between Parliament and the legislatures. It is in fact incidental to the exercise of a federal or provincial power. We have, for example, the Official Languages Act of the federal government,7 of New Brunswick8 and of the Northwest Territories,9 the French Language Services Act in Ontario, 10 the Charter of the French Language in Québec,11 the French Language Services Act in Prince Edward Island, 12 and so on.

 

The Constitution of Canada contains constitutional guarantees regarding the use of English and French which were in place before the adoption of Sections 16 to 23 of the Charter and which have been liberally construed by the Supreme Court of Canada. These are Section 133 of the constitution Act, 1867 and Section 23 of the Manitoba Act,1870.

Whereas despite certain fluctuations the Supreme Court of Canada had adopted a basically liberal approach in interpreting the 1867 and 1870 constitutional provisions on the use of English and French,13 in 1986 it adopted a "narrower" interpretation of language rights in Société des Acadiens,14 Macdonald15 and Bilodeau. 16 The late Mr. Justice Beetz, speaking for the majority in Société des Acadiens, 17 laid down the principle that language rights are different from other fundamental rights and should thus be interpreted with greater restraint since they are based on a political compromise.

In later judgments the Supreme Court has moved away from this narrower position, especially in Mahé,18 dealing with Section 23 of the Charter.

In Beaulac, 19 Mr. Justice Bastarache, speaking for the seven majority judges, dealt with the interpretation of language rights, which "must in all cases be interpreted purposively consistent with the preservation and development of official languages communities in Canada",20 and the effect of the dictum of the late Mr. Justice Beetz in Société des Acadiens2l on their interpretation. Mr. Justice Bastarache clearly established, on behalf of the seven majority judges, that to the extent that the rule in Société des Acadiens22 "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 …’’21

This dictum by Mr. Justice Bastarache in Beaulac24 will have a major impact on the interpretation of the constitutional provisions affecting official languages. It will probably lead

the federal and provincial governments to review their positions on the implementation of language rights. It may have an impact on cases already pending and may even reduce the number of disputes.

Equality of status and use of both official languages in Canada (Section 16)

Section 16 of the Charter is a turning-point since it incorporates the rule of the equality of both official languages in Canada in the Constitution. The courts interpret the constitutional and legislative guarantees regarding the use of English and French in accordance with this provision. Deciding on the true limits of Section 16 raises highly important questions. Is it a declaratory or executory provision? The distinction is an important one since the consequences are different. For example, could a federal statute be declared unconstitutional simply because it is contrary to the principles of equality of both official languages? This question was raised in Société des Acadiens, 25 which had to do with the interpretation of Section 19 of the Charter, but was not finally resolved by the Court.

The principle that English and French are equal is stated in Section 16(l) and (2), at the federal level and for New Brunswick respectively. Although equality is mandated, Section 16(3) takes into account the fact that in 1981 when the Charter was adopted such equality had not in fact been achieved. That is why it was provided in this Subsection that Parliament or the legislatures could adopt measures to advance the equality of status or use of the two official languages.

In Beaulac26 Mr. Justice Bastarache mentioned that the idea that Section 16(3) of the Charter "limits the scope of s. 16(l) must also be rejected. This Subsection affirms the substantive quality of those constitutional language rights that are in existence at a given time. Section 2 of the Official Languages Act has the same effect with regard to rights recognized under that Act. This principle of substantive equality has meaning. It provides in particular that language rights that are institutionally based require government action for their implementation and therefore create obligations for the State".27

 

The interpretation which the Supreme Court of Canada gives to the federal government's obligations under Section 16(l) and in (3) could have a significant impact on the interpretation of the provisions of the OLA, and in particular Part VII dealing with the advancement of English and French in Canadian society and the federal governments commitment in this regard.

