Collective Rights, Cultural Autonomy and the Canadian State
Joseph Eliot Magnet*
The author proposes that Canada’s Consti-
tution, while rooted in the principle of bi-
nationality through the two founding cul-
tures, also strives to accomodate the claims
to relative autonomy brought by other sub-
national communities, such as aboriginal, re-
ligious or ethnic groups. He argues that col-
lective rights historically have not found
adequate enforcement in the Canadian Courts,
but that their forceful restatement in the Ca-
nadian Charter of Rights and Freedomns marks
a new beginning. Courts, he suggests, should
interpret collective rights under the Charter
so as to safeguard group institutions, allowing
sub-national communities a measure of au-
tonomy and self-determination. This would
lead to a decentralised system of cultural plu-
ralism, whereby collective rights would per-
mit each sub-national group to protect its
identity and its security as a distinctcommunity.
Lauteur sugg~re que la constitution cana-
dienne, issue du principe de reconnaissance
des deux peuples fondateurs, cherche aussi a
accomoder les besoins d’autonomie relative
des autres sous-communaut~s nationales, tels
les groupes autochtones, religieux ou eth-
niques. I1 soutient que les droits collectifs n’ont
pas, A cejour, W d~fendus ad~quatement de-
vant les tribunaux canadiens, mais que leur
enchfssement dans la Charte canadienne des
droits et libert~s marque le debut d’un chan-
gement d’attitude A leur 6gard. II invite les
tribunaux A interpreter les droits collectifs de
fagon A assurer ‘autonomie et l’auto-drter-
mination des sous-communautrs nationales.
Ceci mrnerait A une drcentralisation du plu-
ralisme culturel et les droits collectifs per-
mettraientalors de sauvegarderl’identitpropre
des sous-communautrs nationales.
*Of the Faculty of Law (Common Law Section), University of Ottawa. This note is an
expanded version of a paper presented at the Supreme Court of Canada Conference (1985)
and published in G.-A. Baudoin, ed., The Supreme Court of Canada (Cowansville, Qu.: Yvon
Blais, 1986) 211.
@McGill Law Journal 1986
Revue de droit de McGill
1986]
NOTES
Late in the last century, the territorial state became the principal unit
of the international system. Territorial states were predicated upon the or-
ganization’s ability to protect citizens from external aggression; to rationalize
fragmented social and economic systems; and to raise the general level of
material well-being. Today, these factors fail to justify the territorial state
as the organizing principle of international politics. Because of the nuclear
threat, no state can assure military protection for its citizens. Communi-
cations technology effectively penetrates national frontiers. Resulting trans-
national alliances diminish the role of the territorial state as an organizer
of social systems. Freer trade and organization of the multi-national cor-
poration on the basis of sub-systems of the global economic system, rather
than on the basis of territorial states, contribute to the decline of the ter-
ritorial state as an economic concept. Additionally, global interdependence
limits national discretion to raise standards of living by domestic economic
policies, without regard to the effects of international phenomena. As a basis
for economic organization, the territorial state is largely outmoded.’
Because military, organizational and economic forces have crumbled
as primary legitimizing features of the territorial state, secondary factors
become all the more important. In today’s international climate, a state
without a national spirit cannot survive. 2 People who do not desire to live
together, or who do not expect to accomplish great things together, will not
be able to resist the forces exerted on their territorial state by the supra-
national phenomena above noted. In the multi-national state, secondary
legitimizing factors take on added importance. While peoples with a long
shared history can compete among themselves for limited resources without
undue civil strife, others cannot. Bad economic times heat up suspicion and
tension between sub-national ethnic, religious, linguistic and aboriginal
communities, reducing their opportunity for compromise and weakening
their resolve to endure united.
The spirit of Canada’s constitution is rooted in the principle of bi-
nationality. Canada’s federal system proceeds directly from the require-
ments of a bi-national state. “I thought a Legislative Union would be pref-
erable”, Attorney-General John A. MacDonald stated in the Canadian
Parliament in 1865, on the motion to adopt the “Quebec resolutions”.
‘See J.D. Singer, “Trends Away From the Nation State” in I.D. Duchacek, ed., Discord and
Harmony (Toronto: Holt, Rinehart and Winston, 1972) 17 at 19.
2See E. Renan, “What is a Nation?” in A. Zimmern, ed., Modern Political Doctrines (London:
Oxford University Press, 1939) 186 at 202-03:
A nation is a soul, a spiritual principal … . To share the glories of the past, and
a common will in the present; to have done great deeds together, and to desire to
do more –
these are the essential conditions of a people’s being.
REVUE DE DROIT DE McGILL
[Vol. 32
[B]ut … we found that such a system was impracticable. In the first place, it
would not meet the assent of the people of Lower Canada, because they felt
that in their peculiar position –
being in a minority, with a different language,
nationality and religion from the majority … their institutions and their laws
might be assailed, and their ancestral associations, on which they prided them-
selves, attacked and prejudiced; it was found that any proposition which in-
volved the absorption of the individuality of Lower Canada … would not be
received with favour by her people. … So that those who were, like myself, in
favour of a Legislative Union, were obliged to modify their views and accept
the project of a Federal Union as the only scheme practicable …. 3
The bi-national principle was reinforced by rigorous guarantees of autonomy
for scattered pockets of the two national communities in those political sub-
divisions where they lived as a minority.4
Bi-nationality is the major fissure upon which Canada is organized. It
is not the only one, nor is it the only sub-national fracture for which Canada’s
Constitution makes special provision. Aboriginal communities claim special
autonomous status embracing, at minimum, rights to land, resources, self-
government, and independent discretion to determine their internal com-
position. Canada’s Constitution accommodates these claims by the Royal
Proclamation of 1763, 5 by the treaty process, and most recently by the
Constitution Act, 1982.6 Religious communities claim autonomy in the man-
agement and control of publicly funded systems of denominational edu-
cation. Canada’s Constitution accommodates this claim and Canadian
Grant, Canadian Constitutional Development (Toronto: Musson Book, 1907) at 362-63.
