The Demise of the Political Compromise
Doctrine: Have Official Language
Use Rights Been Revived?
Denise G. R6aume”
Most of the constitutionalized language rights in Canada
have received a large and liberal interpretation. In contrast, the
constitutional right to use either official language in the courts
has been categorized as a “political compromise right’ and in-
terpreted narrowly to the point of being ineffective.
Recently, a majority of the Supreme Court rejected the
political compromise doctrine in R. v. Beaulac. It is hoped that
this decision will result in a broader interpretation of the right to
use English or French before the courts. A restrictive interpre-
tation of the right, however, is also dictated by its having been
characterized as a negative liberty, and this aspect of the past
case law was not overruled by Beaukc.
In part, the negative liberty interpretation of the right to
use either official language in the courts stems from the fear
that to adopt a positive right approach would result in an ir-
resolvable conflict between interacting holders of the same
right. A positive interpretation of the right is possible, however,
if corresponding duties are imposed not on individuals, but on
the state.
In order to support a broad and positive interpretation of
language use rights in the courts, as well as in the provision of
government services, what is needed is an understanding of
their purpose that goes beyond effective communication, that is,
not one based on a natural justice rationale. To counter the ten-
dency to construe the purpose of language rights in wholly in-
strumental terms, we need an account of such rights that recog-
nizes the intrinsic value to a minority official language commu-
nity of the use of its language. While Beaulac moves us signifi-
cantiy in the right direction, the Supreme Court failed to articu-
late fully why the use of a particular language is important to a
community.
La plupart des droits linguistiques contitutionnalisds out
6t6 interpr&,vs de manire large et libdrale. Toutefois, le droit
constitutionnel d’utiliser une des langues officielles dans les
cours a 6t6 classifid comme un
et interpr& de manidre restrictive le rendant
insi inefficace.
Une majoritd des juges de la Cour suprdme a rdcemment rejet6
la doctrine de compromis politique dan R. c. Beaulac. Cette
d6cision prdsage l’adoption d’une interprdtation plus ouverte du
droit d’utiliser le franais ou l’anglais dans les cours. Une inter-
prdtation restreinte du droit a dgalement 6 dictde par sa carac-
tvrisation de libert6 n6gative ; Beaulac n’a cependant pas an-
nul6 cet aspect de la jurisprudence antdrieure.
L’interprdtation de la libert6 n6gative du droit d’utiliser
une des langues officielies dans les cours relive, en partie, de la
peur voulant que l’adoption d’une approche de droit positif of-
sulterait en un conflit impossible A rdsoudre entre les ddtenteurs
d’un mdme droit. Une interpr6tation positive du droit est toute-
fois possible si les devoirs correspondants sont imposds A l’dtat
et non A l’individu.
Une comprlhension des objectifs allant au-delA de la
communication effective, c’est-t-dire non fondde sur un ratio
de justice naturelle, est ndcessaire afn d’appuyer une interprd-
tation large et positive des droits linguistiques dans les litiges
ainsi que dans les prestations des services gouvemementaux.
Pour contrecarrer la tendance qu explique les objectifs des
droits linguistiques en des termes instrumentaux, nous avous
besoin d’un compte rendu de ces droits reconnaissant la valeur
intrmnsx-que de l’utilisation de la langue pour une communaut6
dont la langue est une langue officielie minoritaire. Alors que
Beaulac nous conduit dans la bonne direction, la Cour suprame
n’a su expliquer pourquoi
‘utilisation d’une langue particuliire
est importante pour une communaut.
. Faculty of Law, University of Toronto. B.A., LL.B. (Queen’s), B.C.L. (Oxon.). I am grateful for
having had the opportunity to present earlier versions of this paper to the Constitutional Roundtable at
the Faculty of Law, University of Toronto and the Legal Theory Workshop at the Faculty of Law,
McGill University. Special thanks are due to Ian Lee and Sujit Choudhry for their helpful comments.
McGill Law Journal 2002
Revue de droit de McGill 2002
To be cited as: (2002) 47 McGill L.J. 593
Mode de r6fdrence : (2002) 47 R.D. McGill 593
594
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[Vol. 47
Introduction
I. Political Compromise, Restraint, and Negative Rights: Separating the
Threads
II. Managing Conflict between Positive Rights: Individual versus Insti-
tutional Perspectives
III. Animating Language Use Rights: Why Does It Matter What Lan-
guage Government Uses with Its Citizens?
A. The Effective Communication Rationale: Its Promise and Limits
B. Beyond Effective Communication: Seeing Intrinsic Value in Mother
Tongue Language Use
Conclusion
2002]
D. G. RL2AUME- OFFICIAL LANGUAGE USE RIGHTS
595
Introduction
The Canadian regime of constitutionalized language rights covers four contexts of
interaction between people and the state: the enactment and publication of laws (sec-
tion 133 of the Constitution Act, 1867′ and section 18 of the Canadian Charter of
Rights and Freedoms), the provision of public schooling (section 23 of the Charter),
the use of the official languages in the courts (section 133 of the Constitution Act,
1867 and section 19 of the Charter), and in the provision of government services
(section 20 of the Charter). As the scope and meaning of these rights has taken shape,
there has been a marked contrast in treatment between, on the one hand, the right to
the bilingual enactment of laws and the right to minority language education, and, on
the other hand, the right to the use of either language in the courts. The former have
received a large and liberal interpretation in keeping with the general approach to
Charter rights’ the latter was characterized by the Supreme Court of Canada as a
“political compromise right” and for that reason was approached with interpretive
caution.’ This produced an extremely narrow articulation of the right to use either of-
ficial language before the courts, rendering it virtually useless to litigants. There has
been no shortage of academic criticism of the “political compromise right” label and
the restrictive attitude toward rights interpretation it has spawned Recently, in R v.
‘ Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. I, No. 5.
2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (U.K), 1982, c. 11 [hereinafter Charter].
3Manitoba (A.G.) v. Forest, [1979] 2 S.C.R. 1032, 101 D.L.R. (3d) 385; Quebec (A.G.) v. Blaikie
(No. 1), [1979] 2 S.C.R. 1016, 101 D.L.R. (3d) 394; Quebec (A.G.) v. Blaikie (No. 2), [1981] 1
S.C.R. 312, 123 D.L.R. (3d) 15; Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721, 19
D.L.R. (4th) I [hereinafter Manitoba Language Reference cited to S.C.R.]; Mah v. Alberta, [1990] 1
S.C.R. 342, 68 D.L.R. (4th) 69 [hereinafter Mahj cited to S.C.R.]; Arsenault-Cameron v. Prince Ed-
ward Island, [2000] 1 S.C.R. 3, 181 D.L.R. (4th) 1 [hereinafter Arsenault-Cameron]; Abbey v. Essex
County Board of Education (1999), 42 O.R. (3d) 481, 169 D.L.R. (4th) 451 (C.A.); Conseil des 6co-
les siparjes catholiques romaines de Dufferin et Peel v. Ontario (Ministre de l’dducation et de la
formation) (1996), 30 O.R. (3d) 681, 136 D.L.R. (4th) 704 (Gen. Div.); Colin v. Quebec (Commission
d’appelsurla langue d’enseignement), [1995] RJ.Q. 1478 (Sup. Ct.).
4 MacDonald v. Montreal (City of), [1986] 1 S.C.R. 460, 27 D.L.R. (4th) 321 [hereinafter Mac-
Donald cited to S.C.R.]; Socidtj des Acadiens du Nouveau-Brunswick v. Association of Parents for
Fairness in Education, [1986] 1 S.C.R. 549, 27 D.L.R. (4th) 406 [hereinafter Socidtj des Acadiens
cited to S.C.R.]; Bilodeau v. Manitoba (A.G.), [1986] 1 S.C.R. 449, 27 D.L.R. (4th) 39. These cases
will be referred to as “the trilogy”, following Bastarache J. in R. v. Beaulac, [1999] 1 S.C.R. 768 at
paras. 16-17, 173 D.L.R. (4th) 193 [hereinafter Beaulac].
5 L. Green & D. R~aume, “Second-Class Rights? Principle and Compromise in the Charter” (1990)
13 Dal. LJ. 564. See also P Foucher, ”interpr6tation
des droits linguistiques constitutionnels par Ia
Cour supreme du Canada” (1987) 19 Ottawa L. Rev. 381; B. Pelletier, ‘Bilan des droits linguistiques
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Beaulac, the Supreme Court has responded to the criticism and reconsidered some of
its thinking.6
A majority of the Supreme Court has now declared that being based on political
compromise does not usefully distinguish language rights from many other Charter
rights,’ and that such a genesis has no normative repercussions in understanding the
import of a rights-granting provision.8 This is a welcome step away from the restric-
tive approach adopted in the trilogy of MacDonald, Socidt des Acadiens, and Bi-
lodeau,9 and sparks hope that the right to use either official language before the courts
may soon be granted the same generosity enjoyed both by other language rights and
by Charter rights more generally. Though Beaulac takes a step in the right direction,
the job is not yet finished. While Bastarache J., writing for the majority, concentrates
on undermining the political compromise doctrine, there is more to the Court’s earlier
analysis of language use rights in the courts than the idea that political compromise
rights deserve a restrictive interpretation-more, that is, pulling those judgments in
the direction of a narrow interpretation of the rights.'”
The main obstacle in the trilogy to a robust interpretation of language use rights is
the construction of the right as a mere negative liberty not to be interfered with in
one’s choice of official language before the courts. The generally restrictive attitude
flowing from the characterization of language rights as compromise rights provided
one reason for construing the right as a negative liberty. Equally powerful, though,
was the argument that any other interpretation would give rise to irresolvable conflicts
between rights holders. Although Beaulac appears to eschew the negative liberty in-
terpretation altogether, the case did not allow for a comprehensive critique of the rea-
soning in the trilogy originally leading to that interpretation-hence, the trilogy has
not been explicitly overruled. In this article, I first demonstrate why Beaulac does not
expunge fully the negative conceptualization of language use rights. In the second
part, my objective is to continue the critique of the trilogy in an effort to undermine
the remaining ground of the decisions, wiping the slate completely clean for a new
start.
