CHAPTER EIGHT
TABLE OF CONTENTS
INSTITUTIONAL REFORM - COLLECTIVE RIGHTS DEFICITS AND THE
EXPERIENCE OF CANADA'S LANGUAGE MINORITIES
PAGE
Language Rights as Collective Rights ........................ 1
Collective Rights in Canadian Courts ........................ 6
Effect of Collective Rights Litigation upon the
Minority Language Community ............................... 14
Institutional Infrastructure as an Alternative to
Judicial Enforcement ...................................... 16
Problems with Institutional Autonomy ........................ 25
Conclusion .................................................. 32
Endnotes .................................................... 34
CHAPTER EIGHT
INSTITUTIONAL REFORM - COLLECTIVE RIGHTS DEFICITS AND THE
EXPERIENCE OF CANADA'S LANGUAGE MINORITIES
LANGUAGE RIGHTS AS COLLECTIVE RIGHTS
Canadian constitutional development is characterized by two
powerful language communities -- two nations -- searching for
appropriate
constitutional
mechanisms
habitation in a single state.
to
regulate
their
co-
Canada's federal system proceeds
directly from the requirements of a bi-nationality.i
The federal
system grants each language community self government in relation
to local matters.
Local self government promises the language
communities that they can protect their language and culture, each
in its own special way. The federal system is organized on a
territorial basis.
Canada's federal system does not perfectly
match language community and provincial subdivision. Accordingly,
Canada entrenched special constitutional mechanisms to protect the
English and French communities where, following Confederation in
1867, remnants of those communities were incorporated into the
provinces
as
minorities.
protects
English
and
As
French
we
saw
language
in
Chapter
III,
Canada
minorities
by
ultra-
particular stipulations -- constitutional collective rights.
Collective
rights
attempt
to
protect
minority
language
individuals indirectly, by shielding the community to which they
belong.
In
autonomy
Collective
essence,
for
collective
language
rights
have
rights
communities
been
an
are
than
enduring
a
weaker
self
form
form
of
government.
of
Canadian
2
constitutional development.
Canada has employed collective rights
throughout its history to adapt the federal system to the special
requirements
of
minorities.
linguistic,
denominational
and
aboriginal
The thesis of Canada's collective rights mechanism is
that these communities need some form of autonomy, less than the
self government, to insure the continuity of their distinctive
communal traits.
Canada's constitution makers have been enthusiastic consumers
of
the
collective
Nevertheless,
collective
rights
Canada's
rights
is
device
throughout
experience
with
unsatisfactory.
Canadian
history.
administration
The
collective
of
rights
mechanism is meant to ease the adaptation of different communities
living together in a single state.
Collective rights are meant to
make conflict between these communities more manageable, and to
deliver
a
public
lasting
problem
procedure
for
resolution.
more
satisfactory
Canada's
and
experience
longer
with
the
collective rights apparatus has been the opposite.
When local
conflicts
collective
move
Canadian
minorities
to
claim
their
rights in court, those conflicts become more bitter. Hostility
increases.
the
The minorities almost always lose.
minority
community
is
often
The experience for
traumatic,
and
produces
sociopathic effects which smoulder over long periods of time. The
pattern
is
especially
observable
for
the
repeatedly
linguistic
throughout
minorities.
Canadian
The
history,
inevitable
conflicts over schools, as we saw in Chapter I, were not resolved
3
successfully by collective rights litigation.
process
More
amplified
recently,
linguistic
the
as
sociopathic
we
saw
communities
legislatures,
courts
in
with
and
collective
rights,
dimensions
Chapter
respect
government
similar dysfunctional pattern.
at
Resort to legal
I,
to
of
the
clashes
conflict.
between
participation
administration
the
in
the
revealed
a
Canadian experience teaches that
least
as
currently
designed
and
administered, do not work, in the sense that they fail to produce
stable
management
of
linguistic
conflict.
It
may
be
that
collective rights, even if redesigned, are the wrong device to
manage linguistic conflict in the Canadian circumstances.
COLLECTIVE RIGHTS IN CANADIAN COURTS
There are virtually no collective rights cases which
the minorities won.ii
case
the
Supreme
Société des Acadiensiii is typical.
Court
concluded
that
the
Charter's
In this
official
language sections should be read as "permitting the litigant to
use
the
language
he
or
she
understands
but
allowing
those
[government officials] dealing with him or her to use the language
he
or
she
Montreal,
does
not
Justice
understand".iv
Wilson
reflected
In
on
MacDonald
this
v.
City
conclusion
of
and
wondered, cuttingly, "[what] kind of linguistic protection would
that be".v
The crucial point to notice is that the Court's ruling
transformed a guarantee for minority language communities to use
their own language into a right for the majority, acting through
the legislature or administration, to deal with minority language
4
communities
continued
in
to
the
language
smoulder
in
of
the
the
majority.
Courts,vi
The
provoked
problem
federal
legislation which did not solve the problem, and nettles still.vii
Even
in
the
very
few
cases
where
claims
brought
under
collective rights provisions succeeded, the minorities usually
failed
to
achieve
their
objectives.viii
The
problem
which
occasioned the litigation was not resolved and did not go away.
This dismal record must give pause to those who propose collective
rights machinery as a principal reconciler of linguistic tension
in the Canadian mosaic.
The
Supreme
Court's
difficulty
with
the
theory
and
administration of minority language rights draws attention to a
larger and more general hostility of the Canadian judicial system
to collective rights precepts. In Quebec Association of Protestant
School Boards v. A.G. Québec, Chief Justice Deschênes considered
Quebec's
argument
that
minority
language
educational
rights
guaranteed by section 23 of the Charter were collective rights
established in the interest and for the benefit of the AngloQuebec minority.