3See the extracts of Attorney-General MacDonald’s speech reprinted in H.E. Egerton & W.L.
4Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 93 (control of denominational schools
assured to religious minorities); s. 133 (special protection in the machinery of government,
including the Legislature and Courts for official language minorities); s. 80 and the Second
Schedule (protection for the linguistic integrity of anglophone electoral districts in Quebec).
5See Canada v. Secretary of State for Foreign and Commonwealth Affairs, Ex parte Indian
Association of Alberta (1982), [1982] Q.B. 892 at 912, [1982] 2 All E.R. 118 (C.A.), Denning
M.R.:
To my mind the Royal Proclamation of 1763 was equivalent to an entrenched
provision in the constitution of the colonies in North America. It was binding on
the Crown ‘so long as the sun rises and river flows’.
Leave to appeal was refused by the Appeal Committee of the House of Lords; see supra at
937, Lord Diplock:
[Their Lordships refuse leave] because in their opinion, for the accumulated reasons
given in the judgment of the Court of Appeal, it simply is not arguable that any
obligations of the Crown in respect of the Indian peoples of Canada are still the
responsibility of Her Majesty’s Government in the United Kingdom.
6Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, ss 25,
35, 35.1, 37 and 37.1.
19861
NOTES
Governments have legislated to enhance the status of denominational ed-
ucation beyond that required by constitutional law.7 Certain ethnic groups
claim autonomy for educational programnes and institutions, and for greater
recognition of, and public funding for, their cultural heritage. Canada’s Con-
stitution accommodates this claim by special provision.8
It should be clear that autonomy for sub-national communities in Can-
ada is an enduring feature of Canadian constitutional development. This
tradition was extended and reinforced by proclamation of the Canadian
Charter ofRights and Freedoms9 in 1982. Almost one third of the Charter’s
provisions deal with the collective rights of autonomous Canadian com-
munities.10 So do Parts II, IV and IV.1 of the Constitution Act, 1982. One
cannot, therefore, speak seriously about Canadian constitutionalism without
considering the unique role played by collective rights of autonomous com-
munities within the Canadian federation.
Before considering the peculiar problems collective rights pose for Courts
sitting under the Charter, we should ask how the security of Canadian col-
lectivities has been advanced by other institutions of Canadian government.
Canadian party and electoral systems are designed so that Canadian political
parties usually do not divide along any of the major ethnic cracks in Ca-
nadian society. Effective operation of Canadian political parties thus requires
that sub-cultural elites work out compromises and modes of accommoda-
tion. This process has so far ensured that sub-cultural elites are more or
less committed to making the system work. It has produced stable govern-
ment. Accommodation between sub-cultures is reinforced by the repre-
sentative nature of the Federal Cabinet. By constitutional convention, certain
major groups are entitled to representation in Cabinet. The representative
cabinet has proved to be a significant institution for reducing conflict be-
tween sub-cultural groups, as their elites have an effective forum for reaching
accommodation.
7Constitution Act, 1867, supra, note 4, s. 93; The Saskatchewan Act, 1905, S.C. 1905, c. 42,
s. 17, reprinted in R.S.C. 1970, App. II, no. 20; The Alberta Act, 1905, S.C. 1905, c. 3, s. 17,
reprinted in R.S.C. 1970, App. II, no. 19; s. 17 of Terms of Union of Newfoundland with Canada,
being the Schedule of the Newfoundland Act (U.K.), 12 & 13 Geo. 6, c. 22 (formerly British
North America Act, 1949), reprinted in R.S.C. 1970, App. II, no. 30; Constitution Act, 1982,
supra, note 6, s. 29.
8Constitution Act, 1982, ibid., ss 15 (“equal benefit of the law”) and 27. See also Reference
Re Education Act of Ontario and Minority Language Education Rights (1984), 47 O.R. (2d) 1
at 39, 10 D.L.R. (4th) 491 (Ont. C.A.) [hereinafter Education Rights Reference cited to O.R.]:
In the light ofs. 27, s. 23(3)(b) should be interpreted to mean that minority language
children must receive their instruction in facilities in which the educational envi-
ronment will be that of the linguistic minority. Only then can the facilities reasonably
be said to reflect the minority culture and appertain to the minority.
9part I of the Constitution Act, 1982, supra, note 6 [hereinafter Charter].
10lbid., ss 16-23, 25, 27 and 29.
McGILL LAW JOURNAL
[Vol. 32
Canada’s representative cabinet rejects the merit principle.” In con-
sequence, Canadian cabinets are neither efficient nor imaginative. In his
Letters on the French Coup d’Etat of 1851, Walter Bagehot praised “stu-
pidity” as “nature’s favourite resource for preserving steadiness of conduct
and consistency of opinion”. 2 “Stupidity” is a cutting word, but it is never-
theless true that the dullness of Canadian cabinets, their want of daring
initiative and their elephantine resistance to responding to events effectively
contribute to the stability of Canada’s constitutional system.