The tendency to locate the conservative pull in language rights jurisprudence ex-
clusively in the political compromise doctrine also characterizes Bastarache J.’s main
critique of the lower court decisions in Beaulac, which is similarly incomplete. In the
au Canada” (1995) 55 R. du B. 611; A. Riddell, “A la recherche du temps perdu: la Cour supreme et
l’interpr6tation des droits linguistiques constitutionnels dans les ann~es 80″ (1988) 29 C. de D. 829.
6 Beaulac, supra note 4.
1 Ibid. at para. 24; see also Arsenault-Cameron, supra note 3 at para. 27.
8Beaulac, ibid. at paras. 24-25.
9See supra note 4.
,o Bastarache J. is not the only one to focus heavily on the political compromise doctrine as the cul-
prit in the trilogy. See Foucher, supra note 5; Pelletier, supra note 5; Riddell, supra note 5.
2002]
D. G. REAUME- OFFICIAL LANGUAGE USE RIGHTS
third part of the article, I try to fill the gaps. The problem is not merely a restrictive
interpretive attitude, but a particularly impoverished understanding of the purpose of
language rights. Beaulac involves a statutory scheme-the Criminal Code provisions
governing the language of trials”–designed to supplement constitutional language
rights. Bastarache J. criticizes the lower courts for conflating the right to use one’s
preferred official language with natural justice or fair trial rights.’2 This approach has
often limited official language rights to circumstances in which the plaintiff would
otherwise be unable to understand the proceedings, since the linguistic aspect of the
right to a fair trial extends only to ensuring adequate comprehension. Bastarache J.
treats the political compromise doctrine as the explanation for why judges might in-
terpret the rights conferred by the Criminal Code in this narrow way. Yet the natural
justice approach is wrong in a deeper and more complex way than merely displaying
a cautious tendency to read the right to the use of one’s own language narrowly. The
reduction of official language rights to the natural justice rationale falls into the trap of
treating language as nothing more than an instrument of communication. Conse-
quently, this approach construes the purpose of language rights in wholly instrumental
terms. In rejecting the natural justice approach, Bastarache J. gestures towards an al-
ternative account. I try to develop this argument through my account of the abstract
right to linguistic security to which concrete official language protections give shape.”
Both burying the political compromise doctrine and dispelling an instrumental
conception of the purpose of official language rights should not only affect minority
language litigants’ access to the courts, but also set the stage for the interpretation of
the right to government services in either language. We may refer to the citizen’s right
to dictate the official language of interaction in the courts (and tribunals) and the pro-
vision of government services as “language use rights”, distinguishing between the
two contexts as necessary. As shall become clear, much of the litigation to date has
used the jurisprudence with respect to language use rights in the courts as the starting
point for analysis of section 20 of the Charter, governing government services. In
particular, the instrumentalist interpretation of language use rights has been common
in cases involving access to government services; revealing its inadequacies should
also put this case law on a more sound track. Yet there has been little litigation so far
in this last context-some trial and court of appeal activity, but no pronouncements by
“Criminal Code, R.S.C. 1985, c. C-46, s. 530.
‘2Beaulac, supra note 4 at para. 41.
3 his critique of the natural justice approach and the development of an alternative builds upon the
argument presented in D.G. R~aume, “Official-Language Rights: Intrinsic Value and the Protection of
Difference” in W. Kymlicka & W. Norman, eds., Citizenship in Diverse Societies (Oxford: Oxford
University Press, 2000) 245 [hereinafter Raume, “Official-Language Rights”]. My focus here is on
demonstrating how the shortcomings of an approach based on effective communication have materi-
alized in the case law on section 20 of the Charter, and examining the emergence of the competing
approach in the cases, culminating in Beaulac.
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the Supreme Court. As these cases wend their way through the system, it is important
for the development of a sound approach that the shadow of the early cases on official
language use in the courts be fully dispelled.
I. Political Compromise, Restraint, and Negative Rights: Separating
the Threads
A determining factor in the quality of protection offered by official language
rights is whether they are crafted as negative liberties or rather as provisions imposing
positive obligations on others, especially state actors. The trilogy raised this funda-
mental question in the context of the right to use either official language before the
courts. The choice was between interpreting this right as a mere injunction against
prohibiting litigants from using a particular language or as requiring positive action to
ensure that the courtroom environment makes the litigant feel linguistically at home.
In the trilogy, the Supreme Court announced what sounded like a general philosophy
with respect to language rights-the political compromise doctrine-that would jus-
tify a restrictive approach to the interpretive task, which in turn led them to a negative
construction of the relevant aspects of section 133 of the Constitution Act, 1867 and
section 19 of the Charter. In contrast, Beaulac rejects the political compromise doc-
trine and its interpretive implications. It does not follow, however, that a negative lib-
erty interpretation is untenable for any of the language rights. Hence, the negative lib-
erty construction of language use rights in litigation has not yet been ruled out.
Critics of the trilogy were quick to point out that its policy of restraint was incon-
sistent with the robust and generous interpretation that had already been accorded to
language rights in other areas; 4 the new approach gave rise to fears of future re-
trenchment from earlier rights gains.'” These fears were somewhat alleviated by Mahj,
in which the Court declined to interpret the minority language education rights nar-
rowly despite their genesis in a political compromise.” Since then the Court has also
extended its analysis of language rights in the legislative context in a way consistent
with its original generous approach, seemingly oblivious to the general doctrine of re-
straint advocated in the trilogy.” There is, therefore, an apparent inconsistency be-
tween the Court’s generous interpretive method in some contexts and restrictive
method in others. In Beaulac, Bastarache J. makes this his jumping-off point in criti-
cizing a general policy of interpretative restraint for language rights. Yet he infers
from the conclusion that language rights should not automatically attract a narrow in-
‘4 Foucher, supra note 5; Peletier, supra note 5.
” See M. Bastarache, “Language Rights in the Supreme Court of Canada: The Perspective of Chief
Justice Brian Dickson” (1991) 20 Man. L.J. 392 at 402; Foucher, ibid.
‘6Mahi, supra note 3 at 364-65.
‘7 Manitoba Language Reference, supra note 3.
2002]
D. G. R=AUME – OFFICIAL LANGUAGE USE RIGHTS
599
terpretation that they “are not negative rights, or passive rights; they can only be en-
joyed if the means are provided’ ” This sounds like a rejection not only of the political
compromise doctrine and its interpretive implications, but also of the characterization
in the trilogy of the section 133 litigation right as a negative liberty. But that would be
too hasty. Bastarache J.’s argument tends to conflate the policy of restrictive interpre-
tation with the characterization of a right as merely negative-to treat them as
equivalent interpretive moves-so that rejection of the former means rejection of the
latter. This masks an important distinction between the provisions at stake in the tril-
ogy and in Beaulac, and misses part of the reason for the adoption of a negative lib-
erty approach in the trilogy.
In a case like MacDonald, the restraint approach does lead to a negative liberty
interpretation, but the relationship between the two ideas is more complex than Basta-
rache J. makes it out to be in Beaulac. When the very issue to be decided is whether a
provision imposes positive obligations or merely accords a negative liberty, a restric-
tive interpretive approach dictates the latter-the negative liberty version is the more
restrictive of the two options. But one can interpret narrowly without adopting a
negative liberty construction, and one can sometimes embrace a negative liberty ap-
proach while rejecting the philosophy of interpretive restraint. The two issues are con-
ceptually independent, even though they may occasionally overlap. The trilogy held
that a policy of interpretive restraint was a reason, perhaps sufficient reason, to adopt a
negative construction; it was not the only reason. Conversely, treating a right as a
negative liberty is one way of interpreting it restrictively, but it is not the only means
or even always an available one. Indeed, most of the language rights provisions can-
not be interpreted as negative liberties. Section 133 of the Constitution Act, 1867
clearly imposes positive obligations on Parliament to enact legislation in both lan-
guages; section 23 of the Charter requires much more than forbearance from inter-
fering in private choices about language of education; section 20 of the Charter re-
quires that government service providers speak and understand whichever official
language the recipient chooses. More and less restrictive interpretations of these provi-
sions can be tendered, but no amount of restraint can turn them into negative liberties.
Given the independence of the two issues-whether to interpret negatively, and
whether to interpret restrictively-there is no logical inconsistency in the pattern of
Supreme Court judgments before Beaulac. The jurisprudence discloses the narrower,
negative liberty interpretation when a provision is ambiguous on precisely whether it
affords a negative or positive right, while provisions that clearly impose positive obli-
gations are treated with the generosity customarily accorded to human rights. A view
that there is no justification for reading clear positive rights as narrowly as possible is
consistent with the view that there is some reason to read ambiguous provisions as
8Beaulac, supra note 4 at para. 20.
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negative liberties. Thus, a uniform policy of restrictive interpretation may be wrong,
without fatally undermining the idea that language use rights in litigation are mere
negative or “passive” rights.
Further, Beaulac did not provide an appropriate context for a categorical rejection
of a negative liberty approach. The case dealt with section 530 of the Criminal Code,
which establishes the right of accused persons to choose between French and English
as the language of trial, a provision that clearly imposes positive obligations on gov-
ernment. Faced with the question of whether to read these rights generously or nar-
rowly, and given that the Court had accorded a generous interpretation to every other
positive right in the language area to come before it, Bastarache J. was quite right to
criticize the lower courts’ narrow interpretive approach in Beaulac. The mere fact that
this right to language choice is statutory rather than constitutional is no reason to de-
viate from the generosity recommended in the constitutional jurisprudence. From this
we can glean nothing about whether some language rights (in particular section 133
and section 19) should be construed as negative liberties. Section 530 of the Criminal
Code could be interpreted narrowly or restrictively; Bastarache J. correctly argues that
it should not be. It could not have been interpreted as a negative liberty. One does not
need to reject a negative liberty approach as a matter of conceptual or substantive
principle to support this conclusion. Bastarache J.’s apparent categorical rejection of a
negative liberty interpretation of any of the language rights is obiter dictum. Thus, it
remains an open question whether the negative liberty approach to the constitution-
ally-based language use rights in the courts is appropriate.