As Madam Justice Wilson, dissenting in Société des Acadiens,27 noted, there is in Section 16 "a principle of growth or development ... a progression towards an ultimate goal. Accordingly the question, in my view, will always be - where are we currently on the road to bilingualism and is the impugned conduct in keeping with that stage of development? ".28

This principle of growth or development is fundamental, since it allows the Court to play a key part in striving towards this goal at the federal level and in New Brunswick. It can determine whether there is compliance in the legislative and regulatory provisions in question by considering how far Canadian society has moved towards bilingualism and the situation of official language minority communities.

As part of the same evolutionary momentum, New Brunswick, the only officially bilingual province, in 1993 gave constitutional status to the rules in its "Bill 88" on equal status of its linguistic communities by the addition of Section 16.1 of the Charter, laying down the equality of the Francophone and Anglophone communities in New Brunswick. This revision has not yet been interpreted by the courts. It will be interesting to see what the interaction will be between Section 16.1 and other official language provisions of the Charter applicable in New Brunswick.

The Supreme Court of Canada has not yet had occasion to define the exact limits of the phrases "institutions of the Parliament" and "government of Canada" in connection with Section 16(l) of the Charter. Does this expression cover the institutions of the territorial governments of the Yukon, the Northwest Territories and Nunavut, as some argue?29 Case law30 interpreting Section 32 of the Charter, a provision dealing with the application of the Charter to the Government of Canada, will be highly relevant. The answers to these questions are important and could have an impact on the provisions of the federal OLA, which in Section 3 defines the concept of a federal institution on which application of the law is based.

The phrase "institutions of the legislature and government of New Brunswick" used in Section 16(2) has also been the subject of decisions of the New Brunswick courts, in particular in Boudreau, Gautreau and Haché31.

It may also be asked whether the equality principle entrenched in Section 16 of the Charter can serve as a foundation for the right to work in either of the official languages, especially in the Federal public service or in the New Brunswick civil service. The interpretation given to this provision by the Court may have an impact on the OLA, which in Part V defines the limits of this right.

Communications and service to the public (Section 20)

Like Section 16, Section 20 of the Charter is a provision for which there is no equivalent in earlier constitutional provisions on the use of English and French. It gives the public the right to communicate with, and to receive available services from, any head or central office of federal institutions. The same right applies to offices of federal institutions where there is a significant demand or it is reasonable due to the nature of the office. Section 20(2) of the Charter indicates that this right is also applicable with respect to "any office of an institution of the legislature or government of New Brunswick ". There are not many decisions dealing with the interpretation of Section 20(l) and (2) of the Charter .32 In 1986 in Société des Acadiens 33 Mr. Justice Beetz indicated in passing, in analyzing Section 19 of the Charter, that the right to communicate in either official language mentioned in Section 20 also assumed a right to be heard or understood in those languages.34

Several factors may explain the small number of decisions rendered on Section 20 of the Charter. It may perhaps in part be due to the fact that Sections 21 to 33 of Part IV of the OLA, in effect since September 15, 1988, are designed to give effect to that constitutional provision on the legislative level while the circumstance giving rise to the concepts of "significant demand" and "nature of the office" have been defined since 1992 in the Official Languages "Communications with and services to the public" regulations.35 The Commissioner of Official

Languages may investigate complaints regarding failure of institutions subject to the OLA to perform these obligations. Finally, a court proceeding "in a summary manner" is contemplated by the OLA and allows the Federal Court to grant such remedy as it considers appropriate and just in the circumstances.36

Moreover, we should never underestimate the impact that the interpretation of Charter provisions on official languages has on the application and interpretation of the OLA. In Viola37 the Federal Court of Appeal laid down the provisions for interpreting that Act based on the Supreme Court of Canada judgment in Société des Acadiens.38

In an eloquent speech delivered in September 199839 at a symposium marking the tenth anniversary of the OLA, Mr. Justice Bastarache concluded by noting that it was necessary to "[bridge] the gap between theory and meaningful offer of services in the area of language rights". In Beaulac,40 he noted that language rights "are not negative rights, or passive rights; they can only be enjoyed if the means are provided". He also mentioned that the implementation of language rights imposed institutional obligations on governments and that "in the context of institutional bilingualism, an application for service in the language of the official minority language group must not be treated as though there was one primary official language and duty to accommodate with regard to the use of the other official language. The governing principle is that of the equality of both official languages".41

The Supreme Court of Canada’s reasons in Beaulac will have a major impact on the interpretation of Section 20 of the Charter, and thereby on the provisions of Part IV of the OLA.