Quebec argued that the educational provisions of
Bill 101 entailed the complete loss of section 23 rights for some
individual anglophones.
stipulations
only
Nevertheless, Quebec submitted that these
limited,
group's collective right.
but
did
not
completely
deny,
the
Chief Justice Deschênes' reaction to
this submission signals caution to those who would rely primarily
on
entrenchment
of
collective
rights
to
protect
the
semi-
5
autonomous status of their communities, or otherwise to guarantee
their cultural security. Chief Justice Deschênes said:
Quebec's argument puts forward a totalitarian view of society to
which the Court does not subscribe. Human beings are, to us,
of paramount importance and nothing should be allowed to
diminish the respect due to them. Other societies place the
collectivity above the individual.
They use the Kolkhoze
steamroller and see merit only in the collective result even
if individuals must be destroyed in the process.
This concept of society has never taken root here ... and
this Court will not honour it with its approval.ix
This ruling attracted sharp criticism from the commentators: "[L]a
conclusion ne découle pas des prémisses".x
The journalists were
more blunt: "On doit donc regretter que la juge Deschênes ait, par
certains de ses propos, contribué à embrouiller d'avantage dans
l'opinion
peuvent
publique
pourtant
des
concepts
favoriser
juridiques
l'avènement
qui,
d'une
bien
compris,
plus
grande
justice."xi
Despite the incomplete assimilation of and hostility towards
language rights concepts expressed by some courts, there is some
slow,
recent
development
of
collective
rights
doctrine
among
Canadian commentators and in the courts.xii In A.G. Quebec v.
Greater
Hull
School
Boardxiii
the
Supreme
Court
of
Canada
considered whether certain school tax legislation in Quebec was
offensive to protected denominational rights in section 93 of the
Constitution Act, 1867.
Mr. Justice Le Dain held that section 93
gave a "right or power of local self government to denominational
schools" and that "the rights contemplated by s. 93(1) ... may be
characterised as 'collective rights'".
He added:
6
What the characterization does suggest, however, is that it is the
interests of the class of persons or community as a whole in
denominational education that is to be looked at and not the
interests of the individual ratepayer.xiv
In that light, Mr. Justice Le Dain held Quebec's taxing procedure
offensive to paragraph 93(1) of the Constitution Act, 1867.xv
In
Reference Re an Act to Amend the Education Act, the
Ontario Court of Appeal considered the language and denominational
rights in the (secs. 93 and 133 of the Constitution Act, 1867, and
secs. 16 to 23 of the Charter) as constituting
rights".
"a small bill of
These provisions, stated the Court, "constitute a major
difference from a bill of rights such as that of the United
States,
which
is
based
on
individual
rights".
The
Court
continued:
Collective or group rights, such as those concerning language and
those concerning certain denominations to separate school,
are asserted by individuals or groups of individuals because
of their membership in the protected group.
Individual
rights are asserted equally be everyone, despite membership
in certain ascertainable groups.
Collective rights protect
certain groups and not others. To that extent, they are an
exception from the equality rights provided equally to
everyone...
To apply this to s. 93, it is necessary to recognize that
provision for the rights of Protestants and Roman Catholics
to separate schools became part of 'a small bill of rights'
as a basic compact of Confederation.xvi
The actual or potential conflict between characterization of
statutory
prescriptions
as
creating
individual
or
collective
rights had been noticed earlier by a New Brunswick trial court.
In Société des Acadiens Mr. Justice Richard considered amendments
to the provincial Schools Actxvii and The Official Languages of New
7
Brunswick
French
Actxviii
and
which provided for the creation of separate
English
bilingual system.
Recognizing
the
school
systems
to
replace
the
existing
Mr. Justice Richard also considered An Act
Equality
of
the
Two
Official
Linguistic
Communities in New Brunswick,xix which affirmed "the equality of
status and equal rights and privileges" of the English and French
linguistic communities.
The litigation concerned a minority language school board
which had been established in the Grand Falls region.
The board
not only accepted francophone students into its regular English
program, but also permitted francophone students to enrol in its
French immersion program, which had been designed for anglophone
students.
Reviewing the evidence, Mr. Justice Richard found that
New Brunswick abolished bilingual schools because they harmed the
linguistic
minority
child
and
minority
community
by
excessive
assimilation and by "degeneration of the mother tongue [producing
a] mixture common to colonized or assimilated peoples".
then
faced
by
counsel's
submission
that
the
Schools
He was
Act
and
Official Languages Act advanced the interest of the francophone
community by requiring that all francophone students be educated
in the French system.
To consider this submission Mr. Justice
Richard asked:
[H]as the legislator declared that collective rights are to take
precedence over the individual rights of the parents?
Furthermore, did the legislator intend to take away the
parents' right to place their children in the school system
of their choice?xx
8
Counsel's suggestion was rejected because it posed insuperable
difficulties
with
respect
to
mixed
families,
assimilated
francophones, and anglophones.
Mr. Justice Richard did not, however, clearly decide whether,
as
submitted,
the
school
provisions
were
collective
designed to benefit the french linguistic community.
rights,
The tenor of
his remarks suggests that he rejected this view with respect to
the Schools Act and Official Languages Act.
This is apparently
the reason why he held that parents had a large measure of choice
in deciding to which system they would send their children.
Mr.
Justice
collective
constrained
Richard
rights,
to
decided
it
limit
seems
the
that
the
likely
parents'
school
that
he
ability
provisions
would
to
have
choose
Had
were
felt
school
systems, in light of counsel's submission.
While Mr. Justice Richard appeared to reject a collective
rights interpretation of the school prescriptions, he did make
these comments about the Act Recognizing the Equality of the Two
Official Linguistic Communities in New Brunswick:
As for the Act Recognizing the Equality of the Two Official
Linguistic Communities in New Brunswick, there is nothing in
its three sections dealing with individual rights. ... The
Act always speaks of linguistic communities, not individuals
...xxi
In light of this interpretation, Mr. Justice Richard concluded
that parents did not have unrestricted freedom to choose a school
system for their children.
Parental autonomy was subject to a
requirement of the child having adequate language competence in
9
the chief language of the school.