So far, I have merely argued that there is no logical inconsistency between the
trilogy and the other language rights cases considered by the Supreme Court. There is
therefore no reason to assume that the rejection of the political compromise doctrine
and its gospel of restrictive interpretation will suffice to dislodge the negative liberty
approach to language use rights before the courts. In order to explain the Court’s cau-
tious adoption of a negative liberty interpretation in one context, despite the generous
approach taken elsewhere, we should look to see whether there is independent reason
for the negative liberty interpretation in the former. Indeed, such an argument is of-
fered by the Court in the trilogy: to adopt a positive right interpretation of the official
language use rights in the courts would result in endemic, irresolvable conflict be-
tween interacting holders of the same right, a problem avoided by the negative liberty
interpretation. Thus, in order comprehensively to undermine the latter interpretation, it
is necessary to refute the rights conflict argument. To that task, I now turn.
2002]
D. G. RE=AUME – OFFICIAL LANGUAGE USE RIGHTS
II. Managing Conflict between Positive Rights: Individual versus
Institutional Perspectives
Looking at the complete picture of language use rights articulated in the trilogy,
we can identify two elements: who holds the right, and what kind of right is held. The
plaintiffs in these cases were arguing for the interpretation of the right as a compre-
hensive language use right” -the right to speak, understand, and be understood. This
interpretation necessarily involved seeing the right as giving rise to positive obliga-
tions on others. In response, the Supreme Court limited the right to a speaker’s right
to non-interference,0 offering two main arguments. The first argument was that the
right to understand official communications would be inconsistent with the text of
section 133, thus supporting the conclusion that the right to use either official lan-
guage belongs to speakers, not recipients of communications. The second argument
attempted to proceed by reductio ad absurdum against the inclusion of a right to be
understood. It supported the negative interpretation of the right by arguing that a posi-
tive interpretation would be intemally inconsistent since it would give rise to conflicts
between right-holders.’ Both arguments are flawed; for present purposes, however, I
‘0R~aume, “Official-Language Rights”, supra note 13 at 254.
2′ It is worth noting in passing that these two questions tended to be conflated such that a particular
answer to the former itself determines the answer to the latter. Beetz J. assumes in MacDonald, supra
note 4, that the right to “use” either language refers exclusively to its active use rather than including
its passive use. That is, he argues that the right is held only by speakers, including those communi-
cating to the court in writing, in the official context of litigation, and not by recipients of official
communications. He infers from this that the duty correlative to this right is the negative one of non-
interference. This does not invariably follow. That the speaker is the sole right holder does not dictate
that the right must always be construed negatively. It is possible to argue that only the speaker’s rights
are recognized, but that this includes the right to be understood, entailing positive obligations against
others, as well as the right to speak unimpeded, requiring only non-interference from others.
This confusion likely arose out of the fact that in MacDonald the appellant was arguing not for
the right to be understood, but the right to understand. In his case, confining the right to the speaker
does mean that the appellant can impose no positive duty on officials. Here the relevant speaker was
the issuer of the summons. In arguing that only the speaker holds the right, it follows that MacDonald
could not, as a recipient, have a right to receive the communication in his own language. Mac-
Donald’s only rights were as speaker in his communications with the court. But as speaker in his own
right, any possible right to be understood would not have availed him. The issuer of the summons, as
right-holder, could simply waive the right to be understood by the recipient. Thus the same result is
achieved as if the duty were characterized as negative, but it is unnecessary so to characterize it. The
argument that the right is merely a negative one is crucial to Socidtd des Acadiens, supra note 4, in
which the appellants were arguing for a right to be understood. But this result does not inevitably fol-
low from the necessary bases of the conclusion in MacDonald. Thus if the right to use either official
language is to be characterized as negative, there must be a further reason for doing so; it does not
necessarily follow from the conclusion that only speakers hold the right.
21 The negative right conclusion also supports the attribution of the right only to speakers because a
right in recipients would frequently require positive action to accommodate it. That is, there is no way
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am primarily concerned to illustrate the defects of the reductio argument grounded in
the threat of pervasive rights conflict.’
to make sense of a recipient’s right as a mere right not to be interfered with in understanding a com-
munication.
22 Briefly, the textual argument for confining the right to speakers can be outlined and criticized as
follows: Beetz J. argued in MacDonald, supra note 4, that extending the right beyond speakers would
mean that where s. 133 actually says either English or French may be used it must mean both English
and French must be used. Given the impossibility of the issuer of the summons knowing what the
language of the recipient was, the summons would have to be issued in both languages to cover either
possibility.
This argument is fueled by the assumption that a summons issued in the wrong language would
be absolutely null and void. Even Wilson J., while disagreeing with the majority on the requirements
of s. 133, accepted the argument that a summons that is not in the accused’s language would be inva-
lid (MacDonald, ibid. at 544-46). Elsewhere I have criticized the tendency to treat invalidation as the
appropriate remedy for a violation of the government’s duty to live up to its linguistic obligations. See
D. R~aume, “Language, Rights, Remedies, and the Rule of Law” (1988) 1 CJ.LJ. 35. If we reject the
assumption that the unilingual summons must be invalid if it violates s. 133, the argument that the
plaintiff’s position requires the redrafting of s. 133 collapses. Instead we should say that a summons
issued in one language is perfectly valid, and requires the accused to present himself or herself in
court. If, however, the section confers a right to receive communications in one’s own language, the
state is in violation of its constitutional duty until the accused is provided with an English version of
the summons. The state can therefore be required to rectify this violation by providing a copy of the
summons in the recipient’s language once the need for it becomes evident. If this procedure still fails,
the issuance could be compelled by the normal means of a mandatory order. To say that once such a
request is made the state has an obligation to fulfil it, does not convert a choice of language into a re-
quirement that both languages always be used.
Even if one accepted invalidation as the appropriate remedy for the violation of the right argued
for in MacDonald, Beetz J. is wrong to suggest that this illegitimately turns a rule that either language
may be used into one that both must be used. The requirement that both languages be used results not
from the statute, but from contingent facts about the world. Beetz J. is assuming that knowledge of the
recipient’s language will be unavailable, so that the most sensible thing to do would be to issue the
summons in both languages. This depends on there being a reasonable chance that the recipient’s lan-
guage will be other than the one the issuer would have chosen to use. This may indeed be true in
Montreal which has a large anglophone minority. However, should a case involve the issuance of a
summons in a small rural town in Quebec, in which the issuer knew that everyone’s mother tongue
was French, there would be no practical requirement to issue the summons in English as well.
The fallacy in Beetz J.’s argument is in thinking that practical obligations that flow from the
conjunction of a law and certain factual circumstances must be construed as legal obligations–that is,
as obligations arising out of the relevant law itself. If factual circumstances are such that it is uncertain
whether an anglophone or a francophone will receive a certain summons, and the recipient has a right
to receive it in his or her own language, there are practical reasons for sending it in both languages.
However, this is no reason to say that this reads into the Constitution a legal obligation to send the
summons in both languages. The requirement is merely one of practical necessity flowing from the
fact that in certain factual circumstances there is only one way to live up to the obligation. That there
2002]
D. G. R,4.AUME – OFFICIAL LANGUAGE USE RIGHTS
603
In MacDonald it was argued that affording a recipient the comprehensive right to
use his or her own language would necessarily deprive a speaker of the right to
choose which official language to use.’ The logic of this argument could then easily
be extended to the situation in Socijtj des Acadiens to conclude that granting the right
to be understood would likewise deprive other participants of their right to choose. It
would therefore be absurd to include in section 133 the right to receive communica-
tions or to be understood in one’s own official language-to do so would result in
constant irreconcilable conflicts. Rather, the right must be interpreted as one not to be
interfered with in the use of one’s language of choice. A litigant cannot be prevented
from speaking to the court or filing documents in either language, but that choice need
not be positively accommodated.
The argument relies crucially on the reduction of the state to its individual officers
and the assumption that the right is held against those individuals qua individuals.
Only on this assumption does a positive interpretation lead to conflict between indi-
viduals. Implicitly rejected is the idea that the state may have duties beyond those of
the individuals who carry out its functions. An individualistic paradigm arises out of
the argument in MacDonald that section 133 rights must mean the same in both their
parliamentary and judicial contexts:
[T]he essential words of s. 133 are the same with respect to the language of
Parliamentary debates and to the language of court proceedings and should re-
ceive the same construction. It is clear that the rights preserved in Parliamen-
tary debates are those of the speaker only. Those who listen to the speaker can-
not have a right to be addressed in the language of their choice without defeat-
ing the speaker’s own right to use the language of his choice and making the
constitutional provisions nonsensical. Also, the speaker might be unilingual
and find it impossible to address his listeners in the language of their choice.
Furthermore, the choice of the listeners might vary, making it impossible to ac-
commodate each of them. The use of interpreters or simultaneous translation
which, in any event, has nothing to do with s. 133, would not meet the essential
thrust of appellant’s submission that he has the right to be addressed in the lan-
guage of his choice by the very person or body who is purporting to address
hirn.24
In this passage, there are only individuals in sight; any suggested means of making it
possible for speakers of different official languages to get along is rejected as contrary
to the essence of the positive rights conception of the claim. The problem is easily
transferred to the courtroom-imagine a francophone litigant insisting on a compre-
hensive language use right against an anglophone litigant. The only way conflict
is no legal obligation to send the summons in both languages is demonstrated by the fact that a unilin-
gual summons which happens to be in the language of the recipient would be unchallengeable.
‘ Supra note 4 at 483.
2,1bid. [emphasis added].
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could be avoided is if one could be guaranteed that one need only ever be involved in
litigation with people in one’s own language group. Every other participant in a
trial-judge, lawyer, witness, jury member-is then treated as being in exactly the
same position as one of the litigants, multiplying many times over the potential for
conflict between comprehensive language use rights.
Yet this reduction of all the players to the status of private individuals makes little
sense when talking about interactions in a context wholly bound up with institutional
organizations under state control. Rather, the trilogy has the paradigm and derivative
cases backwards: the central target of language use rights is not other individual
speakers, but certain institutions of the state (that is, the courts and the legislature) and
only derivatively, if at all, individuals who happen to find themselves simultaneously
in the same courtroom. Even the negative liberty to speak the official language of
one’s choice is not usefully thought of as a right held against individuals. No individ-
ual has the power to prohibit another from speaking a certain language, not even a
judge, considered as an individual. Only the state, through legislation or in otherwise
regulating its institutions, can forbid or prevent the use of any particular language or
require any other. Prohibitions against certain languages or requirements to use a par-
ticular language are accomplished either through legislation or a rule of court. With-
out such backing, even the judge would be powerless to prevent an individual from
speaking whatever language he or she chooses, short of using coercion or force,
which would be independently wrong. Hence, one does not need section 133 to pro-
tect one’s right to speak French or English in front of a judge considered as an indi-
vidual, any more than one needs a specific right to wear one’s hair short rather than
long; one only needs the general right to protection against violence and coercion.