However, it is important to note that the Supreme Court of Canada has not yet had occasion to define certain key concepts in Section 20 of the Charter. For example, what is meant by the concept of "public"? Does this include artificial persons, groups or associations? Does the concept of "office" cover, as mentioned in Section 21 of the OLA, "any other place where services are offered", and by extension does it cover an RCMP patrol car? How will the key concepts of "significant demand" and "nature of the office"42 be defined? These questions are the

issue in Her Majesty the Queen v. Donnie Doucet, currently before the Nova Scotia Provincial Court.43 Will the definition of these concepts by the Court be consistent with the circumstances giving rise to them, defined in the Official Languages (Communications with and Services to the Public) regulations?44

What is meant by the expression "institutions of the Parliament and government of Canada", which is also defined in Section 3 of the OLA? Does this expression also cover federal departments, agencies brought within the OLA by specific legislation, Crown agents, Crown corporations, public corporations which do not have the status of agent, officers of the RCMP who also act on behalf of provincial governments, provincial police forces, municipal police forces or municipalities themselves?45 Can this expression apply to the institutions of the territorial governments of the Yukon, the North West Territories and Nunavut? We have earlier referred to the interpretation that may be given by the Supreme Court of Canada to the phrase "institution of the legislature or government of New Brunswick" used in Section 20(2) of the Charter.

As I mentioned earlier, interpretation of the concept of "Government of Canada" is likely to have a significant impact on the definition of these phrases used in Section 20(l) and (2), applicable to the federal level and to New Brunswick. In Godbout,46 the Supreme Court of Canada mentioned "Were the Charter to apply only to those bodies that are institutionally part of government but not to those that are - as a simple matter of fact - governmental in nature (or performing a governmental act), the federal government and the provinces could easily shirk their Charter obligations by conferring certain of their powers on other entities and having those entities carry out what are, in reality, governmental activities or policies".47

The boundaries between Sections 19 and 20 of the Charter have still to be defined. The OLA makes a distinction between litigants' rights before federal tribunals (Part III) and communications and services (Part IV). It will also be necessary to determine whether Section 20 covers the active offer of services concept found in Section 28 of the OLA. Does Section 20 of

the Charter also apply to agencies acting on behalf of a federal institution, and if it does, to what extent? Section 25 of the OLA, a provision for which there is not yet any body of case law, states that federal institutions must ensure that where services are provided on their behalf the same linguistic obligations are observed.

This question becomes particularly acute in connection with the devolution of federal powers to private institutions or provincial or territorial bodies. In 1998 the Commissioner of Official languages prepared a study on the effects of governmental changes on the official languages program in Canada,48 in which he set out five key principles for the protection of official languages in these circumstances. The task force on government transformations and official languages, created by the government to give effect to this report by the Commissioner, tabled its report and recommendations to the government in January 1999.49 Finally, this entire question is the focus of a court action brought by the Commissioner of Official Languages pursuant to the federal Contraventions Act.50

 

[TRANSLATION]

This question is still outstanding and eventually have to be answered by the courts. For example, at the outset this question raises the issue of the extent to a province or provincial body, which enjoys such delegation, becomes an institution of the federal government (within the meaning of Section 20) when it is required to deal with a sector within the powers of the central Parliament. However, at the same time this question also raises the entire problem of whether the central Parliament, in thus delegating the administration of its legislation and programs to provincial institutions, can get around its constitutional, duties and do indirectly what the Constitution of Canada does not allow it to do directly. Does Section 20 apply in a situation of delegated administrative authority? For Section 20 to apply, must the federal government itself state this in, for example, an agreement negotiated with a particular province? Must this right be clearly specified?