The limitation of parental
autonomy to choose results from the collective rights idiom of An
Act
Recognizing
Communities
in
the
New
Equality
of
Brunswick.
the
Two
Official
This
Act
signifies
Linguistic
that
the
collective rights of the French and English linguistic communities
to a school system are rights intended to benefit communities,
notwithstanding any contrary claim asserted by individuals.xxii
It
is in this sense that a collective rights characterization becomes
relevant: it elevates the right of the community to protect the
linguistic purity of its schools, over the claimed freedom of
individuals to choose a school system irrespective of the child's
language competence.
These rulings are of interest because they emphasize the
following
points.
Language
rights
differ
significantly
from
individual rights, and implicate distinct, if novel, doctrine for
their administration.
Language rights elevate group security over
individual freedom.
They protect groups, not individuals, and
create special limited autonomy for these groups by reserving
power to them to manage or control certain institutions.
It is possible to synthesize from these crucial points a more
general, but vitally important, principle.
Collective rights are
designed to guarantee group survival by protecting from majority
interference
certain
specific
institutions
minorities propagate their communities.
take
special
care
in
tampering
with
through
which
Canadian courts need to
these
delicate
national
10
compromises.
Although the collective rights settlements are newly
vulnerable in light of the individualistic urges flowing from the
Charter of Rights, Canadian Courts need to construct and employ
special doctrine when dealing with these provisions.
Collective
rights are sensitive fault-lines upon which Canada's politicoconstitutional structure is erected;
they should not be lightly
disturbed.
The collective rights theory is that constitutional texts
should guarantee a limited form of autonomy for or protection to
minorities respecting crucial institutions or participation in the
machinery of government.
The problem with the theory is that the
constitutional texts are extremely general.
The collective rights
theory thus relies on the courts for elaboration and ultimate
application, usually during periods of high conflict.
frequently
noted,
the
judiciary
is
drawn
majority groups, and reflects their attitudes.
As has been
predominantly
from
Collective rights
litigation usually occurs during times of local hysteria directed
at minority groups -- the Manitoba school crisis, Regulation 17,
the Manitoba language rights crisis.
this hysteria.
Judges are not immune from
The generality of constitutional texts has proven
insufficient to prevent judges from being swept along by temporary
social pathology.
The courts are placed in a difficult position.
Constitutional texts are inadequate to divert the judiciary's
attention from an all too understandable desire to keep peace in
the Canadian family, usually by sacrificing minority rights to
11
preservation of the status quo.
One
rights
might
theory
reply
is
to
this
correct,
judiciary needs changing.
observation
but
that
the
that
the
collective
composition
of
the
Apart from the obvious time that this
would require, the reply neglects institutional limits of the
courts, and the appointment process.
It is difficult to see how
any government would appoint persons who have shown tendencies
antithetical to the will of the majority, even if willing to
appoint
some
members
of
minority
groups.
Even
where
minority
judges have sympathy for the difficult circumstances in which
minorities sometimes find themselves, their influence is limited,
particularly in courts of appeal or of last resort, whose multimember representation is dominated by the majority.
EFFECT OF COLLECTIVE RIGHTS LITIGATION UPON THE MINORITY LANGUAGE
COMMUNITY
Language litigation is adversarial.
It pits minority groups
against an easily incensed majority, often in a bitter struggle
for minority survival.
In order to fight the battle, linguistic
minority
to
groups
have
majority's elite.
retain
lawyers,
usually
from
the
Minorities must contest the struggle before the
judiciary -- usually drawn from the majority community as well.
Even in cases where minority groups have won at trial, court
orders
have
gone
intransigence.xxiii
Still
nothing
unenforced
because
of
government
This means more trips to court are required.
happens.
The
experience
is
alienating
and
12
frightening.
The minority's resources and strength as a community
are dissipated. The community has been mobilized.
leave
bitter
divisions
between
warring
factions
The events
within
the
minority group who are easily tempted to turn their forces on each
other.
These problems have appeared over and over again, and
would appear to be structural.
I am speaking from experience as legal counsel for several
minority groups during the language difficulties of the 1980s.
Time and again I watched the strains just described eat away at
the
minority
groups'
internal
cohesiveness,
leaving
them
exhausted, fearful, insular and resentful.
The Franco-Manitoban
community
divisions
was
racked
by
bitter
internal
Manitoba Language Rights Reference.
after
the
So too with the Acadian
community of Cape Breton during and after the fight for an Acadian
school.
My
strong
impression
is
that
this
crippling
of
the
minority community is a structural feature of collective rights
litigation. Having failed to gain its objectives vis-a-vis the
majority, factions within the community are all too easily tempted
to turn their guns on each other.
Historical perspective reveals the collective rights system
in
curious
detail.
The
system
promises
much
in
the
way
of
minority protection and community relations management, but often
fails to deliver according to a standard most would demand. These
difficulties are not isolated to the Canadian experience with
collective
rights.
In
the
United
States,
constitutional
13
protection
for
the
newly
freed
Constitution for over 100 years.
slaves
lay
dormant
in
the
The community was unable to
benefit from 14th Amendment Equal Protection until the federal
administration took aggressive action through federal entities to
change southern institutions.
What we see in the comparative
example is that collective rights litigation alone is ineffective
for minority protection or significant political change.
The
failures of collective rights litigation appear to be systemic.
It would appear that other or additional institutional machinery
is necessary to deliver the promise of minority protection and
community reconciliation.
INSTITUTIONAL
INFRASTRUCTURE
AS
AN
ALTERNATIVE
TO
JUDICIAL
ENFORCEMENT
As previously mentioned, Canada is committed to the concept
of linguistic duality.
Language rights are designed to guarantee
group survival by protecting from majority interference certain
specific institutions through which minorities propagate their
communities.
