Minority Cultural and Linguistic Rights and Equality Rights
in the Canadian Charter of Rights and Freedoms
Jos6 Woehrling*
The enactment of the Charter has given sig-
nificant protection to Canada’s linguistic and
cultural minorities. The author examines the
extent of this protection, with respect to both
the English- and French-language minorities
and other minority groups, in part through a
comparison with the guarantees contained in
article 27 of the International Covenant on
Civil and Political Rights. He also looks at
the potential conflict between the principle of
equality and minority rights enshrined in the
Charter. In resolving these conflicts the courts
will have a crucial role to play and the author
examines potential judicial responses to the
interaction of equality and minority rights.
Certain legal notions underlying the Charter
which may influence these judicial responses
are considered, in particular the notion of
collective as opposed to individual rights.
L’adoption de la Charte a eu pour effet d’ac-
crotre la protection accordre aux minoritrs
linguistiques et culturelles canadiennes. L’au-
teur examine ]a porte de cette protection au-
tant en ce qui concerne les minorit6s
francophone et anglophone que les autres
groupes minoritaires du Canada, en partie au
moyen d’une comparaison avec les garanties
d6coulant de l’article 27 du Pacte internatio-
nal relatif aux droits civils et politiques. I1
traite ensuite de la possibilit6 de conflits ap-
paraissant entre le principe d’galit6 et les droits
des minorit6s enchfiss6s dans la Charte. Les
tribunaux 6tant appel6s fijouer un rfle d6cisif
dans la resolution de ces conflits, ‘auteur exa-
mine leurs reactions 6ventuelles fA cet 6gard.
Certains concepts juridiques susceptibles
d’influencer l’analyse du problkme sont pris
en considEration, en particulier le concept de
droits collectifs par opposition aux droits
individuels.
*Of the Faculty of Law, University of Montreal, on leave in Strasbourg, France for 1985-86.
For comments and criticisms, the author is indebted to Mr J. Richstone.
McGill Law Journal 1985
Revue de droit de McGill
1985]
MINORITY AND EQUALITY RIGHTS
Synopsis
Introduction
I. The Scope of the Minority Language and Cultural Guarantees of the
Charter
A. Language Guarantees – Sections 16 to 20 and 23 of the Charter
B. Cultural Guarantees – Section 27 of the Charter
I. Conflicts Between the Principle of Equality and Minority Rights in the
Charter
A. Sections 15 and 27 of the Charter
B. Compatibility of the Charter with the Covenant
1. Education Rights – Section 23 of the Charter
2.
“Official Language” Rights – Sections 16 to 20 of the Charter
11. Judicial Response to Equality and Minority Rights in the Charter
A. Role of Courts in the Implementation of the Language Provisions
B. Arbitrating Conflicts Between Equality and Minority Rights
Introduction
This paper will examine the protection of Canada’s linguistic and cul-
tural (o4 more commonly, ethnic) minorities in light of the Canadian Charter
of Rights and Freedoms.I
The general equality guarantees found in subsection 15(1) of the Charter
seek to ensure that ethnic minorities in Canada do not suffer discriminatory
treatment. Even though language has not been singled out as a separate
‘Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,
c. 11 [hereinafter the Charter].
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ground of prohibited discrimination, it is clear that irrational or discrimi-
natory treatment based on language will also be forbidden under the clause. 2
Despite the egalitarian promise of subsection 15(1), other, more sub-
stantial, guarantees are required. When a religious, linguistic or ethnic mi-
nority is placed on an equal footing with the majority – when its members
are not discriminated against because of their membership in that minority
– only “formal” or “abstract” equality is achieved. “Material” or “genuine”
equality results from the recognition that minority and majority are ob-
viously not in comparable situations and that the same treatment applied
to different situations inevitably produces inequality. “Formal” equality
implies that a minority is served by the cultural, religious and educational
institutions of the majority. This integration into the cultural mainstream,
however, would mean a rapid disintegration of all those distinctive features
which make up a minority people. It would thus lead to assimilation.3
2S. 15(1), properly analysed, contains two standards: the right to equality and the prohibition
against discrimination. Whenever a person is dealt with on the basis of an irrelevant charac-
teristic or consideration, language in particular, the right to equality is violated. Discrimination
occurs where a person is treated unfavourably because he belongs to a disadvantaged group.
S. 15(l) opens with the prohibition against any discrimination (in the French text, “toute
discrimination”), which logically must include the prohibition of discriminatory treatment
based on linguistic grounds. The clause then adds to this general prohibition against discrim-
ination a non-exhaustive list of specifically prohibited grounds in which ethnic origin, but not
language, is included. Discrimination based on grounds which are enumerated in s. 15(1) will
probably be treated differently than discrimination based on grounds which are not enumerated;
it might be argued that non-enumerated grounds like language will be subject to less rigorous
levels ofjudicial “scrutiny” than those which are enumerated. If the Charter’s drafters expected
judicial treatment of grounds of discrimination to be distinguished on this basis, perhaps they
left “language” off the list in order to avoid the higher level ofjudicial “scrutiny”. It is possible
to imagine that in excluding language the intention was to avoid or at least to reduce the
number of conflicts likely to arise between s. 15(1) and the provisions of the Constitution
containing minority language and cultural guarantees. Some fears about the conflicts likely to
arise between the principles of equality and non-discrimination and language rights are reflected
in Canada, Special Joint Committee of the Senate and the House of Commons on the Con-
stitution of Canada, Minutes of Proceedings and Evidence (Ottawa: Queen’s Printer, 1980) at
22:88 (J. Lapierre) and at 22:99 – 22:100 (L. Nystrom & A.L. Juzukonis) (Co-chair: H. Hays
& S. Joyal). Regarding the interpretation of s. 15(1) and linguistic equality, see J. Woehrling,
“L’article 15(1) de Ia Charte canadienne des droits et liberts et Ia langue” (1985) 30 McGill
L.J. 266. Regarding the distinction between equality and non-discrimination, see B. Hough,
“Equality Provisions in the Charter Their Meaning and Interrelationships with Federal and
Provincial Human Rights Acts” in A.W. MacKay, C.E Beckton & B.H. Wildsmith, eds, The
Canadian Charter of Rights: Law Practice Revolutionized (Halifax: Faculty of Law, Dalhousie
University, 1982) 306 at 308; O.M. Fiss, “Groups and the Equal Protection Clause” (1976) 5
Phil. & Pub. Aff. 107 at 158-60.
3This undesirable result was fully appreciated by the Permanent Court of International Justice
(P.C.I.J.) when it considered the problems of minorities living within the borders of newly-
created, multicultural states in Europe following the Versailles Treaty of 1919. For a description
of the system for protecting minorities in the context of the League of Nations, see Y. Dinstein,
19851
MINORITY AND EQUALITY RIGHTS
The right of minorities to demand full equality with the majority and
the preservation of their identity through their own institutions, is now
enshrined in the International Covenant on Civil and Political Rights. Ar-
ticles 2(1) and 26 enunciate the principles of equality and non-discrimi-
nation and article 27 sets out the right of ethnic, religious and linguistic
minorities “to enjoy their own culture, to profess and practise their own
religion, or to use their own language”. 4
In 1976, Canada ratified the covenant and, consequently, is bound to
bring its domestic law in line with the standards set out therein. 5 Subsection
“Collective Human Rights of People and Minorities” (1976) 25 Int’l & Comp. L.Q. 102 at
113-7; E Capotorti, Study on the Rights ofPersons Belonging to Ethnic, Religious and Linguistic
Minorities (New York: United Nations, 1979) Doc. E/CN4/Sub.2/384/Rev.1 at 16-26 [herein-
after the United Nations Study].In an advisory opinion on this topic concerning minority
schools in Albania, the P.C.I.J. introduced the distinction between two kinds of equality: see
Minority Schools in Albania (6 April 1935) ser. A/B 64 P.C.I.J. 4. The Court declared, ibid. at
17, that in order that the rights of a minority be respected, it must have the means to develop
and preserve its distinct traditions and characteristics; it must have institutions of its own:
[T]here would be no true equality between a majority and a minority if the latter
were deprived of its own institutions, and were consequently compelled to renounce
that which constitutes the very essence of its being a minority.
See also Capotorti, supra at 41, where he states that the prevention of discrimination, on
the one hand, and the implementation of special measures to protect minorities, on the other,
are merely two aspects of the same problem: that of defending fundamental human rights.
4lnternational Covenant on Civil and Political Rights, 19 December 1966, 1007 U.N.T.S.
172 (in force in Canada 19 August 1976) [hereinafter the Covenant].
2.
(1) Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.
26. All persons are equal before the law and are entitled without any discrimi-
nation to the equal protection of the law. In this respect, the law shall prohibit
any discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth
or other status.
In those States in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community with
the other members of their group, to enjoy their own culture, to profess and
practise their own religion, or to use their own language.
27.
For the French version of the Covenant, see M. Lebel, E Rigaldies & J. Woehrling, Droit
international public: notes et documents, vol. 2, 2d ed. (Montreal: Themis, 1982) at 857ff.
50n the implementation of international treaties protecting fundamental rights in Canadian
domestic law, see A. Desjardins, “La mise en oeuvre au Canada des trait6s relatifs aux droits
de la personne” (1981) 12 R.G.D. 359. For a summary of the international conventions con-
cerning the protection of human rights to which Canada is a party, see M. Cohen & A.E
Bayefsky, “The Canadian Charter of Rights and Freedoms and Public International Law”
(1983) 61 Can. Bar Rev. 265 at 285 n. 80. For the relationship between international law and
Canadian domestic law, see F Rigaldies & J. Woehrling, “Le juge interne canadien et le droit
McGILL LAW JOURNAL
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15(1) of the Charter is the domestic counterpart to articles 2(1) and 26 of
the Covenant. However, the list of expressly prohibited grounds of discrim-
ination in the Charter is less complete than that of the Covenant. Language,
for one, is conspicuously missing as a prohibited ground.6 While the enu-
meration in subsection 15(1) is certainly not exhaustive and permits the
courts to read into it any unreasonable and unjustifiable discrimination, 7
the Covenant would have been more satisfactorily implemented had all the
internationally recognized grounds of discrimination been incorporated into
subsection 15(1).8
Minority language and cultural rights that implement article 27 of the
Covenant in Canadian constitutional law may be grouped into two cate-
gories. The first deals with the status of Canada’s two “official languages”,
English and French, and with education rights for anglophone and fran-
cophone minorities.9 These rights are specific and detailed; generally they
confer immediately applicable rights and benefits upon those entitled. In
the second category are found language and cultural rights that non-English
or non-French peoples may invoke under the Charter.10 These provisions
are more ambiguous; it is therefore difficult to assess their full effect until
the courts have offered an authoritative interpretation of their scope.
international” (1980) 21 C. de D. 293. On the use of international law for interpreting the
Charter, see D. Turp, “Le recours au droit international aux fins de l’interpr6tation de la Charte
canadienne des droits et libertO. un bilan jurisprudentiel” (1984) 18 R.J.T. 353.
6 0n the other hand, s. 15(1) expressly prohibits discrimination based on “national or ethnic
origin” [emphasis added].
7See supra, note 2.
8Desjardins, supra, note 5 at 366-7, points out that the Human Rights Committee created
under art. 28 of the Covenant made reference to what it regards as shortcomings in Canadian
law, including the fact that Canadian statutes (federal, provincial and territorial) do not contain
a list of prohibited grounds of discrimination as extensive as the one contained in art. 2 of the
Covenant. As regards language, the only Canadian statute which expressly prohibits discrim-
ination on this basis is the Quebec Charter of Human Rights and Freedoms, R.S.Q. 1977, c.
C-12, s.10 as am. S.Q. 1982, c. 61, s. 3. For a summary of the provisions concerning language
rights and the right to linguistic equality in the major international instruments, see M. Tabory,
“Language Rights as Human Rights” (1980) 10 Israel Y.B. Hum. Rts 167. See also J. Claydon,
“The Transnational Protection of Ethnic Minorities: A Tentative Framework for Inquiry”
(1975) 13 Can. Y.B. Int’l L. 25; A. Verdoodt, La protection des droits de l’homme dans les -tats
plurilingues (Paris: Fernand Nathan, 1973) at 19ff. In some cases, such as art. 2 of the Universal
Declaration of Human Rights, and arts 2(1) and 26 of the Covenant, language is expressly
mentioned in the list, even though these articles are not limitative.
9These are ss 16-20 and 23 of the Charter to which must be added s. 133 of the Constitution
Act, 1867 (U.K.), 30 & 31 Vict., c. 3, and s. 23 of the Manitoba Act, 1870, S.C. 1870, c. 3.
These two statutes, like the Constitution Act, 1982, are part of the “Constitution of Canada”.
See Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, s.
52(2).
‘0See ss 27 and 25 in combination with s. 22.
1985]
MINORITY AND EQUALITY RIGHTS
Despite their relative differences, both categories of rights can be termed
“collective” as opposed to “individual”. The object and purpose of collec-
tive rights is to enable a collectivity, as defined by language, religion or,
more generally, by culture, to preserve and develop its particular and distinct
identity. Only those who are members of a collectivity may claim a benefit
from such rights. Furthermore, collective rights confer upon those who are
entitled to their enjoyment, special status in relation to the rest of the pop-
ulation. This special treatment necessarily reflects the minority situation of
those collectivities. It is through such measures that a real, and not simply
a formal equality is achieved.
This study will first examine the scope of the various domestic pro-
visions in order to determine whether implementation of article 27 of the
Covenant has been fully realized. In this light, it will be shown how the
equality rights clause of the Charter and the special measures relating to
minority protection complement one another.
At the same time, however, equality and non-discrimination and the
conferring of special rights on minorities, can lead to antagonism, if not
contradiction. The second part of the paper will focus on two sets of conflicts
the first concerning internal conflicts in Canadian law between the Chart-
–
er’s equality and minority rights and the second dealing with the Charter’s
compliance with the equality provisions of the Covenant.
The final part will attempt to assess the response of the courts to the
interplay between equality and minority rights. Case law on constitutional
minority language guarantees will be examined in an effort to discern the
possible judicial interpretations of the internal conflicts embodied in the
Charter. The courts, it will be shown, must arbitrate these conflicts and this
paper will consider certain legal notions found in the Charter to which the
courts may resort. A critical notion, in this regard, will be that of collective
rights, and the study will conclude with a discussion of collective rights in
Canadian constitutional law.