Thus, in the first instance, even the bare liberty to speak French or English is held
against the state and its institutions, and imposes on the state a duty not to use its leg-
islative power to restrict the use of these two languages. So far, this duty is merely a
negative one not to interfere with language choice. But once we shift our focus to the
state as the primary bearer of obligations to protect language rights, we are free to
consider whether other duties, including positive ones, might fairly be imposed on it
and its institutions. That is, we can consider whether the right can be extended to the
right to be understood through imposing duties on the state rather than reciprocal obli-
gations on other trial participants. This perspective avoids the kind of apparently irrec-
oncilable conflicts that led Beetz J. in MacDonald to reject a positive interpretation of
the right under section 133. Beetz J. seems to have been sidetracked into a debate about
whether the state has rights under section 133,’ when the real question is what duties it
is fair to impose in pursuit of the protections that section 133 has at its core.
” Ibid. at 484.
2002]
D. G. RFAUME- OFFICIAL LANGUAGE USE RIGHTS
Although the Supreme Court undoubtedly thought that it was simplifying section
133 analysis and avoiding future problems by giving the provision a negative liberty
interpretation, the individualistic focus has since given rise to difficulties that ought to
make the Court reconsider the entire approach. The chickens came home to roost in
two cases coming out of Quebec involving claims by accused persons to a trial in
English, as granted by section 530 of the Criminal Code. Recall that section 530 seeks
to do what the Supreme Court has consistently encouraged Parliament to do,’6 namely,
to create more comprehensive schemes facilitating the use of the two official lan-
guages beyond the minimal protections constitutionalized in section 133. Pursuant to
the Criminal Code scheme, once an accused person has applied for an order directing
that his or her trial be conducted in a particular official language and the order has
been granted, section 530.1 dictates that “the accused has a right to have a prosecutor
who speaks” that language. In R. v. Cross and R. v. Montour,’ the accused applied
for an order directing the trials to be conducted in English, thus triggering the right to
a prosecutor who speaks English. The Crown prosecutors in each case indicated a de-
sire to use French rather than English during the trial whenever the jury was absent.
When the accused countered that this was inconsistent with section 530.1, the Crown
prosecutors challenged its constitutionality as violating their rights as persons under
section 133. Their argument, of course, is perfectly consistent with the spirit of the
analysis of section 133 in the trilogy, in particular the exclusive focus on individuals.
After all, prosecutors are undoubtedly among the many “persons” who have their own
right to use either official language under section 133. Had the argument been ac-
cepted, it would have effectively turned section 133 from a floor into a ceiling.
The implications of this would have been dramatic. The federal government has
moved in other ways to improve access to the criminal justice system for members of
both official language communities. For example, as Greenberg J. notes in Cross, al-
though the constitutionality of subsection 841(3) of the Criminal Code, which pre-
scribes the use of bilingual charge forms, has not been challenged, in light of the in-
clusion of officials issuing summonses in the category of those enjoying section 133
rights, it might well have been.’ Similarly, the federal Official Languages Act
im-
poses obligations on government agents to adapt to the language choice of private liti-
gants. The Official Languages of New Brunswick Act’ does likewise. All these
schemes” would have been vulnerable to attack had the constitutional challenges in
26Jones v. Neiv Brunswick (A.G.) (1974), [1975] 2 S.C.R. 182 at 192-95,45 D.L.R. (3d) 583.
[1991] RJ.Q. 1430,76 C.C.C. (3d) 445 (Sup. Ct.) [hereinafter Cross cited to R.J.Q.].
23 [1991] RJ.Q. 1470, [1991] A.Q. No. 800 (Sup. CL), online: QL (AQ).
2 ‘Supra note 27 at 1446.
” R.S.C. 1985 (4th Supp.), c. 31, Part M.
“R.S.N.B. 1973, c. 0-1.
.For a comprehensive survey of the various measures put in place across Canada to provide access
to the courts in either official language, see the study by the Commissioner of Official Languages, The
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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Cross and Montour succeeded. In all these areas, it would be difficult, if not impossi-
ble, to supplement the provisions of section 133.
Fortunately, a means was found to salvage section 530.1, one that avoided recon-
sidering the constitutional analysis in the trilogy. Disagreement between the two trial
judges on the constitutional issue sent the matter up to the Quebec Court of Appeal in
R. v. Cross.3 In line with the reasoning of Tannenbaum J. in the lower court in Mon-
tour, section 530.1 was interpreted in the Cross appeal as imposing an obligation not
on a prosecutor individually to speak a particular language, which would contradict
the prosecutor’s section 133 right to choice of official language, but on the Attorney
General to assign to each case a prosecutor who is able and willing to use the lan-
guage of the accused. This interpretation shifts the focus away from the individuals in
the courtroom to the authority that has the power to organize the courts so as to de-
termine which individuals end up together in which courtroom. Imposing the obliga-
tion on the state to manage things so that individual rights do not come into conflict
entirely undercuts the argument in the trilogy that positive obligations would lead to
irreconcilable conflict. Yet this solution could have been employed to interpret section
133 itself; this would have avoided the attack on the Criminal Code provisions alto-
gether and would have secured more meaningful access to the judicial system for
members of minority official language communities.
This solution is fully transferable to the constitutional context. While section 133
gives all persons participating in a trial the same official language use right, no judge
has a right to be assigned to a particular case-an anglophone judge has no right to sit
on a case that involves francophone litigants and vice versa. Rather, if the right is held
against the state instead of against the individual judge, a comprehensive language use
right can be met through requiring the state to assign a judge to each case who is
willing and able to fulfill the litigants’ right to be understood in his or her language.
Similarly, no state officer can claim the right to issue a particular summons.’ A right
to receive communications in one’s own language can be met by requiring the state to
Equitable Use of English and French Before the Courts in Canada (Ottawa: Minister of Supply and
Services Canada, 1995).
‘3 [1998] R.J.Q. 2587, 165 D.L.R. (4th) 288 (C.A.).
Nor, as noticed by Wilson J. in MacDonald, does it violate the right of the issuer of the summons
to use French that the state also arranges an English translation to be provided to the recipient (supra
note 4 at 539-40). Wilson J.’s insight would also have enabled the court to reach a different conclusion
in Pilote v. L’HOpital Bellechasse de Montrdal, [1994] R.J.Q. 2431, 119 D.L.R. (4th) 657 (C.A.), in
which a litigant’s claim to the right to receive an authenticated translation of a judgment in a civil ac-
tion was rejected on the ground that any such entitlement would be inconsistent with the judge’s right
under s. 133 to use the language of his or her choice in writing the judgment. This ruling would prop-
erly defeat any claim that the judge must write in the litigant’s preferred language, but it is only if one
is in the grip of a paradigm that sees only individuals interacting in a courtroom that it has any power
against the claim to receive an official translation.
2002]
D G. RAUME- OFFICIAL LANGUAGE USE RIGHTS
organize the work of its officers so that those summonses that should be issued in
French are issued by francophones and those that should be issued in English are is-
sued by anglophones, or those that should be issued in both languages are translated.
Only if it were impossible or unjustifiable to organize the judicial system so that only
those interactions take place that do not violate language rights would it be necessary
to read down the content of the right to avoid conflict.” Although it was not necessary
to challenge the trilogy’s interpretation of section 133 in order for the Quebec Court
of Appeal to decide Cross, the case would have given the Supreme Court a valuable
opportunity to reconsider its approach in light of the perverse dynamic released by its
individualistic focus. The Attorney General of Quebec, however, withdrew its appli-
cation for leave to appeal the decision in Cross, thereby denying the Court a chance to
revisit the issue.’
The Court of Appeal’s approach in Cross preserves the legislative schemes im-
plemented since the trilogy to fill the void left by the minimalist interpretation of con-
stitutional language use rights. The existence of these schemes also reduces the in-
centive on litigants to press for a full-scale reconsideration of the trilogy. As long as
there are statutory schemes providing for choice of official language in the courts, the
practical consequences of the trilogy are muted. There might seem to be, then, less
urgency to revisit the constitutional question. There is still reason, however, to hope
that an opportunity may present itself for a reconsideration of section 133 and section
19. To begin with, statutory regimes are entirely subject to the political process, and
may therefore be repealed with impunity. This is unlikely at the federal level or in
New Brunswick, but the political climate is less consistently inclined to minority in-
terests in Manitoba and Quebec.” More significantly, in the absence of a constitutional
norm against which to test these schemes-and section 133 on its current interpreta-
tion is scarcely any test at all-members of the public must make do with whichever
scheme is in place. The Commissioner of Official Languages has demonstrated the
‘5 The Commissioner of Official Languages’ study (supra note 32) illustrates a wide array of insti-
tutional structures and arrangements designed to enable members of the public to choose the language
of interaction with court officials without engendering conflict.
[1998] S.C.C.A. No. 526, online: QL (SCCA).
For a brief description of the history of provincial antipathy toward the interests of the official
language minority in Manitoba and Quebec, see J.E. Magnet, Off cial Languages of Canada (Cow-
ansville, Qc.: Yvon Blais, 1995) at 15-21, 35-40. For a more extensive discussion of the climate in
Quebec, see R. Wardhaugh, Language and Nationhood: The Canadian Experience (Vancouver: New
Star Books, 1983) c. 4 at 85ff; M.V. Levine, The Reconquest of Montreal: Language Policy and So-
cial Change in a Bilingual City (Philadelphia: Temple University Press, 1990). For a fuller account of
the track record of Manitoba, see the essays in the special issue of the Manitoba Law Journal entitled
“The French-Language Crisis in Manitoba”, especially J. Duncan, “Introduction” (1986) 15 Man. L.J.
251; G.H.A. Mackintosh, “Heading Off Bilodeau: Attempting Constitutional Amendment” (1986) 15
Man. LJ. 271.
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unevenness of protection across the country, even in jurisdictions governed by section
133 or its sister provisions.” In particular, access to the courts in English in Quebec is
assured largely as a result of the high level of personal bilingualism in the legal pro-
fession, rather than because of systems put in place by the provincial government. 9
Should this level of individual commitment to bilingualism wane in the future, there is
no guarantee that a backup set of arrangements would be created. On the current
reading of section 133, the minority would have virtually no protection.