At present, the duality principle is reinforced by
rigorous guarantees of autonomy for scattered pockets of the two
national communities in those political sub-divisions where they
live as minorities.xxiv
However, notwithstanding our ability to
synthesize important collective rights precepts, one cannot fail
to
notice
delineate.
the
unhappy
history
which
language
rights
cases
One must also pause over the incomplete assimilation
of collective rights precepts into Canadian constitutionalism, and
14
the outright hostility of some Canadian judges and commentators to
the collective rights concepts.
In view of Canada's hundred-plus
years of sorry experience with collective rights, it is difficult
to resist the conclusion that the collective rights theory is an
inadequate constitutional mechanism to mediate the competition
between various subnational communities within a single Canadian
state.
One wants to search further for alternate mechanisms to
safeguard the security of minority groups.
It would be best if constitutional structures required as
little alteration as possible to implement suggested measures,
lest one risk advocating change in the utopic sense.
These
observations suggest that it would be unreasonable to expect the
Canadian judicial system, in the near future, to become an astute
administrator of collective rights mechanisms.
This conclusion is
re-enforced by the hostility and bitterness generated within the
minority
communities
by
the
experience
of
collective
rights
litigation.
Could
nurture
the
Canada
create
development
an
of
Canada has done so before.
institutional
linguistic
infrastructure
minority
to
communities?
Canada's Constitution created the
Quebec provincial government and legislature, and vested in them
self governing powers by secs. 92-5 of the Constitution Act, 1867.
This is the best Canadian example of devolving political power to
a linguistic minority to enhance that minority's security and
capacity to develop in its own particular way. This constitutional
15
structure is paralleled at the Federal level by dual central
institutions
comprising,
for
example,
substantial
Quebec
representation in the House of Commons, Senate, Supreme Court of
Canada and the public service of Canada.
Such examples are in
accordance with an important principle of successful federalism -that,
generally
speaking,
"federal
systems
have
been
most
successful where the provincial units have reflected, or have been
reorganized to reflect, as far as possible, the most fundamental
regional interests within the society."xxv
The institutional infrastructure considered here would go
well beyond the constitutional provisions presently in place.
The
chief
the
value
recognition
of
Canada's
that
collective
minorities
require
rights
a
tradition
degree
of
is
institutional
autonomy to counterbalance the forces of assimilation, and to
check the majority's excesses during overheated periods.
Canada's
tradition has been to create institutional autonomy with greater
or lesser degrees of self-government.
rights are part of that tradition.
of
Canadian
language
rights
The collective linguistic
The problems with the design
appear
to
result
from
inadequate
mechanisms for the protection of minority institutions. I have
already alluded to the problem of too ready reliance on the courts
for
the
Canada's
first
line
language
of
rights
defence
system
against
has
further
institutions are insufficiently autonomous.
integrated
with
majority
majority
institutions
aggression.
defects.
Minority
They are too highly
in
the
overarching
16
structures of the higher levels of government.
For example,
decisions on funding and curriculum content for minority language
schools are made initially by the Ministry of Education. Ministry
structures are not decentralized, and do not reflect the theory of
minority autonomy. Thus, linguistic minorities, if aggrieved by
Ministry decisions on these matters, are on the defensive, able
only
to
submit
to
the
vagaries
of
the
court
process
under
constitutionally protected collective rights. This process usually
disappoints them.
It would be better if the self governing institutions were
more truly autonomous, and their borders made more impermeable to
majority
interference.
This
would
require
decentralization
or
multiplication of functions in overarching government structures.
If this were done, the minority could more easily avoid the courts
while still enjoying the institutional autonomy indicated by the
collective
rights
theory.
The
minority's
community
resources
would be developed as the group became more self-reliant and more
responsible
for
exercising
authority
over
its
own
affairs.
Enhancement of institutional autonomy would be a potent means to
secure for minority communities the security which the proponents
of collective rights intend, but which rarely is delivered under
the current collective rights system.
What,
specifically,
would
be
included
in
an
adequate
institutional infrastructure designed for group preservation?
At
a minimum, the following would be included: (1) mechanisms through
17
which the group can interact with other groups, particularly the
dominant
or
structures);
governing
groups
in
the
society
(ie.
political
(2) economic structures to dampen the assimilating
pressures exerted by the mainstream economy;
(3) mechanisms for
propagation and transmission of the group's beliefs (ie. minority
language schools and linguistic associations); (4) mechanisms of
group
definition
(i.e.
legal
right
including or excluding individuals.
to
define
membership
by
The difficulties associated
with defining who is and who is not a francophone are outlined
below.);
(5) defensive mechanisms able to restrict the group's
members from exposure to alternative norms, values and practices
(similar
to
the
control
over
access
to
English
language
instruction exercised by Quebec).
Some examples might serve to illustrate the diversity of
forms in which the institutional infrastructure may be manifested.
Guaranteed representation in legislative bodies for linguistic
communities, reformulation of territorial boundaries to create
linguistic majorities, or funding for political lobbies such as
the Fedération des communautés francophones et acadienne du Canada
are accepted political structures which enhance the dual heritage
of present day Canadians.
duality
principle
could
Economic initiatives justified by the
include
the
establishment
in
Canada of a major French-language research university.xxvi
Western
These
economic initiatives are crucial if francophone minority language
communities are to resist the assimilating pressure exerted by the
18
virtually exclusive use of English as the language of work in
Canada's western provinces.
Construction
infrastructure
in
of
a
semi-autonomous
education
is
crucial.
institutional
This
would
impact
significantly on the extant demands of linguistic minorities for
greater segregation of and control over educational facilities,
resources and governing structures.
echoed
this
sentiment
in
The Ontario Court of Appeal
Reference
Re
Minority
Educational Rightsxxvii when it quoted the Symons Report:
The
French
language
setting
school
within
Francophone
provides
which
students
will
a
the
have
a
better opportunity to come to know
and to understand and to strengthen
and develop their own culture and
heritage ... the school occupies a
central role in the cultural life
of the linguistic community ... s.
