Native boy in front of a Canadian village, painting by Otto Reinhold Jacobi, photo by Auctionhaus Bergmann, Wikimedia Commons
(This article draws heavily from Pierre Foucher, “Court Challenges and Linguistic Human Rights: The Canadian Case,” Chapter 35 of The Handbook of Linguistic Human Rights, copyright 2023, by John Wiley & Sons)
While the concept of linguistic rights is intrinsically linked to broader human rights principles, the United Nations explicitly recognized them in 1992 as human rights with the adoption of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, highlighting the importance of protecting and promoting the languages of such groups. The Universal Declaration of Human Rights (UDHR), adopted in 1948, lays the foundation for human rights, including those related to language, but does not explicitly address linguistic rights in the same detail as the 1992 Declaration. The Universal Declaration of Linguistic RIghts, adopted in 1996 further emphasizes the importance of linguistic rights and provides a framework for their protection. Among North American states Canada has realized the highest degree of success in implementing linguistic human rights (LHR) legislation..
Early Canadian constitutional texts from 1867 through 1905 created an obligation to print and publish legislation in French and English; failure to abide by this obligation nullified all unilingual legislation. Premised on the personality model of language planning, these acts are founded on the premise distributed obligations between both federal and provincial authorities created rights to use English or French in Court proceedings, in Parliament, and, with the 1985 passage of the Official Languages Act (OLA) which institutes the role of a Commissioner of Official Languages (having considerable nonbinding investigative powers to document systemic violations of LHRs) for the first time in government communications and services. In 1977 Quebec decided to break away from the personality model and opted for a territorial model and imposed French as the compulsory and often unique language authorized within its territory, including in the private sector. Jurisprudence then became a dominant feature of Canadian language policy as well as provides an alternative means of vindicating LHRs.
.png)
Canadian constitutional LHR pertain only to the official bilingualism guaranteed by the Charter section 16 which proclaims that French and English are the official languages of Canada and of New-Brunswick; the linguistic equality enjoyed by both languages has been interpreted as being true and not formal equality, meaning they have equal rights with regard to their use in Federal and New-Brunswick institutions. All statutes, records and journals are to be printed and published in both languages, each version being equally authoritative. This right is a personal and individual one, pertaining to every participant in the proceeding. Accused persons have the right to a criminal trial to be heard in their official language. The restrictive rule of interpretation stated in Societē des Acadiens was premised son the fact that language rights are the consequence of a political compromise and thus had to be interpreted more restrictively than other Human Rights, but this interpretive rule has since been displaced by a new one in the Criminal Code of Canada, s. 530 and 530.1(d) and (e) stating that like any other Human Rights, Language Rights “must be interpreted purposively, in a manner consistent with the development of official language communities in Canada.
Michael Odegaard, Author
One needs to have standing in order to access the court system. Standing is justified when the plaintiff is directly impacted by any government decision infringing on LHR. More often than not, however, NGOs have to step in and initiate judicial procedures asking the court for public interest standing which are granted under three conditions easily met by minority language associations or minority language school boards: 1) a matter of public interest, and constitutional matters are presumed to be so; 2) the group seeking standing have an interest in the issue; 3) a court challenge must be a reasonable way to bring the matter to the courtʻs attention.
Often used in LHRs by NGOs, seeking intervenor status is an alternative method of participating in a court challenge as an ʻamicus curiae, a disinterested party who can contribute to the debate by shining a light on a particular issue or consequence of the legal challenge. Damages are another way to vindicate LHRs. Judicial challenges are expensive and depend on various factors, first of which is the will of the rights-bearers to assert their rights which costs often compete against the challenges many face obtaining more basic governmental services, as well as the social costs of hostility (predicated on “disturbing the peace” or “causing division in the community”) toward individual plaintiffs from either the majority or minority. This explains why most plaintiffs are NGOs representing a minority language community with individuals being made co-plaintiffs to the litigation
More than 50 years after LHRs started in Canada they have had a mixed record. They succeeded in enhancing the minority linguistic communities’ awareness of the importance of exercising their rights, empowering them to confront hostile or indifferent governments legally and in a peaceful way, and in the education field, they were at the root of major changes in the school system. However they did not succeed in curbing the demographic pressures that threaten the future of the French language and culture in Canada. If the goal is to develop minority linguistic communities more robust measures and government help are required, which then becomes a political choice of whether citizens truly believe that minority languages and the communities who speak them deserve a special place in Canada.