It remains to consider the form of interaction that Beetz J. regarded as the para-
digm in MacDonald-that between two private litigants. Can their language use
rights, in the comprehensive sense, be reconciled? There are two ways to do so.
First, one might argue that the only duties arising out of section 133 are imposed
on the state, not on individuals. Whatever one considers to be the point of the protec-
tion of language use in official contexts, it is clear that it was no part of the framers’
intention to require personal bilingualism of individual Canadians. Members of each
community are free to decide to what extent they wish to learn the other official lan-
guage. But each community should have confidence that its members can deal with
key government agencies in their own language. It is the government’s responsibility
to foster the linguistic security of both communities. Thus, it is not up to individual
members of each community to provide this protection to individual members of the
other community.
This approach automatically eliminates the possibility of conflict between the
rights of two litigants. It redirects our attention from the relationship between them to
the relationship between each of them and the institution of the court. It is perfectly
possible for a court to respect the rights of each without violating the rights of either.
In the case of a trial involving one anglophone and one francophone, this would re-
quire the appointment of a bilingual judge to preside. The right of each to understand
the other is also held against the state, not against the other litigant. It must therefore
be satisfied by the best means available to the state-through the provision of inter-
preters for each.’
Second, another means of defusing the reductio argument would be to interpret
the comprehensive right as a prima facie right that must be qualified when it conflicts
with the rights of others. That a right held against other individuals must be qualified
in these circumstances does not justify reducing it to the nub of a negative liberty to
speak. Qualifying rights, limiting their full benefits in particular instances, is a famil-
iar feature of constitutional thinking. In the Charter, this possibility is enshrined in
33Supra note 32.
3 Ibid. at 75-83.
As the Commissioner of Official Languages (ibid. at 69ff) demonstrates, these are the sorts of ar-
rangements that have been introduced in several jurisdictions.
2002]
D.G. Rf AUME – OFFICIAL LANGUAGE USE RIGHTS
section 1, but even section 133 could be read in a way that allows for managing the
possibility of conflict, especially when the qualifications concerned are those required
for the sake of another member of the public equally entitled to linguistic choice.
The individualistic focus imposed by the trilogy has also bedeviled discussions of
the relationship between sections 17, 18, 19, and 20 of the Charter, meant to update
section 133 and extend its protections to New Brunswick. The problem has appeared
most clearly in cases considering the relationship between the section 133 language
use right governing the courts or its Charter parallel in section 19, and section 20 of
the Charter, guaranteeing access to government services in one’s choice of official
language. In an attempt to avoid the straightjacket imposed by the trilogy, litigants
have argued that the issuing of a ticket or the laying of an information in a criminal
charge is a “service” covered by section 20.” The advantage of section 20, of course,
is that it clearly imposes positive obligations; it cannot be construed in a purely nega-
tive fashion. The application of section 20 in these cases has commonly been rejected
on the grounds that if issuing a ticket is properly considered a process emanating from
a court, it falls exclusively under section 19 or section 133 (as the case may be), and
not under section 20.”z Lacourci~re J., speaking for the Ontario Court of Appeal in Si-
mard, articulates the emerging mindset: ‘These sections [sections 16 to 20 of the
Charter] cover distinct and watertight compartments of parliamentary, judicial and
governmental activities of the federal state…. The information in the present case is of
a judicial nature and s. 20(1) has no application to it since it is not an activity of the
federal state.”‘ 3
41 See R. v. St. Jean (1986), 2 YR. 116, [1987] N.W.T.R. 118 (S.C.) [hereinafter St. Jean]; R. v.
Gautreau (1989), 101 N.B.R. (2d) 1 (Q.B. (T.D.)) [hereinafter Gautreau (Q.B. (T.D.))], rev’d (1990),
109 N.B.R (2d) 54,60 C.C.C. (3d) 332 (C.A.) [hereinafter Gautreau (C.A.)]; R. v. Boutin, [1992] O.J.
No. 3733 (Prov. Div.), online: QL (OJ) [hereinafter Boutin]; R. v. Simard (1995), 27 O.R. (3d) 116,
105 C.C.C. (3d) 461 (C.A.) [hereinafter Simard cited to O.R.]. The same argument was also relied on
in R v. Boudreau (1989), 103 N.B.R. (2d) 104 (Q.B. (T.D.)), rev’d (1990), 107 N.B.R. (2d) 298, 59
C.C.C. (3d) 436 (C.A.) [hereinafter Boudreau], although the issue there was not the language in
which a ticket should be issued, but rather whether a breath analysis certificate that is not in the ac-
cused’s language is admissible as evidence.
4 The force given to this argument in determining the outcome in a case varies from case to case. In
St. Jean, ibid, it was subordinate to the argument that the activities of the Yukon Territorial govern-
ment are not those of the federal Parliament or government so as to make s. 20 applicable; in Boutin,
ibid., it was coupled with the argument that the term “services” refers to information and assistance
that are to the citizen’s advantage, rather than reprimands imposed by the government, such as the is-
suing of a ticket; in Simard, ibidL at 126, the argument that anything that is covered by s. 19 cannot fall
under s. 20 was sufficient to defeat the s. 20 claim.
” Simard, ibid In support of this conclusion, Lacourci~re J. cites R. v. Rodrigue (1994), 91 C.C.C.
(3d) 455, [1994] YJ. No. 113 (S.C.), online: QL (YJ), a case in which the claim that the disclosure of
documents in the accused’s official language was covered by s. 20 was rejected. An appeal to the
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This need to fit each situation exclusively under section 19 or section 20 flows
from the fear that the two sections might otherwise conflict with one another. This
concern makes sense, however, only if one accepts an individualistic foundation of
language use rights in the courts. Section 20 clearly imposes positive obligations on
governments to provide services in the language of choice of the recipient of those
services, privileging the recipient’s choice of language over that of the government
agent. If services related to a judicial proceeding were regarded as section 20 services,
the section 20 duty on service providers to use the citizen’s language would conflict
with the government agent’s individual right under sections 133 or 19 to use her or his
own language. In other words, to uphold the recipient’s section 20 right would violate
the provider’s section 19 or section 133 right. Conflict can be avoided between the
two sections only if they cover watertight compartments of judicial and governmental
activities, at least as long as official language use rights in the courts are interpreted
individualistically.
If the individualistic focus of language use rights is abandoned, however, all these
conflicts dissolve-one’s right to have one’s official language used can be fulfilled
without denying any other individual’s comparable right, by imposing duties not on
individual service providers, but on governments to organize the delivery of services
so that they can be provided by persons willing to use the recipient’s language. Any
situation that related to a judicial proceeding, but could not be construed as a service
would fall exclusively under section 19; any situation that involved a service unrelated
to judicial proceedings would have to be regulated by section 20; but any case in-
volving a service provided in the context of a judicial proceeding could be classified
indifferently under section 19 or section 20. A seamless web of language protections
might emerge instead of a senseless game of classifying claims into the right water-
tight compartment.
We have seen that the argument for interpreting language use rights as negative
liberties relies as much on a reduction of the state to the individuals who act for it as it
does on the restrictive interpretation approach flowing from the political compromise
doctrine. Once the focus on individuals is abandoned, it becomes clear that the argu-
ment that only a negative interpretation will avoid conflict between rights collapses.
Indeed, the austere approach exhibited in the trilogy has since been implicitly rejected
by the Supreme Court itself in R. v. Mercure,” precisely through the reliance on this
shift from imposing duties on individuals to imposing them on institutions. There, La
Forest J. held, for the majority, that the right to use one’s language includes the right
Yukon Territory Court of Appeal was rejected on the ground that no appeal lies from the trial judge’s
decision on such a matter: (1994), 53 B.C.A.C. 275, 95 C.C.C. (3d) 129 (Y. C.A.). Leave to appeal to
the Supreme Court of Canada was denied without reasons: [1995] S.C.C.A. No. 83, online: QL
(SCCA).
“[1988] 1 S.C.R. 234,48 D.L.R. (4th) 1.
2002]
D.G. RE.AUME- OFFICIAL LANGUAGE USE RIGHTS
that one’s representations be included in the court record in their original form. This
holding makes nonsense of the claim that the right provides no guarantee that one be
understood, and hence of the claim that the right is a purely negative one not to be in-
terfered with. In order to record each participant’s representations in his or her own
official language, at least one person must be present in court who can understand
what each says. At a minimum, one has a positive right to be understood by a court
reporter. This right potentially gives rise to the same kind of conflict as between a liti-
gant and judge who speak different languages. The resolution of this problem not
only requires an affirmative interpretation of the section, it also requires that the right
be construed as giving rise to obligations against the state (not against particular indi-
viduals) and against officials assigning particular court reporters to particular cases
(not against individual court reporters).
So far this argument merely demonstrates that an individualistic focus and the re-
sulting negative interpretation of language use rights is not necessary. The right to use
English or French could be interpreted as a comprehensive use right, but should it be?
This depends on what we take to be the point of protecting the ability to use one’s
own official language in court. The root of all the ungenerous tendencies exhibited in
the trilogy-both the restrictive interpretation approach and the adoption of a negative
liberty interpretation-is, of course, the characterization of language rights as political
compromise rights. Although the judgments in the trilogy do little to flesh out this
notion, the general picture is clear enough: the inclusion of these provisions in the
constitution reflects a political power struggle between two interest groups, as a result
of which one side mustered enough power to insist on a provision that it wanted. On
this understanding of compromise, the only normative foundation for the compromise
provision is the raw political power of the interest group capable of forcing its inclu-
sion. The implication is that the “other side”, in this instance the majority language
community, would have been perfectly justified in imposing the exclusive use of its
language in the judicial system if it had been able to get away with it politically.”5 A
narrow and negative interpretation of language use rights flows easily from such a
picture. To ground a different interpretation, what is needed is a different vision. In
Beaulac, Bastarache J. opens the door to just such a vision.
4 For a fuller analysis of this conception of political compromise, see Rdaume, “Official-Language
Rights”, supra note 13 at 258-59.
612
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Ill. Animating Language Use Rights: Why Does It Matter What
Language Government Uses with Its Citizens?