23(3)(b) [of the Charter] should be
interpreted to mean that minority
language
children
must
receive
their instruction in facilities in
which
will
the
be
minority.
educational
that
of
Only
environment
the
then
linguistic
can
the
Language
19
facilities
reflect
reasonably
the
be
minority
said
culture
to
and
appertain to the minority.
The
duality
achieve
principle
homogenous,
should
self-
assist
linguistic
governing
minorities
educational
to
structures
organized on linguistic lines, or at least some facsimile thereof.
The
process
of
linguistic
transmission
is
intensified
by
restricting children in the minority language group from access to
alien norms during their crucial formative years.
Administrative autonomy could take many forms.
or
provincial
elected
legislatures
assemblies
that
could
devolve
remained
power
subordinate
to
The federal
upon
the
locally
senior
government. This distinguishes the system from federalism where
the powers of regional units are co-ordinate to the centre, and
may
not
be
unilaterally
rescinded.
The
regionalism
principle
characterizes the Italian Constitution, which, because of communal
problems, divides the jurisdiction into five autonomous regions.
The regions enjoy extensive powers including financial autonomy
backed by taxing powers and a guaranteed share of national taxes,
control over police, roads, transport, agriculture and industry.
The regions are governed by a regional council and an executive
giunta with a president.
Between 1922 and 1972 the United Kingdom
Parliament devolved power upon the ethnically distinct community
in Northern Ireland, with similar extensive powers.xxviii
Another form of administrative autonomy is decentralisation
20
of the national administration by creation of regional offices
staffed by national officers, but with power to implement distinct
regional policies. The Scottish Office in Edinburgh, for example,
has
regional
administrative
powers
in
relation
to
education,
police, justice, health, agriculture and fisheries.
Within
principle
existing
of
Canadian
administrative
governmental
autonomy
may
be
structures
effectuated
realignment of the boundaries of local government units.
the
by
a
Local
government units could be organized on the basis of linguistically
distinct
populations.
enhanced
powers.
Units
so
constituted
could
be
granted
A final example of administrative autonomy is the creation of
community
development
community
support
authorities.
system
could
be
Various
devolved
aspects
on
of
these
the
groups.
Canada already has some experience with such institutions in both
the public and private domains, with community groups being given
responsibility
and
funding
to
administer
colleges,
libraries,
museums, social welfare systems and the like. This model admits of
more flexible implementation in cases where ethnically distinct
groups lack territorial concentration.
If
sufficiently
autonomous,
a
constitutionally
protected
network of institutions could provide linguistic minorities with
an
effective
means
of
self-protection
disadvantages of constitutional litigation.
without
the
attendant
Obviously, the absurd
case is a claim that the requirement for separate institutional
21
infrastructure goes so far as to guarantee to every sub-national
linguistic group its own provincial government.
Nor can the
principle increase the powers of those provincial governments,
like Quebec, predominantly under the control of one linguistic
group.
Section 31 of the Charter explicitly precludes a Charter
interpretation which extends the legislative powers of any body or
authority.
However,
the
duality
principle
may
nevertheless
encourage creation of quasi-autonomous administrative structures
less independent than semi-sovereign provincial entities endowed
with
legislative
power.
The
creation
of
quasi-autonomous
administrative structures under the control of particular groups
is
a
powerful
means
of
insuring
that
these
groups
have
the
capacity to maintain themselves, and to develop according to their
particular perception of their own special requirements.
International
system
for
the
law
norms
protection
and
of
especially
minorities
the
pays
international
high
regard
to
administrative autonomy as an important means of guaranteeing the
security
and
collective
well-being
of
minority
groups.
The
Versailles Treaty with Poland, 1919 served as a model for the
post-World War I treaties containing protections for minorities.
The Versailles Treaty guaranteed to Polish nationals belonging to
racial, religious or linguistic minorities the right, at their own
expense, to establish, manage and control charitable, religious
and
social
establishments.
institutions,
schools
and
other
educational
Within these institutions, the minorities were
22
guaranteed the right to use their own language and freely exercise
their
religious
concentrated,
it
precepts.
was
Where
granted
the
special,
minority
was
additional
especially
rights
with
respect to language.xxix
In the Minority Schools in Albania case, the Permanent Court
of
International
Justice
explained
the
central
thrust
international system for the protection of minorities.
The idea underlying the treaties for the
protection of minorities is to
secure
for
certain
elements
incorporated
in
a
State,
the
population of which differs from
them in race, language or religion,
the possibility of living peaceably
alongside that population and cooperating amicably with it, while
at the same time preserving the
characteristics which distinguish
them
from
the
majority,
and
satisfying
the
ensuing
special
needs; (my emphasis).
The Court continued:
In order to attain this object, two
things are regarded as particularly
necessary, and have formed the
subject of provisions in these
treaties.
The first is to ensure that nationals
belonging to racial, religious or
linguistic
minorities
shall
be
placed in every respect on a
footing of perfect equality with
the other nationals of the state.
The second is to ensure for the minority
elements suitable means for the
preservation
of
their
racial
peculiarities, their traditions and
their national characteristics.
The
two
requirements
are
indeed
closely
of
the
23
interlocked, for there would be no
true equality between a majority
and a minority if the latter were
deprived of its own institutions,
and were consequently compelled to
renounce that which constitutes the
very
essence
of
its
being
a
minority;xxx (emphasis added).
The Albania case makes clear that administrative autonomy
with respect to institutions of central importance in preservation
and maintenance of minorities, such as schools, is an obligation
imposed by the international law system.
It is this system, and
this associated obligation, which was codified in article 27 of
the International Covenant on Civil and Political Rights which
itself was the precursor of s. 27 of the Canadian Charter of
Rights.
Accordingly, administrative autonomy over institutions
essential to group maintenance and enhancement ought to prompt an
aroused
sense
of
respect
on
the
part
of
those
charged
with
interpreting the Charter.
PROBLEMS WITH INSTITUTIONAL AUTONOMY
(i) Minimum Standards
The Charter is inspired by an ideal of individual dignity and
development.