Sub-cultural groups compete for the limited quanta of power and re-
sources available in Canada’s political system. In the party system and
Cabinet, the competition takes place among elites. Canadian elites are aware
that each has a large stake in maintaining the system. In the party machinery
and in Cabinet, elites have an effective forum to seek accomodation among
the different interests and demands of the sub-cultures. Thus accommo-
dation is usually forthcoming; compromises result in pacts to make common
cause with the elites of rival sub-cultures.’ 3 The process transforms a frag-
mented political culture with tendencies towards disintegration into a stable
democracy.
Entrenchment of collective rights in the Charter is quite a different
matter. Entrenched collective rights are to be enforced in the Courts. Con-
stitutional litigation does not invite the dull political compromise which is
characteristic of sub-cultural accommodation in Cabinet and party politics.
Collective rights litigation is adversarial. Litigation invites smart lawyers
and subtle strategems. Community is pitted against community, majority
against minority, often in a battle for survival. The history of collective
rights litigation in the Canadian courts is a history of deep and lasting
bitterness. The most explosive cleavages in Canadian society were produced
I’W.A. Matheson, The Prime Minister and the Cabinet (Toronto: Methuen, 1976) at 29.
‘2Cited in K.C. Wheare, Legislatures (Oxford: Oxford University Press, 1963) at 114.
-A landmark article by A. Lijphart, “Consociational Democracy” in K. McRae, ed., Con-
sociational Democracy: Political Accomodation in Segmented Societies (Toronto: McLelland
and Stewart, 1974) 70 at 79 suggests four factors conducive to the success of consociational
democracies, such as Canada (consociational democracy is defined as “government by elite
cartel designed to turn a democracy with a fragmented political culture into a stable democ-
racy”). All four factors are present in Canada. They are:
(1) That the elites have the ability to accommodate the divergent interests and
demands of the sub-cultures. (2) This requires that they have the ability to transcend
cleavages and to join in a common effort with the elites of rival sub-cultures. (3)
This in turn depends on their commitment to maintenance of the system and to
the improvement of its cohesion and stability. (4) Finally, all of the above require-
ments are based on the assumption that the elites understand the perils of political
fragmentation.
See also, by the same author, Democracy in Plural Societies: A Comparative Exploration (New
Haven: Yale University Press, 1977); and Democracies: Patterns ofMajoritarism and Consensus
Government in Tiventy-One Countries (New Haven: Yale University Press, 1984).
1986]
NOTES
by collective rights cases: the Manitoba school crisis, 14 Regulation 17,15 Tiny
Township 16 and the Manitoba Language Rights Reference.’ 7 Because col-
lective rights litigation turns a searchlight on the crucial fault lines under-
pinning Canada’s political structure, they are very dangerous.
Canada’s final courts of appeal have never developed a modus operandi
for dealing with collective rights cases. In particular, the Privy Council’s
intervention, often overruling the Supreme Court of Canada, produced dis-
astrous results. The Privy Council usually found against minority com-
munities,’ 8 dealing them severe setbacks and leaving a history of resentment
and bitterness. The aftermath of these cases was an increase in conflict,
smouldering over long periods of time.
Peoples who do not dream of national greatness together cannot survive
as a state. Changes in the world system conspire against the multinational
state as an organizing unit of politics. While Canada’s system for sub-cultural
accommodation tends to produce dull and uninspiring politics, it never-
theless works, fostering a growing sense of Canadian nationality, albeit slowly.
The Charter makes accommodation between sub-national communities
much more exciting, but also much more perilous. It is therefore crucial to
consider entrenched collective rights carefully. We, who set the terms of
debate, should strive to assist Courts expounding the Charter to devise a
modus operandi that will fully protect the collective rights of semi-auton-
omous minorities, while keeping peace in the Canadian family. We need
also to consider the extent to which further Canadian constitutional de-
velopment should proceed by extending the collective rights idiom now
deeply entrenched as part of Canada’s fundamental law. This question is
of particular importance to Constitution-makers in the North and in the
aboriginal constitutional process.
What, therefore, are the underlying values on which our system of
collective rights is based? What principles should Courts sitting under the
Charter be jealous to safeguard?
“4 CityofWinnipegv. Barrett (1892), [1892] A.C. 445 (P.C.); Brophy v. A.G. Manitoba (1895),
13Trustees of the Roman Catholic Separate Schools for the City of Ottawa v. Mackell (1917),
[1895] A.C. 202 (P.C.).
[1917] A.C. 62 (P.C.).
(P.C.).
16Roman Catholic Separate School Trustees for Tiny v. Ontario (1928), [1928] A.C. 363
17Reference Re Certain Linguistic Rights under Section 23 of the Manitoba Act, 1870, and
Section 133 of the Constitution Act, 1867 (1985), [1985] 1 S.C.R. 721 (sub. nom Reference Re
Language Rights under the Manitoba Act) 19 D.L.R. (4th) 1.
18Supra, notes 14-16.
REVUE DE DROIT DE McGILL
[Vol. 32
A useful starting point is the premise that individuals can only find
fulfillment by being members of a social group. 19 In Canada, group iden-
tification is strong. In communities which enjoy or seek collective rights,
participation in the group is the indispensable condition of self-fulfillment.
Participation requires institutions mediating individual interactions with
the group. A principal value protected by a system of collective rights is the
preservation of those institutions by which the group maintains itself.20
A second value protected by our system of collective rights is autonomy.