Along with these questions, that of compensation in cases of the infringement of rights guaranteed by Section 20 is still open. The Federal Court of Canada has already had occasion to rule in Lavigne v. Human Resources Development53 on the scope of Section 77(4) of the OLA, which deals with the Courts powers over compensation. If such compensation can be awarded, can it include the issuing of injunctions and the awarding of monetary and exemplary damages? To whom can such damages be awarded?

 

Minority language educational rights (Section 23)

Section 23 of the Charter is a remedial provision which imposes positive obligations on the provinces to change or create significant institutional structures to ensure that they give effect to the minority language educational rights. Section 23 guarantees parents who are Canadian citizens the right to have their children receive primary and secondary school instruction in the minority language throughout Canada [except in Quebec, for Section 23(l)(a)], in accordance with tests based on the "first language learned and still understood" (23(l)(a)), or on instruction already received in English or French, if the parent is part of the minority linguistic community in the province (23(l)(b)). Section 23(2) deals with the continuity of instruction in French or English for brothers or sisters. Section 23(3), according to the interpretation of it given by the Supreme Court in Mahé,54 recognizes the right to instruction in the minority language (when the number of children warrants it) in "minority language educational facilities" and includes a right of management and control applicable according to a "sliding scale" formula corresponding to the number of children and the existing institutions.

Section 23 has been dealt with in two judgments of the Supreme Court of Canada in leading cases, Mahé v. Alberta55 in 1990, which defined the general principles, and subsequently in 1993 in the Reference re Public Schools Act (Manitoba), in which the Court had to rule on the question of whether observance of the requirements of Section 23 meant that instruction should be provided in distinct and separate facilities. In Quebec Association of Protestant School Boards56 in 1984, the Court held that tests relating to access to English schools contained in the Charter of the French Language were contrary to Section 23 of the Charter. In Société des Acadiens in 1986, Mahé57 and Adler58 in 1996 the Court repeated that Section 15 of the Charter, dealing with equality rights, cannot be used to interpret Section 23. Section 23 creates a "complete code" in itself, a unique source of minority language educational rights: it is a provision that grants "special status ", special rights to a specific group.

On November 4, 1999 the Supreme Court of Canada will again have occasion to rule on the interpretation of Section 23 of the Charter in Arsenault-Cameron,59 in which the following questions will be raised by the Court:

a) should paragraph 23(3)(a) of the Charter be interpreted to mean that when the numbers warrant the provision of minority language instruction in a specific area the right automatically includes the right to instruction in an educational facility located in that area, or

b) having regard to the appropriate considerations, including the number of students that could eventually be expected to take advantage of minority language instruction, will the sliding scale approach to the application of Section 23 of the Charter allow for minority language instruction in a facility located outside the area where the numbers warrant the provision of minority language instruction?

Analysis of academic commentary and case law on Section 23 of the Charter leads us to conclude that the Supreme Court of Canada has laid the groundwork for the interpretation of Section 23 of the Charter. It has indicated the conditions giving rise to this right and the parameters of the right to management and control. In his national study in August 1998 on the implementation of Section 23 of the Charter, 60 the Commissioner gave it as his opinion that "In every province, school governance finally rests on firm foundations - at least in terms of the structures, the framework of education - although in some cases what is in place is still not fully consistent with the requirements of Section 23, and in many cases funding remains inadequate."61

The new generation of cases related to Section 23 should deal largely with questions involving the implementation of this right and the principle of equivalency, discussed by Mr. Justice Vickers of the British Columbia Supreme Court in Association des parents francophones de la Colombie-Britannique.62

The reason the Supreme Court of Canada did not wish to define the particular conditions for the application of Section 23 was that it found, as it mentioned in Mahé, 63 that "Imposing a specific form of educational system in the multitude of different circumstances which exist across Canada would be unrealistic and self defeating". The Court recognized at the outset that there will be other cases in which it will be possible to determine whether the general requirements it has laid

down have been observed by the provinces.