A strong belief in the capacity of individuals to
develop and find fulfilment has committed Canada constitutionally
to protecting the freedom of individuals to form and hold ideas,
to receive and consider the ideas of others, to express beliefs,
to act on them, to assemble and associate together to practice or
advocate beliefs of all kinds, and to be free of prejudicial
distinctions based on belief.
24
The Charter also guarantees obverse freedoms: the right to
reject beliefs or orthodoxies of all kinds, to refuse to express
or consider an idea, to decline to act on any belief or to
assemble or associate in furtherance of it, to reject orthodox
practices, and to be free of prejudicial discrimination because of
refusal to conform to orthodoxy.xxxi
The Charter expresses the
axiomatic belief of Canadians that an inquiring mind, the capacity
to communicate in new ways with others, to grow, to develop
through exposure to new ideas, practices, and associations are
important ingredients in obtaining fulfilment.
A problem arises because at the same time as the Canadian
constitutional
system
minorities
group
system
for
requires
functions
respect
recognizes
autonomy,
that
groups
fundamental
liberty and equality.
a
special
commitment
exercising
norms
of
need
to
a
of
Charter
general
due
Canadian
based
governmental
process,
personal
Thus, the systems of individual and group
rights in the Charter come squarely into conflict. There is no
readily
apparent
doctrine
to
regulate
this
considerable
difficulty.
In exercising its regulatory powers government must observe
minimum standards of respect for individual autonomy.
Presumably,
when government devolves certain of these powers on groups, these
groups
must
equally
observe
minimum
standards
of
respect
for
personal liberty. However, if groups must respect and encourage
the same high standards of individual autonomy as government,
25
their very basis for existence may be compromised.
This is why
the Courts allow minority language schools to refuse admission to
those students who do not possess adequate language competence in
the chief language of the school.
The traditions and ways of the
minority language community are considered to be of sufficient
importance to justify overriding non-conforming, constitutionally
protected individual rights.
This is the thinking underlying the
Court's decision in Caldwellxxxii -- the tradition and values of
the Catholic religion take precedence over an individual teacher's
non-conforming behaviour.
The idea that Charter precepts of individual autonomy may
suffer
diminution
at
the
hands
of
partially
self-governing
minorities enjoying collective rights should not shock.
The idea
is already woven deeply into the design of the Charter.
In 1982
and
1983
the
constitution
makers
exempted
historic
collective
rights from the Charter's discipline. Sections 21, 22, 25, 29,
35(4)
and
37.1(4)
linguistic
schools
preserve
minorities,
from
dilution
the
original
aboriginal
by
collective
peoples
individual
and
rights
rights
of
denominational
claimed
under
the
Charter.xxxiii
(ii) Inclusion and Exclusion
Defining the boundaries of cultural groups raises difficult
problems.
This is especially so where the group enjoys or seeks
government derived powers or benefits. A high regard for group
autonomy
suggests
investment
of
substantial
powers
of
self-
26
definition in groups.
However, where the group enjoys powers or
distributes entitlements derived from government, government has
interests in insuring that the group use its power of selfdefinition
reasonably
--
that
the
group
not
exclude
individuals for irrational or abusive purposes.
certain
Equally, where
government devolves power upon groups, for example taxing powers
delegated to linguistic school boards, government has interests in
overseeing
that
the
power
of
self-definition
not
be
used
oppressively to extend the group's boundaries to include objecting
individuals.
The
problems
associated
clarified by some examples.
with
group
definition
are
best
In Société des Acadiens, Mr. Justice
Richard rejected the submission that all francophones must be
educated in the French school system.
In so doing, he declined to
define what groups of persons are comprised with the collectivity
labelled "francophone".
In his opinion, this type categorization
posed insuperable difficulties:
what would be done with mixed
families or assimilated francophones?
In Robin v. Collège de St-Bonifacexxxiv, the Court examined
what capacities a judge must possess in order to conduct a trial
in French. Justice Monnin, dissenting, stated:
[f]or the purpose of a trial in French, it is not essential that
the person presiding at it be able to express himself /
herself either orally or in writing in that language. It is
preferable but not necessary. But in my view it is essential
that he or she be able to understand fully and freely without the help of an interpreter - the various documents
offered as exhibits and the testimony of the witnesses.
27
His conclusion was but one of several options available.
The
difficulties of defining precisely who does and does not qualify
as a member of a minority language group should be clear.
A final example involves s. 23 of the Charter.
S. 23(1)(a)
provides for minority language instruction for citizens of Canada
"whose first language learned and still understood is that of the
English or French linguistic minority population of the province
in which they reside."
The Charter nowhere defines what is meant
by "first language learned and still understood."
term
may
appear
straightforward
on
the
While this
surface,
this
is
a
constitutional concept of some subtlety, given that languages are
learned in a variety of ways, including, in the case of certain
multicultural citizens, simultaneously.
Part XI of Ontario's Education Actxxxv provides for a regime
of French language instruction for Ontario francophones.
The Act
gives no guidance respecting who qualifies for the benefits of the
regime.
Schools boards must decide this question in a vacuum.
Under the scheme of the Education Act, education officials have
unfettered discretion to decide who is a person whose "first
language learned and still understood" is French, and therefore
entitled to
the benefits of minority language education.
It is
alleged by multicultural francophones that school officials use
their power to privilege persons who acquire French first and
English
While
second
this
to
the
benefits
interpretation
of
includes
French
many
language
French
education.
Canadians,
it
28
excludes many francophones of other ethnic and national origins.
This is an example of a group using its power of self-definition
in
an
allegedly
discriminatory
manner.
Certain
individuals
(multi-cultural francophones) are being excluded for irrational or
abusive purposes.
Perhaps in this situation would be best for the Ontario
Legislature to step in and clarify who does and who does not
qualify for French language instruction in Ontario. In Canada the
French
language
lives
in
a
pluralistic
mosaic
of
ethnic
and
national origins.