Collective rights enshrined in the Constitution seek to guarantee “to certain
social or ethnic groups a degree of independence from governmental inter-
ference in matters of concern to these groups”. 2 1 A measure of autonomy
allows ethnic, linguistic, religious and aboriginal communities to promote
the evolution of their ancestral institutions and customs in their own par-
ticular way, and thus to preserve crucial distinctions of language, culture,
religion or government differentiating these communities from the majority.
A third value is the strengthening of the position of minorities in the
political process. Collective rights vest in preferred groups a greater weight
‘”This is a basic precept of social psychology. See generally G.H. Mead, Mind, Self and
Socet) (Chicago: University of Chicago Press, 1962) at 138:
The individual experiences himself as such, not directly, but only indirectly from
the particularist standpoints of other individual members of the same social group,
or from the generalized standpoint of the social group to which he belongs.
See also G.H. Mead. On Social Psychology (Chicago: University of Chicago Press, 1964) at 19
and 33ft
“-To some extent the Permanent Court of International Justice pointed towards this value
in M inority Schools in Albania (6 April 1935) ser. A/B 64 P.C.I.J. 4 at 17:
The idea underlying the treaties for the protection of minorities is to secure for
certain elements incorporated in a State, the population of which differs from them
in race, language or religion, the possibility of living peaceably alongside that pop-
ulation and in co-operating amicably with it, while at the same time preserving the
characteristics which distinguish them from the majority, and satisfying the ensuing
special needs.
In order to attain this object, two things were regarded as particularly necessary,
and have formed the subject of provisions in these treaties.
The first is to ensure that nationals belonging to racial, religious or linguistic
minorities shall be placed in every respect on a footing of perfect equality with the
other nationals of the State.
The second is to ensure for the minority elements suitable means for the pres-
ervation of their racial peculiarities, their traditions and their national character-
istics.
These two requirements are indeed closely interlocked, for there would be no true
equality between a majority and a minority if the latter were deprived of its own
institutions, and were consequently compelled to renounce that which constitutes
the very essence of its being as a minority.
211H1. Hannum & R.B. Lillich, “The Concept of Autonomy in International Law” in Y.
Dinstein, ed., Models ofAutonoiny (London: Transaction Books, 1982) 215 at 246; and see R.
Bernhardt, “Federalism and Autonomy” in Models ofAutonomy, supra, 23 at 26.
1986]
NOTES
in the balance of power. Without this advantage, the full impact of dem-
ocratic egalitarianism could be used at the ballot box to frustrate the de-
velopment of collectivities by subsidiary regulations to which they would
be obliged to conform. Collective rights ensure that Courts scrutinizing such
regulations will have an aroused sense of respect for the position of collec-
tivities in assessing the uses of majoritarian power.
The values advanced by collective rights have limits. These are dictated
by two overarching needs of the central state: to promote good relations
between sub-cultural communities and to foster a sense of national spirit. 22
An important way to promote good relations among sub-cultural groups
in a pluralistic state is to distribute power among many collectivities. This
is preferable to concentrating power in one hegemonic group, or striving
for a dual balance of power between two pre-eminent groups:
When one group is in the majority, its leaders may attempt to dominate rather
than co-operate with the rival minority. Similarly, in a society with two evenly
matched sub-cultures, the leaders of both may hope to achieve their aims by
domination rather than co-operation…. 23
By contrast, a multiple balance of power encourages coalition and com-
promise. Domination is not possible. This would tend to keep a relatively
greater number of disputes in political fora, where Canadian experience
teaches that they can, in most cases, be resolved satisfactorily by elite cartel.
It keeps them out of the Courts which, as history demonstrates, are an
explosive forum, and rarely produce a stable accommodation.
Courts may assist the development of multiple centers of community
power by paying serious attention to section 27 of the Charier Section 27
requires that the Charter “be interpreted in a manner consistent with the
preservation and enhancement of the multicultural heritage of Canadians”.
In pouring content into section 27, it is open to the Courts to concentrate
-Professor F. Capotorti, Study on the Rights of Persons Belonging to Ethnic. Religious and
Linguistic Minorities (New York: United Nations, 1979), Doe. E/CN 4/Sub.2/384/Rev. I at 54
makes a similar point:
The need to safeguard the integrity of the State and to avoid encouraging separatism
is of course the legitimate concern of any government. This may regard it as a
natural limit to any policy of protection for minorities even a policy pursued in the
form of a very broad pluralism. Nevertheless, it is a matter for regret that concern
to avoid weakening the integrity of the state or opening the door to separatist
tendencies sometimes presents an obstacle to the adoption of special measures in
favour of individuals belonging to minority groups.
23Lijphart, “Consociational Democracy”, supra, note 13 at 81.
McGILL LAW JOURNAL
[Vol. 32
attention on institutional and economic impact, in cases implicating com-
munity political structures, schools, churches and public funding. 24 The
Ontario Court of Appeal has already taken this approach to minority lan-
guage education rights and the rights of religious communities. 25 The ad-
vantage of this approach is that all cultural communities are encouraged to
advance claims for various types of autonomy, so that some may succeed.
This diffuses the center of power. While dominant anglophone and fran-
cophone communities have expressed reservations about this approach,26
their ultimate reaction may be expected to be at worst ambivalent, rather
than wholly negative. This is because a multicultural approach has already
assisted them. 27 Communities do not often reject instruments by which they
can benefit, even if it means that others benefit as well.