I. The Scope of the Minority Language and Cultural Guarantees of the
Charter
It is generally acknowledged that the Charter was enacted, in part, in
furtherance of Canada’s international obligations arising as a result of the
1976 ratification of the Covenant.Il Accordingly, it is essential to compare
the protection afforded by that instrument with the guarantees contained
in the Charter in order to determine whether Canada may be faulted for
breach of its international obligations.
ISee, e.g., Cohen & Bayefsky, supra, note 5 at 268 and 272.
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[Vol. 31
Article 27 is the key provision in the Covenant designed to protect
linguistic, religious and cultural (or, in the language of article 27, ethnic)
minorities. The Charter deals separately with ethnic and cultural minori-
ties,12 and with linguistic minorities.’ 3 It is important to consider both cat-
egories with some attention.’ 4 In so doing, I will distinguish between the
sections of the Charter dealing with rights conferred upon anglophone and
francophone minorities and those concerning other minority rights.
A. Language Guarantees – Sections 16 to 20 and 23 of the Charter
The status of a minority language, as an “official language” to be used
by the various government and state agencies, is the first question to con-
sider. The UnitedNations Study on theRights ofPersons Belonging to Ethnic,
Religious and Linguistic MinoritiesO5 noted the diversity of practices adopted
in the various countries examined. The Rapporteur, in fact, refused to enun-
ciate a uniform rule in this area, insisting only that
in all cases where a minority language does not have official status, adequate
facilities should be made available to members of the minority linguistic group
to ensure that they are not at a disadvantage merely because they speak a
different language from the majority. In judicial proceedings and relations with
the authorities, for example, provision should be made for a system of trans-
lation at the expense of the State.16
The Canadian Constitution confers special status on minorities at-
tached to the two principal language groups in the country. According to
2Supra, note 10.
13Supra, note 9.
14S. 93 of the Constitution Act, 1867 contains guarantees for certain religious minorities in
Canada. A discussion of these does not fall within the purview of the present study.
‘5 1n this study which concerns the implementation of art. 27 of the Covenant, supra, note
3, the Special Rapporteur of the UN Subcommission on Prevention of Discrimination and
Protection of Minorities, F Capotorti, conducted a survey on the present status in law of
cultural, religious and linguistic minorities from many countries and made some interesting
findings. As Capotorti reports, supra at 6, it was impossible for the United Nations agencies
to agree on an official definition of the concept of “minority”. However, Capotorti proposed
the following definition, supra at 96:
A group numerically inferior to the rest of the population of a State, in a non-
dominant position, whose members – being nationals of the State – possess ethnic,
religious or linguistic characteristics differing from those of the rest of the population
and show, if only implicitly, a sense of solidarity, directed towards preserving their
culture, traditions, religion or language.
For legal opinions on this subject, see Dinstein, supra, note 3; Y. Dinstein, “Cultural Rights”
(1979) 9 Israel Y.B. Hum. Rts 58 at 69; Claydon, supra, note 8; Tabory, supra, note 8; and
Verdoodt, supra, note 8. The United Nations Study concludes with recommendations as to
what, in Capotorti’s opinion, ought to be the rights accorded to minorities under the Covenant.
This paper will draw upon several of those recommendations.
16Capotorti, ibid. at 101.
1985]
MINORITY AND EQUALITY RIGHTS
the standards set out in the United Nations Study, the rights contained in
sections 16 to 20 of the Charter and in certain other provisions of the
Canadian Constitution 7 regarding such groups, go well beyond the mini-
mum required under article 27 of the Covenant.18 There are comparatively
fewer provisions in the Charter, however, concerning ethnic and linguistic
minorities whose language is other than French or English. In fact, only
section 14 may be regarded as having application in this area even though
it is not aimed primarily at conferring minority rights. This provision gives
everyone who is a party or witness in any proceedings and who does not
understand or speak the language in which the proceedings are conducted
(or who is deaf), the “right to the assistance of an interpreter”. It does not
apply only to members of a minority, even though it obviously acquires
particular practical importance for such people.19
Consequently, as regards the “official” use of minority languages, the
Canadian Constitution may be regarded as more generous concerning the
status of English and French than international law standards require. On
the other hand, the Charter falls short of the standard required by article
27 of the Covenant regarding other minority languages.20
The United Nations Study contains similar recommendations concern-
ing the educational rights of both cultural and linguistic minorities under
the Covenant.2’ Although there may exist linguistic minorities which share
‘7See supra, note 9.
‘8However, only agencies of the federal government and certain provinces (Quebec, Manitoba
and New Brunswick) are subject to these constitutional provisions. In the other provinces any
rights that benefit the francophone minorities arise from legislative provisions or regulations.
It should also be pointed out that although the provisions of the Constitution of Canada
concerning the status of the official languages benefit all those who speak English or French,
and not solely members of official language minorities, it is nevertheless the latter whom the
constitutional guarantees aim at protecting. In terms of their purpose, ss 16-20 of the Consti-
tution Act, 1982, s. 133 of the Constitution Act, 1867 and s. 23 of the Manitoba Act, 1870 are
truly “special measures for protecting minorities”.
19The object of s. 14 is not to protect one or more linguistic minorities but to guarantee
every individual, regardless of his or her language, the right to a fair trial. This is, therefore,
an individual right, unlike those of ss 16-20 and 23 of the Charter, which are collective rights.
On the distinction between individual and collective rights, see infra, notes 29, 113 and 114.
On s. 14 of the Charter, see A. Morel, “Certain Guarantees of Criminal Procedure” in W.S.
Tarnopolsky & G.-A. Beaudoin, eds, The Canadian Charter of Rights and Freedoms: Com-
mentary (Toronto: Carswell, 1982) 367 at 377.
20As Capotorti suggests in his recommendations, supra, note 3 at 101, it would be necessary
to give all minorities, where the number so warrants, the right to use their language in dealing
with government (at least as regards the most important administrative services). See also
Dinstein, supra, note 3 at 120.
2 1Capotorti, ibid. at 100-1. See also V. Van Dyke, “Equality and Discrimination in Education:
A Comparative and International Analysis” (1973) 17 Int’l Stud. Q. 375.
McGILL LAW JOURNAL
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the majority culture, 22 most often the divisions between minority and ma-
jority are both cultural and linguistic. Furthermore, the education system
is still the principal and indispensable means of preserving and protecting
a minority language or culture. It has been widely held that article 27 of
the Covenant requires only that the State Parties allow minorities to set up
private schools, at their own expense, to provide instruction in their lan-
guage. The State, then, is not legally obliged either financially or materially
to assist the minorities concerned, or a fortiori, to set up a minority public
school system for their benefit.2 3 However, the United Nations Study em-
phasizes that a State which contains linguistic or cultural minorities has an
obligation to assist and make available to them (to the extent that its level
of material development so allows) the necessary physical resources in order
to establish and operate schools where instruction is given in the minority
language.24
The Charter contains a section guaranteeing members of the franco-
phone and anglophone minorities the right to have their children educated
out of public funds in their respective language at elementary and secondary
22See Dinstein, supra, note 3 at 112: “The linguistic minority may ethnically belong to the
majority people (e.g. Yiddish-speaking Jews in Israel) or to a minority people (say, Christian
Arabs in Israel).”
23See e.g., Dinstein, ibid. at 118-20 and supra, note 15 at 69-73; Van Dyke, supra, note 21
at 385-9. Art. 5(1)(c) of the Convention Against Discrimination in Education, 14 December
1960, 429 U.N.T.S. 93, which expands upon art. 27 of the Convenant in this regard, provides
that:
5.
(1) (c) It is essential to recognize the right of members of national minorities
to carry on their own educational activities, including the maintenance of
schools and, depending on the educational policy of each State, the use or
the teaching of their own language, provided however. (i) That this right is
not exercised in a manner which prevents the members of these minorities
from understanding the culture and language of the community as a whole
and from participating in its activities, or which prejudices national sover-
eignty; (ii) That the standard of education is not lower than the general stan-
dard laid down or approved by the competent authority; and (iii) That attendance
at such schools is optional.
Dinstein, supra, note 15 at 72, makes the following comment on the scope of art. 5 (1) (c):
Even though the matter is not explicitly resolved in Article 5(1)(c), it stands to
reason that, as a rule, each minority must maintain its schools at its own expense.
Needless to say, a State is not barred from subsidizing such schools if it wishes
to. But there does not seem to be any general obligation incumbent on the State,
under international law, to finance schools that preserve the minority’s traditions.
24Capotorti, supra, note 3 at 100-1. See also Dinstein, supra, note 15 at 73; Van Dyke, ibid.
at 387; L.B. Sohn, “The Rights of Minorities” in L. Henkin, ed., The International Bill of
Rights: The Covenant on Civil and Political Rights (New York: Columbia University Press,
1981) 270 at 284-5.
1985]
MINORITY AND EQUALITY RIGHTS
levels where there is a sufficient number of eligible children.25 Here again,
the Charter gives English- and French-speaking minorities broader rights
than those arising under article 27 of the Covenant. In the area of education,
no provisions concerning the other linguistic and ethnic minorities can be
found in the Charter –
at least not at first glance. The drafters did not
think it appropriate to include a provision expressly guaranteeing the right
of a minority to establish private schools at its own expense.
B. Cultural Guarantees – Section 27 of the Charter
Article 27 of the Covenant gives members of minorities “the right, in
community with the other members of their group, to enjoy their own
culture …-. 26 This naturally raises the problem of how to define the concept
of “culture”. The definition accepted by the relevant United Nations agen-
cies and institutions is very general: “All that is inherited or transmitted
through society” 27 including language, literature, religion, art and science
25 23.
(1) Citizens of Canada
(a) whose first language learned and still understood is that of the English or
French linguistic minority population of the province in which they reside, or
(b) who have received their primary school instruction in Canada in English
or French and reside in a province where the language in which they received
that instruction is the language of the English or French linguistic minority
population of the province, have the right to have their children receive pri-
mary and secondary school instruction in that language in that province.
(2) Citizens of Canada ofwhom any child has received or is receiving primary
or secondary school instruction in English or French in Canada, have the right
to have all their children receive primary and secondary school instruction in
the same language.
(3) The right of citizens of Canada under subsections (1) and (2) to have their
children receive primary and secondary school instruction in the language of
the English or French linguistic minority population of a province
(a) applies wherever in the province the number of children of citizens who
have such a right is sufficient to warrant the provision to them out of public
funds of minority language instruction; and
(b) includes, where the number of those children so warrants, the right to have
them receive that instruction in minority language educational facilities pro-
vided out of public funds.
For an analysis of the scope of s. 23 see J.E. Magnet, “Minority-Language Educational Rights”
(1982) 4 Sup. Ct L. Rev. 195; P.W. Hogg, Canada Act 1982: Annotated (Toronto: Carswell,
1982) at 60-4; D. Proulx, “La pr6carit6 des droits linguistiques scolaires ou les singulires
difficult6s de mise en oeuvre de l’article 23 de la Charte canadienne des droits et libertls” (1983)
14 R.G.D. 335; P. Foucher, “Les droits scolaires des acadiens et ]a Charte” (1984) 33 U.N.B.L.J.
97; P. Carignan, “De la notion de droit collectif et de son application en mati~re scolaire au
Qu6bec” (1984) 18 R.J.T. I at 72ff.
26Supra, note 4.
27M. Leiris, Race and Culture (Paris: UNESCO, 1951) at 20-1. Capotorti, supra, note 3 at
37, adopts Leiris’ definition of culture.
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or, in other words, all knowledge which humans transmit from one gener-
ation to the next.
If article 27 of the Covenant, according to the United Nations Study,
requires that State Parties not oppose any efforts that minorities may make
to preserve and develop their culture, it also has the effect of requiring the
State to assist them materially, within the limits of its resources. 28
The only provision of the Charter specifically devoted to cultural rights
is section 27 which provides that “[t]his Charter shall be interpreted in a
manner consistent with the preservation and enhancement of the multi-
cultural heritage of Canadians”. 29 Since this provision is interpretative, it
does not directly confer additional rights. How are the courts likely to apply
section 27 in order to give it effect? In answering this question it is important
to keep in mind that language and culture are closely related and that con-
sequently, even though section 27 refers expressly only to culture and not
to language, it is nonetheless likely to have certain effects on minority lan-
guage rights.
First, section 27 may serve to limit the scope of other provisions of the
Charter to the extent that the latter would otherwise be regarded as pre-
venting the adoption of measures necessary for the preservation and en-
hancement of the cultural (and consequently, linguistic) heritage of certain
Canadian minority groups. Subsection 15(1) is one of the provisions which
section 27 might limit. Imagine that a western province decided to adopt
special legislative measures to assist an ethnic minority, which will probably
also be a linguistic minority, for example, Germans or Ukrainians in Man-
itoba. The individuals belonging to that minority group would be treated
differently from persons belonging either to the majority or to another mi-
nority which is not so favoured. 30 This difference in treatment could be
regarded as being contrary to the right to equality of individuals who are
not members of the minority in question and, consequently, as being in-
compatible with subsection 15(1). This will not be the case, however, if
section 27 is read by the courts as modifying the meaning and application
of the principle of equality in order to allow for measures aimed at achieving
the constitutional objective of preserving and enhancing our multicultural
28Capotorti, ibid. at 99-100.
29S. 27 obviously protects minorities, since culture is not an individual, but rather a collective,
fact. Any rights arising under s. 27 are consequently collective in nature, although they may
be capable of being exercised individually.
30There will always be linguistic and cultural minorities which are not substantial enough,
numerically, to obtain the same advantages as minorities benefiting from special protective
measures. Granting a linguistic or cultural collectivity such rights inevitably results in a dif-
ference in treatment as compared with other, less favoured, groups.
1985]
MINORITY AND EQUALITY RIGHTS
heritage. 3′ In this way section 27 can facilitate the adoption of legislative,
regulatory or, more prosaically, budgetary measures which will complement
the Constitution with respect to the protection of ethnic and linguistic mi-
norities other than those which already have special constitutional status.