As the scope of the rights mentioned in Section 23 depends on "whether numbers warrant", it can be anticipated that there will be disputes with public authorities as to the places in which education can be provided, the extent of courses to be made available to the linguistic minority, the type of program to adopt, the resources that should be allocated, the required second language

courses that should be given and the function and powers of parents in the operation and content of minority language education. In the context of a recent arbitration of a grievance in Nova Scotia, in NSTU v. Acadian School Board,64 the tribunal will have to decide whether the Acadian Provincial School Board in entitled to require that the collective agreement between itself and its teachers be in French.

Other questions regarding Section 23 of the Charter may eventually arise:

devolving on parents and the way in which parents are represented. The new provincial government has suspended the reference procedure and intends to review this legislation by 2001. On September 13 last, the Comité des parents du Nouveau-Brunswick inc. announced their intention of filing an action to determine the constitutionality of the New Brunswick Education Act.

In addition to Arsenault-Cameron, 67 there are also a number of cases involving Section 23 of the Charter: in British Columbia (where in actions brought by the Association des parents francophones de la Colombie-Britannique68 the question of compensation has been left unanswered); in Manitoba69 (the DSFM action, dealing primarily with the question of adequate financing); in Ontario70 (Séguin, which deals with the question of financing); in Nova Scotia7l (the action by Francophone parents against the Acadian Provincial School Board concerning the transition from "Acadian" secondary schools to homogeneous schools); not to mention a possible action in Alberta regarding the right to school management for parents in the Calgary area.

Conclusion

Through this brief overview of the cases involving Sections 16, 20 and 23 of the Charter shows how quickly language rights have evolved since its proclamation. It also confirms the close connection between language rights and human rights. The many decisions of the Supreme Court of Canada and lower courts have not only underscored the national scope of matters involving language rights, but have also shown their dynamic and forward-looking aspects. In fact, now as ever the move towards equality in our two, official languages is at the heart of our national consciousness; and as long as court actions remain essential maintaining language and individual rights, the Court Challenges Program. will be a necessity.

 

 

 

NOTES

1 A. Tremblay and M. Bastarache, "Les droits linguistiques", in G.-A. Beaudoin and E. Ratushny (ed.), Charte canadienne des droits et libertés, 2d ed., Montréal, Wilson and Lafleur Ltd., 1989, 1058 pp., pp. 721-756, at p.

756.

2 Richard Goreham, Language Rights and the Court Challenges Program -A Review of its accomplishments and Impact of its abolition, a report submitted to the Commissioner of Official Languages, August 1992.

3 Refèrence re Secession of Quebec, [1998] 2 S.C.R. 217.

4 Beaulac v, The Queen (British Columbia), unreported judgment of the Supreme Court of Canada in case No. 26416 on May 20,1999.

5 Government of Prince Edward Island v. Arsenault-Cameron et al.: Supreme Court of Prince Edward Island, Appeal Division, April 24, 1998, case AD-0727, Charlottetown Registry (1998), 160 D.L.R. (4th) 89, 262 Nfld. & P.E.I.R. 329 (C.A.). Application for leave to appeal granted by Supreme Court of Canada on November 19, 1998, S.C.C. case No. 26682. The case will be heard on November 4, 1999.

6 Jones v. A. G. of New Brunswick, [ 1975] 2 S.C.R. 182; Devine v. Quebec (A. G.), [ 1988] 2 S.C.R. 790; Beaulac,supra, note 13, at para. 14.

7 R.S.C. 1985 (4th Supp.), 0-3.01, c. 31.

8 R.S.N.B. 1973, c. 0-1.

9 R.S.N.WT. 1988, c. 0-1.

10 R.S.O. 1990, c. F-32.

11 R.S.Q. 1977, c. C-1 1.

12 French Language Services Act, S.P.E.I. 1999, c. 13.

13 Beaulac, supra, note 4, at paras. 14-18

14 Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for fairness in Education,(1986) 1 S.C.R. 549.