In its initial approach to the Charter, the Supreme Court of Canada
has begun to expound a constitutional theory that gives pre-eminence to
the role of individual rights, and pays scant attention to the special demands
of collectivities. This tendency has blinded the Court to the special legacy
of collective rights which distinguishes Canadian constitutional develop-
ment from that of other countries. The Charters function, said the Court
in Hunter v. Southam Inc., “is to provide … for the unremitting protection
of individual rights and liberties”. 28 In R. v. Big M Drug Mart, the Court
later elaborated:
[An] emphasis on individual conscience and individual judgment … lies at the
heart of our democratic political tradition …
The values that underlie our political and philosophic traditions demand that
every individual be free to hold and manifest whatever beliefs and opinions
his or her conscience dictates, provided inter alia only that such manifestations
do not injure his or her neighbours
[When] people believed in the collective responsibility of the community to-
24For an elaboration see J.E. Magnet, “Interpreting Multiculturalism” in Multiculturalism
(Toronto: Carswell, [forthcoming]).
2 5Education Rights Reference, supra, note 8; and R. v. Videoflicks Ltd (1984), 48 O.R. (2d)
395, 14 D.L.R. (4th) 10, 15 C.C.C. (3d) 353 (C.A.). For a discussion, see Magnet, ibid.
26See generally G. Rocher, “Multiculturalism, The Doubts of a Francophone” in Multicul-
turalism as State Policy (Second Canadian Conference on Multiculturalism, Government Con-
ference Centre, Ottawa, 13-15 February 1976) (Ottawa: Canadian Consultative Council on
Multiculturalism, 1976) 47.
2 See Education Rights Reference, supra, note 8. This approach was also advanced in support
of the francophone minority in Mahe v. Alberta (1985), 22 D.L.R. (4th) 24, 39 Alta L.R. (2d)
215 (Q.B.), Purvis J.
28(1984), [1984] 2 S.C.R. 145 at 155, 11 D.L.R. (4th) 641, (sub. nom Director of Investigation
and Research, Combines Investigation Branch v. Southam Inc.) 41 C.R. (3d) 97.
1986]
NOTES
ward some deity, the enforcement of religious conformity may have been a
legitimate object of government, but since the Charter it is no longer legitimate. 29
While one would hardly wish to quarrel with the sentiments underlying
these statements, they are nevertheless inadequate as an expression of Ca-
nadian constitutional theory and equally curious as explanatory of the Courts’s
own practice when confronted with collective rights disputes. In Caldwell
v. Stuart, the Supreme Court dismissed the complaint of a Roman Catholic
teacher who was not rehired by a Catholic school because she married a
divorced man in a civil ceremony, contrary to church dogma. The Court
emphasized “the special nature and objectives of the school” and found
“the acceptance and observance of the Church’s rules regarding marriage …
reasonably necessary to assure the achievement of the objects of the school”. 30
The Court therefore held that failure to rehire the newly married teacher
was legitimate. This result runs in the same channel cut by the major currents
of Canadian jurisprudence.31 However, Caldwell and similar cases cannot
be squared with the Court’s broadly phrased Charter theory, particularly as
regards the statement that the enforcement of religious conformity is not
legitimate. This obvious contradiction draws attention to the inadequacy
of the Court’s Charter theory, particularly when it must explain a mixed
constitution that equally emphasizes individual and collective rights.32
29(1985), [1985] 1 S.C.R. 295 at 346 and 351, 18 D.L.R. (4th) 321, 18 C.C.C. (3d) 385. The
point is even clearer in SociMt6 des Acadiens du Nouveau-Brunswick v. Association of Parents
for Fairness in Education, Grand Falls District 50 Branch, infra, note 33. In this case the
Supreme Court interpreted the official languages sections of the Charter. After a general dis-
cussion of s. 16, Chief Justice Dickson stated at 565: “I should add that the Charter was designed
primarily to recognize the rights and freedoms of individuals vis-A-vis the State” [my emphasis].
30(1984), [1984] 2 S.C.R. 603 at 624-25, 15 D.L.R. (4th) 1 [hereinafter Caldwell cited to
S.C.R.].
31See generally W. Tamopolsky, Discrimination and the Law (Toronto: De Boo, 1982) at
210ff. Of equal interest is Reference Re Roman Catholic Separate High Schools Funding (1986),
13 O.A.C. 241. The Court referred to ss 93 and 133 of the Constitution Act, 1867, supra, note
4, as group collective rights.
32In R. v. Oakes (1986), [1986] 1 S.C.R. 103, 24 C.C.C. (3d) 321, the Court demonstrated
much greater sensitivity to the mixed nature of the Charter as embracing both individual and
individual dignity and cultural pluralism. In discussing inclusion of the
collective rights –
word “free and democratic society” in s. 1 as the final standard of justification for limits on
rights and freedoms, Chief Justice Dickson stated at 136:
The Court must be guided by the values and principles essential to a free and
democratic society which I believe embody, to name but a few, respect for the
inherent dignity of the human person, commitment to social justice and equality,
accomodation of a wide variety of beliefs, respect for cultural and group identity,
and faith in social and political institutions which enhance the participation of
individuals and groups in society. The underlying values and principles of a free
and democratic society are the genesis of the rights and freedoms guaranteed by
the Charter and the ultimate standard against which a limit on a right or freedom
must be shown, despite its effect, to be reasonable and demonstrably justified. [my
emphasis]
REVUE DE DROIT DE McGILL
[Vol. 32
In Soci~ts des Acadiens du Nouveau Brunswick v. Association of Parents
for Fairness in Education, Grand Falls District 50 Branch33 the Supreme
Court’s inability to see in the language provisions of the Charter any broad
system for protection of official language communities produced a curious
result. The Court read guarantees for official bilingualism with utmost lit-
eralism. It reached the startling conclusion that the Charters official language
sections should be read, in the characterization of Justice Wilson (who con-
curred in the result only), as “permitting the litigant to use the language he
or she understands but allowing those dealing with him or her to use the
language he or she does not understand”. 34 In the case of MacDonald v.