Section 27 may have another use. In combination with other sections,
it might be relied on to interpret the Charter as implicitly containing lin-
guistic and cultural rights other than those expressly mentioned. For ex-
ample, section 27 may be used to interpret section 23 of the Charter as
conferring not only the right to education in the language of the minority,
but also a right to instruction in the minority culture. Even though the latter
provision mentions language only as a medium of education without any
reference to its cultural content, it is nonetheless difficult to maintain a
complete separation between the two. Even if this were possible, moreover,
education provided in the language of the minority without any reference
to its underlying culture would be of only limited value and would not give
the minority concerned the benefits which the system is supposed to pro-
vide.32 Consequently, section 23 implicitly contains a requirement that ed-
ucation in the language of the minority be accompanied by instruction in
certain aspects of the minority culture. If we now combine section 23 with
section 27, the reasoning that has just been advanced becomes even more
compelling. If section 23 is to be interpreted in a manner consistent with
the preservation and enhancement of multiculturalism, education in the
language of the minority should not be completely divorced from instruction
in the minority culture. Thus, section 27 might be used to expand the sec-
tions concerning the protection of the education rights of official language
minorities. 33
3 Professor Hogg, supra, note 25 at 71-2, feels that “s. 27 may prove to be more of a rhetorical
flourish than an operative provision”; W.S. Tarnopolsky, “The Equality Rights” in Tarnopolsky
& Beaudoin, supra, note 19, 395 at 437-42, on the other hand, is of the view that s. 27 may
have certain positive effects for minorities. For an indication of the present case law under s.
27, see infra, notes 33 and 39.
32preservation of a language without the cultural content that nourishes it is of dubious
benefit. As Dinstein says, supra, note 15 at 70-1: “Experience –
for example, in the case of
Soviet Jewry –
shows that what really counts is not whether members of an ethnic minority
can obtain education in their own language, but whether they can study their cultural heritage
in any language.” [footnotes omitted]
33As language and culture are intimately connected, it is not surprising that the courts should
sometimes use s. 27 to give a broad and generous interpretation to the sections concerning the
protection of official language minorities. In Reference Re Education Act of Ontario and Mi-
nority Language Education Rights (1984), 47 O.R. (2d) I at 39, 10 D.L.R. (4th) 491, the Ontario
Court of Appeal held that
[i]n the light of s.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
McGILL LAW JOURNAL
[Vol. 31
Section 27, since it is a general interpretative provision, applies to all
provisions of the Charter. It is likely to be of greatest significance, principally
in combination with subsection 15(1), with respect to the “non-official”
language groups of this country. For example, where a minority is obliged
to communicate with government agencies exclusively in the language of
the majority or to send its children to schools where instruction is given
only in the majority language, can it be said that the right to equality is
respected? The minority is certainly treated differently and the difference is
to its disadvantage. 34
In matters of education, in particular, it is obvious that the children of
a minority, who receive instruction in a language that is not their own, do
not derive the same benefits as those who are educated in their mother
tongue. In extreme cases, the majority education system may be so ineffec-
tive that the right to education (to the extent that it is a constitutionally
guaranteed right) of these children is no longer respected.3 5
be said to reflect the minority culture and appertain to the minority.
However, a certain tension might also exist between s. 27 and ss 16-20 and 23 of the Charter
see infra, notes 99-102 and accompanying text.
341t has been held that the obligation to use the language of the majority exclusively did not
involve discrimination against the minority because the rule was the same for everyone. See
Association des Gens de lAir du Quebec Inc. v. Lang (1978), [1978] 2 FC. 371 at 378, 89 D.L.R.
(3d) 495 (C.A.) [hereinafter cited to EC.]; Devine v. A.G. Quebec (1982), [1982] C.S. 355 at
374-5; Fordv. A.G. Quebec (1984), [1985] C.S. 147 at 152. While it may be argued, as in these
decisions, that a law which requires the minority to speak and use the language of the majority
applies equally to everyone, it is obvious that this manner of interpreting the concept of equality
reduces it to complete insignificance. Equality does not consist in treating identically those
who are in different situations but in taking such differences into account. As Van Dyke states,
supra, note 21 at 384:
If all pupils get instruction in their different mother tongues, it would seem that
the requirements of equality would be served. Conversely, if pupils who speak
different languages are in the same school and if one of the languages becomes the
medium of instruction, then some students automatically gain an advantage and
others are handicapped.
35The right to education is not expressly enshrined in the Charter, but it arises implicitly
under s. 23 (as regards the members of the official language minorities) and s. 2 (freedom of
thought, belief, opinion and expression). See, e.g., P. Bender, “The Canadian Charter of Rights
and Freedoms and the United States Bill of Rights: A Comparison” (1983) 28 McGill L.J. 811
at 854-5. Moreover, even if there were no right to education guaranteed in the Charter, if the
State decides to offer a service to the public, it would have to respect the principle of equality
and that of non-discrimination contained in s. 15(1) in so doing. Thus the European Court of
Human Rights ruled that, even though the European Convention on Human Rights does not
require the State Parties to provide education to their populations, it nevertheless prohibits
them, if they choose to do so, from acting in a discriminatory manner. See Case relating to
Certain Aspects of the Laws on the Use of Languages in Education in Belgium, (1968) 11 Eur.
Y.B. Hum. Rts 832 at 856-68 [hereinafter the Belgian Linguistic Case]. For an analysis of this
decision, see F.G. Jacobs, The European Convention on Human Rights (Oxford: Clarendon,
1975) at 169ff.
1985]
MINORITY AND EQUALITY RIGHTS
Canadian minorities, other than those referred to in section 23, could
thus rely on sections 15(1) and 27 to demand that English or French language
courses be set up to prepare their children for public education in the ma-
jority language, or that fully bilingual (French/English-minority language)
instruction be organized for the early school years. 36 It might also be possible
for minorities to rely on sections 15(1) and 27 to demand that the State
assist minority private schools financially. Such demands could be based on
the right of children of the minority to be treated equally with those of the
majority37 as interpreted and applied in light of the objective of enhancing
and promoting multiculturalism. A culture is, after all, only maintained by
imparting it to new generations and such transmission takes place in large
part, if not exclusively, through the school system. A demand of this kind
could also be based on the right to education if it is accepted that such a
right is implicitly guaranteed by the Charter and that the education so guar-
anteed must be useful and meaningful to those receiving it.38
Similarly, in interactions between citizens and government agencies,
the exclusive use by the State of the majority language, in addition to placing
members of linguistic minorities at a disadvantage, may also deny them the
benefit of other constitutional rights. One can imagine, for example, a sit-
uation where, in an election or referendum, only the majority language is
used on the ballots; this would greatly reduce the democratic rights of the
minority which are guaranteed by section 3 of the Charter.
The reasoning advanced above could also be applied to the “official”
use of minority languages. The preservation and enhancement of a minority
361n Lau v. Nichols, 414 U.S. 563 (1974), non-English speaking Chinese-American students
attending San Francisco public schools alleged that teaching classes only in English deprived
them of a meaningful educational opportunity. The United States Supreme Court ruled that
Title VI of the Civil Rights Act of 1964 s. 601, 42 U.S.C. 2000d required compensatory
programs. Following this ruling, bilingual and bicultural programs were developed to ease the
difficulties of linguistically disadvantaged students. See Note, “Bilingual Education and De-
segregation” (1979) 127 U. Pa L. Rev. 1564. See also W.P. Foster, “Bilingual Education: An
Educational and Legal Survey” (1976) 5 J. Law & Educ. 149; K.M. Fong, “Cultural Pluralism”
(1978) 13 Harv. C.R.-C.L. L. Rev. 133; E.B. Grubb, “Breaking the Language Barrier The Right
to Bilingual Education” (1974) 9 Harv. C.R.-C.L. L. Rev. 52; C.J. Reeber, “Linguistic Minorities
and the Right to an Effective Education” (1972) 3 Cal. W. Int’l L.J. 112.
371n reality, granting a minority the right to a bilingual education (or to French or English
language preparatory courses) does not ipso facto create full equality; at most the inequality
between the minority and majority is slightly lessened.
38See Reeber, supra, note 36 at 122:
An inferior education, the reinforced conditioning to failure, and excessive dropout
rates are not the only detrimental results produced by an education presented solely
in a non-native tongue. A British educator considered the continual inability of
immigrants … to speak English was the surest route to defacto segregation.
REVUE DE DROIT DE McGILL
[Vol. 31
culture require that the language of the cultural group concerned be given
a certain status in the context of government operations. 39
It must be emphasized, however, that there is a condition that must be
met before subsection 15(1), in conjunction with section 27, can be inter-
preted in this manner. The subsection must be regarded as conferring the
right to claim benefits in certain circumstances, and not merely as a non-
interference right, or as a standard which merely prohibits irrational and
discriminatory distinctions. The exercise of language and cultural rights
generally requires that those entitled be able to demand a benefit or material
advantage from the State.
The concept of equality which the judiciary is likely to find embodied
in section 15 will probably lie between that of “formal” equality, as ad-
vocated by classical liberalism, and the socialist (or “egalitarian”) concep-
tion of equality, which holds that the State should intervene to eliminate
material inequalities in order to establish a “genuine” equality between
individuals. 40 According to the former concept, the State must merely refrain
from creating inequalities or aggravating those which already exist. Under
the latter, the State is obliged to eliminate existing inequalities. In other
39The present case law under s. 27 shows that the courts are of the opinion that this provision
requires a measure of equality of treatment among the various cultural groups of Canada. In
R. v. Videoflicks (1984), 48 O.R. (2d) 395 at 427-8, 14 D.L.R. (4th) 10, the Ontario Court of
Appeal used s. 27 of the Charter as an aid in interpreting s. 2(a) (freedom of conscience and
religion) and concluded that
a law infringes freedom of religion, if it makes it more difficult and more costly to
practise one’s religion … , such a law does not help to preserve and certainly does
not serve to enhance or promote that part of one’s culture which is religiously based.
The same approach was taken by the Provincial Court of Alberta in R. v. W.H. Smith Ltd
(1983), [1983] 5 W.W.R. 235 at 258, 26 Alta L.R. (2d) 238 where Jones J. said: “In requiring
the Charter to be interpreted in a manner consistent with the preservation and the enhancement
of the multicultural heritage of Canadians, the section [s. 27], in my opinion, directs that a
measure of equal treatment be dispensed when interpreting any problem involving the Charter
and a problem involving multicultural considerations.”
The Court also expressed the view that religion is part of culture and that in consequence,
s. 2(a) of the Charter, when read in light of s. 27, prevents the State from unduly favouring
the beliefs of certain citizens at the expense of the religious liberty of others. Nonetheless, it
was held that the equality of treatment required by s. 27 is not absolute. Finally, in R. v. Big
M Drug Mart Ltd (1985), [1985] S.C.R. 295 at 337-8, 18 D.L.R. (4th) 321, Dickson C.J.C held
in interpreting s. 2(a) of the Charter,
that to accept that Parliament retains the right to compel universal observance of
the day of rest preferred by one religion is not consistent with the preservation and
enhancement of the multicultural heritage of Canadians. To do so is contrary to
the expressed provisions of s. 27.
40M. Gold, “A Principled Approach to Equality Rights: A Preliminary Inquiry” (1982) 4
Sup. Ct L. Rev. 131 at 156.
1985]
MINORITY AND EQUALITY RIGHTS
words, it must attempt to equalize the situations of disparately placed in-
dividuals, which often involves giving certain benefits or material advan-
tages to those in disadvantaged situations. 41 The “post-liberal” or “neo-
liberal” ideology underlying the Charter should not rule out the possible
use of certain sections, subsection 15(1) in particular, as a basis for the right
to claim benefits. The Charter contains provisions whose implementation
requires, either expressly or implicitly, that the State make necessary phys-
ical resources available to the beneficiaries of the right in question: examples
include sections 14 and 23, both concerning language use. The concept of
“recipient” rights (or rights giving rise to State benefits for the beneficiaries),
then, was not unfamiliar to the drafters. 42
Finally, subsection 15(1) explicitly declares the right to “equal benefit
of the law”. This provision might be interpreted as allowing certain indi-
viduals to demand that the State provide them with the necessary physical
resources to be equal with other individuals. 43
For these reasons, it is therefore quite possible that certain provisions
of the Charter, in particular subsection 15(1) together with section 27, will
be used as a basis for the right to claim government benefits with regard to
the protection of Canada’s linguistic and cultural minorities.
Obviously the interpretation of subsection 15(1) with section 27 will
not go so far as to allow minorities other than those whose language is
French or English to claim rights identical to those enjoyed by the latter
under sections 16 to 20 and 23 of the Charter. The scope of these provisions
is limited to certain groups precisely because the intention was to give French
and English a special status and special treatment compared with other
minority languages. However, the foregoing considerations do not preclude
the argument that the combination of sections 15(1) and 27 might give rise
to certain linguistic rights for these “other” minorities even if these rights
are different from, and not as extensive as, the rights of the anglophone and
francophone minorities.
41Hough, supra, note 2 at 312 states that “where government’s violation of the right to equality
in the law involves not exacerbating or creating inequality but rather failing to lessen it, it
violates the right… to remedial equality”. For a discussion of “negative” and “affirmative”
rights in the Charter and the Bill of Rights see Bender, supra, note 35 at 822ff.
42For the monetary obligations which s. 14 imposes on the State, see M. Manning, Rights,
Freedoms and the Courts: A Practical Analysis of the Constitution Act, 1982 (Toronto: Emond-
Montgomery, 1983) at 457-8, para. 544. Bender, ibid. at 826 n. 40, underlines a few other
respects in which the Charter may create rights that are affirmative in character. Hough, ibid.
at 320, sets out certain objections that might be raised against interpreting s. 15(1) as the basis
for a right to “remedial equality”.
43From the same perspective mention can be made of s. 36(l) of the Constitution Act, 1982,
under which the federal and provincial governments are committed to promoting equal op-
portunities for all Canadians and providing essential public services to them.
McGILL LAW JOURNAL
[Vol. 31
It must still be pointed out that any rights which the courts might thus
derive from the combination of section 27 with other provisions of the
Charter may (like all rights and freedoms guaranteed by the Charter) be
limited under section 1.44 Even if the courts find, for example, that sections
15(1) and 27 give all Canadian ethnic minorities (other than those referred
to in section 23) the right to send their children to a bilingual public school,
a province might nevertheless invoke certain “overriding concerns” to es-
tablish that it could reasonably limit the right in question. One such concern
might relate to the financial cost of introducing such a school system. If the
provincial government maintained that the cost was prohibitive, the courts
might find it difficult to question this allegation.