15 MacDonald v. City of Montreal, [ 1986] 1 S.C.R. 460.

16 Bilodeau v. Attorney General of Manitoba, [ 1986] 1 S.C.R. 449.

17 Société des Acadiens du Nouveau-Brunswick Inc., supra, note 14.

18 Mahé v. Alberta, [ 1990] 1 S.C.R. 342.

19 Beaulac, supra, note 4.

20 Supra, note 4, at para. 25 of the reasons of Bastarache J.

21 Société des Acadiens du Nouveau-Brunswick Inc., supra, note 14.

22 Ibid.

23 Supra, note 4, at para. 25 of the reasons of Bastarache J.

24 Beaulac, supra, note 4.

25 Société des Acadiens du Nouveau-Brunswick Inc., supra, note 14.

26 Beaulac, supra, note 4.

27 1bid., at para. 24 of the reasons of Bastarache J.

28 Société des Acadiens du Nouveau-Brunswick Inc., supra, note 14.

29 Supra, note 6, at 619.

30 See in particular on this point Pierre Foucher, Michel Doucet, Les obligations linguistiques du gouvernement territorial et du gouvernement fédéral dans les Territoires du Nord- Ouest, a study prepared at the request of the Fédération Franco-Ténoise, March 1999.

31 RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, McKinney v. University of Guelph, [1990] 3 S.C.R. 229, Stoffman v. Vancouver General Hospital, [ 1990] 3 S.C.R. 483, Douglasl/Kwantlen Faculty Assn. V. Douglas College, [ 1990] 3 S.C.R. 570, Lavigne v. Ontario Public Service Employees Union, [ 1991] 2 S.C.R. 211, Eldridge v. A. G. of British Columbia, [ 1997] 3 R.S.C. 624 and Godbout v. Ville de Longueil, [ 1997] 3 S.C.R. 844.

32 R. v. Gautreau, (1990), 101 R.N.B. (2d) (N.B.C.Q.B., Richard J.): provincial police forces are institutions of the government of New Brunswick within the meaning of Section 20(2) of the Charter; (1991) 109 R.N.B. (2d) 54 (C.A.N.B.); the Court of Appeal reversed the judgment of the Court of Queens Bench; R. v. Boudreau (1990), 103 R.N.B. (2d) 104 (N.B.C.Q.B.); provincial police forces are regarded as institutions of the government of New Brunswick; (1991) 107 R.N.B. (2d) 298 (C.A.N.B.): decision reversed by Court of Appeal on other grounds; R. v. Haché (1994), 139 R.N.B. (2d) 81 (C.A.N.B., Angers J.A. dissenting): municipal police forces are not institutions of government of New Brunswick, Angers J.A. dissenting; R. v. Bastarache (1993) 128 R.N.B. (2d) 217 (C.A.N.B.): municipal police forces are not institutions of government of New Brunswick.

33 See in particular the following cases where refèrence has been made to Section 20(l) of the Charter: Hollman v. R. (1983), 28 Alta. L.R. (2d) 35 Alta. C.R.; R. v. Jervis, (1984), Il C.R.R. 373 (Man. Co. CQ St-Jean v. The Queen and the Commissioner of the Yukon (September 26, 1986), Whitehorse, 545.83 (YS.C.), Meyer J.; Saulnier v. R. (1989), 90 N.S.R. (2d) 77 (N.S. Co. Ct.); Robinson v. The Queen (February 10, 1992), Moncton, M/M/197/91 (N.B.C.Q.B.), Miller J.; Tucker v. Canada (Federal Court) (December 4,1992), Toronto, T-2087-92 (F.C.T.D.), prothonotary Giles; R. v. Rodrigue (1994), 91 C.C.C. (3d) 455 (Y.S.C.), appeal dismissed on other grounds (1995), 95 C.C.C. (3d) 129 (Y.C.A.), application for leave to appeal denied, [1995] 3 S.C.R. vii.; Simard v. R. (1995), 27 O.R. (3d) 116 (Ont. C.A.), application for leave to appeal denied, [1995] 1 S.C.R. x; R.v. Beaupré (January 7, 1998), B.C. 1431 IC (B.C.P.C.), Paradis J.