City of Montreal, heard the same day, Justice Wilson reflected on this con-
clusion and wondered, cuttingly, “[what] kind of linguistic protection would
that be”. 35 The editorialists rightly replied that this “smothering narrow-
ness” rendered language rights “hollow”. 36 The crucial point to notice is
that the Court’s stultifying literalism here transformed a guarantee for mi-
nority languages into a right for the majority, acting through the legislature
or administration, to deal with minority language communities in the lan-
guage of the majority. This constitutional approach is devoid of principle
and lacks sensitivity for the hard-won collective rights of minority communities.
The Supreme Court’s difficulty with the theory and administration of
collective rights draws attention to a larger and more general inability of
the Canadian judicial system to assimilate collective rights precepts or to
apply them satisfactorily to the communities for whose benefit they were
designed. In Quebec Association of Protestant School Boards v. A.G. Quebec,
Chief Justice Desch~nes considered Quebec’s argument that minority lan-
guage educational rights guaranteed by section 23 of the Charter were col-
lective rights established in the interest and for the benefit of the Anglo-
Quebec minority. Quebec argued that the educational provisions of Bill 101
entailed the complete loss of section 23 rights for some individual anglo-
phones. Nevertheless, Quebec submitted that these stipulations only limited,
but did not completely deny, the group’s collective right. Chief Justice Desch-
8nes’ reaction to this submission signals caution to those who would rely
3-1(1986), [1986] 1 S.C.R. 549, 27 D.L.R. (4th) 406 [hereinafter Socit6 des Acadiens cited to
S.C.R.J.
34Justice Wilson’s expression is taken from her witten reasons in MacDonald v. City of
Montreal (1986), [1986] 1 S.C.R. 460 at 540, 27 D.L.R. (4th) 321 [hereinafter cited to S.C.R.].
3’Ibid.
.6″Hollow Language Right” The [Toronto] Globe and Mail (7 May 1986) A6.
19861
NOTES
primarily on entrenchment of collective rights to protect the semi-auton-
omous status of their communities, or otherwise to guarantee their cultural
security. Chief Justice Desch~nes said:
Quebec’s argument puts forward a totalitarian view of society to which the
Court does not subscribe. Human beings are, to us, of paramount importance
and nothing should be allowed to diminish the respect due to them. Other
societies place the collectivity above the individual. They use the Kolkhoze
steamroller and see merit only in the collective result even if individuals must
be destroyed in the process.
This concept of society has never taken root here … and this Court will
not honour it with its approval. 37
This ruling attracted sharp criticism from the commentators: “[Lia conclu-
sion ne d~coule pas des prrmisses”. 38 The journalists were more blunt: “On
doit donc regretter que la juge Desch~nes ait, par certains de ses propos,
contribu6 i embrouiller d’avantage dans l’opinion publique des concepts
juridiques qui, bien compris, peuvent pourtant favoriser l’av~nement d’une
plus grande justice. ’39
The incomplete assimilation of collective rights precepts and the hos-
tility to collective rights concepts expressed by some courts ought not blind
us to the slow development of collective rights theory among Canadian
courts and commentators. 4 0 In A.G. Quebec v. Greater Hull School Board4
the Supreme Court of Canada considered whether certain school tax leg-
islation of Quebec was offensive to protected denominational rights in sec-
tion 93 of the Constitution Act, 1867. In concurring reasons Mr Justice Le
Dain held that section 93 gave a “right or power of local self government
to denominational schools” and that “the rights contemplated by s. 93(1)
… may be characterised as ‘collective rights”‘. Mr Justice Le Dain added:
What the characterization does suggest, however, is that it is the interests of
the class of persons or community as a whole in denominational education
that is to be looked at and not the interests of the individual ratepayer.42
37(1982), [1982] C.S. 673, 140 D.L.R. (3d) 33, aff’d (1984), [1984] 2 S.C.R. 66, 10 D.L.R.
(4th) 321. The Supreme Court made no reference to the quoted remark of Chief Justice Desch~nes.
38p. Carignan, “De Ia notion de droit collectif et de son application en matirre scolaire au
Quebec” (1984) 18 R.J.T. I at 97; see also M. McDonald, “Collective Rights: The Canada and
Quebec Clauses” (Lecture at the International Association for Legal and Social Philosophy
Meeting, 31 May 1983) at 33 [unpublished].
39j..p. Proulx, “Droits individuels et droits collectifs” Le Devoir [de Montreal] (2 October
1982) Cahier I at 17.
40For additionnal documentation on collective rights, see M. McDougall, Bibliography on
Collective Rights (Human Rights Research and Education Center University of Ottawa, 1985)
[unpublished]; and Centre de recherche et d’enseignement sur les droits de ]a personne, Rapport:
Premier s4minaire sur les droits collectifs (Ottawa: University of Ottawa, 1985) (presidents:
J.E. Magnet & G.-A. Beaudoin).
41(1984), [1984] 2 S.C.R. 575, 15 D.L.R. (4th) 561 [hereinafter cited to S.C.R.].
421bid. at 599.