A second possible justification or “overriding concern” is suggested by
Swiss case law and by the decision of the European Court of Human Rights
in the Belgian Linguistic Case.45 Switzerland and Belgium both apply the
principle of “territoriality” in matters of language. Simply put, this principle
allows each national language group a territory within which it can impose
official and educational unilingualism. In other words, each language group
can require of minorities living within its territory that their correspondence
with the government be exclusively in the majority language and that their
children be sent to schools in which that language is the only language of
instruction. The principle of territoriality requires that each language group
has an “area of linguistic security” where it is sheltered from “linguistic
competition” from other groups. In this way, each collectivity can protect
its “linguistic homogeneity”.
441. The Canadian Charter ofRights and Freedoms guarantees the rights and freedoms set
out in it subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
45For the decision of the European Court of Human Rights, see supra, note 35. For case law
in Switzerland, see J. Woehrling, “De certains aspects de la rrglementation linguistique suisse
en matire scolaire” inttudesjuridiques en l’honneude Jean-Guy Cardinal (Montreal: Th~mis,
1982) 453. See also Van Dyke, supra, note 21 at 384ff; G. Hraud, “L’arret du Tribunal fed6ral
suisse du 31 mars 1965 et la protection des aires linguistiques” in Mlanges offerts d Paul
Couzinet (Toulouse: Universit6 des sciences sociales de Toulouse, 1974) 373; E Fleiner, “Le
droit des minoritrs en Suisse” in M6langes Maurice Hauriou (Paris: Sirey, 1929) 285; K.D.
McRae, Switzerland: Example of Cultural Coexistence (Toronto: Canadian Institute of Inter-
national Affairs, 1964) at 1 Iff.; C. Hegnauer, DasSprachenrecht derSchweiz (Zurich: Schulthess,
1947) at 56ff.; Verdoodt, supra, note 8 at 50ff.; B. Dutoit, “Droit et plurilinguisme en Suisse”
in Travaux du sixi~me colloque international de droit compar6 (Ottawa: University of Ottawa
Press, 1969) 39; J.B. Paradis, “Language Rights in Multicultural States: A Comparative Study”
(1970) 48 Can. Bar Rev. 651 at 654ff.; C. Marti-Rolli, La liberte de la langue en droit suisse
(Zurich: Juris Druck und Verlag, 1978) at 54ff.
1985]
MINORITY AND EQUALITY RIGHTS
In Switzerland and Belgium this principle works to the advantage of
both majority and minority.46 Protection of its language is, however, ob-
viously more important for the latter.47 Switzerland and Belgium are un-
deniably “free and democratic’ societies and in both countries the application
of the principle of territoriality has been seen as being compatible with the
constitutional (or international) protection of fundamental minority rights.48
They are perhaps good examples in demonstrating that the principle of
territoriality –
and the protection of linguistic homogeneity which is the
aim of that principle – would constitute a sufficient “overriding concern”,
in the context of section 1, to restrict the linguistic and cultural rights of
Canadian minorities (both the rights arising implicitly from sections 15(1)
and 27 and those which are expressly contained in other provisions of Charter).
II. Conflicts Between the Principle of Equality and Minority Rights in the
Charter
A. Sections 15 and 27 of the Charter
While the provisions concerning the protection of minorities largely
complement the right to equality, they may also be seen to be at variance
with it. Subsection 15(1) expressly prohibits distinctions based on ethnic
(or cultural) origin and implicitly prohibits those based on language. It
requires that individuals be treated without regard to their attachment to a
particular linguistic or cultural collectivity. The provisions of the Charter
concerning the protection of minorities ensure, on the contrary, that certain
461n Belgium, the Flemish constitute a majority in the country as whole, while the French-
speaking Walloons are a minority. In Switzerland, German speakers form a majority both
nationally and in nineteen cantons, while francophones comprise a majority in six cantons
and Swiss Italians in only one.
471n Canada, Quebec is in the peculiar situation where the majority language is threatened
in both status and integrity by competition from the minority English language within its own
borders. See J. Woehrling, “A la recherche d’un concept juridique de la langue: presence et
qualit6 du franqais dans la legislation linguistique du Quebec et de ]a France” (1981-82) 16
R.J.T. 457.
481n its decision in the Belgian Linguistic Case, supra, note 35, the European Court of Human
Rights held that, except on one minor point, the Belgian language legislation did not contravene
the provisions of the European Convention on Human Rights (and, in particular, that it did
not contravene the principle of equality or of non-discrimination). In Association de l’Ecole
francaise und Mitbeteiligte v. Regierungsrat und Verwaltungsgericht des Kantons Zfirich (1965)
91 (lre partie) Arr~ts du Tribunal federal suisse at 480ff., a decision of 31 March 1965,
Switzerland’s Tribunal fed~ral ruled that regulations of the canton of Zurich requiring members
of the francophone minority to send their children to German-language schools were justified
by the need to preserve the linguistic homogeneity of the canton, despite the fact that the
federal Constitution guarantees everyone “freedom of language” (in other words, free use of
his mother tongue). This decision was subsequently affirmed on several occasions. See Woehr-
ling, supra, note 45 at 46 1ff.
REVUE DE DROIT DE McGILL
[Vol. 31
persons are treated differently from others precisely because they belong to
a minority. The constitutional objectives both of promoting the equality of
individuals and of protecting minorities cannot be realized without “con-
flicts of rights” appearing on certain occasions.
The conflicts likely to arise between subsection 15(1) and the rights of
minorities other than francophone or anglophone minorities will be the
easiest to resolve. It is sufficient in this regard to refer to what has been said
concerning the possible scope of section 27 of the Charter. If the federal
government or the provinces wished to confer certain special rights on one
of these linguistic and cultural collectivities and there was an apparent in-
compatibility between such special treatment and the principle of equality,
section 27 would make it possible to overcome any objections based on
subsection 15(1). Alternatively, it would be possible to rely on subsection
15(2) in certain cases for the same purpose, if the criteria governing its
application were met.
Respect for genuine – and not merely formal –
equality of individuals
belonging to an ethnic and linguistic minority should require that the State
make certain physical resources available. Nevertheless, all those who speak
a language different from that of the majority will not necessarily be given
the same rights. The inequality created, for example, by making the estab-
lishment of a bilingual school or bilingual classes conditional on a minimum
number of interested children will probably not be regarded as contrary to
subsection 15(1) since it is in order to give effect to that subsection that
certain collectivities are given special rights. Furthermore, it is simply not
conceivable that the State would guarantee all those living within its bound-
aries the right to special educational arrangements. 49 It may be argued that
where the same rights cannot be extended to all minorities they must, strictly
in accordance with the principle of equality, be denied to all. Section 27
can then be relied upon to maintain that Canada’s “traditional” minorities
must be given rights greater than those of linguistic and cultural groups
whose roots in the country are more recent.50 Consequently, one could argue
that any rights that may arise from sections 27 and 15(1) will be granted
49Such a claim would, of course, place a disproportionate burden upon the resources of the
State. See Capotorti, supra, note 3 at 6.
S. 27 of the Charter is aimed at promoting “the preservation and enhancement of the
multicultural heritage of Canadians” [emphasis added]. The concept of “heritage” (“patri-
moine” in the French text) seems to indicate an intention to give to long-established traditional
cultural groups and minorities rights greater than those given to more recently-established
ethnic groups. It is generally recognized, moreover, that immigrants to a country where language
or culture is different from their own cannot claim the same linguistic and cultural rights as
traditional groups living in that country: see H. Kloss, “Language Rights of Immigrant Groups”
(1971) 5 Int’l Migration Rev. 250.
1985]
MINORITY AND EQUALITY RIGHTS
only to certain collectivities that can be said to participate in Canada’s
multicultural “heritage”.
On the other hand, subsection 15(2) would probably make it possible
to extend particular rights to all groups or individuals that are “disadvan-
taged” by reason of their language or their culture. Minorities that have
recently settled in Canada are probably more socially and economically
disadvantaged than those that have been here longer and have had time to
carve out a place for themselves in Canadian society. Consequently, sub-
section 15(2) makes it possible to avoid an overly radical application of the
principle of equality in subsection 15(1) and authorizes special treatment
of “disadvantaged” groups, while section 27 plays a similar role with respect
to groups participating in the Canadian cultural “heritage” (where the cri-
terion seems to be the group’s “seniority”).
B. Compatibility of the Charter with the Covenant
Conflicts are also likely to arise between the principle of equality con-
tained in the Covenant and the rights conferred on French- and English-
speaking minorities by sections 16 to 20 and 23 of the Charter as well as
by section 133 of the Constitution Act, 1867 and section 23 of the Manitoba
Act, 1870.
The substance of sections 16 to 20 of the Charter is not exactly the
same as that of section 133 of the Constitution Act, 1867 and section 23 of
the Manitoba Act, 1870. Generally speaking, the rights under the Charter
are both broader and more precise in scope than those under the two earlier
constitutional statutes. 5′ In particular, whereas the institutional bilingualism
which is provided for under the latter statutes applies generally only to
judicial and legislative matters, 52 that which is provided for by the Charter
51For a detailed study of the differences between s. 133 of the Constitution Act, 1867 and s.
23 of the Manitoba Act, 1870 on the one hand, and ss 16 to 20 of the Charter on the other,
see J.E. Magnet, “The Charter’s Official Languages Provisions: The Implications of Entrenched
Bilingualism” (1982) 4 Sup. Ct L. Rev. 163 at 179ff.; A. Tremblay, “The Language Rights” in
Tamopolsky & Beaudoin, supra, note 19, 443 at 461ff.; H. Brun & G. Tremblay, Droit consti-
tutionnel (Montreal: Yvon Blais, 1982) at 566ff. See also Hogg, supra, note 25 at 53-9.
52However, the Supreme Court of Canada interpreted s. 133 of the Constitution Act, 1867
as also requiring that regulatory instruments (“delegated legislation”), or at least most of them,
be bilingual: See A.G. Quebec v. Blaikie (1979), [1979] 2 S.C.R. 1016 at 1027, 101 D.L.R. (3d)
394, 49 C.C.C. (2d) 359 [hereinafter Blaikie (No. 1) cited to S.C.R.]; A.G. Quebec v. Blaikie
(1981), [1981] 1 S.C.R. 312, 123 D.L.R. (3d) 15, 60 C.C.C. (2d) 524 [hereinafter Blaikie (No.
2) cited to S.C.R.]. See also Magnet, ibid. at 184-5.
McGILL LAW JOURNAL
[Vol. 31
also concerns government and administrative functions. 53 Since language
education rights only became entrenched in the Constitution in 1982, section
23 of the Charter does not have any counterpart in the Constitution Act,
1867 or in the Manitoba Act, 1870.
1. Education Rights – Section 23 of the Charter
Section 23, which gives the right to minority language education out
of public funds, provides francophone and anglophone minorities with spe-
cial treatment as compared with other cultural and linguistic minorities.
This difference in treatment (which prima facie contravenes articles 2(1)
and 26 of the Covenant54) may be justified by the fact that the French- and
English-speaking minorities are different from other Canadian minorities
(aboriginal peoples aside), if not always in their numerical significance, then
at least in the historical legitimacy of the rights they claim as Canada’s two
founding communities.55 Moreover, for obvious practical and financial rea-
sons, it is not possible to give all minority language groups living in Canada
the right to demand that the provincial governments provide them with
education in their mother tongue out of public funds.56 Consequently, it
does not seem that the Charter contravenes the principle of equality in the
Covenant when it restricts minority language education rights to franco-
phones and anglophones.
Once it is recognized that certain language groups have special rights
under the Charter, it becomes necessary to select the criteria which will be
used to determine which individuals belong to these groups and are con-
sequently legally entitled to the rights in question. 57
Section 23 of the Charter begins by distinguishing between those who
have Canadian citizenship and those who do not; the rights it guarantees
See infra, note 99.
53See s. 20 of the Charter. A detailed examination of the differences between the two sets of
provisions is beyond the scope of this study. Furthermore, since the interpretation and appli-
cation of the provisions of the Charter are currently posing the most problems and arousing
the greatest interest, we shall concentrate on these.
54Supra, note 4.
5The special status of the official language minorities is based on the principle of “dualism”.
56Capotorti, supra, note 3 at 6. In its decision in the Belgian Linguistic Case, supra, note 35
at 866, the European Court of Human Rights stated quite rightly that “to interpret [the Eu-
ropean Convention on Human Rights and its Optional Protocol] as conferring on everyone
within the jurisdiction of a State a right to obtain education in the language of his own choice
would lead to absurd results ….
57Even though the language rights in ss 16-20 and 23 of the Charter (as well as those in s.
133 of the Constitution Act, 1867 and s. 23 of the Manitoba Act, 1870) are collective rights in
terms of their purpose (see supra, notes 18, 19 and 29 and infra, notes 113 and 114), they
belong legally to individuals and it is up to the individual to enforce them.
19851
MINORITY AND EQUALITY RIGHTS
benefit only the former. This first criterion is compatible with the Covenant
and with the concept of minority which has been used in applying article
27. According to the definition which was adopted in the United Nations
Study, only nationals of the State from which the rights arising under article
27 are being claimed can be regarded as belonging to a minority entitled to
such rights.58
Two further criteria in section 23 determine which individuals belong
to the minorities in question and, consequently, are entitled to the rights
provided for. These criteria 59 are that of “first language learned and still
understood” (or, more simply, mother tongue) and that of the language in
which the parents, who wish to have a child educated in the language of
the minority, received their education.60 These distinctions, based on the
language of the individuals, are also compatible with the Covenant since
they are used to define the group of people contemplated by article 2761 and
58Supra, note 15. See also Capotorti, supra, note 3 at 12; Kloss, supra, note 50. It should be
pointed out that unlike s. 23 of the Charter, s. 73 of the Charter of the French Language,
R.S.Q., c. C-I l does not impose any citizenship requirements for attending English-language
minority schools in Quebec. S. 73(a) applies to children “whose father or mother received his
or her elementary instruction in English, in Qu6bec”. However, the Quebec Charter applies
only to kindergarten classes and elementary and secondary schools. College and university-
level institutions are consequently exempt from its application, as are unsubsidized private
schools at all levels. Furthermore, under the Regulation Respecting the Language of Instruction
ofPersons Staying in Quebec Temporarily, R.R.Q. 1981, c. C- 11, Reg. 6, the children of persons
staying temporarily may receive instruction in English if they obtain express authorization to
that effect. This authorization is issued for a period of three years and is renewable. Both s.