All French speaking communities are equally
deserving
benefits
of
institutional
the
infrastructure;
and
protection
none
should
of
the
proposed
be
excluded
for
prejudicial reasons.
The foregoing illustration of the problems with Ontario's
Education Act depict the problems associated with setting the
boundaries for group inclusion or exclusion.
Both government and
the minority language community have an interest in where the
boundaries are drawn.
Notwithstanding government's interest, the
power of self-definition is crucial to the security of linguistic
groups. This consideration obviously justifies prima-facie selfdefinitional power for linguistic minorities.
when
the
group
utilises
discriminatory manner.
its
power
of
Problems develop
self-definition
in
a
The significant questions therefore relate
to the limits on this power.
How far may government interfere?
How far may groups forcibly include objecting members?
How far
29
are groups free to exclude or excommunicate on the basis of
criteria which the group itself determines?
Government
should
possess
a
reserve
power
to
check
irresponsible uses of group exclusionary practices or powers in
cases
where
membership
in
the
group
entitles
individuals
to
significant governmentally derived powers or benefits.
CONCLUSION
Canadian history reveals time and again that the judicial
enforcement of collective rights, in particular language rights,
is inadequate and unsatisfying.
Even when the minority language
communities win the legal battle, they lose the political war.
Collective
rights
communities
caught
litigation
in
the
has
left
relentless
Canada's
linguistic
demolinguistic
trends
of
assimilation and territorial separation.
The better course would be to concentrate on the scope of
institutional
minority
infrastructure
language
required
communities.
to
Canadian
accommodate
history
Canada's
places
these
political arrangements in a flattering light as a mechanism to
overcome
major
divisions
in
Canadian
society.
Judicial
enforcement of language rights could play a secondary supplemental
and educational role, but ought not to be relied on as a primary
regulator
of
community
cultural security.
relations
or
a
principal
guarantor
of
The Courts and Constitution makers must pay
special attention to the semi-autonomous status of collectivities
at the same time as they enhance our great democratic traditions
30
by
the
addition
of
a
Charter
jurisprudence.
This
may
be
a
difficult and laborious responsibility, but it is a necessary
condition for enhancing that sense of Canadian national purpose
and spirit which most of us find utterly worth preserving.
31
ENDNOTES
i. "[B]ut ... we found that such a [legislative union] was
impracticable. In the first place, it would not meet the assent
of the people of Lower Canada, because they felt that in their
peculiar position -- being in a minority, with a different
language, nationality, and religion from the majority ... their
institutions and their laws might be assailed ... So that those
who were, like myself, in favour of a Legislative Union, were
obliged to modify their views and accept the project of a Federal
Union as the only scheme practicable ...": Speech of Sir John A.
MacDonald on the motion to adopt the Quebec Resolutions, as
reprinted in H.E. Egerton and W.L. Grant, Canadian Constitutional
Development (Toronto: Musson Book, 1907) at 362-3.
ii. City of Winnipeg v. Barrett, [1892] A.C. 445 (P.C.); Trustees
of the R.C. Sep. Schls. for Ottawa v. Mackell, [1917] A.C. 62
(P.C.); R.C. Sep. Schls. for Tiny v. Ontario, [1928] A.C. 363
(P.C.); Robin v. Le College de St-Boniface (1986), 15 D.L.R. (4th)
198 (Man. C.A.); MacDonald v. City of Montreal, [1986] 1 S.C.R.
460; Société des Acadiens du Nouveau Brunswick v. Association of
Parents for Fairness in Education, Grand Falls District 50 Branch,
[1986] 1 S.C.R. 549, 27 D.L.R. (4th) 406 [hereinafter Société des
Acadiens cited to S.C.R.].
iii.
[1986] 1 S.C.R. 549.
iv. This is the characterization of Justice Wilson, who concurred
in the result only: MacDonald v. City of Montreal at 540.
v. Ibid.
vi. R. v. Mercure, [1988] 1 S.C.R. 234; R. v. Paquette, [1990] 2
S.C.R. 1103, R. v. Cross and Lazore, Superior Court (Terrebonne)
no. 700-01-000009-913, Apr. 15, 1991;
R. v. Monture, Superior
Court (Terrebonne), no. 700-01-000491-913, May 02, 1991.
vii. Criminal Code, S. 530.1(e);
supra, note 6.
Cross, Supra, note 6;
Monture,
viii. Brophy v. A. G. Manitoba, [1895] A.C. 202 (P.C.); Pellant
v. Hebert (March 9, 1892) rept'd in (1981), 12 R.G.D. 242;
Bertrand v. Dussault (Jan 30, 1909), reptd in (1977), 77 D.L.R.
(3d) 458-62;
A.G. Manitoba v. Forest, [1979] 2 S.C.R. 1032;
Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721.
In
Brophy, the political system took over from the Courts.
The
religious and language entitlements of the Manitoba continued to
32
be eroded for the next twenty years.
The remaining four cases
concern Franco-Manitoban language rights.
Despite the Court
victories, the language rights of Franco Manitobans which had been
taken away illegally were not restored.
Those rights are still
not completely restored, despite four trips by the FrancoManitoban community to the Supreme Court of Canada since 1979 over
this question.
ix. (1982), [1982] C.S. 673, 140 D.L.R. (3d) 33, aff'd (1984),
[1984] 2 S.C.R. 66, 10 D.L.R. (4th) 321. The Supreme Court made
no reference to the quoted remark of Chief Justice Deschênes.
x. P. Carignan, "De la notion de droit collectif et de son
application en matière scolaire au Québec" (1984) 18 R.J.T. 1 at
97; see also M. McDonald, "Collective Rights: The Canada and
Quebec Clauses" (Lecture at the International Association for
Legal and Social Philosophy Meeting, 31 May 1983) at 33
[unpublished].
xi. J.-P. Proulx, "Droits individuels et droits collectifs" Le
Devoir [de Montréal] (2 october 1982) Cahier 1 at 17.
xii. For additional documentation on collective rights, see M.