McGILL LAW JOURNAL
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In that light, Mr Justice LeDain held Quebec’s taxing procedure offensive
to paragraph 93(1) of the Constitution Act, 1867. He said:
While the requirement of approval by referendum for taxation beyond [a]
severely limited amount may be said to enlarge the democratic rights of the
individual member of the class and to be a measure for the protection of his
or her pocketbook, it is a measure or requirement which, because of its cost
and uncertainty of outcome as indicated in the evidence, is prejudicial to the
effective management of denominational schools in the interest of the class as
a whole. … What is in issue here is … the effective power of school commis-
sioners and trustees to provide for and manage denominational schools in the
interests of the class.43
In Reference Re an Act to Amend the Education Act, the Ontario Court
of Appeal refered to sections 93 and 133 of the Constitution Act, 1867 as
amounting to “a small bill of rights”. The Court noted that sections 16 to
23 of the Charter expanded upon section 133 rights. These provisions, stated
the Court, “constitute a major difference from a bill of rights such as that
of the United States, which is based on individual rights”. The Court con-
tinued:
Collective or group rights, such as those concerning language and those con-
cerning certain denominations to separate schools, are asserted by individuals
or groups of individuals because of their membership in the protected group.
Individual rights are asserted equally by everyone despite membership in cer-
tain ascertainable groups. Collective rights protect certain groups and not oth-
ers. To that extent, they are an exception from the equality rights provided
equally to everyone …
To apply this to s. 93, it is necessary to recognize that that provision for
the rights of Protestants and Roman Catholics to separate schools became part
of ‘a small bill of rights’ as a basic compact of Confederation. 44
The actual or potential conflict between characterization of statutory
prescriptions as creating individual or collective rights had been noticed
earlier by a New Brunswick trial court. In Soci&t des Acadiens Mr Justice
Richard considered amendments to the provincial Schools Act 45 and The
Official Languages of New Brunswick Act 46 which provided for the creation
of separate French and English school systems to replace the existing bil-
ingual system. Mr Justice Richard also considered An Act Recognizing the
Equality of the Two Official Linguistic Communities in New Brunswick,47
which affirmed “the equality of status and equal rights and privileges” of
the English and French linguistic communities.
4 Ibid. at 599-600.
44(1986), 53 O.R. (2d) 513 at 566-67 (Ont. C.A.).
45R.S.N.B. 1973, c. S-5.
46R.S.N.B. 1973, c. 0-1.
47S.N.B. 1981, c. 0-1.1.
19861
NOTES
This litigation concerned a minority language school board which had
been established in the Grand Falls region. The board not only accepted
francophone students into its regular English program, but also permitted
francophone students to enroll in its French immersion program, which had
been designed for anglophone students. Reviewing the evidence, Mr Justice
Richard found that New Brunswick abolished bilingual schools because they
harmed the linguistic minority child and minority community by excessive
assimilation and by “degeneration of the mother tongue [producing a] mix-
ture common to colonized or assimilated peoples”. He was then faced by
counsel’s submission that the Schools Act and Official Languages Act ad-
vanced the interest of the francophone community be requiring that all
francophone students be educated in the French system. To consider this
submission Mr Justice Richard asked:
[H]as the legislator declared that collective rights are to take precedence over
the individual rights of the parents? Furthermore, did the legislator intend to
take away the parents’ right to place their children in the school system of their
choice?48
Counsel’s suggestion was rejected because it posed insuperable difficulties
with respect to mixed families, assimilated francophones, and anglophones.
Mr Justice Richard did not clearly decide whether, as submitted, the
school provisions were collective rights, designed to benefit the French lin-
guistic community. The tenor of his remarks suggests that he rejected this
view with respect to the Schools Act and Official Languages Act. This is
apparently the reason why he held that parents had a large measure of choice
in deciding to which system they would send their children. Had Mr Justice
Richard decided that the school provisions were collective rights, it seems
likely that he would have felt constrained to severely limit the parents’ ability
to choose school systems, in light of counsel’s submission.
While Mr Justice Richard appeared to reject a collective rights inter-
pretation of the school prescriptions, he did make these comments about
the Act Recognizing the Equality of the Two Official Linguistic Communities
in New Brunswick
As for the Act Recognizing the Equality of the Two Official Linguistic
Communities in New Brunswick, there is nothing in its three sections dealing
with individual rights. … The Act always speaks of linguistic communities,
not individuals …. 49
48Socit des Acadiens du Nouveau-Brunswick v. Minority Language School Board No. 50
49Ibid. at 401.
(1983), 48 N.B.R. (2d) 361 at 397, 126 A.P.R. 361 (Q.B.) [hereinafter cited to N.B.R.].
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In light of this interpretation, Mr Justice Richard concluded that parents
did not have unrestricted freedom to choose a school system for their chil-
dren. Parental autonomy was subject to a requirement of the child having
adequate language competence in the chief language of the school. The
limitation to parental autonomy to choose results from the collective rights
idiom of An Act Recognizing the Equality of the Two Official Linguistic
Communities in New Brunswick. This Act signifies that the collective rights
of the French and English linguistic communities to a school system are
rights intended to benefit communities, notwithstanding any contrary claim
asserted by individuals. It is in this sense that a collective rights character-
ization becomes relevant: it elevates the right of the community to protect
the linguistic purity of its schools, over the claimed freedom of the individual
to choose a school system irrespective of the child’s language competence.
These rulings are of interest because they emphasize the following points.
Collective rights differ significantly from individual rights, and implicate
distinct, if novel, doctrine for their administration. Collective rights elevate
group security over individual freedom. They protect groups, not individ-
uals, and create special limited autonomy for these groups by reserving
power to them to manage or control certain institutions.