A. The Effective Communication Rationale: Its Promise and Limits
In search of a new vision, we might naturally think to look first to the arguments
advanced by advocates of a more generous understanding of language use rights. The
obvious starting point is the arguments of the plaintiffs in the cases that form the tril-
ogy. This model sought to draw a conceptual link between language rights and the
principles of natural justice that require effective mutual comprehension to ensure the
fairness of a trial. I call this the “official language/fair trial” approach. It was an ingen-
ious but fatally flawed attempt to read life into the rather dry wording of section 133.
The potential and the pitfalls of the natural justice or fair trial approach to inter-
preting language rights became evident in the cases following the trilogy, including
Beaulac itself. These cases have arisen both under section 20 of the Charter and un-
der section 530 of the Criminal Code. The reliance on “fair trial” values has been ten-
able in both contexts because the section 20 cases have largely been ones in which a
member of the public has argued that police activities or other official conduct tan-
gential to a trial are government services. So a trial, with respect to which there are
fairness rights, is in the picture in all these cases. Interestingly, despite the majority’s
firn assertion in the trilogy that fair trial rights and language rights are entirely con-
ceptually iiistinct, the attempt to link them to produce an official language version of
fair trial rights that enlarged access to the courts in both languages continued to be
made in the cases, and even met with some success. These cases show that the strat-
egy of linking the two sorts of rights was not completely wrong-headed from the point
of view of expanding language rights. In almost as many cases, however, the effective
communication rationale underlying natural justice was used to deny a claimant the
use of his or her preferred official language. In these cases, attempting to draw on
natural justice ended up leading to a narrow interpretation of language rights. It is this
twist that reveals the weakness of the official language/fair trial approach.
The right to choose the language of a criminal trial, as provided by section 530 of
the Criminal Code, and the right to government services in one’s choice of official
language clearly envision the imposition of positive obligations on the government;
however, it remains a matter of interpretation whether these obligations are to be con-
strued expansively or stingily. It may be the case that some lower courts have been
misled by the language of political compromise in the trilogy into adopting a gener-
ally restrictive approach to the interpretation of these rights merely because they oc-
2002]
2. G. RAUME- OFFICIAL LANGUAGE USE RIGHTS
613
cupy the same context–official language use in a judicial context -as
the right in is-
sue in the trilogy. As we have seen, however, it should have given courts pause that
the Supreme Court has treated other positive language rights on par with other fun-
damental Charter rights as deserving of a large and liberal interpretation. It is worth
asking, as with the negative rights interpretation adopted in the trilogy, whether there
is another line of thought that has been pushing courts in the direction of a restrictive
interpretation of these positive language use rights. Although the idea that language
rights necessarily deserve a restrictive interpretation has sometimes influenced courts,
I will argue that the most restrictive judgments are also driven by a recognition that
the natural justice rationale cannot do the rights-enlarging work that has been cut out
for it in the official language/fair trial approach. Lacking a better understanding of the
point of language rights, these courts have fallen back on a literal and therefore nar-
row interpretation of the positive rights at hand. The result has been the diminution of
the official languages to mere instruments in the service of effective communication.
Mutual comprehension between court and litigant-or between member of the
public and government service provider-is important to fairness not only instru-
mentally, not simply as a means to its end, but rather, because it partly constitutes the
fairness of such interactions. This is what makes comprehension so fundamental an
aspect of natural justice. Presumably it was this deep attribution of constitutional
value7 that the plaintiffs in the trilogy were trying to latch onto, to make some of it
rub off on language rights. However, although effective mutual comprehension takes
place through language, it does not require the joint use of any particulaf language.
Fairness requires effective mutual comprehension, but natural justice is indifferent as
to whether that takes place through the use of the state agent’s preferred official lan-
guage, with whatever assistance is necessary for those who speak another language,
or through the use of the individual’s language, with whatever changes are necessary
in institutional organization. Yet it is the use of a particular language-the official
language preferred by a given claimant-that official language use rights protect.
From the point of view of natural justice, the use of French rather than English or
vice versa is only instrumentally related to the end of securing fairness. As instru-
ment, though, the use of a particular language is subject to being tested according to
efficiency criteria-if it is considerably easier to have a trial in the majority language
and provide assistance through interpreters to the minority language speakers, this
may be preferred to the greater trouble and expense of providing the infrastructure
necessary to facilitate holding trials in the minority language. A fortiori, making a bi-
4′ This way of phrasing the context allows us to capture both cases falling under s. 133 or parallel
provisions–the official language use in the courts provisions proper-and those involving the provi-
sion of government services related to the operation of a trial.
” See Beetz J.’s description of the fundamental nature of comprehension in securing a fair trial in
MacDonald, supra note 4 at 499-500.
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lingual minority language speaker accommodate to the state actor’s language is more
convenient than reorganizing resources to provide services in that individual’s language.
The natural justice requirement of effective communication itself is silent on the choice
between these alternatives, leaving administrative convenience free reign. Thus Beetz J.
was right in MacDonald to insist upon the conceptual distinctness of natural justice
principles and language rights.’ s Something more than natural justice is necessary to
breathe life into official language use rights to avoid their taking on an instrumentalist
cast.
The official language/fair trial approach is an effort to read the right generously,
but the cases ultimately engage in a kind of fiction.” The accused having indicated his
or her preference for a trial in the minority official language, it is simply deemed that
the particular accommodation sought’ best conduces to sound comprehension and
hence serves natural justice; given the importance of comprehension to a fair trial, it
follows that the accommodation should be made. The fiction consists in treating the
choice of one official language as a declaration of incapacity in the other, or at least
declining to pay very close attention to how well the accused might be able to func-
tion in the other official language. When the fiction is operating at full power, a state-
ment about the importance of comprehension is followed in the next breath by an as-
sertion that it does not matter that the accused in fact understood what was said or
written in the other official language; the accused is entitled in the name of fairness to
the communication in his or her own official language. In the case of an accused per-
son who is unilingual, hitching language rights onto the star of natural justice can as-
sist a claimant. But the effective communication rationale begins to wear thin in cases
in which it is evident that the accused is bilingual. The ultimate recognition of the fic-
tional quality of the rationale has been its undoing.
A good example of the operation of the fiction and the tension it creates within a
judgment is found in Boutin.’ The case involved the propriety, for purposes of section
530 of the Criminal Code, of filling out an information in English rather than French,
as preferred by the accused. Khawly J. clearly grounds the decision in natural justice
Ibid. at 500-501.
This approach can be seen at work in R. v. Forsey (1994), 95 C.C.C. (3d) 354, [1994] Q.J. No.
1144 (Sup. Ct.), online: QL (QJ) [hereinafter Forsey]; Beaudoin v. Canada (Minister of National
Health and Welfare), [1993] 3 F.C. 518, 155 N.R. 298 (C.A.) [hereinafter Beaudoin]; Boutin, supra
note 41; Simard, supra note 41; Boudreau, supra note 41.
o These cases have mostly arisen under s. 530 of the Criminal Code, and involve an array of argu-
ments about how far the right to a trial in one’s own language extends. In some, the issue is whether
one is entitled to have the information or charge drafted in one’s language, in others whether disclo-
sure or a preliminary hearing is part of the trial, in others whether co-accused should be tried sepa-
rately in order to enable each to be tried in his or her own language.
” Supra note 41.
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615
principles, noting that understanding and being understood are essential aspects of
fundamental justice. This sits uneasily with his dismissal of the Crown’s argument
that the fact that the accused communicated with the police without difficulty in Eng-
lish at the time of his arrest shows that he was not prejudiced by the filling out of the
information in English. The fictional quality of the effective communication rationale
becomes more evident when Khawly J. goes on to hold that even if section 530 does
not provide the right to one’s choice of official language in the information, such a
right does arise out of sections 7 and 11 of the Charter-that is, out of the fair trial
rights provisions themselves. But, of course, were the accused’s language anything
other than French, it is clear that his fair trial right to be informed of the nature of the
charges against him in his language would be conditional upon his inability ade-
quately to understand English. Khawly J. concludes that in light of the Criminal Code
and Charter provisions, it is reasonable to require the Crown to fill out an information
in French when the accused has indicated his or her choice of trial in French. That
may indeed be reasonable, but it is hard to see how it is required by the traditional
natural justice concern to ensure effective communication.
A further tension within the Boutin approach is revealed at the remedies stage, as
realized in Simard, in which the Ontario Court of Appeal considered the same ques-
tion-whether one has a right to an information filled out in one’s own official lan-
guage.” In Boutin, Khawly J. declared the information null and void because it was
not produced in the official language of the accused-this despite the Crown’s having
made available a translation of the information at the start of the trial. In Simard, the
court refused to nullify a unilingual information; rather, it held that the oral provision
of a translation of the information at the accused’s arraignment was sufficient to give
him notice of the content of the charges against him. The Court imposed the addi-
tional burden on the Crown of providing a written translation upon request, but this
seems to have been just a gratuitous act of kindness. The point is that the fair trial ra-
tionale of ensuring effective comprehension by the accused clearly extends to making
sure somehow that the accused receives relevant information in his or her official lan-
guage of choice, but this requirement is met by providing a translation of the infor-
mation when asked for it, or no later than by the start of the trial. It takes a different
purpose for the language use rights to justify nullifying an information because it was
not filled out in the right language if the Crown later corrects that defect by communi-
cating its contents to the accused in his or her language. Khawly J., in Boutin, is dis-
posed to be generous to minority official language rights claimants, but does not have
an account of the underlying point of these provisions that would truly take them be-
yond the requirements of the provision of a fair trial.
2 It is interesting to note that Simard, supra note 41, involved an appeal from a trial decision by
Khawly J. in which he followed his own decision in Boutin, ibid.
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The understanding of language rights in these cases is informed by the same ra-
tionale underlying the right to a fair trial-effective communication. How far the
rights provide language protection that goes beyond that rationale depends on how
vigorously the fiction is held to; the cases range from those in which the claimant was
in fact unilingual,”3 to claimants labouring under some degree of handicap operating in
their dispreferred language,’ to cases in which the actual language competence of the
claimant is studiously avoided,” and finally to those, like Boutin, in which compe-
tence in the dispreferred official language is mysteriously declared irrelevant. In most
of these cases, the effective communication rationale is in fact doing all or almost all
the work, but sometimes the judge takes the opportunity to wax on a bit about the im-
portance of respecting the accused’s choice of the language of trial, as though it were
that choice per se that demanded accommodation.’ In Boutin, something more than
the protection of effective communication is going on, but it is masked rather than ex-
plained by the claim that the accused is just being assured a fair trial.