McDougall, Bibliography on Collective Rights (Human Rights
Research and Education Centre: University of Ottawa, 1985)
[unpublished]; and Centre de recherche et d'enseignement sur les
droits de la personne, Rapport: Premier séminarie sur les droits
collectifs (Ottawa: University of Ottawa, 1985) (presidents: J.E.
Magnet & G.-A. Beaudoin).
xiii. (1984), [1984] 2 S.C.R.
[hereinafter cited to S.C.R.].
575,
15
D.L.R.
(4th)
561
xiv. Ibid. at 599.
xv.
While
Justice LeDain added:
the
requirement
of
approval
by
referendum
for
taxation
beyond [a] severely limited amount may be said to enlarge the
democratic rights of the individual member of the class and
to be a measure for the protection of his or her pocketbook,
it is a measure or requirement which, because of its cost and
uncertainty
of
outcome
as
indicated
in
the
evidence,
is
33
prejudicial to the effective management of denominational
schools in the interest of the class as a whole. ... What is
in
issue
here
commissioners
is
and
...
the
trustees
effective
to
provide
power
for
of
school
and
manage
denominational schools in the interests of the class; (Ibid.,
at 599 - 600).
xvi. (1986), 53 O.R. (2d) 513 at 566 - 67 (Ont. C.A.).
xvii. R.S.N.B. 1973, c. S-5.
xviii. R.S.N.B. 1973, c. O-1.
xix. S.N.B. 1981, c. O-1.1.
xx. Société des Acadiens du Nouveau-Brunswick v. Minority Language
School Board No. 50 (1983), 48 N.B.R. (2d) 361 at 397, 126 A.P.R.
361 (Q.B.) [hereinafter cited to N.B.R.].
xxi. Ibid. at 401.
xxii. A Constitutional amendment (Constitution Amendment, 1993
(New Brunswick), s. 16.1 (SI/93-54)) now entrenches the equality
of status of the English and French linguistic communities in New
Brunswick.
xxiii. For example, Pellant v. Hebert (1892) reported in (1981),
12 R.G.D. 242;
and Bertrand v. Dussault reported in (1977), 77
D.L.R. (3d) 445 which ruled Manitoba's Official Language Act
unconstitutional.
In 1976, after a third such ruling in R. v.
Forest (1976), 74 D.L.R. (3d) 704 the Attorney General of Manitoba
stated "The Crown does not accept the ruling of the Court with
respect to the constitutionality of the Official Language Act:"
see Re Forest (1977), 77 D.L.R. (3d) 445.
xxiv. Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 133
(special protection in the machinery of government, including the
Legislature and Courts for official language minorities); s. 80
and the Second Schedule (protection for the linguistic integrity
of anglophone electoral districts in Quebec).
xxv. R. L. Watts, Multicultural Societies and Federalism, Ottawa:
Queen's Printer, 1970 (Studies of the Royal Commission on
34
Bilingualism and Biculturalism, no. 8), p. 86.
xxvi. See J. E. Magnet, The Future of Official Language Minorities
(1986), 27 C. de D. 189, 201.
xxvii. (1984), 47 O.R. (2d) 1.
xxviii. See generally C. Palley, "The Role of Law in Relation to
Minority Groups", in Alcock, Taylor and Welton, The Future of
Cultural Minorities (London: MacMillan, 1979), p. 120 at 143 ff.
who makes and elaborates on these points.
xxix.
See Y. Dinstein, Collective Human Rights of Peoples and
Minorities (1976), 25 Intnl. and Comp. L. Q. 102, 115.
xxx. Minority Schools in Albania (1934) Series A-B, Fasc. no. 63,
Judgments, Orders and Advisory Opinions of the Permanent Court of
International Justice, p. 17.
xxxi. R. v. Big M. Drug Mart Ltd., [1985] 2 S.C.R. 295, 336;
Lavigne v. O.P.S.E.U., Ont. S.C., July 4, 1986 (per White, J.:
"individual liberty and the development of self potential, is also
a value reflected in freedom of association....the recognition of
a right not to associate would appear to flow from the word
`freedom'....a right to freedom of association which did not
include a right not to associate would not really ensure
`freedom'".
xxxii. Caldwell v. Director, Human Rights Code of B.C., [1984] 2
S.C.R. 603.
xxxiii.
A question has been raised as to the scope of the
exemption granted by s. 29. In Reference re An Act to Amend the
Education Act (1986), 53 O.R. (2d) 513 the majority considered
that the exemption extended not only to rights guaranteed by the
constitution, that is, rights existing at confederation, but also
to "rights and privileges granted by laws enacted under the
authority of the Constitution."
The majority limited this
principle as follows: "Laws and the Constitution ... are excluded
from application to separate schools only to the extent they
derogate from such schools as Catholic (or in Quebec, Protestant)
institutions.
It is this essential Catholic nature which is
preserved and protected by s. 93 of the Constitution and s. 29 of
the Charter. The minority held that "section 29 is specifically
made applicable only to the constitutionally guaranteed rights ...
of separate schools.
It serves to preserve those rights by
ensuring that they are immune from Charter attack notwithstanding
that they may contravene the Charter....We reject the notion that
every future piece of legislation enacted by the province under s.
35
93 which confers rights or privileges on Roman Catholic separate
schools is placed by s. 29 beyond the purview of the Charter....To
be protected by s. 29 the rights and privileges must be
constitutionally guaranteed....A guarantee does not attach to
rights or privileges conferred by an ordinary provincial statute."
While the Supreme Court is now considering this conflict, it is
important to note that both majority and dissent agree that, at
the minimum, s. 29 protects the core of collective rights
guaranteed by the Constitution in 1867 form attack based upon the
individual rights sections of the Charter.
xxxiv. [1985] 1 W.W.R. 249, 30 Man. R. (2d) 50 (C.A.); leave to
appeal to S.C.C. refused (1986), 44 Man. R. (2d) 80n (S.C.C.).
xxxv. R.S.O. 1980, c. 129.