73 of the Charter of the French Language and the Regulation have been declared unconsti-
tutional as being incompatible with s. 23 of the Charter see Quebec Association of Protestant
School Boards v. A.G. Quebec (1984), [1984] 2 S.C.R. 66, 54 N.R. 196.
59See supra, note 25.
60These two criteria are contained in s. 23(l)(a) (commonly referred to as the “universal
clause”) and s. 23(l)(b) (commonly referred to as the “Canada clause”). It should be pointed
out that s. 23(2) contains a third criterion for entitlement to the right to instruction in the
minority language. S. 23(2), which is aimed at preserving the linguistic unity of family groups,
is likely to receive a very broad interpretation which would extend the right to instruction in
the minority language to a considerably wider number of beneficiaries than is provided for by
ss 23(l)(a) and 23(l)(b). On this point, see J. Woehrling, “De l’effritement A l’6rosion” in Le
statut culturel dufrancais au Quebec (Quebec: Editeur officiel, 1984) 416 at 426-7.
6tCapotorti, supra, note 3 at 15 points out that it is generally accepted that the State can
impose an objective test in order to determine entitlement under art. 27 of the Covenant:
When such a determination [e.g. whether an individual is a member of a given
group] must be made in order to apply a particular status to the individual con-
cerned, it can, in theory, be done on the basis of a definition provided by the law,
of the categorically expressed desire of the individual, or of objective criteria. ….
The objective criterion requires membership of a minority to be determined by the
presence of certain traits or characteristics which can be evaluated without reference
to a statement by the individual concerned.
One of the more exhaustive studies of this question of criteria for membership in an ethnic
REVUE DE DROIT DE McGILL
[Vol. 31
may be regarded as reasonably suited to, and adequate for, this purpose. 62
Finally, until Quebec “adopts” paragraph 23(1)(a) of the Charter pur-
suant to section 59 of the Constitution Act, 1982, the former provision
applies only to the other nine provinces. 63 A difference in treatment based
on residence thus becomes another potential source of conflict with the
equality principle of the Covenant. One need only think of a situation in-
volving two parents, the first of British origin living in Quebec and the
second of Belgian (francophone) origin living in Ontario, both of whom
have become Canadian citizens. The latter will have the right to have his
or her children educated in a French-language public school in his or her
province of residence under section 23, while the former will not have the
corresponding right to send his or her children to an English-language public
school. Is such a difference in treatment justified in terms of the standards
set out in the Covenant? It can be argued that the non-application of par-
agraph 23(l)(a) to Quebec is valid in so far as Quebec is in a special situation.
Quebec is the only Canadian province with a francophone majority which
is nevertheless a minority at a national level. That Quebec francophones
may be regarded as a “disadvantaged majority” in socio-economic terms
was brought to light in the report of the Laurendeau-Dunton Commission
in the 1960s and in the report of the Gendron Commission a few years
later.64 Although their situation has improved considerably since, it may be
considered that francophones in Quebec do not possess, even today, the
economic power normally associated with a majority group. 65 In fact, it can
be said that the anglophone community in Quebec has had considerably
or linguistic group is that by H. Kloss, Grundfragen der Ethnopolitik im 20. Jahrhundert (Die
Sprachgemeinschaften zwischen Recht und Gewalt) (Wien-Stuttgart: Wilhelm Braumaller Univ-
ersitdts-Verlagsbuchhandlung, 1969) at 223ff.
62It should be pointed out, however, that although s. 23(l)(b) is easy to apply, the same is
not true of s. 23(1)(a), which relies on the criterion of mother tongue. The experience with
Quebec’s Official Language Act, S.Q. 1974, c. 6 indicated the problems involved in applying
a criterion which requires a system of language tests. See Hogg, supra, note 25 at 62.
63Whereas it is in force in the nine other provinces, s. 23(1)(a) will not take effect for Quebec
until the National Assembly or Government of Quebec has so authorized. See s. 59 of the
Constitution Act, 1982.
64Canada, Report of the Royal Commission on Bilingualism and Biculturalism (Ottawa:
Queen’s Printer, 1967-69) (Commissioners: A. Laurendeau & A.D. Dunton); Quebec, Report
of the Commission of Inquiry on the Position of the French Language and on Language Rights
in Quebec, Books 1, 2, and 3 (Quebec: Editeur officiel, 1972) (Chair J.-D. Gendron) [hereinafter
the Report].
65See the figures cited in Quebec, Pour une vritablepolitique linguistique, by L. Dion (Quebec:
Minist~re des Communications, 1981) at 24ff.; Quebec Association of Protestant School Boards
v. A.G. Quebec (1982), [1982] C.S. 673 at 707, 140 D.L.R. (3d) 33, rev’d (1983), [1983] C.A.
77, 1 D.L.R. (4th) 573, afld (1984), [1984] 2 S.C.R. 66, 54 N.R. 196; E Vaillancourt, “La
Charte de la langue francaise du Qu6bec: un essai d’analyse” (1978) 4 Can. Pub. Policy 284.
1985]
MINORITY AND EQUALITY RIGHTS
greater social and economic power than its size alone can explain. It is
consequently a “dominant minority”, a situation which is explained in large
part by its being a part of the English majority in Canada.66 This situation
explains why the language of the majority in Quebec has less prestige, at-
traction and economic utility than the minority language and why, as a
result, linguistic “free competition” has been unfavourable to it.67
When there is a disproportionate relationship between the demographic
weight of majority and minority on the one hand, and their respective socio-
economic situations on the other, article 27 of the Covenant does not place
the same obligations on the State as in cases where the situation is “normal”,
that is, where the numerical majority is socially dominant. The United
Nations Study itself, as well as the very definition of the concept of “mi-
nority” adopted in that report, affirms this clearly. The only minorities
entitled to the rights provided for under article 27 are those in need of
protection; “dominant minorities” are excluded. 68 Conversely, it may be
argued that a “dominated majority” would not be subject to the obligations
arising under article 27.69
Canada’s Charter does not go so far as to divest the “dominated ma-
jority” of all its obligations inasmuch as it gives the anglophone minority
in Quebec rights identical to those of francophone minorities living in the
other provinces of Canada, even if their respective situations are quite dif-
ferent. 70 The only way the drafters of the Charter took these considerable
66See M.B. Stein, “Bill 22 and the Non-Francophone Population in Quebec: A Case Study
of Minority Group Attitudes on Language Legislation” in J.R. Mallea, ed., Quebec’s Language
Policies: Background and Response (Quebec: Presses de l’Universit6 Laval, 1977) 243 at 258ff.;
J.R. Mallory, “English-Speaking Quebeckers in a Separate Quebec” in R.M. Burns, ed., One
Country or Two? (Montreal: McGill-Queen’s University Press, 1971) 121 at 129ff.; H. Guindon,
“The Modernization of Quebec and the Legitimacy of the Canadian State” in D. Glenday, H.
Guindon & A. Turowetz, eds, Modernization and the Canadian State (Toronto: Macmillan,
1978) 212 at 230ff.
67The 1981 census reveals that in the demographic transfers between the French and English
speaking groups in Quebec, there is a net anglicization of the French group. There are more
“linguistic transfers” from French to English than from English to French. See C. Castonguay,
“Le v~ritable bilan de ‘anglicisation au Quebec”, LeDevoir[deMontral] ( 1I November 1983)
11 at 11-2.
68See the definition of the concept of “minority” adopted by Capotorti, supra, note 15: “A
group numerically inferior to the rest of the population of a State, in a non-dominant position
.”. [emphasis added] See also Capotorti, supra, note 3 at 11-2.
69Ibid. at 12: “It is obvious that dominant minority groups do not need protective measures,
while the oppressed majorities have rights which far exceed the very limited contents of article
27 of the Covenant.” See also Dinstein, supra, note 3 at 112.
701n fact, s. 23 will probably be of much greater benefit to the English in Quebec than to
French outside Quebec. The geographical concentration of Anglo-Quebeckers makes it less
difficult for them to meet the sufficient “number” requirements provided for in s. 23. Moreover,
since the anglophone minority in Quebec already enjoys its own educational facilities, it need
McGILL LAW JOURNAL
[Vol. 31
differences into account was in not making paragraph 23(1)(a) (the “uni-
versal clause”) applicable to Quebec until that province decides to adopt it
of its own initiative. This minor concession to Quebec’s special problems
is surely not contrary to the Covenant.
2.
“Official Language” Rights –
Sections 16 to 20 of the Charter
Sections 16 to 20 of the Charter, section 133 of the Constitution Act,
1867 and section 23 of the Manitoba Act, 1870 have the effect of giving
English and French the status of “official languages” (whether or not this
expression is used) with respect to the operations of the central government
and some of the provincial governments. The anglophone minority in Quebec
(section 133 of the 1867 Act), the francophone minorities in Manitoba 7’
and New Brunswick (section 23 of the 1870 Act and sections 16(2) to 20(2)
of the Charter) and, at the federal (or “central”) government level, the
francophone minority in Canada (sections 16(1) to 20(1) of the Charter),72
are all covered by these guarantees.
These sections are difficult to reconcile in certain respects with the
principle of equality in the Covenant.
The first inequality affects francophone minorities in provinces that are
not officially bilingual under the Constitution. There is no reason why these
groups should not enjoy the same protection of their language rights as the
not marshal evidence or fight court battles to obtain effective educational rights. The franco-
phone minorities, on the other hand, will have a harder battle on their hands. See Brun &
Tremblay, supra, note 51 at 570:
Le crit re du nombre suffisant est en lui-m~me de nature A laisser aux difierents
gouvernements beaucoup de jeu. Mais si l’on tient compte du contexte des r~seaux
scolaires existants, il a pour effet de rendre le droit de l’article 23 potentiellement
efficace au Quebec seulement, au b~n~fice des anglophones. L’uniformit6, qui d~jA
ignore Ia situation minoritaire du Quebec, n’est qu’apparente: elle cache en fait une
r~gle qui contraint uniquement la province qui justifiait en ]a mati~re certaines
restrictions.
7’When the Manitoba Act, 1870 was passed, the francophone population of that province
formed the majority. See Magnet, supra, note 51 at 165. Subsequently, the demographic re-
lationship was reversed, and this provision was invoked by Franco-Manitobans. Thus the
enactment of ss 16(2)-20(2) of the Charter in 1982 was thefirst time a constitutional provision
was adopted in order to protect the language rights of a francophone minority at a provincial
level.
72SS 17(I)-19(1) of the Charter re-enact, sometimes in greater detail, the rights provided
under s. 133 of the Constitution Act, 1867. These two clauses thus “duplicate” each other to
some extent. See also s. 21 of the Charter.
1985]
MINORITY AND EQUALITY RIGHTS
minorities who benefit from the above constitutional guarantees. 73 Even if
the provinces to which the Constitution’s official language provisions do
not apply enacted similar (or even better) statutory guarantees, such guar-
antees would not have supralegislative validity and, consequently, would
not be comparable to those entrenched in the Constitution. They would not
give the minorities concerned the same protection against the whims and
arbitrary conduct of the majority as does the Charter.74 To the extent that
the Constitution contains special protective measures for the anglophone
minority in Quebec and the francophone minorities in New Brunswick and
Manitoba but declines to give the same rights to French-speaking minorities
in other provinces, Ontario in particular, it is incompatible with articles
2(1), 26 and 27 of the Covenant.75
As is the case with section 23 of the Charter, the sections of the Con-
stitution dealing with official languages reveal a difference between the treat-
ment given to anglophone and francophone minorities and that given to
other Canadian cultural and linguistic minorities. It could be argued that
sections 16 to 20 of the Charter (as well as section 133 of the 1867 Act and
section 23 of the 1870 Act) apply to everyone, unlike section 23 of the Charter
which benefits only those who have Canadian citizenship and who belong
to the francophone or anglophone minority in their province of residence. 76
It is obvious, however, that an individual whose mother tongue (or most
frequently spoken language) is neither English nor French is not in a situ-
ation of equality with anglophones and francophones where these two lan-
guages are the only ones used by the government, even if the individual
concerned has the “freedom” to choose between English and French. 77
73Like s. 23 of the Charter, ss 16-20 should have been drafted so that they would apply
wherever the anglophone or francophone minority was sufficiently large. It is inconsistent, for
example, to guarantee in the Constitution the right of Franco-Ontarians to education in French,
and yet not to grant them a right to use their language in the province’s courts.
74That it was felt necessary to give additional protection to the language rights entrenched
in the Charter, by excluding ss 16-23 from the application of s. 33 of the Charter (the “override”
clause), provides further indication of the injustice and inequality suffered by the francophone
minorities in the provinces that are not subject to ss 16-20 (or s. 133 of the Constitution Act,
1867 or s. 23 of the Manitoba Act, 1870).
75
1n this respect, it must be concluded that Canada has not met its international obligations
under the Covenant and, consequently, is likely to be cited for non-compliance before the
United Nations Human Rights Committee. See Desjardins, supra, note 5 at 372ff.
76See supra, notes 58-62 and accompanying text.
77The opinion sometimes expressed in cases, supra, note 34, that a law which obliges the
minority to use the language of the majority involves no difference in treatment “because the
rule is the same for everyone” must be rejected. It does not follow, however, that the State
must give all languages spoken within its territory the status of official languages or provide
education in all those languages. Various considerations, based on the cost of bi- or multi-
lingualism or the linguistic homogeneity of the national society, may create restrictions on the
right to language equality on the ground that such restrictions are both reasonable and justi-
fiable. See supra, notes 49 and 56.
REVUE DE DROIT DE McGILL
[Vol. 31
This further inequality may be justified by considerations similar to
those that have already been raised with respect to section 23 of the Charter
the numerical significance of the anglophone and francophone minorities
and the historical legitimacy of their claims, 78 as well as practical and fi-
nancial considerations. 79 Consequently, it does not seem that the Canadian
Constitution contravenes the principle of equality in the Covenant when it
gives only English and French the status of official languages.