It is possible to synthesize from these crucial points a more general,
but vitally important principle. Collective rights are designed to guarantee
group survival by protecting from majority interference certain specific in-
stitutions through which minorities propogate their communities.
This general principle raises a question as to the scope of the institu-
tional infrastructure which an intelligently designed system of collective
rights ought properly to embrace. If a system of collective rights were to be
an important guarantee of community security, the system at minimum
would have to include the following: mechanisms through which the group
can interact with other groups, particularly the dominant or governing group
in the society (namely, political structures); mechanisms for propagation of
the group’s beliefs (ethnic schools, religious institutions, and associations);
mechanisms of group definition (namely, control over inclusion and exclu-
sion of members of the group, as in the case of a priesthood or band council);
defensive mechanisms able to protect the group from the adverse affects of
discrimination, racism, and other forms of majority oppression.
Notwithstanding our ability to synthesize important collective rights
precepts, one cannot fail to notice the unhappy history which collective
rights cases delineate. One must also pause over the incomplete assimilation
of collective rights precepts into Canadian constitutionalism, and the out-
right hostility of some Canadian judges and commentators to the collective
rights concept. These observations suggest that it would be unreasonable to
1986]
NOTES
expect the Canadian judicial system, in the near future, to become an astute
administrator of collective rights mechanisms. Because this is so, certain
proposals for aboriginal self-government and for constitutional development
of the North require closer attention.
Michael Asch and Gerston Dacks propose direct consociation as the
best model for government in the Western Northwest Territories. 50 By “con-
sociation” Asch and Dacks mean a political system in which institutions
are organized in a manner acknowledging specifically “that there are distinct
cultural communities that have the right to control certain matters”. 51 Asch
and Dacks make a valuable contribution in suggesting the establishment of
segmented political institutions, such as cultural councils, culturally com-
posite cabinets, and cultural checks on the legislative process as a means
for utilizing the theory of consociational government 52 to solve the problem
of aboriginal self government in the North. However, Asch and Dacks also
advocate that government for the Western Northwest Territories include a
Charter of Collective Rights, supervised by the Courts.53 So does the Dene
Nation. 54 These proposals merit careful consideration.
It is probable that collective rights, supervised by the Courts, would
serve a useful educational function if entrenched in a constitution for north-
ern governments. Collective rights would probably also be useful as an
emergency switch for embattled communities when other institutions of
government failed. However, it would be unwise to expect too much from
entrenching justiciable collective rights. In particular, it would be unrealistic
to rely on collective rights as a primary regulator of community relations,
or as a primary guarantor of community security. The Courts have a poor
history in these matters, and perhaps lack the proper orientation, sophis-
tication, experience, expertise and resources to make out of collective rights
cases all that the proponents of collective rights expect, but seldom, if ever,
receive. The better course would be for Northern constitution-makers to
concentrate primary attention on the design of consociational or segmented
511M. Asch & G. Dacks, “The Relevance of Consociation to the Western Northwest Terri-
tories” in Partners for the Future: A Selection of Papers Related to Constitutional Development
in the Western Northwest Territories (Yellowknife: Western Constitutional Forum, 1985) 35.
and entrenches the fundamental rights of the cultural communities in the new territory”.
5’Ibid. at 39.
52See the discussion, supra, note 13.
53Supra, note 50 at 44: “[]f at all possible, a Charter of rights should be created that defines
54See Dene Nation and Metis Association of the Northwest Territories, Denedeh Public
Government: Official Discussion Paper of the Dene Nation (Yellowknife, 1985). See also Dene
Nation and Metis Association of the Northwest Territorie, Public Government for the People
of the North (Yellowknife, 1982) at 22: “There are vast inequalities and differences between
people and groups. Any consideration of rights must take these inequalities and differences
into account.”
McGILL LAW JOURNAL
[Vol. 32
political institutions. Canadian history places these political arrangements
in a flattering light as a mechanism to overcome major divisions in Canadian
society. Justiciable collective rights could play a secondary supplementative
and educational role, but ought not to be relied on as a primary regulator
of community relations or a principal guarantor of cultural security.
All Charters of Rights are inspired by an overriding concept of indi-
vidual liberty that derives from the eighteenth century philosophers and
found profound expression in the American Bill of Rights in 1791. Charters
create a private area of human space where individual conscience reigns
supreme as the motivator of human action. Within the protected sphere,
government cannot obstruct the operation of conscience by majoritarian
preferences. This classical idea of individual liberty received its most pro-
found development in the twentieth century constitutional jurisprudence of
the United States Supreme Court. It is a welcome and needed addition to
Canada’s constitutional system. Nevertheless, for American style consti-
tutionalism to thrive in Canada, it must be rationalized with a constitutional
tradition that emphasizes bi-nationality and cultural pluralism, and that
decentralizes large areas of state power to institutions of semi-autonomous
cultural groups. Courts will have to tread carefully in developing Charter
theory for, in Canada, cultural pluralism is the indispensable element that
allows sub-national minorities to feel secure. Stable ethnic accommodation
requires that this sense of collective security be nurtured and protected. The
Courts must therefore pay special attention to the semi-autonomous status
of collectivities at the same time as they enhance our great democratic
traditions by the addition of a Charterjurisprudence. This may be a difficult
and labourious responsibility, but it is a necessary condition for enhancing
that sense of Canadian national purpose and spirit which most of us find
utterly worth preserving.