34 Société des Acadiens du Nouveau-Brunswick Inc., supra, note 14.

35 Ibid., at 575.

36 SOR/92-48.

37 See the provisions of Part X of OLA. See also Lavigne v. Human Resources Development et al.,T-1049-98, Federal Court Trial Division, and [1977] 1 F.C.. 305, Federal Court of Appeal. In that case the Federal Court of Appeal affirmed the broad power of assessment conferred on the Trial Division by Section 77(4) of OLA, the wording of which is similar to Section 24 of the Charter. Section 77(4) allows the Trial Division to award compensation if it sees fit, including damages, when OLA is not observed.

38 Société des Acadiens du Nouveau-Brunswick Inc., supra, note 14.

39 Canada (Attorney General) v. Viola, [1993] 1 F.C. 373.

40 Mr. Justice Michel Bastarache, "Protecting languages and protecting linguistic minorities: two distinct objectives requiring different approaches?", a speech given at Ottawa on September 17, 1988 in a symposium marking the tenth anniversary of the 1988 Official Languages Act.

41 Beaulac, supra, note 4, at para. 20.

42 Ibid., at para. 39.

43 Saulnier v.R.,(1989),90N.S.R.(2d)77(N.S.Co.Ct.).

44 Case No. 795959.

45 Supra, note 36.

46 See R. v. Bastarache (l 983), 128 N.B.R. (2d) 104 (N.B.C.Q.B.), and R. v. Haché, supra, note 3.

47 Godbout, supra, note 30.

48 Ibid., at 879.

49 Commissioner of Official Languages, The effects of Government Transformations on the Official Languages Program of Canada, 1998.

50 No Turning Back: Official Languages in the Face of Government Transformations, report of the task force on government transformations and official languages, January 1999.

51 Commissioner of Official Languages v. The Queen et al. (Justice Canada), T-2170- 98.

52 Richard Goreharn, supra, note 2, at p. 42.

53 Benoit Pelletier, "Bilan des droits linguistiques" (1995), 55 R. du B. 611 at 642.

54 Lavigne v. Canada (Human Resources Development), [ 1997] 1 F.C. 305 (EC.T.D.).

55 Société des Acadiens du Nouveau-Brunswick Inc., supra, note 14.

56 Mahé, supra, note 18.

57 A. G. (Que) v. Quebec Protestant School Board, [ 1984] 2 S.C.R.. 66.

58 Mahé, supra, note 18.

59 Adler v. Ontario, [1996] 3 S.C.R. 609.

60 Arsenault-Cameron, supra, note 5.

61 Commissioner of Official Languages, School governance: the implementation of Section 23 of the Charter, 1998.

62 Ibid., at p. 168.

63 Association des parents francophones (Colombie-Britannique) v. British Columbia (1996), 139 D.L.R. (4th) 356.

64 Mahé, supra, note 18.

65 Arbitration between Acadian Provincial School Board and Nova Scotia Teachers Union, Chair of Arbitration Board, Wayne Nightingale.

66 Charter of the French Language, supra, note 11.

67 Public Schools Act, R.S.M. 1987, c. P-250, M.C.P.L., c. P-250 (in its arnended version of February 12, 1998).

68 Arsenault-Cameron, supra, note 5.

69 Association des parents francophones (Colombie-Britannique), supra, note 63. See also L'Association des parents francophones (Colombie-Britannique) v, Her Majesty The Queen (British Columbia), judgment of...28, 1998, Vickers J, case No. 973287 1, Vancouver Registry.

70 Donald Gauthier, la Fédération provinciale des Comités parents et al., v. Government qf Manitoba, Court of Queen's Bench, case No. CI-99-01-11495.

71 Séguin et al. v. Ontario (Her Majesty The Queen in Right of Ontario) et al., Court of Ontario (General Division), Court No. 3831-92.

72 Glenda Doucet-Boudreau, la Fédération des parents acadiens de la Nouvelle-Écosse et al. v. Minister of Education of Nova Scotia and Acadian Provincial School Board, Nova Scotia Supreme Court, No. 147535.