Faced with a bilingual accused person or other litigant, however, some judges
have not been able to resist the temptation to look behind the fiction that a person’s
choice of language of trial is indicative of language competence. This typically leads
the court to deny the language right claim on the ground that if the claimant was able
to understand the communication in issue, even if it was not in his or her preferred of-
ficial language, the claimant has suffered no irreparable harm. This has happened
most often in the New Brunswick cases under section 20 of the Charter,7 although it
was the British Columbia Court of Appeal’s use of the argument in the context of the
section 530 right to language choice in Beaulac that brought the issue to the Supreme
Court’s attention.
A good example of this reasoning is that of Deschenes J. in the trial decision in
Boudreau, who carefully separates natural justice arguments from language rights
claims by pointing out that the accused “never claimed not to understand the sub-
stance of the document written in the other official language and everything indicated
‘3 Forsey, supra note 49.
‘4 Beaudoin, supra note 49.
For example, the New Brunswick Court of Appeal in Boudreau (C.A.), supra note 41, makes no
reference to whether the accused was able to understand the breath analysis certificate that the Crown
sought to admit into evidence in English despite the trial judge’s explicit reliance on the fact that the
accused was bilingual in order to reject the claim. Simard, supra note 41, might be put in this same
category, holding as it does that it is up to the claimant to decide whether he or she needs something
translated.
6 See Forsey, supra note 49; Boudreau (C.A.), ibid.; Beaudoin, supra note 49; Simard, ibid.
57 See Boudreau (Q.B. (T.D.)), supra note 41; R. v. Robinson (1992), 127 N.B.R. (2d) 271 (Q.B.
(T.D.)); R. v. Bastarache (1992), 128 N.B.R. (2d) 217 (Q.B. (T.D.)); R. v. Hachd (1993), 139 N.B.R.
(2d) 81, 1 M.V.R. (3d) 172 (C.A.), Ayles J.A. [hereinafter Hachi cited to N.B.R.]; R. v. Mahaney
(2000), 226 N.B.R. (2d) 54 (Q.B. (T.D.)).
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D.G. RAUME- OFFICIAL LANGUAGE USE RIGHTS
that his only aim was to maintain that his linguistic rights as a New Brunswick
Acadian were infringed …”. But while these judges understand the limitations of the
effective communication rationale, they are unable to see any independent rationale
for dealing with an individual in his or her own official language. So blinkered, any
particular language is necessarily reduced to a mere instrument in attaining the end of
effective communication. Use of the minority official language can then be assessed
according to whether it is the best means, all things considered, to that end. Unspoken
in these cases, because it is glaringly obvious, is the knowledge that this calculation is
unlikely to come out in favour of the minority official language speaker. After all, if
the claimant is able to speak the official’s language, while the state would have to go
to trouble and expense to arrange things to provide a service in the minority language,
the balance of convenience seems clearly to lie on the side of proceeding in the ma-
jority language. Even more absurd will appear the claim that a ticket should be invali-
dated or a breath analysis certificate not be admitted into evidence-that would result
in the acquittal of a clearly guilty party when the accused was perfectly capable of
understanding the contents of the offending document.
In the absence of an independent rationale for official language use rights beyond
effective communication, the result of strictly adhering to the limits of natural justice
is a sort of reduction of language rights to a minor extension of natural justice rights.
On this approach, whenever a question arises of how generously or narrowly to read
the official language protections, the fact that natural justice is not infringed by the re-
fusal to extend protections can be used as a reason not to extend them.
B. Beyond Effective Communication: Seeing Intrinsic Value
Mother Tongue Language Use
in
While it is clear that these last cases can see no point in language rights beyond
effective communication, the official language/fair trial approach takes us little fur-
ther, and for that reason its generosity toward minority official language claimants is
fragile. Construing language rights as tied to the value of effective communication,
whether in an effort at generosity or to confine their scope, is understandable. The
value of language is easily thought of instrumentally-as a means of communication,
a way of getting the other “stuff’ of life done. One’s language is an instrument in this
sense. But just as important, it has intrinsic value as a cultural inheritance and part of
an ongoing way of life. Participation in communal forms of human creativity such as
language is an intrinsic part of the value of human life. The particular linguistic or
cultural form it takes for a particular group of people has intrinsic value for them be-
cause it is their creation. This value of language, as a manifestation of human creativ-
” Boudreau (Q.B. (T.D.)), ibil at 112 [emphasis added].
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ity with which its speakers identify, is the key to understanding the claim to its pro-
tection.
Recognition of this value requires the creation of a minimal threshold of security
that people can enjoy as members of a linguistic group.” Linguistic security requires
not only that the use of one’s language not be made a ground of liability or otherwise
publicly denigrated, but also that the instrumental usefulness of the language be sup-
ported, not merely for the sake of other ends considered extrinsically, but out of re-
spect for the intrinsic value of a life lived within a particular linguistic milieu. This
second component, in turn, involves both facilitating a substantial array of contexts
for the use of the language and ensuring that the instrumental use of the language for
extrinsic purposes is not disrupted-that is, that use of the language is not rendered
unduly detrimental to the pursuit of other ends. The flourishing of a minority linguis-
tic group includes its participation in public life in its language. The various concrete
rights in the constitution implementing linguistic security can be seen to advance si-
multaneously the intrinsic and instrumental interests in language. Each set represents
an important sphere of activity valuable independently of the language in which it is
conducted-political institutions, government services, education, and the judicial
system.
This understanding both makes sense of the areas of life covered by constitutional
language protections and provides a foundation for their interpretation in hard cases.
It is fitting that the constitution should seek to make the most important aspects of the
country’s political institutions accessible to minority official language communities.
The ability to live one’s life in one’s own language is thereby importantly expanded to
include interaction with government agencies and participation in political institu-
tions, including the courts. Insofar as this interaction has instrumental value-im-
proving one’s ability to win one’s court case, for example-communication in one’s
own language obviously serves this instrumental purpose. More important, the opera-
tion of public institutions in a minority official language advances the intrinsic ex-
pressive interest in language use by making the state and its institutions full partici-
pants in the life of the community, and the members of the group full participants in
public life. Thus, the importance to a community’s self-respect, and hence to its lin-
guistic security, of access to public institutions is enormous, even though many of its
members will never end up before a court.
Recognition of this intrinsic value in the ability of minority official language
communities to use their own language in court and in interaction with government
5 See L. Green, “Are Language Rights Fundamental?” (1987) 25 Osgoode Hall L.J. 639 at 658; D.
R6aume & L. Green, “Education and Linguistic Security in the Charter” (1989) 34 McGill LJ. 777 at
779-85; D.G. R~aume, ‘qhe Constitutional Protection of Language: Survival or Security?” in D.
Schneiderman, ed., Language and the State: The Law and Politics of Identity (Cowansville, Qc.:
Yvon Blais, 1991) 37 at 45.
2002]
D. G. R AUME- OFFICIAL LANGUAGE USE RIGHTS
service providers argues in favour of requiring the government to meet its responsi-
bilities in a spirit of full participation in the linguistic life of both official language
communities. From this springs the argument for interpreting these rights positively
rather than as a mere right not to be interfered with in the use of the minority official
language. The linguistic security of a community means that there must be full com-
munication in that language within the community. If government is to be a part of
this community, it must be prepared to communicate with the community’s members
in their own language. The more fully this is realized, the more the minority can feel
comfortable with these institutions as representative of their linguistic community, and
the more they can feel that public institutions are open to them, belong to them. If of-
ficial participation in the linguistic life of the minority is too grudging or artificial this
will cut off the minority from a crucial aspect of social life. Because of the range of
benefits-instrumental and non-instrumental-that can accrue in this way, linguistic
security is best fulfilled if government services, including judicial services, are or-
ganized within minority official language communities so that they are provided
largely by members of that community.’
Understanding the intrinsic value to a linguistic community of the use of its lan-
guage also provides a basis for articulating a point for language use rights that goes
beyond effective communication. The intrinsic importance of its language to a com-
munity explains why members of the public stopped by a police officer might want to
insist on the use of their language even if they have no trouble understanding the offi-
cer, and why the constitution should support them in so insisting. The affirmation of
the value of their linguistic heritage can be more important even than getting an un-
pleasant episode over as quickly as possible by going along with the police officer’s
choice of language.
Only a very few judgments prior to Beaulac glimpsed this deeper value of lan-
guage choice in the context of judicial or government services.” Angers J.A., in
Hach, states clearly that official language use rights are grounded in something more
than the importance of communication. ‘ Richard C.J.Q.B., in Gautreau, characterizes
the issue of the admissibility of breathalyzer test results when the police have failed to
0 A similar conclusion is suggested by M. Bastarache & A. Tremblay, “Language Rights” in G.-A.
Beaudoin & E. Ratushny, eds., The Canadian Charter of Rights and Freedoms, 2d ed. (Toronto: Car-
swell, 1989) 653 at 672-74.
6, The list of judgments going beyond effective communication to articulate a rationale for language
rights would include (in addition to Hachi, supra note 57, Angers J.A. and Rice J.A., and Gautreau
(Q.B. (T.D.)), supra note 41, discussed below): R. v. Saulnier (1989), 90 N.S.R. (2d) 77, [1989] N.SJ.
No. 131 (Co. Ct.), online: QL (NSJ); R. v. Deveaux (1999), 181 N.S.R. (2d) 81, [1999] N.SJ. No. 477
(S.C.), online: QL (NSJ); Chiasson v. Chiasson (1999), 222 N.B.R. (2d) 233, 44 C.PC. (4th) 276
(C.A.). However, these last three cases required little creativity or interpretive generosity to decide the
issue in the litigant’s favour, hence the discussion of the rationale is brief.
‘Hachi, ibid at 86.