III. Judicial Response to Equality and Minority Rights in the Charter
The courts will have considerably less latitude in interpreting sections
16 to 20 and even section 23, than other sections of the Charter. The mi-
nority language rights are generally set out with much greater precision and
detail than the other rights and freedoms, such as the “fundamental rights”
in section 2. Nonetheless, the case law concerning section 133 of the Con-
stitution Act, 1867 and section 23 of the Manitoba Act, 1870, as well as that
dealing with the interpretation of section 2 of the federal Official Languages
Act (which served as a model for subsections 16(1) and (2) of the Charter),
indicates that the provisions respecting language rights are likely to receive
widely differing interpretations and that consequently their scope may vary
considerably. 80
A. Role of Courts in the Implementation of the Language Provisions
Subsections 16(1) and 16(2), which deal with the establishment of of-
ficial languages, will require extensive interpretation by the courts and are
likely to give rise to the widest divergence of opinion. The courts will have
to determine the nature of the standard (declaratory or executory) contained
in that provision as well as the application of the principle of equality of
781n Quebec and New Brunswick, and throughout Canada, the numerical significance of the
English and French minorities justifies the enhanced status they are given. Yet in Manitoba,
the francophone minority is at present smaller than other linguistic minorities. There remain
considerations based on history to justify the special status granted to it: the theory of the “two
founding peoples” or the principle of “dualism”; see infra, note 99.
79Experience shows that for all practical purposes it is impossible for the State and the
government to operate properly in more than two official languages. Thus, it is often pointed
out that in Switzerland, even though three languages have the status of “official languages”
under the Constitution (a fourth language, Rheto-Romansh, is recognized only as a “national
language”), only two of them (French and German) are truly used equally. The third, Italian,
is not in practice given the same importance as the other two. See, c.g., Dutoit, supra, note 45
at 41-3.
80For an analysis of the case law pertaining to s. 133 of the Constitution Act, 1867, s. 23 of
the Manitoba Act, 1870 and the Official Languages Act, R.S.C. 1970, c. 0-2, see Magnet, supra,
note 51; Tremblay, supra, note 51; Brun & Tremblay, supra, note 51; Woehrling, supra, note
60.
19851
MINORITY AND EQUALITY RIGHTS
status between the official languages to the area of the “language of work”
of federal institutions. 81 The impact of this provision of the Charter will
depend on whether the interpretation given to subsections 16(1) and 16(2)
is similar to that adopted with respect to section 2 of the Official Languages
Act by the Federal Court and the Quebec Court of Appeal or to that adopted
by Chief Justice Deschenes of the Quebec Superior Court. While Chief
Justice Deschenes held that section 2 was self-executing in the sense that a
legal remedy could be founded upon it if French were denied the status of
a working language in the federal public service, 82 the Quebec Court of
Appeal decided that the section was not self-executing and that executive
action was necessary to implement bilingualism in the federal workplace. 83
Similar considerations arise with respect to sections 17 to 20 of the
Charter. Section 20, which reproduces in subsection (1) certain provisions
of the federal Official Languages Act, 84 contains terms whose meaning will
have to be clarified before their true significance can be determined. It will
be up to the courts to say when “there is a significant demand for com-
munications with and services from [an] office” in English or French, or
when “due to the nature of the office it is reasonable that communications
with and services from that office be available in both English and French”. 85
Sections 17 to 19 of the Charter reproduce, with certain variations, the
substance of section 133 of the Constitution Act, 1867 and section 23 of the
81See Magnet, ibid. at 176-9; Tremblay, ibid. at 446ff.
82Joyal v. Air Canada (1976), [1976] C.S. 1211 at 1219, rev’d (1982), [1982] C.A. 39, 134
D.L.R. (3d) 410, Monet J.A. (Nolan J.A. concurring).
83Barb~s J.A., dissenting, agreed with the broader view of s. 2 taken by Deschenes C.J.S.C.
In Association des Gens de lAir du Quebec Inc. v. Lang (1977), [1977] 2 FC. 22 at 35, 76
D.L.R. (3d) 455 (T.D.), Marceau J.’s view of s. 2 was similar to that taken later by the Quebec
Court of Appeal. His view was affirmed in Association des Gens de 1Air du Qu~bec Inc. v.
Lang, supra, note 34 at 379-80, where Le Dain J. (Hyde D.J. concurring) commented that:
[Slection 2 would appear to be the only provision from which one may derive a
right to use French, as well as English, as a language of work as well as a language
of service in the federal government. As such, it is in my respectful opinion more
than a merely introductory provision, but rather the legal foundation of the right
to use French, as well as English, in the public service of Canada, whether as a
member of the service or a member of the public who has dealings with it. Of
course, the practical implementation required to make that an effective right is
another thing. That is the chief reason for the office of the Commissioner of Official
Languages with the duty to watch over compliance with the Act. The annual reports
of the Commissioner show that implementation is a long and difficult process.
84S. 20(1) of the Charter re-enacts in broader terms s. 9 of the federal Official Languages
Act, supra, note 80 and s. 20(2) corresponds to s. 10 of the New Brunswick Official Languages
Act, R.S.N.B. 1973, c. 0-1.
85Note, however, that the application of s. 20(2) is not subject to the same conditions. For
an analysis of s. 20(1), see Magnet, supra, note 51 at 179-82; Tremblay, supra, note 51 at 464-
McGILL LAW JOURNAL
[Vol. 31
Manitoba Act, 1870. The way in which these provisions have been applied
in the past shows that the courts will be able to choose between two inter-
pretations, liberal or restrictive, each of which will give these sections a
radically different scope and utility. The case law concerning the application
of section 133 to legislative and judicial matters provides a striking illus-
tration of how the stance adopted by the courts has been instrumental, either
in giving the provision an importance it may not have had at the time it
was drafted or, on the contrary, reducing its scope to the point of stripping
it of a large part of its significance.
In Blaikie (No. 1)86 the courts had to decide whether section 133 applies
only to statutes as such or whether it also applies to delegated legislation.
They also had to determine whether section 133 imposes bilingualism only
on the courts or whether its provisions also extend to the operations of
administrative tribunals. Delegated legislation was not nearly as important
in 1867 as it is now and administrative tribunals were practically unknown
at that time. It is therefore clear that the drafters of the Constitution of 1867
could not have intended the provisions of section 133 to apply to tribunals
other than the existing courts, just as they could not have anticipated the
great mass of delegated legislation which was to appear later. Yet every court
‘which considered the case decided that section 133 should extend to these
new realities. To justify this conclusion, the judges relied on the principle
that constitutional provisions must be given a generous, and hence evolu-
tive, interpretation.8 7 In this instance, the courts adopted an attitude of
“judicial activism”, since they based their decision on an assessment of the
political, economic and social context, and not merely on legal considera-
tions. This attitude had the effect of giving section 133 a considerably broader
meaning with respect to the bilingualism of regulations and administrative
tribunals than had been anticipated at the time it was drafted.88
Where it was necessary to determine the scope of section 133 in the
area of judicial bilingualism, the courts in Blaikie (No. 1) adopted a dia-
metrically opposed attitude and gave this provision a restrictive interpre-
tation that detracts from its utility. The Supreme Court held that
not only is the option to use either language given to any person involved in
proceedings before the Courts of Quebec or its other adjudicative tribunals
(and this covers both written and oral submissions) but documents from such
bodies or issued in their name or under their authority may be in either language,
86Supra, note 52, aff’g (1978), [1978] C.A. 351, 95 D.L.R. (3d) 42, aff’g (1978), [1978] C.S.
37, 85 D.L.R. (3d) 252.
87Ibid. at 1028E
8 8The exact scope of s. 133 regarding bilingual regulations was spelled out by the Supreme
Court in a further judgment: see Blaikie (No. 2), supra, note 52.
1985]
MINORITY AND EQUALITY RIGHTS
and this option extends to the issuing and publication of judgements or other
orders.8 9
On the basis of this judgment, it was decided that section 133 does not
require that summonses issued by criminal courts be bilingual, or even that
they be in the language of the accused. 90
Thus, the right to use one’s language before the courts does not imply
the right to be addressed by them, or by the Crown, in that language. This
result greatly reduces the significance of certain guarantees contained in
section 133. It is not clear that such a restrictive interpretation was inevi-
table, especially when one considers how the courts interpreted the same
section with respect to the bilingualism of regulations and administrative
tribunals in Blaikie (No. 1). If the same generous and evolutive approach
had been used to resolve the issue of the language of summonses and judg-
ments, it would have been concluded that the right of litigants to choose
between English and French implies that the State must address them and
answer them in the language they have chosen. This is how judicial bilin-
gualism is generally understood and applied in countries where individuals
have the right to choose the language they wish to use in their interactions
with the administration of justice. 91
Another way of illustrating the court’s varying interpretations of the
Constitution’s language provisions is to compare the application of section
133 of the Constitution Act, 1867 by the Quebec courts on the one hand,92
and the application of section 23 of the Manitoba Act, 1870 by the Manitoba
courts on the other.93
The discrepancies in the lower court decisions respecting section 133
thus show that the judicial interpretation of the sections of the Charter
concerning the status of the official languages is likely to vary considerably.
89Blaikie (No. 1), supra, note 52 at 1030 [emphasis added].
90Walsh v. City of Montreal(1980), [1980] C.S. 1054 at 1055, 55 C.C.C. (2d) 299; MacDonald
v. City of Montreal (1982), [1982] C.S. 998 at 1000; Bilodeau v. A.G. Manitoba (IW1), [1981]
5 W.W.R. 393 at 402 and 409, 10 Man. R. (2d) 298 (C.A.). For a criticism of these decisions,
see Magnet, supra, note 51 at 190-1.
91Capotorti, supra, note 3 at 80-2.
92In A.G. Quebec v. Collier (1983), [1983] C.S. 366, the Quebec Superior Court declared that
legislation enacted in contravention of s. 133 of the Constitution Act, 1867 is unconstitutional
and therefore cannot serve as a valid basis for criminal prosecution.
931n Bilodeau v. A.G. Manitoba, supra, note 90, the Manitoba Court of Appeal decided that
s. 23 was not mandatory, that its provisions were only directory and that consequently the
provincial government was free to ignore them with impunity. This view of s. 23 was rejected
and the provision considered to be imperative by the Supreme Court of Canada in Reference
Re Language Rights under the Manitoba Act, 1870 (1985), 19 D.L.R. (4th) 1, (sub nom. Man-
itoba Language Rights Reference) 59 N.R. 321.
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[Vol. 31
B. Arbitrating Conflicts Between Equality angl Minority Rights
We must now consider to what extent the principles of equality and
non-discrimination contained in subsection 15(1) are likely to influence the
choice the courts will have to make between a broad or narrow interpretation
of sections 16 to 20 and 23, which confer minority rights.
There is a potential conflict between minority language and cultural
rights and the principles of equality and non-discrimination. Whereas the
latter principles require that a person be treated without regard to the fact
that he or she belongs to a particular group, language and cultural rights
are conferred on individuals precisely because they are members of a mi-
nority. The existence of special rights for minorities results in differences
between the treatment they receive and that given to the rest of the population.
The protection of the rights of French and English minority groups
provided by sections 16 to 20 and 23 may be regarded as an exception to
the principles of equality and non-discrimination in subsection 15(1). This
suggestion is reinforced when these provisions are read in conjunction with
section 27 which also protects ethnic and linguistic minorities. Section 27
is intended to circumvent certain consequences that might otherwise result
from the strict application of subsection 15(l).94
If sections 16 to 20 and 23 (as well as section 27) are indeed exceptions,
the question arises whether they should, like any exception, be interpreted
restrictively. Admittedly, the drafters of the Charter wished to establish a
certain balance between the right to equality and the special measures for
protecting minorities. A broad, liberal and evolutive judicial interpretation
of language and cultural rights by increasing their importance is likely to
disturb the original balance of the Charter and will thus give rise to a “con-
flict of rights” between subsection 15(1) and sections 16 to 20 and 23. This
is particularly true in cases where, as with the extension of the section 133
bilingualism rights to administrative tribunals and delegated legislation, ju-
dicial interpretation of sections 16 to 20 and 23 will have the effect of
extending their scope to areas which the drafters of the Charter had probably
not contemplated. 95 We must then question whether the courts should create
new exceptions to the principles of equality and non-discrimination in sub-
section 15(1) or whether, on the contrary, these principles have the effect
of restricting the extension and “growth potential” of sections 16 to 20 and
23. If a court is tempted to interpret language rights restrictively, subsection
94See supra, notes 26-52 and accompanying text.
9 5The problem arises in particular with ss 16(l) and 16(2); in view of the vague and open-
ended nature of its provisions, this section is likely to grow in scope considerably if it is
interpreted in a broad, liberal and evolutive manner. In this regard, see Tremblay, supra, note
51 at 446ff.
1985]
MINORITY AND EQUALITY RIGHTS
15(1) will provide it with a means of rationalizing its attitude. On the other
hand, if the court wishes to interpret sections 16 to 20 and 23 liberally it
might not find the necessary justification in the text of the Charter to allow
it to overcome any objections based on subsection 15(1). For resolution of
the conflicts between the right to equality and the minority language rights,
it might ultimately be necessary to rely on considerations lying beyond the
actual wording of the Constitution and relating instead to its underlying
system of values.
A provision of the Charter which may assist in resolving conflicts be-
tween language rights and equality rights is subsection 16(3), which provides:
Nothing in this Charter limits the authority of Parliament or a legislature to
advance the equality of status or use of English and French.
It is generally agreed that subsection 16(3) was included in the Charter to
meet potential objections to federal or provincial statutes which increased
anglophone and francophone minority rights. The argument was raised against
the 1969 federal and New Brunswick Official Languages Acts that the Con-
stitution (specifically section 133 of the Constitution Act, 1867) prohibits
not only the reduction of the rights it guarantees, but also their extension.
This line of reasoning, however, was rejected by the Supreme Court in Jones
v. A. G. New Brunswick. It could not, in view of subsection 16(3), be invoked
against an extension of the guarantees given to English- and French-speaking
minorities in the Charter.96
Subsection 16(3) goes further than merely rebutting the type of argu-
ment raised in the Jones case. It states that “[nJothing in this Charter limits
the authority of Parliament or a legislature to advance the equality of status
or use of English and French” [emphasis added]. Consequently, this pro-
vision would also make it possible to put to rest any objections, based on
subsection 15(1), that might be raised against a federal or provincial statute
96Jones v. A.G. New Brunswick (1974), [1975] 2 S.C.R. 182 at 192-3, (sub nom. Jones v. A.G.
