At the annual conference of the Canadian Association of Law Libraries taking place right now In Moncton, I caught a talk earlier today by University of Moncton law professor Michel Doucet on language rights in Canada.
Doucet provided a rapid overview of the constitutional guarantees for official minority language communities (Francophones outside Quebec and Anglophones in Quebec) as well as a summary of how the Supreme Court of Canada has interpreted those rights since the adoption of the Charter of Rights in 1982.
He emphasized the collective nature of many of those rights, in particular the right to receive instruction in the language of the minority. These rights have a more collective dimension because the ultimate beneficiary is the community of speakers of the minority tongue.
Doucet then outlined the shift in how the Supreme Court of Canada has interpreted the constitutional provisions on these questions.
Many minority language advocates were disappointed by a trilogy of decisions in 1986 , he said, because the Court gave a restrictive interpretation to language rights, described as political rights arising out of a compromise, as opposed to being fundamental rights.
In the later Beaulac decision however (I will supply the link later), the highest court of the land turned tack according to Doucet and offered an expansive, more generous view of official minority language rights, the object of these rights being the maintenance and flourishing of the community. To ensure substantive equality between the minority community and the speakers of the majority official language of a region, the particular collective needs of the language minority must be taken into account. this may include the right not only to receive services in their language, but also the right of the minority to exclusive management of its educational and cultural institutions.
Another section of the Charter states that English and French versions of federal statutes have equal force of law, one not being a simple translation of the other. Doucet then added that you are only half a lawyer if you can't read both versions in case of discrepancies or ambiguities. He provided the example of a case that went to the Supreme Court of Canada. At the hearing, Justice Bastarache asked the parties whether they had read the French version of the federal statute at the heart of the dispute. They had not and the court handed down a short ruling based on the unambiguous meaning of the French text.
In the Supreme Court case that decided that parents from the minority language group had the right to manage their own schools, there were differences in the two versions of the statute text. The Chief Justice at the time ruled, according to Doucet, that a word in the French version made the meaning clear.
On the question whether Justices of the Supreme Court should be bilingual, Doucet clearly answered yes. He explained that he had once listened to the translation of his own words from a time when he pleaded in French in front of the Justices and found many ambiguous passages and missing words. During hearings, judges often interrupt and ask questions at a quick pace. The translator could be heard saying : "cannot follow" during the quick back and forth. Doucet explained he felt this disadvantaged French litigants whose words could not be fully heard and understood by judges who did not speak French.
Labels: Charter, conferences, constitutional law, law libraries, official languages, Supreme Court of Canada