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give the accused an option as to the language of their interaction as something that
“specifically affects the lives, the spirit and aspirations of all the inhabitants of New
Brunswick.”‘ 3 This assertion was made despite there being no reason to believe that
Gautreau had not understood the demands of the police officer. Rather, arguing that
the police have a duty to be proactive and offer linguistic choice to members of the
public to satisfy section 20, Richard C.J.Q.B. declares, “It is a question of dignity,
pride and mutual respect of individuals in society.” These remarks indicate not only a
generous attitude toward the interpretation of section 20, but reveal that it is grounded
in a deeper understanding of the importance to members of a minority community of
the use of their language in dealing with public officials. The point is certainly not
merely to make oneself understood, but rather to be recognized as a member of a
community-identified linguistically-that is of equal importance to, equally de-
serving of respect as, and equally entitled to conduct life in its language as, the ma-
jority community.
The judgment of Bastarache J. in Beaulac pushes this line of analysis much fur-
ther and gives it the imprimatur of a majority of the Supreme Court. The judgment is
rooted in the declaration in section 16 of the Charter that French and English have
equal status. This notion of equality, declares Bastarache J., must be given substantive
meaning as it is in other constitutional contexts.’ This is a clear departure from the sti-
fling formalism of the Beetz line of analysis in the trilogy, which held that it is suffi-
cient that speakers of both languages be equally free to speak their language in court;’
whether anyone understood them or not was another, irrelevant, matter. Bastarache J.
clearly sees that to treat the use of the majority language as the norm, with provision
for the minority language considered a favour sometimes grudgingly provided for liti-
gants, is inconsistent with equal status, considered as a substantive value. It is this
view that the majority language is the norm that leads judges and officials to regard
language rights as expendable in the interests of administrative convenience and as
unnecessary if the claimant is capable of using the majority language. Instead, Basta-
rache J’s vision is of a dual linguistic norm, with the system being capable of operat-
ing equally well in both languages, switching at the behest of claimants. 7 This clearly
requires institutional planning-it cannot be accomplished by waiting for a request
for services to come along and then muddling through as best one can given the ex-
isting resources. It also requires that government conduct itself as though it is linguis-
tically a part of both official language communities.
63 Supra note 41 at 33. Richard C.J.Q.B. was overruled by the Court of Appeal on jurisdictional
grounds, see Gautreau (C.A.), supra note 41.
Gautreau (Q.B. (T.D.)), supra note 41 at 28.
, Beaulac, supra note 4 at para. 22.
66See Socit6 des Acadiens, supra note 4 at 580.
67 Beaulac, supra note 4 at para. 39.
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Beaulac goes a long way toward correcting the tendency to see official language
rights as designed only to facilitate communication. However, there remains a touch
of instrumentalist reasoning in Bastarache J.’s analysis that is unnecessary, and poten-
tially counterproductive to establishing a new footing for the interpretation of official
language use rights. The purpose of language rights, whether constitutional or statu-
tory, is variably described in Beaulac as to foster the “preservation and development ‘
or the “preservation and protection of official language communities,” ‘ or to “assist
official language minorities in preserving their cultural identity”‘7 This can be read as
setting up a means-end relationship between language use protections and the preser-
vation of minority official language communities. The end envisaged is certainly a
richer one than that of merely facilitating effective communication, but as long as the
relationship between it and official language protections is understood instrumentally
there is a danger that arguments will be made that a given protection need not be ob-
served in a particular case because it would not serve, or is unnecessary to, the prof-
fered end. Understood instrumentally, for example, access to the courts in one’s own
official language is unlikely to have much impact on the “preservation” of a linguistic
minority. Most people never come into contact with the judicial system; indeed, most
people try not to come in contact with the judicial system, especially the criminal jus-
tice system. If there is an instrumental connection between access to courts and the
health of an official language community it is at best remote and extremely hard to
measure.
This tendency to fall back on language that has an instrumentalist cast is under-
standable. After all, the very fact that the dominant mode of constitutional interpreta-
tion is said to be “purposive” pulls in the direction of thinking of the connection be-
tween rights protections and underlying objectives in an instrumentalist vein. This ap-
proach may not distort the interpretation of other rights-granting provisions insofar as
the courts instinctively understand the intrinsic value of the underlying interests and
the constitutive relationship between particular concrete protections and those under-
lying interests. The problem is, of course, that the courts have tended not to under-
stand the interest in the use of one’s official language in a similar light and have been
at a loss to ascribe to language protections any meaningful relationship to the sorts of
values that constitutions typically voice. Even in cases in which the Supreme Court
has been most generous in its ascription of purpose to language rights, its thinking has
displayed something of the same problems that I have identified in the context of lan-
guage use rights in the courts.
6Ibid at para. 25.
S9Ibid
7′ Ibid at para. 34.
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To begin with, when a deep and rich importance has been attributed to language
use, the argument really only works with reference to language in the abstract. In the
Manitoba Language Reference, for example, the Court said:
The importance of language rights is grounded in the essential role that lan-
guage plays in human existence, development and dignity. It is through lan-
guage that we are able to form concepts; to structure and order the world
around us. Language bridges the gap between isolation and community, al-
lowing humans to delineate the rights and duties they hold in respect of one
another, and thus to live in society.7′
All this is true, but it tells us about the value of language in the abstract, rather than
about the value of a particular language to those who happen to speak it.’ Human de-
velopment and dignity can be fostered, bridges built to form community, in any lan-
guage. The use of a particular language is not constitutive of these ends, not a neces-
sary condition of their achievement, but merely one of the linguistic means available
to their achievement.
This analysis of the underlying rationale of language rights exhibits the same
problem as with arguing that a litigant should be able to use one language rather than
another in court because comprehension is crucial to the fairness of the proceedings.
The flaw in the argument only becomes apparent should circumstances present them-
selves in which it is clear that the underlying objective can be met through the use of a
language other than that for which protection is claimed. In the context at issue in the
Manitoba Language Reference-Manitoba’s failure to enact and publish its laws in
both languages-this possibility is obscured. One might argue that the use of French
in particular is only one means of “delineating the rights and duties [people] hold in
respect of one another” so that they “may live in society”, but the implications of so
converting French into an instrument in pursuit of such ends stood to obliterate any
right to the use of French altogether rather than merely pull toward a narrow interpre-
tation of the provision. After all, Franco-Manitobans could conceptualize their social
world in terms of rights and duties in English, if only they would assimilate to the
English language. It may even be true that, assessed according to utilitarian criteria, it
would make more sense to put resources into facilitating such assimilation rather than
into the bilingual enactment of laws. The implications of seeing the merely instru-
mental connection of any particular language to human goods that language in the ab-
stract makes possible so radically undermine any notion of minority protection that
the logic of the argument was not pursued in the Manitoba Language Reference.
In other contexts, most notably that of minority language education rights, the
Court has been more openly instrumentalist in its reasoning, but again the context is
7, Manitoba Language Reference, supra note 3 at 744.
12 Green, supra note 59 at 650-51.
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D. G. RAUME – OFFICIAL LANGUAGE USE RIGHTS
623
such that this militates in favour of a generous reading of the right rather than a re-
strictive one. In Mahj, the Court describes section 23 this way:
The general purpose of s. 23 is clear- it is to preserve and promote the two offi-
cial languages of Canada, and their respective cultures, by ensuring that each
language flourishes, as far as possible, in provinces where it is not spoken by
the majority of the population. The section aims at achieving this goal by
granting minority language educational rights to minority language parents
throughout Canada. 3
Here, of course, what is said to be the underlying objective (one echoed in Beaulac)-
the preservation and promotion of minority official language communities-is a much
larger and more generous purpose than effective communication between service
seeker and service provider, but education is clearly seen as an instrument toward this
end. So far, this has not stood in the way of a generous interpretation of the right for
two reasons: first, the stated end itself implicitly assumes that the distinct existence of
the minority community is an independent good; second, education is such a signifi-
cant causal precondition of the continued existence of a community that it almost at-
tains the status of logically necessary condition. Under these circumstances, opportu-
nities may be rare for a province to argue that a particularly generous implication of
section 23 argued for by parents should be rejected because it is not the sole means
available for minority preservation. Both of these factors were missing in the discus-
sion of language use rights in the courts and government services until Beaulac.
Whatever purpose had been attributed to these language use rights did not acknowl-
edge the good of the distinct existence of minority language communities or the inde-
pendent value of a life lived within each of the official language communities. Also,
use of the minority language is not the sole means available to achieve the purpose of
these rights as long as it is understood to be effective communication.
Unless this impoverished, instrumentalist understanding of language protections
is corrected at the root, it will continue to be an uphill battle to get genuinely equal
access to judicial and government services for minority official language communi-
ties, and other language rights may be vulnerable to erosion in the future. Understood
in accordance with the picture that I have presented here of the intrinsic connection of
linguistic security to a community’s sense of itself and its continued health, however,
the specific language use protections that make up linguistic security are given a
deeper, explicitly non-instrumental connection to the underlying purpose of fostering
linguistic flourishing of minority communities. The decision in Beaulac moves us in
this direction. Bastarache J. assumes, however, that the use of their own language is
important to members of a linguistic minority rather than fully articulating why this is
so. The interpretation of language protections will be set on a sound footing only once
7′ Mahi, supra note 3 at 362.
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these protections are understood to be grounded in the fact that the use of a particular
language in key public settings is partly constitutive of a full life in that language,
which in turn is of intrinsic value to members of that community as an expression of
the communal accomplishment that is the community’s language and culture.
Conclusion
With the judgment in Beaulac we may now hope that the political compromise
doctrine has been well and truly laid to rest. This destroys one of the two pillars sup-
porting the narrow interpretation of language use rights in the trilogy. I have argued
that the second pillar is the individualistic conception of those rights. This conception
grounds the trilogy’s argument that the right to use French or English before the
courts must be interpreted negatively in order to avoid endemic conflict. If we under-
stand section 133 and section 19 not as regulating interactions between individuals but
those between the state and its citizens, this concern is eliminated and there is no fur-
ther impediment to giving language use rights a positive rights interpretation. Still, we
need more of an animating vision of the point of language use rights to make sense of
a positive rights interpretation. I have argued in support of Bastarache J.’s view that
the effective communication rationale is too thin to do the job. This has been amply
demonstrated by the way the arguments have unfolded in the government services
cases. Instead we must understand language as the expression of a way of life of a
community such that its members regard their language not merely as a means to an
end but as an intrinsically valuable end in its own right. From this perspective, making
interaction with government actors as linguistically easy for the minority as it is for the
majority is only what is necessary to secure the equal right to participate in society.