Canada) 45 D.L.R. (3d) 583 [hereinafter Jones]. For this interpretation of s. 16(3), see, e.g.,
Tremblay, supra, note 51 at 459-60. A literal interpretation of s. 16(3) suggests a different
meaning however. rather than making it possible to expand language rights of anglophone and
francophone minorities, the provision would authorize an exception to the principle of the
equality of status of the two official languages contained in ss 16(1) and 16(2), on condition
that such an exception is necessary to promote a more genuine equality between the two
languages (e.g., a New Brunswick statute might give preferential treatment to francophones in
the province to improve their situation, which is currently disadvantaged when compared to
the majority).
McGILL LAW JOURNAL
[Vol. 31
which gave anglophone or francophone minorities additional privileges to
those conferred on them by the Charter.97
Subsection 16(3) clearly permits a legislative extension of the language
rights recognized in the Charter. Does it also permit their extension through
judicial interpretation? This is clearly not its primary purpose. The subsec-
tion refers only to legislative extensions and so it does not provide a strong
argument to offset effectively considerations arising from subsection 15(1)
that may be invoked to justify a restrictive judicial interpretation of language
rights.
Section 27 is another provision that might be relied on to circumvent
subsection 15(1) should this provision stand in the way of a broad and
evolutive interpretation of the specific language guarantees. The advantage
of section 27 over subsection 16(3) is that it is a general interpretative clause
and not, as is the case with subsection 16(3), specifically concerned with
the scope of the Charter in relation to the legislative jurisdiction of Parlia-
ment and the legislatures. Thus, section 27 may be used to construe judicially
the sections of the Charter that confer rights on French- and English-speak-
ing minorities. This is clear from its literal meaning and from the case law.98
Consequently, if it could be shown that a liberal and evolutive interpretation
of sections 16 to 20 and 23 is necessary to preserve and enhance the culture
of francophone minorities outside Quebec or the anglophone minority in
Quebec, it might be employed by the courts to overcome any objections
based on the argument that such an interpretation is contrary to the prin-
ciples of equality or non-discrimination.
Such reasoning, however, has certain weaknesses. Section 27 speaks of
culture not of language and, even though the two are closely related, the
choice of one concept over the other indicates that the drafters of the Charter
were not referring in section 27 to the same situation entirely as that covered
by sections 16 to 20 and 23. Moreover, these sections are among the pro-
visions which give effect to the principle of Canadian “duality”, although
that term is not actually used, while section 27 is intended to promote
“multiculturalism”. The principle of duality expresses a recognition of the
97Similarly, according to the interpretation proposed, ibid., s. 16(3) would make it possible
to overcome any objections based on s. 15(l) that might be raised against preferential treatment
given to the francophone minority, (e.g. priority in employing public servants) with a view to
helping it achieve linguistic equality with the majority. See also Tremblay, ibid. at 460.
98Supra, note 33.
19851
MINORITY AND EQUALITY RIGHTS
bicultural, bilingual, and perhaps, binational nature of the country. 99 The
principle of multiculturalism, if it is to have any significance, tends to rec-
ognize that all cultural collectivities which make up Canadian society are
of equal importance and dignity.100 The former principle requires that the
English and French collectivities have a special constitutional status, while
the latter requires that all cultural groups be treated equally. 10 It will no
doubt be necessary to discover a way of giving effect to both principles at
once, since the Charter enshrines them both.102 There is an undeniable
tension between section 27 and sections 16 to 20 and 23, however, which
will make it problematic to rely on section 27 in favour of a broad and
liberal interpretation of the rights given to official language minorities.10 3
Sections 16(3) and 27 will probably not be of sufficient assistance in
resolving possible conflicts between equality rights and minority language
rights. However, this difficulty may be overcome if the various rights and
freedoms are set forth in the Charter, either explicitly or implicitly, according
to a certain hierarchy thereby enabling the courts to give preference in cases
of conffict to higher ranking rights.
One way to establish a hierarchy of Charter rights is to classify them
depending on whether or not they can be overridden through the use of a
“notwithstanding” clause under section 33.104 A possible explanation of the
99For the concept of Canadian “duality”, see M. Bastarache, “Dualism and Equality in the
New Constitution” (1981) 30 U.N.B.L.J. 27 at 30 where the author states the concept as follows:
“The significance of Canadian dualism … can be summarized in two basic principles: cultural
security and political representation of the two national linguistic communities.” See also,
Canada, Task Force on Canadian Unity, A Future Together: Observations and Recommenda-
tions (Ottawa: Supply & Services, 1979) at 25-6 (Co-chair. J.-L. Ppin & J.P. Robarts).The
concept of “duality” was also referred to by the Supreme Court of Canada in the second
reference concerning the amendment of the Constitution: Reference Re Objection by Quebec
to a Resolution to Amend the Constitution (1982), [1982] 2 S.C.R. 793 at 813-4, (sub nom. Re
A.G. Quebec and A.G. Canada) 140 D.L.R. (3d) 385; see J. Woehrling, “La Cour supreme et
les conventions constitutionnelles: les renvois relatifs au ‘rapatriement’ de la Constitution
canadienne” (1984) 14 R.D.U.S. 391 at 410-1. Without the expression itself ever being used,
the principle of duality is nevertheless reflected in numerous provisions of the Constitution.
Thus Magnet, supra, note 51 at 171-2, notes the following expressions thereof. in the Consti-
tution Act, 1867, ss 133, 93 and 98 (s. 94 could probably be added); in the Manitoba Act, 1870,
s. 23; in the Charter, ss 16-20, 21, 23 and 29.
10For the concept of “multiculturalism” see Tarnopolsky, supra, note 31.
’01Supra, note 39.
102Magnet, supra, note 51 at 174-5 and Tarnopolsky, supra, note 31, propose certain criteria
to harmonize the two principles. See also infra, note 127.
10 3]f there exists a potential tension between s. 27 and the sections that confer rights upon
official language minorities, there is also a possible complementarity as is shown by the case
law under s. 27: see supra, note 33 and accompanying text.
104See Tremblay, supra, note 51 at 445. See also supra, note 74.
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[Vol. 31
fact that some rights are susceptible of being overridden and not others’0 5
is that the latter are more important (or of greater intrinsic value) than the
former. Sections 16 to 20 and 23 cannot be neutralized under section 33.106
If we adopt this approach, in case of a conflict with subsection 15(1), all
the language rights must thus be classified among the “superior” rights and
consequently will take precedence over the right to equality and non-
discrimination.
Another way of explaining why only certain rights can be overridden
does not relate to the respective hierarchical value of the two categories of
rights but rather to the very nature of the mechanism provided for in section
33 of the Charter. Although the ability to insert a “notwithstanding” clause
in their legislation gives the legislatures the final say on major policy issues,
it also obliges them, when interfering with certain rights or freedoms, to
accept full responsibility for their actions and the resulting political con-
sequences. It is the democratic process, then, which will ultimately control
government uses of section 33 and which will sanction any abuses thereof.
In order for democratic control to be exercised, however, it must be im-
possible to jeopardize the integrity of the electoral process by means of
section 33. In other words, it must not be possible to override the democratic
rights whose exercise is essential to the operation of parliamentary insti-
tutions and which give the people the opportunity to punish governments
at election time. This may explain why the democratic rights contained in
sections 3 to 5 of the Charter do not fall within the ambit of section 33.107
Similarly, minority rights are excluded from the application of this provi-
sion: the democratic process is based on majority rule and, consequently,
if the majority uses section 33 to interfere with the rights of a minority, the
latter will have no way of defending itself. Since section 33 does not apply
05Except, of course, by means of s. 1 of the Charter, where it can be shown that the law
limiting the right in question is reasonable and justifiable. Use of s. 33, on the other hand, is
discretionary and does not require any such demonstration.
106The same applies to ss 25 and 27 of the Charter. Ss 133 of the Constitution Act, 1867 and
23 of the Manitoba Act, 1870 obviously do not fall within s. 33, since they are not part of the
Charter. The s. 14 right to an interpreter, on the other hand, may be the subject of an exception
by means of an express declaration under s. 33. It is true that this is not a measure for protecting
minorities, or a language right, but an additional attribute of the right to a fair trial.
107However, if this is in fact the reason that ss 3-5 of the Charter are not subject to s. 33,
one may well wonder why the same is not true of s. 2. The integrity of the democratic process
does not depend solely on the right to vote and the holding of a sitting of Parliameni and the
legislatures at least once every twelve months, but equally on freedom of thought, belief, opinion
and expression (including freedom of the press and the other media) and freedom of assembly
and association. See Reference Re Alberta Statutes (1938), [1938] S.C.R. 100 at 132-5, [1938]
2 D.L.R. 81, Duff C.J.
1985]
MINORITY AND EQUALITY RIGHTS
to such rights, minorities may resort to judicial review to have a law re-
stricting their rights declared inoperative.108
This explanation of the exclusion of certain rights and freedoms from
the application of section 33109 makes the theory of a hierarchy of rights
and freedoms based on that provision less compelling. One can justify the
fact that the right to life (section 7) may be overridden by a notwithstanding
clause whereas the same is not true of the right to vote (section 3) or the
right to be served in English or French at the head office of a federal insti-
tution (subsection 20(1)). If this difference in status reflects a difference in
the intrinsic value and moral importance attributed to each of these rights
by the drafters of the Charter, one has to conclude that the scale of values
applied is highly unusual. It becomes clear, however, that exceptions to
section 7 can be sanctioned through the democratic process whereas this
might not be the case with exceptions to the sections containing minority
rights. In the case of the democratic rights, their existence and integrity is
a prerequisite to the operation of the democratic system. Hence the scope
of section 33 reflects not a hierarchy of constitutional values, but a dis-
tinction between those values directly related to the democratic process and
those which are not.
It should also be noted that American courts deciding on the application
of the Fourteenth Amendment (the Equal Protection clause), have estab-
lished three categories of rights regarded as fundamental, which, when
threatened, invoke “strict scrutiny” by the courts. These are: rights necessary
for the operation of the democratic system, rights pertaining to freedom of
mobility, and rights of minorities too small to be able to influence the
political process significantly. 110 Since the Constitution of the United States
does not contain anything similar to section 33 of the Charter, it is inter-
esting to note the concordance between the categories of rights on which
the Charter confers special status (by excluding them from the application
of section 33) and the rights regarded as fundamental by the American
courts. This parallelism, it may be argued, may explain why, even if a
08See the famous passage by Stone J. in United States v. Carolene Products Co., 304 U.S.
144 at 152-3 n. 4 (1938). It is reproduced and commented on in Fiss, supra, note 2 at 152 n.
69 and in M.S. Ball, “Judicial Protection of Powerless Minorities” (1974) 59 Iowa L. Rev.
1059 at 1060-1.
109The other rights and freedoms in the Charter that are not subject to s. 33 are those in ss
6 and 28. The guarantee of equal rights to both sexes is probably explained by the considerable
lobbying of the federal government by women’s groups. The s. 6 “mobility rights” are not
subject to s. 33 probably because of their dual nature: s. 6 is as much (and perhaps more so)
concerned with the proper operation of the Canadian economic union (and, consequently, the
division ofjurisdiction over economic matters) as with the protection of the fundamental rights
of Canadians.
IOSee Gold, supra, note 40 at 139-45.
McGILL LAW JOURNAL
[Vol. 31
hierarchy of rights and freedoms cannot be derived directly from section
33, the rights excluded from the application of that clause nevertheless
require special protection. However, the American experience does not sug-
gest that in the case of a conflict of rights, minority rights must take prec-
edence over the right to equality. The distinction made by the American
courts between “fundamental” rights which require “strict scrutiny” and
those which are less fundamental and justify only “intermediate” or “min-
imal” scrutiny is not intended to circumvent the principle of equality in
order to give precedence to other rights. This distinction has been made by
American case law in the context of the application of the Fourteenth
Amendment and merely allows the courts to vary the degree of severity of
their scrutiny depending on the nature of the classification used and the
nature of the right whose exercise is the subject of that classification.
Consequently, although there are provisions in the Charter which sug-
gest certain ways of resolving conflicts that might arise between subsection
15(1) and the language rights, none of those which have been examined
seems convincing enough to gain general acceptance.I’
In view of the dif-
ficulty of the moral and political choices involved in arbitrating between
the right t6 equality and the protection of linguistic minorities, it would be
hazardous to rely solely on reasoning as uncertain as that which we have
just examined.
An additional analytical perspective may prove helpful. We have seen
that the purpose of the language and cultural guarantees in the Charter is
to permit the preservation and enhancement of certain minority rights in
Canada. They are aimed, in a sense, at establishing equality between mi-
norities and the majority, or equality among the various groups which make
up Canadian society.” 2 The purpose of the right to equality and the right
to non-discrimination has traditionally been seen as the promotion of in-
dividual development, in particular by prohibiting differences in treatment
I I ‘Another way of establishing a hierarchy of the rights and freedoms in the Charter might
be to classify them according to the amending procedure applicable in each case. Almost
insurmountable difficulties arise, however, when we try to apply this to conflicts between s.
15(l) and the provisions respecting language rights. Although the right to equality must un-
doubtedly be classified as an “inferior” right, since s. 15(l) can be amended using the general
amending procedure, ss 16-20 and 23 are not uniformly subject to the same amending formula
and, moreover, in the case of ss 16-20, the same provisions require different procedures de-”
pending on whether they apply federally or provincially.
“2In the case of ss 16-20 and 23 of the Charter, s. 133 of the Constitution Act, 1867 and s.
23 of the Manitoba Act, 1870, equality between the two founding peoples of Canada is expressed
through the principle of “dualism”. See supra, note 99. As for s. 27 of the Charter, it is aimed
at ensuring a certain equality among all Canadian cultural communities, or at least among
those whose culture is part of”the multicultural heritage of Canadians”; s. 27 thus gives effect
to the principle of “multiculturalism”. See supra, note 100.
