Mr. Chair, honourable members of the committee, first, I want to thank you for giving me the opportunity to address you as part of your important work on the future of language rights in Canada.
I also want to say I'm glad to see that all of you have turned on your cameras. This is quite different from the courses I have been giving since the pandemic started.
Given my occupation, my comments will address legal aspects of the subjects taken up by the committee pursuant to its motion of November 24, 2020. I propose to address briefly the following three themes: first, the respective constitutional roles of the federal government and the provinces in linguistic matters; second, the relationship between the principle of equality in Canadian law and the concept of asymmetry; and, third, the approach Parliament should take to regulating federal works, undertakings or businesses.
First, language as an area of jurisdiction falls within the purviews of both the federal and provincial governments. Each order of government has the power to legislate on language matters that are ancillary to its areas of jurisdiction.
In addition, the Constitution imposes on some governments, both federal and provincial, specific duties to protect the French language. Accordingly, language planning is not and cannot be the responsibility of a single level of government. To wit, subsection 16(3) of the Canadian Charter of Rights and Freedoms encourages Parliament and the provincial legislatures to pass legislation to advance equality of English and French in Canadian society.
The principle of equality of the official languages, including its relationship with the concept of asymmetry, is a frequently recurring issue in recent debates on the modernization of the Official Languages Act. In this regard, I believe some clarifications are in order.
First, no one can deny that English and French are asymmetrical from a sociological standpoint. The enormous appeal of English, stemming partly from its large number of speakers, means that francophone communities—whether they are a minority or majority within a province—must make a much greater effort than anglophone communities to maintain their vitality and develop in their language. This sociological difference leads some to claim that the equality principle enshrined in the Charter and the Official Languages Act puts French at a disadvantage rather than supporting it. They say this principle requires the two languages to be treated equally. This view is mistaken.
It is worth remembering that the official languages system was established in order to strengthen French and protect francophones, who were severely disadvantaged. English needs no law to protect it. While the Official Languages Act is based on the principle of equality between English and French, its very existence is the result and evidence of a recognition that English and French are unequal.
The principle of linguistic equality, as defined by the Royal Commission on Bilingualism and Biculturalism and as recognized by the courts, is designed to give francophone communities the capacity to maintain their vitality and develop despite the sociological asymmetry that exists. It is thus a "substantive" rather than "formal" equality principle. Unlike formal equality, substantive equality requires the government to account for the asymmetries between the two linguistic communities and sometimes apply different standards.
Indeed, the case law on language rights consistently takes into account the sociological asymmetry between English and French. Let me give you some examples. In the Ford decision, which concerns the signage requirements of Quebec's Charter of the French Language, the Supreme Court of Canada recognized that French is under threat and that the Quebec government has a special role to play in protecting it.
Furthermore, the cases dealing with section 23 of the Charter, including Solski, which concerned bridging schools, show that this provision must be interpreted in light of the specific context of each linguistic community. In fact, section 23 applies to Quebec asymmetrically because of an explicit exception in the Constitution Act, 1982. As a result, if Parliament wishes to take additional measures to protect and promote French as a vulnerable language, it can do so within the current system, without breaching its fundamental principles.
For months now, the debate surrounding the promotion of French has been fuelled by the idea that Parliament should pass legislation bringing federal works, undertakings or businesses located in Quebec under the Charter of the French Language. However, since the purpose of such legislation would be to guarantee francophone workers the right to work in their language without facing discrimination and to guarantee the public the right to be served in French, it is neither necessary nor desirable to abandon the current framework. Parliament could easily achieve this outcome by making federal works, undertakings or businesses subject to the Official Languages Act. By contrast, an approach based on the Charter of the French Language would have significant drawbacks.
First, such an approach would apply only to Quebec. Consequently, Parliament would be straying significantly from the federal government's basic linguistic duties. When the official languages system was set up, a "territorial" model—such as that used in Switzerland—in which language rights would vary from province to province, was explicitly rejected. Instead, a "mixed" model was adopted, in which the same rights are granted to francophones across the country, subject to a numerical criterion at the local level. Following this principle, it would be difficult to justify legislation that grants rights to francophones in Montreal but not to those in Moncton or Sudbury.
Second, legislation that draws directly from the wording of the Charter of the French Language, which includes some bills introduced in the past, could contravene subsection 16(1) of the Canadian Charter of Rights and Freedoms. The Charter of the French Language is based on the principle of the primacy of French, and the wording of the rights it confers reflects that principle. Federal legislation that reprises that structure could be challenged under section 16 of the Charter, as it would give rights to French that it does not give to English.
On the other hand, parts IV and V of the Official Languages Act grant essentially the same rights to francophones as the Charter of the French Language, but without creating a hierarchy between English and French. With that in mind, the Association des juristes d'expression française du Nouveau-Brunswick welcomes the proposals that Minister Joly recently made in this regard. However, we will have to examine the resulting bill before reaching a final position.
With that, I thank you once again for the opportunity to appear before you.
I would be happy to take your questions.