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Constitutional Language Rights


Introduction

In spite of the historic importance of language issues, language rights are a relatively new Canadian phenomenon even though some aspects of bilingualism can be found in some of the older legislation in Canada. It is important to note that the development of language rights has taken on considerably more importance since the passage of the Constitution Act, 1982. The inclusion of language rights in the Canadian Constitution and, in particular, in the Canadian Charter of Rights and Freedoms has significantly contributed to the development of these rights.

Important language issues are described below:
*Constitutional Language Rights
*How must the Courts interpret constitutional language rights?


Constitutional Language Rights

These are the constitutional provisions that can give rise to financial assistance:

Canadian Charter of Rights and Freedoms

Fundamental Freedoms

2. Everyone has the following fundamental freedoms:

  • (a) freedom of conscience and religion;
  • (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
  • (c) freedom of peaceful assembly; and
  • (d) freedom of association.

Official Languages of Canada

16.

  • (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
  • (2) 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.
  • (3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

16.1

  • (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 distinct educational institutions as are necessary for the preservation and promotion of those communities.
  • (2) The role of the legislature and the government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed.

18.

  • (1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.
  • (2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.

19.

  • (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.
  • (2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.

20.

  • (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office or any such institution where a) there is a significant demand for communications with and service from that office in such language; or b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.
  • (2) Any member of the public in New Brunswick has the rights to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French language, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada.

22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.

Minority Language Education Rights

23.

  • (1) Citizens of Canada a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province,
  • (2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.
  • (3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language education facilities provided out of public funds.

Constitution Act, 1867

133. Either the English or the French Language may be used by any Person in the Debates of the House of the Parliament of Canada and of the House of the Legislature of Québec and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Québec.

The Acts of the Parliament of Canada and of the Legislature of Québec shall be printed and published in both these Languages.

N. B. Section 23 of the Manitoba Act,1870 and section 93 of the Constitution Act, 1867 have been omitted even if cases related to these sections can be eligible for Program funding.


How must the Courts interpret constitutional language rights?

The aforementioned constitutional sections all have unique characteristics and meanings. Consequently, their analysis can be lengthy and time consuming. However, we would like to point out that the Supreme Court has recently pronounced itself on the general rules of interpretation that are to be applied in language rights matters.

The Supreme Court had this to say about the general interpretation of language rights at paragraph 25 in R.. v. Victor Beaulac [1999] S.C.J. No.25: "Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada;".

This decision reverses some previous case law where the Supreme Court had stated that because language rights were based on political compromises they had to be interpreted restrictively. This decision also confirms the social and collective nature of language rights and that henceforth these rights must be interpreted in a manner consistent with the preservation and development of official language communities in Canada.