1985]
MINORITY AND EQUALITY RIGHTS
based on membership in a particular group. Their purpose is to establish
equality among persons. 1 3 If subsection 15(1) thus relates ‘to an individu-
alistic ethic, minority rights, on the other hand, are based on the conviction
that there are certain collective rights which deserve and need to be pro-
tected. Where the equality of groups and the equality of persons come into
conflict, it becomes necessary to ascertain where collective rights and in-
dividual rights respectively fall within the Charter’s system of values.” 4
The liberal constitutional tradition, of which Canada is a part, is highly
individualistic. It is an outcome of the philosophical traditions stemming
from the Age of Enlightenment, in particular, the social contract theories,
which hold that there are only two types of “actors” in political dealings:
the State and the individual. 1 5 Under such a political theory, there is no
“*3This is the traditional analysis. See, e.g., Tarnopolsky, supra, note 31 at 438; Dinstein,
supra, note 3 at 103. However, as Fiss brilliantly demonstrates, supra, note 2 at 147ff., there
is a less conventional way of analyzing the principle of non-discrimination. If we recall the
generally accepted definition of discrimination, namely the unfavourable treatment of a person
because he belongs to a group which is itself collectively in an unfavourable situation compared
with the rest of the population, we realize that the prohibition against discrimination may be
regarded as being aimed as much at protecting the group concerned as an entity, as it is at
protecting its members. However, since the main body of opinion holds that the right to non-
discrimination should be characterized as an individual right (and it seems clear that within
the Charter this is the role which s. 15(1) was intended to play), we shall keep to the traditional
point of view. As for the right to equality, which also arises under s. 15(1), we have seen, supra,
note 2, that it can be defined as the right of every person to be treated without regard to
irrelevant considerations or, in other words, the right of that person to “fair” treatment and
prohibition of “irrational” treatment. This is a right that is essentially individual in its purpose.
114In order to distinguish properly between collective and individual rights, I am adopting
the criterion of the ethical basis for, and the purpose of, the rights in question. From this point
of view I share the opinion of Tarnopolsky, supra, note 31 at 437-8; and R Chevrette, “Notions
as to ‘Acquired Rights’, ‘Group Rights’, and ‘Collective Rights’ in Quebec Law” in Report:
Language Rights, Book 2, supra, note 64, 413 at 432 where he looks for the reason why certain
rights are termed “collective”:
[C]’est bien plut6t le fait que ces droits, qui l6galement peuvent appartenir A des
individus ou A des groupes, tirent leur lgitimit6 de l’existence et de la necessit6 de
reconnaitre certaines r6alit6s collectives, face A des int~r&s individuels ou des in-
t~r~ts d’autres collectivits.
For the concept of “collective rights” and the distinction between collective and individual
rights, see also Carignan, supra, note 25; Dinstein, supra, notes 3 and 15; Fiss, ibid.; V. Van
Dyke, “Human Rights and the Rights of Groups” (1974) 18 Am. J. Pol. Sci. 725; V. Van Dyke,
“Justice as Fairness: For Groups?” (1975) 69 Am. Pol. Sci. Rev. 607; V. Van Dyke, “Human
Rights Without Discrimination” (1973) 67 Am. Pol. Sci. Rev. 1267; Van Dyke, supra, note
21; E. Cloutier, “Les conceptions am~ricaine, canadienne-anglaise et canadienne-frangaise de
l’id~e de l’6galit” in E. Cloutier & D. Latouche, eds, Le syst~me politique queb&ois (Montreal:
Hurtubise, 1979) 451; R. Ben-Israel, “Is the Right to Strike a Collective Human Right?” (1981)
11 Israel Y.B. Hum. Rts 195; Les droits de l’homme: droits collectifs ou droits individuels?,
Annales de Ia Facult6 de droit et des sciences politiques et de l’Institut de recherchesjuridiques,
politiques et sociales de Strasbourg, vol. 32 (Paris: L.G.D.J., 1980).
liSSee Van Dyke, “Justice as Fairness: For Groups?”, ibid. at 607-9.
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[Vol. 31
room for “intermediate bodies”, not even natural social groups whose ex-
istence does not depend on legal creation. 16 It is thus not surprising to note
that in the eighteenth and nineteenth centuries, classical liberal constitutions
placed very little emphasis on collective rights. The American Constitution
of 1787 and the first French Constitutions are examples of such individu-
alism taken to an extreme. Later, in particular after the First World War,
collective rights were given a place in the constitutions of liberal democra-
cies. This movement gained further momentum after the Second World
War,’ 17 but it did not substantially affect the precedence given individuals
in the hierarchy of values underlying the Western legal systems.
Even though Canada is attached to the liberal constitutional tradition,
it nevertheless departs from it fairly clearly as regards the emphasis placed
respectively on individual and collective rights. The precedence of individ-
ual rights has not been recognized in the Canadian legal system in the same
way as in other liberal democracies. As early as 1867, the Canadian Con-
stitution placed special emphasis on certain collective rights. Among the
very few rights enshrined in the Constitution Act, 1867, those found in
sections 93 and 133 are aimed at protecting the linguistic and religious
minorities of that period.”l 8 The traditional fundamental and individual
rights, on the other hand, were given no protection in the 1867 Constitution,
and this situation was not rectified until the Constitution Act, 1982 came
into force. 19 It can therefore be said that in Canadian law, between 1867
and 1982, collective rights of linguistic and religious minorities had prec-
edence, in case of conflict, over individual rights and, in particular, the right
to equality. This precedence of collective rights in constitutional law may
be seen as indicative of the hierarchy of values on which the 1867 Consti-
tution is implicitly based; it tells us that in the normative system underlying
the Constitution Act, 1867, group equality (more precisely, equality of the
two groups in the Confederation compact) had precedence over individual
equality.
116In this context the only natural social group to be given legal recognition is the family.
“17For a history of the development of collective rights in the constitutions of liberal de-
mocracies, see J. Rivero, “Rapport grnrral introductif’ in Les droits del’homme: droits collectifs
ou droits individuels?, supra, note 114, 1 at 18ff.
’18S. 133 of the Constitution Act, 1867 was substantially reproduced in s. 23 of the Manitoba.
Act, 1870. Concerning ss 93 and 133 of the Constitution Act, 1867, see the comments of Morrow
J. in Athabasca Tribal Council v. Amoco Canada Petroleum Co. (1980), 22 Alta R. 541 at 568,
112 D.L.R. (3d) 200, [1980] 5 W.W.R. 165 (C.A.).
1191t is true that ss 20 and 50 of the Constitution Act, 1867 protected certain democratic
rights, which are now enshrined in ss 4(1) and 5 of the Charter. It must also be remembered
that, prior to 1982, the courts have used interpretation devices to effect a constitutional pro-
tection of civil liberties. See P Hogg, Constitutional Law of Canada (Toronto: Carswell, 1977)
ch. 24 at 417ff.
1985]
MINORITY AND EQUALITY RIGHTS
This situation has, of course, changed with the coming into force of
the Charter, but only partially. The collective rights of minorities are no
longer the only rights to be entrenched in the Constitution. Consequently,
it has become necessary to reconcile them with the individual rights which
are also guaranteed by the Charter. However, there are many reasons for
believing that the new Constitution has not broken continuity with the old,
and that the collective rights of minorities, in particular language rights, will
continue to enjoy pre-eminence.
The protection of language rights was one of the essential concerns of
those who took the initiative in patriating the Constitution and entrenching
fundamental rights. It can be concluded that the drafters of the Charter
attached considerable importance to the rights of the official language minorities.
The importance of collective rights is indicated by the large number of
provisions devoted to them,120 as well as by the precision and detail with
which most are drafted. As has already been noted, this last characteristic
distinguishes language rights from many other rights and freedoms guar-
anteed by the Charter which are so vaguely worded that it will be up to the
courts to give them genuine substance. The very nature of language rights
no doubt requires that they be defined in greater detail and more precisely
than the fundamental rights in section 2 or those set out in section 7. One
cannot help thinking, however, that by defining the scope of language rights
as precisely as possible, the drafters of the Charter also wished to ensure
that they could not be reduced to insignificance by an overly restrictive
judicial interpretation and that any restrictions that might be placed on
these rights by federal or provincial legislation or regulations could not too
easily be regarded as justifiable under section 1. As was clearly shown by
the judgments which declared inoperative section 73 of the Quebec Charter
of the French Languagel21 as contrary to section 23 of the Charter, the more
detailed a right or freedom is, the more difficult it will be to establish that
a limitation on that right or freedom is “reasonable”. 22 Section 35 of the
Constitution Act, 1982, which guarantees aboriginal rights (and which is
connected to the Charter by section 25) and section 27 of the Charter, which
concerns the “preservation and enhancement of the multicultural heritage
of Canadians”, are not at all precise or detailed. It will therefore be necessary
to await the courts’ interpretation in order to determine their true scope.
This indicates that of all the collective rights guaranteed by the Charter, the
’20See supra, notes 9 and 10.
123Supra, note 58.
’22See Quebec Association of Protestant School Boards v. A.G. Quebec, supra, note 65. For
an interesting comment on the Supreme Court decision, see D. Proulx, “La Loi 101, la clause-
Qu6bec et la Charte canadienne devant la Cour supr~me: un cas d’espce?” (1985) 16 R.G.D.
167.
McGILL LAW JOURNAL
[Vol. 31
drafters attached the greatest importance to English and French language
rights.
In addition, the failure of the drafters of the Charter to include language
among the expressly prohibited grounds of discrimination might perhaps
be explained by their concern to avoid any conflicts likely to arise between
language rights on the one hand, and the right to equality and non-discrim-
ination contained in subsection 15(1) on the other.123 It could probably be
interpreted as indicating that the drafters felt that individual linguistic equal-
ity is less important and requires less protection than equality between the
two major language groups in Canada.
The constitutional tradition and circumstances surrounding the enact-
ment of the Charter, as well as the structure and content of its relevant
provisions, thus make it possible to maintain that the Canadian Constitution
is based on a value system in which certain collective rights are of central
importance. This is not at all surprising if one recalls that in 1867 one of
the objectives of Confederation was to create a legal and political framework
for a binational State and that in 1982 the Constitution was amended to
carry out the promise which the Canadian Prime Minister had made to
Quebeckers, that their demands concerning protection of the language and
culture of the country’s francophone minority would be met.
Consequently, the courts should not hesitate to give collective rights,
especially the rights in sections 16 to 20 and 23 of the Charter, the broad,
liberal and evolutive interpretation necessary to ensure the protection and
security of minorities. If these collective rights come in conflict with certain
individual rights and, in particular, with the right to equality and non-
discrimination (as will almost certainly be the case), it must be concluded
that the Charter permits and, in fact, requires that precedence be given to
collective rights. This is not a “totalitarian” vision. It is generally accepted
that where there are ethnic, religious or linguistic minorities, individual
rights must sometimes give way to the rights of these collectivities and, in
particular, that it is often necessary to override individual equality in favour
of group equality. 24 The legal systems of multinational countries demon-
strate that positive law places considerable importance on this imperative.
‘ 23See supra, note 2.
124Thus, in multinational states it is impossible to apply in an automatic fashion the principle
of equality of representation, the concrete expression of the democratic principle. In these
countries it has been necessary to balance the equality of individuals against the equality of
national groups to which they belong. See H. Kloss, “Democracy and the Multinational State”
in Multilingual Political Systems: Problems and Solutions (Quebec: Presses de l’Universit6
Laval, 1975) at 29ff.
1985]
MINORITY AND EQUALITY RIGHTS
Canada’s Charter is consequently not an exception or an innovation in this
regard. 125
Finally, if the above arguments make it possible to say that the Charter
recognizes the precedence of certain collective rights over individual rights,
they also indicate that section 27, whether in isolation, or in conjunction
with subsection 15(1), should not be used as a pretext for refusing to interpret
sections 16 to 20 and 23 broadly and liberally. 126 It seems clear, in view of
the value system on which the Charter is based, that the duality principle,
as reflected in particular in the sections concerning the language rights of
the official language minorities, must take precedence over the principle of
multiculturalism contained in section 27 of the Charter. Equality between
the two “founding peoples” is an old and traditional constitutional principle,
whereas protection for collectivities other than the official language minor-
ities was not enshrined in the Constitution until the enactment of the Charter
in 1982. Furthermore, whereas the language rights of the English and French
minorities are the subject of numerous precise and detailed provisions in
the Charter, the principle of multiculturalism appears only in section 27,
which is merely an interpretative provision. 127 History shows, however, that
Canadian courts allow themselves considerable latitude in applying and
interpreting the rights of minorities. Depending on the facts of the case, the
judiciary has been willing to expand these rights considerably or to limit
’25For numerous examples of legal provisions which give certain minorities special status
and consequently establish a difference in treatment between the minority and the majority,
see Van Dyke, “Human Rights and the Rights of Groups”, supra, note 114 at 729ff. See also
G. Turi, Les dispositions juridico-constitutionnelles de 147 tats en matitre de politique lin-
guistique (Quebec: International Center for Research on Bilingualism, 1977); Verdoodt, supra,
note 8; Capotorti, supra, note 3 at 57ff. In all these instances, the collective rights of the
minorities override or limit the individual right to equality and non-discrimination.
126See supra, notes 100-2 and accompanying text.
127See Magnet, supra, note 51 at 175:
The duality theory signifies that official-language minorities are not like other mi-
norities. The constitution grants special and additional protection to them with
respect to those areas of the constitution that reflect duality. Ethnic minorities will
take the point hard, but the thesis of our new constitution is that, with respect to
the language of government jobs, government services, religious instruction, schools
and culture, anglophone and francophone minorities stand in a preferred position.
The reason is wholly political. It is an attempt to forge a working reconciliation
between Quebec and the rest of Canada.
However, the author adds, supra: “Canadian duality is circumscribed. Beyond its limits, mul-
ticulturalism rises supreme as the interpretational inspiration of the Charter.” See also Tar-
nopolsky, supra, note 31 at 441-2.
REVUE DE DROIT DE McGILL
[Vol. 31
and restrict them to the point of insignificance. 28 We can only hope that
the future attitude of the courts will be more consistent and, at the very
least, that the language provisions of the Charter will be evenly interpreted
with respect to Canada’s official language minorities.
’28See A. Tremblay, “L’interpr6tation des dispositions constitutionnelles relatives aux droits
linguistiques” (1983) 13 Man. L.J. 651 at 652-3 and 661-2.
